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Bieber, Usher and the Fourth Circuit Dancing About Architecture

On a certain level, the June 18 decision from the Fourth Circuit in Copeland v. Bieber is fairly routine, with only the click-bait of pop star defendants Justin Bieber and Usher setting the case apart from any other copyright infringement case involving music. However, since this is an appellate decision, unlike the jury verdict in the Blurred Lines case which involved far more ink spilling and hand wringing, one might think there would be some precedential value here.

As we’ll see, this precedential value is somewhat limited as the Court merely reversed the granting of defendants’ motion to dismiss and remanded the case back to the trial court. However, the case does provide a primer as to what needs to be proved in a copyright infringement action involving music as well one in the limitations of trying to describe distinctions in two different songs.

Plaintiff Copeland alleges that Bieber and Usher infringed plaintiff’s song, entitled Somebody to Love in three different versions of their song, also called Somebody to Love. Absent direct proof of copying, a plaintiff must prove defendant(s) had access to his work and that the allegedly infringing work is “substantially similar” to plaintiff’s work. Defendants did not deny access to plaintiff’s song – only that their work and his were not “substantially similar.”

Here’s where the fun begins. To analyze whether there’s substantial similarity between the two works, the Court actually considers two different types of similarity: intrinsic similarity and extrinsic similarity. “Intrinsic similarity” is whether the intended audience, here the general public, taking into account all elements of the work (including non-copyrightable ones such as the song’s title or “feel”) could reasonably determine that the two songs in question are “substantially similar.”

On the other hand, “extrinsic similarity” purports to be an objective view of the original elements (and only the original elements, i.e., the copyrightable expression) in the two works. In other words, this is where two experts go to battle by picking apart specific original components of the two songs (such as the melody and lyrics) in a process the Court referred to as “analytic dissection.” (Parenthetically, despite plenty of analytic dissection by two highly qualified experts in the Blurred Lines case, the jury – and the popular press – seemed to focus far more on intrinsic, rather than extrinsic similarities.)

The Fourth Circuit undertook a de novo review as to whether a reasonable jury, taking into account the “total concept and feel” (which, again, may include both copyrightable and non-copyrightable elements), could find sufficient “intrinsic” similarity to support a finding of infringement. The Court started by listening to all four songs (plaintiff’s and the three versions of defendants’). The Court treated the three versions of defendants’ song as one: “By the unscientific intrinsic standard, the three Bieber and Usher songs are not just substantially similar to one another; they are the same.”

The Court first noted that although plaintiff’s song and defendants’ were in different genres (“the Copeland song is squarely within the R&B subgenre, while the Bieber and Usher songs would be labeled dance pop, perhaps with hints of electronic”), such differences in feel are not dispositive on the issue of substantial similarity:

For if a difference in genre were enough by itself to preclude intrinsic similarity, then nothing would prevent someone from translating, say, the Beatles’ songbook into a different genre, and then profiting from an unlicensed reggae or heavy metal version of “Hey Jude” on the ground that it is different in “concept and feel” than the original.

Fair enough. But what was the “intrinsic” similarity” the Fourth Circuit found which required reversal? The Court focused on similarities in the chorus or “hook” of both songs, which is typically the most important – and most repeated – part of any song. The Court then noted certain substantial similarities, in addition to the use of the uncopyrightable element of the title in the chorus:

It is not simply that both choruses contain the lyric “somebody to love”; it is that the lyric is delivered in what seems to be an almost identical rhythm and a strikingly similar melody. To us, it sounds as though there are a couple of points in the respective chorus melodies where the Bieber and Usher songs go up a note and the Copeland song goes down a note, or vice versa. In our view, however, a reasonable jury could find that these small variations would not prevent a member of the general public from hearing substantial similarity…. In both the Copeland song and the Bieber and Usher songs, the singing of the titular lyric is an anthemic, sing-along moment, delivered at high volume and pitch.

That’s pretty much the extent of the analysis, folks. Without the ability to hear, as the Court did, plaintiff’s and defendants’ songs side by side, how is this at all helpful? As anyone who’s clicked on my bio knows, I studied music in college, have represented composers and songwriters of various stripes and have done a fair amount of songwriting myself. And I can’t make much sense of the Court’s musical descriptions – and I doubt most other practitioners would find much guidance here, either.

In copyright cases involving visual works, courts routinely include pictures of the works in question, either directly in the text of the opinion or in an appendix. In this digital age, there’s no reason not to do the same with musical works, such as having a link to recordings on YouTube, SoundCloud, or the parties’ web sites. The Court, as the Supreme Court does with its summary syllabus, can include an appropriate disclaimer. Perhaps then these cases wouldn’t reflect the oft-quoted quip (that may have originated with Martin Mull) that “writing about music is like dancing about architecture.”

So what’s the takeaway here? For practitioners, if there’s any similarity at all in the “hook” in two songs, especially if they both include the title phrase, a plaintiff is likely to survive a motion to dismiss. That’s a boon for litigators and a bane for pop stars. Of course, here we can expect Bieber, Usher & Co. to move for summary judgment after discovery.

And finally, it’s nice to see law clerks in a Circuit other than the Second and Ninth (and at least regarding music, the Sixth), having some fun with a high profile infringement case.

Happy Birthday, You’re Sued!

The mere filing of a copyright case doesn’t usually make a major splash in the media but when it involves the most performed song in the world, even The New York Times takes notice.  Apparently, filmmaker, Jennifer Nelson, was making a documentary about the song, “Happy Birthday to You” and didn’t like the idea that Warner/Chappell Music insisted on her taking a $1500 license to use the song in the film as she – and probably most people – think it’s in the public domain.  So yesterday, Ms. Nelson filed a birthday suit of sorts: an action in federal court seeking a declaratory judgment that the song is, in fact, in the public domain and no permission is needed to use it.

So, in little more than the time it takes to sing the song, I’m going to use it as a way to review a few basic copyright law principles that are sometimes misunderstood. Let the questions begin!

What is the public domain? The public domain is the body of works, music, novels, plays, texts, etc., that is no longer (or never was) protected by copyright and is therefore free for anyone to use or adapt.

When is a song in the public domain? As they say in Facebook status land, “it’s complicated.”  For songs written since 1978, a U.S. copyright lasts for the life of the author (or last surviving author if there’s more than one) plus seventy years. If there’s no author, such as a work-for-hire, the term is 95 years. For older works, the U.S. used to have a system of an initial term and then the copyright had to be renewed for, you guessed it, the “renewal term.” For these older copyrights, the initial term was 28 years and the renewal term, through various extensions, was increased to 67 years, for a total of 95 years.  There’s more to it than this, but basically, if a work was written prior to 1923, it’s most likely in the public domain here. Maybe you’re thinking that’s an awfully long time when the Constitution says that copyrights are supposed to be “for limited times.” Larry Lessig thought so when he challenged the 1998 Sonny Bono Copyright Term Extension Act but the U.S. Supreme Court strongly disagreed.

Do I need to get a license to sing “Happy Birthday to You” to my kid at my backyard barbecue? Even assuming the song is still under copyright – and as we’ll soon see that’s a big assumption – the answer is still “no.” U.S. Copyright law gives copyright owners a certain bundle of rights. Among them is the exclusive right to authorize “public performances.” A backyard barbecue, a birthday party in your basement and most other gatherings among “a normal circle of a family and its social acquaintances” is a private performance for which no permission is needed.

What if I sing the song at a gig or at a party of 500 of my closest friends and acquaintances? You’re probably safe to sing the song – or any other copyrighted song. Most public venues where music is performed (concert and catering halls, clubs and stadiums) or broadcast (TV and radio stations) have licenses from “performing rights organizations” such as ASCAP, BMI and SESAC. These companies issue “blanket” licenses to venues and broadcasters (and web sites, too) which allow the licensee to perform all the works in their respective repertories as much as they want.

Why would a filmmaker need a license? The permission that Warner/Chappell sought from Ms. Nelson for her film is known as a “synchronization” or “synch” license because the user is synchronizing music to picture. Whenever a pre-existing copyrighted song is used in any audio-visual work, such as a film, TV show, TV ad or videogame, a synchronization license is required from the copyright owner, usually a music publisher. If you’re using pre-recorded music, then you need permission from both the music publisher of the song and the copyright owner of the recording, typically a record label.

What if I post a video of my kid dancing to a Justin Bieber song? Putting aside issues of taste, technically, you’d need synch licenses from the music publisher(s) of the song and from The Bieb’s label although the actual performance of the video may be covered if the site has licenses from the performing rights organizations. As a practical matter, unless your home video is generating millions of views or you’re selling truckloads of DVDs it’s unlikely that anyone will come after you for a technical violation.

So, is “Happy Birthday to You” in the public domain? That’s for the court to decide, but if the facts are as alleged in the complaint and as cited in the  news reports and elsewhere, it seems that the song would be “PD” as we music types say.  The melody is said to come from a song called “Good Morning to All” written in 1893 and, the combination of music and lyrics is said to have appeared in print in 1912, possibly earlier. By my reckoning, if these are the facts, both 1912 and 1893 are prior to 1923. At least one legal scholar, Richard Brauneis, has written a 68-page article (with 320 footnotes!) in which he concludes that the song is in the public domain.

How can Warner / Chappell claim the song is still under copyright? Again, the facts will play out in the lawsuit, but it seems that W/C has a 1935 copyright registration, crediting different writers as the creators of the song. The complaint alleges that this registration is for a piano /vocal arrangement of the song.  Another of the things in the “bundle of rights” a copyright owner gets is the right to make a “derivative work” of the underlying work, such as an arrangement or adaptation. Turning a novel into a film constitutes making a derivative work, which is why the novelist gets paid when the film is made.

For example, the song “Simple Gifts” is a Shaker hymn from the nineteenth century.  Most people know it from Aaron Copland’s arrangement of the tune in his ballet, “Appalachian Spring.” As the original song is PD, anyone can perform the original melody and lyrics or make their own arrangement. But, if you want to use Mr. Copland’s treatment of the work you’ll need permission from Copland’s publisher, Boosey & Hawkes.  So, if the underlying song, “Happy Birthday to You” turns out to be in the public domain, anyone can use it and make their own arrangement of it, as long as they don’t use any particular copyrighted arrangement of the work, such as ones owned by Warner / Chappell.  And, of course, you can write a new song, with your own melody and lyrics, and call it “Happy Birthday to You” as titles are not copyrightable.