Good morning and welcome to everybody. Thank you, Quimbee, for having us. My name is Ben Halperin. I'm a partner at the law firm Cowan, DeBaetes, Abrahams and Sheppard. And with me is Scott Sholder, also a partner at CDAS, co-chair of the litigation practice. Ben and I are both litigators in the copyright and entertainment space, and we do a good amount of music work as well. We are thrilled to be here this morning talking to you, and we're going to talk to you about recent developments in music copyright law, including some notable interesting cases involving interesting facts and theories, and music, including music theory. We're also talk to you a little bit about sampling and how to defend. If you're if you're sued in a sampling case. And finally, we'll we'll close with some with an explanation of how music licensing and the royalty streams work, which is confusing to say the least. We'll do that at a high level, so that could fill up an entire textbook or multiple podcasts in and of itself. So we'll try to give you a high level overview, just to give you an idea of how things flow and, you know, tell you to go off and study more if you want. And maybe we'll do a sequel later. Everything. Music. Copyright law is so interesting and there's so much cool stuff. And the infringement cases are really exciting. And I don't think anybody gets into music copyright law thinking like, man, I just can't wait to learn about these very, very technical royalty streams involving different types of copyrights and various percentages, splits, a special kind of person. Yeah. All right. So let's let's move on. So. Oh so we just introduced ourselves without showing you the pictures. But here we are again. We recently performed at the LA rocks event in in New York City, where we played a number of 90s rock songs, and it was totally awesome. There were some pictures of us from that great event, raised a ton of money for for charities. So music infringement litigation can involve any number of of issues in music, litigation can involve any number of issues, including contractual stuff and royalty disputes. But we're going to talk about some cases involving allegations of substantial similarity. So this is when a musician plaintiff sues a musician defendant, alleging that the defendant's song is substantially similar to the plaintiff's song. And as we'll see, the cases can involve that the songs are substantially similar because they have similar chord progressions or similar melodies or similar lyrics, or a combination of all of that. Cases also involve sampling, where the defendant has actually taken the plaintiff's recording and used it in the defendant's recording. There are special issues that that come up in sampling cases to start with substantial similarity. This involves an analysis of whether the works at issue are substantially similar. We'll talk about the test for this in a moment. Traditionally, in copyright cases, substantial similarity is a fact issue that's left for the jury. But as we'll see, courts in fact commonly decide that either on motions to dismiss or motions for summary judgment, that is because courts can conclude based on listening to the songs at issue, or sometimes considering the sheet music, depending on the particular one. When the recording came out, courts can conclude that no reasonable jury could find the song substantially similar, and that's a term of art that we're going to get into that differs by jurisdiction substantially. Similar just doesn't just mean that they sound alike or that they have similar notes, or it's a very specific copyright term. That is, it's malleable in terms of how it's applied in different contexts. And in music is different. It's different from literature and it's, you know, different analysis from visual arts. So this is kind of a very specific area. And obviously the bigger the hit, the more fertile ground there is to litigate. And a lot of times the litigation ends up being over whether certain aspects of the song are protectable to begin with, or whether they're just stock elements of certain genres of music that can't be protected by anybody. Absolutely. And as with any litigation, I mean, nobody wants to sue a judgment proof defendant. So you see, these cases when very popular songs that have made a lot of money are at issue. So you'll see plaintiffs who have claimed to write a similar song or think they deserve a writing credit on that song. They come out of the woodworks and Sue. So, Scott, why don't you tell us about the test that different circuits apply for substantial similarity? Yeah. So like I said a minute ago, the test differs depending on where you sue. And the reason we have the Ninth Circuit and the Second circuit up here is because those are kind of the two most common places for, for music cases to have. And obviously there there's infringement in, you know, in Nashville and in Chicago and, you know, in different major cities where where musicians can be found. Florida, Georgia, we'll see an awesome case from the Northern District of Illinois later in this presentation. Yeah, but we focus on the ninth and the second circuit just because these are the two most common. The Ninth Circuit, you know, being encompassing California and the Second Circuit encompassing New York, these are the most common places. You'll see these cases. So the Ninth Circuit test for substantial similarity is is different from the second circuit. It's two parts. So it's extrinsic and intrinsic tests. So part one the extrinsic test involves the comparison of objective similarities of specific expressive elements of the two works. So protection protectable expression. You can only sue for infringement of protectable expression not stock elements genres, general building blocks of music, things that have been used over and over and over again as we'll see. Right. And so at the extrinsic test, typically expert witnesses are used to distinguish between what is protected and unprotected. So kind of filtering out the conceptual high level ideas in musical building blocks from what is actually expression that is kind of original to, to the artist. So if you get past that stage and sometimes that can be determined at summary judgment, then the second part, the intrinsic test for similarity of the expression that's filtered out from the non expressive elements. That's from the standpoint of the ordinary reasonable observer. And you don't deal with experts there. So this is almost always a jury question at least in the Ninth circuit. So you can get to extrinsic similarity before you get to a jury. But it's relatively uncommon for courts to decide intrinsic similarity in the Ninth Circuit because it's just such a fact. Specific question. On the other hand, in the Second Circuit, it's a there's no two step analysis here. And typically experts aren't used unless there's some highly technical aspect that, you know, a lay jury or a judge couldn't understand, which does happen in music, actually. You'll see them in music cases sometimes, at least in the second circuit, but not other types of infringement cases involving, you know, art or books necessarily. But but I have seen them come up in, I think, the Sheeran case that we'll talk about had them and had experts. Yeah. So in the second circuit, you're looking at whether a plaintiff, you know, whether what the defendant took from the plaintiff plaintiff's work is what would normally be pleasing to the to the ears of lay listeners. And so like it's more of a reasonable person, you know. Normal everyday music listener type test. Would this person think that what was taken, that that expression was taken from the plaintiff's work and used in the defendant's work, as opposed to, is this just the kind of thing in music that is needed in order to make it sound good, and to to make a pleasing song or a song that's commercially viable? Um, so, you know, going into the second part of this quote, when the song's aesthetic appeal is due largely to unprotectable elements, then you, the court sometimes will go into this more discerning listener test, ignoring the aspects of the unprotectable works and looking deeper into whether what was copied was was wrongful. So there is a kind of a it's not like step one. Step two. It's kind of like step one and step one a if necessary. But it's pretty, you know, the result is kind of similar to the Ninth Circuit approach. They just do it in slightly different order or slightly different procedure. But you're still kind of filtering out things like common chord progressions or common melodies or things in the public domain. Yeah, it's much more focused on the on the intrinsic. It's almost like the intrinsic test it a little bit modified. So those are kind of the major differences. And really the biggest thing we see is the is the experts at this extrinsic analysis at the summary judgment stage. So those are the big the big differences between the two tests. Anecdotally, just based on my experience, I wonder if perhaps ninth circuit courts are more likely to use experts, but less likely to decide infringement on emotion and more likely to let it get to a jury, whereas second circuit courts are less likely to use experts, but also more likely to grant a motion to dismiss or summary judgment. I think the first part of that is definitely right. I think in the Ninth Circuit, it's very difficult to to get a decision on intrinsic similarity on a motion in the second circuit. I don't know the statistics, but I would imagine that there are more decisions that a court can say, look, looking at this from the perspective of a lay listener, I am the judge. I'm not a, you know, musicologist. And I can tell that, you know, A, B, and C, so it's kind of like by partitioning out the expert part in the Ninth Circuit, that sort of leaves courts boxed in to being like, well, we've done this whole expert analysis, but now there's this intrinsic test which is really about ordinary observers. So I have to let that go to the jury. But because the court kind of does more of it itself in the Second Circuit, it's more likely to to just look at the issue and decide whether a reasonable listener could find the songs substantially similar. Interesting topic for further scholarship. Certainly. Right? For sure. All right. So why don't we talk about some cases here. The most recent famous music infringement case is the Griffin versus Ed Sheeran case, involving the songs Thinking Out Loud by Ed Sheeran and Marvin Gaye's Let's Get It On. I imagine that a lot of you are familiar with. I'm very familiar with these songs. They do not need a lot of introduction. Generally, the allegation was that the songs were substantially similar because the chord progressions were similar. They allegedly both used a what's called a one minor, 345 chord progression. Those numbers stand for the steps in the scale. So for example, if you're talking about the key of C, and I don't think either of these songs are in the key of C, one would be C minor, three would be E minor. Because in a C scale the notes go C, D, E, F, G, A, B, c, so minor three would be an E minor four. You'll see in the slide the Roman numerals. The way musicians annotate this is capital letters means major and minor means lowercase letters means minor. So four is major. So we have major C chord, minor E minor chord, which is the third step, and then four, which is F the next one, and then major G chord. So the allegations and again I was just using the key of C as an example. But these are these are in different keys I think thinking out loud is actually in D. So the allegation was that both songs used the same chord progression. And I think also that they both played the chord progression using the same rhythm. Why don't we hear them really quick side by side? Don't work like they used to before. And I can't sweep you off of your feet. Will your mouth still remember the taste of my love? Or will your eyes still smile from your cheeks? Darling, I've been really trying, baby. Trying to hold back the feeling for so long. And baby my heart could still fall as hard at 23. I'm gonna cut it off. So if you listen to that. And you can of course listen to the entire songs, I think one thing that'll jump out is that the vocal melodies, you know, the notes that the the singers are singing are not similar at all. And the lyrics are obviously very different, really. The alleged similarity involved this chord progression and the rhythm at which the chords were played. And the general defense with this was these are common chords that lots of different songs have used over time. Nobody owns a monopoly on a one, two, three, four, five chord progression and also and or that rhythm where the second chord is anticipated. And, you know, the truth is, a lot of different songs have used this chord progression over time. Scott, can you think of any examples? There are dozens as far as I as far as I know. You know, I think things like, have I told you lately that I love you, big girls don't cry, crocodile rock, I feel fine. This this chord progression goes back many, many years. Even before even before the the, the Marvin Gaye song came out and that that came out during trial, I believe. And I don't recall whether I know Ed Sheeran did some on stand performance during the during the trial, whether whether it was a medley of that, I don't remember. I think he did that on The Howard Stern Show. Maybe he did that afterwards, showing, you know, the same chord progression in multiple songs. And just and just for the record, I feel like it might have come out at the trial that it wasn't exactly that chord progression. Anyway. There was a there was something that was kind of transposed. Um, yeah, I can jump in on that actually, because as a technical music nerd element, in fact, the chord progressions in the two songs are not exactly the same. In the Marvin Gaye song, the second chord is the minor third of the scale, so it's one minor three, four, five. That's the traditional chord progression that's up on the slide. The Ed Sheeran song is a little different. The second chord is actually what's called an inversion of the first chord. So but it has the third of the scale in the bass note. So, so whereas Marvin Gaye is one minor three, four, five, from a technical music standpoint, the Ed Sheeran song is one one with a three base, 4 or 5, 1 or 1 first inversion, 4 or 5. So not identical. Yeah. In any event, the judge did not decide this on summary judgment or a motion to dismiss. He let it get to trial, where Ed Sheeran testified did some sort of performance that the we don't recall what it was and prevailed. And he said after the trial, these chords are common building blocks which were used to create music long before Let's Get It On was written and will be used to create music long after we are all gone. And what if I'd done what you're accusing me of doing? I'd be quite an idiot to stand on a stage in front of 20,000 people and do that. And this. So this case is long running it. And the reason that the citation is from 2019 is because that's when the summary judgment decision came down. I think the court the case was actually filed in 2017. Yeah. And then trial trial was last year. Yeah. So it went it went a long time. Yeah. And then after trial there was actually a separate lawsuit. We'll just go very quickly on this one this year. Trials this year. Yeah I'm sorry. May of this year. May of this year. Um, there was a second lawsuit filed by a different plaintiff alleging similarity of the same songs. This was a royalty plaintiff before the same judge. And here, after the first one, the jury decided for Ed Sheeran. Now, the the judge went back and reconsidered denying summary judgment in this case and held issued an opinion that basically held the same as what the jury found. The chords are too common for protection as as the court said, it is an unassailable reality that the chord progression and harmonic rhythm and let's get it on are so commonplace in isolation and in combination that to protect their combination would give. Let's get it on an impermissible monopoly over a basic musical building block. Yeah. And here he says that the chord progression was used at least 29 times before let's get it on, and 23 times before thinking out loud. Yeah. And that's in all those examples are set forth in the expert reports. So you can go on to Pacer and hold them and take a look. I think this case is up on appeal. Interesting. All right. Let's move on to another major case. Scott, why don't you talk to us about LED Zeppelin? Yes. More versus LED Zeppelin from a few years ago in the Ninth Circuit. Skidmore, I believe, was a trustee of one of the the late band members of a band called God is a band spirit or Taurus? Is the song spirit or Taurus? I can never get. I think the band is spirit. The song is Taurus Spirits. Taurus. Yeah, yeah. So this band, which I guess either predated LED Zeppelin or was around like, you know, right around the same time as LED Zeppelin was starting to get popular. The representative of one of the former, or one of the late members of that group sued for copyright infringement, alleging that the very famous intro to stairway to Heaven was infringed on Spirit's intro in the song Taurus. Um, so looking at the compositions and now looking at the compositions and not the sound recording, because these songs predate 1972, which is when sound recordings first became protected under copyright law. So for technical reasons, nobody was actually allowed to listen to the sound recordings to to my knowledge, there were sheet music, lead sheets that kind of that kind of thing that had to be analyzed. And that's probably something you really do need an expert witness for, right? Because, I mean, I'm a musician and I struggle with sheet music, so I can't imagine jurors, you know, average juror off the street being able to read complicated sheet music and be like, well, that looks similar, or sound that will sound similar, even a lead sheet, which is the kind of the shorthand, you know, one pager that's submitted to the Copyright Office or was submitted to the Copyright Office back in the day as as deposit copies is not necessarily decipherable by a normal person. So so looking at those compositions, the jury jury in this case, the district court level, found no substantial similarity, despite a finding that LED Zeppelin had had access to this song, whether through touring together or radio play. I don't think there was an allegation that they toured together. Yeah. Um, but those shared elements I believe in, Ben can correct me if I'm wrong. I think what it's called a descending chromatic scale. Yeah. Nailed it. So. All right. Awesome. So those shared elements were not original enough to be protectable. Now, a panel of the Ninth Circuit overturned that verdict, finding that the lower court had failed to instruct the jury that the selection, arrangement and coordination of unprotectable elements could itself be copyrightable. Now there was a petition to rehear en banc. And then so the full Ninth Circuit reheard the case, vacated the panel's decision and reinstated the verdict, finding that, number one, it was correct to only consider the sheet music, and that the extrinsic test for copyright infringement that I referenced earlier was not satisfied. So this descending chromatic scale was not inherently original and not protectable. Just as a side note, there was this thing called the inverse ratio rule previously in the Ninth Circuit, where the more access you could show, the less substantial similarity you had to show. And the Ninth Circuit did away with that abrogated gone. So none of that weird, you know, balancing going on anymore. So let's listen to the two to the two songs. While federal courts are bound by the federal Rules of Evidence, we giving a presentation or not. So let's listen to this. Here's Taurus. It's a very. Ethereal organ sound, right? You may have heard this song before. Almost feels like the reverse of it. This one is. I guess they're both descending, but it doesn't sound that way to me. No. They're descending. Yeah. I mean, well, it's kind of. It's kind of parts of it go up and parts of it go down, you know. But I mean, to my ear, these sound similar. But I think, you know, I think the court got it right. It's the sort of thing is not protected by copyright. And the band spirit does not have a monopoly on a descending chromatic scale. All right. So yeah, I played this clip at a at a conference a few weeks ago, and I got a lot of head shaking from people in the audience saying like, of course that sounds that sounds the same. And they were kind of, uh, I wouldn't say appalled, but surprised that that there was no finding of infringement here because they really do sound similar. But it doesn't matter. The similarities don't matter if it's not protectable to begin with. So, you know, if this piece of the song is not in and of itself copyrightable, then you can't infringe it. So yeah. And if so, if you're defending one of these cases, your first argument is, you know, that's not protectable. Let's talk about a case where perhaps things even sounded more similar. This is a recent case against Katy Perry, where a rapper who had created a song that called Joyful Noise, which is very hard to say joyful Noise, so I'll probably mess that up, alleged that an eight note ostinato in Katy Perry's song Dark Horse was substantially similar in ostinato is basically a melody that keeps repeating. It kind of derives, or it's similar to the word obstinate. So what's the difference between a melody and an ostinato? A melody is just a run of notes, up or down a scale, or not involving a scale ostinato. Same thing, but it repeats over and over again in the song. Is it shorter? Is it typically a shorter phrase? I think an asana, yeah, because there's not really a time limit on a melody. Right? So I mean, I guess could you have like a really, really long ostinato that's like four minutes long and it just repeats 100 times in like a three hour song, I guess. So I guess you could that would probably be pretty bad. Yeah. But yeah, I think typically Ostinatos would be would be shorter. So this one went to trial and the jury found infringement in a awarded $2.8 million. Before we get to what the court did with that, why don't we listen to the Katy Perry version here? So here you go. Here's Katy Perry's Dark Horse. Oh, no. So this isn't actually right here is just an initial hook for the part that was at issue is coming up. Oh. Here we go. You you. You. So it's this like synth string part at the end. Like that's going to. Bop bop bop bop bop. Bop bop. Bop. And everything. And we don't have a recording of Joyful Noise. There's not one like, readily available. But I think you can go on YouTube and find one kind of going back to the theme of of plaintiffs with less successful songs coming out of the woodworks to sue very successful artists. But looking at the sheet music, even if you don't read music, you can see that the last two lines of this graphic look very similar to you, and the rhythm is identical. It's all a descending scale, and there's only really two notes that are different, which are highlighted in um, uh, highlighted in blue and red. So the court overturned the verdict and granted judgment as a matter of law and found that the ostinato failed the Ninth Circuit's extrinsic test because it was basically too simple and common to be protected by copyright. And this again shows that shorter, isolated musical phrases often do not warrant copyright protection and won't, even if they sound similar, won't help a plaintiff prevail on its claim. Let's go to Marvin Gaye. Yeah. Again, another Marvin Gaye case. So this it's interesting. They procedurally, the Ed Sheeran cases were not brought by direct heirs of Marvin Gaye. They were co heirs of the co-writers that had royalty interests in it. This one is a, you know, actual heirs of Marvin Gaye. So they claimed that Pharrell Williams, Robin Thicke's hit song Blurred Lines from back several years ago was substantially similar to Marvin Gaye's Got to Give It Up. So this is an interesting, again, an interesting procedural issue. The Gaye estate reached out to Williams and Thicke, I guess, accused them of of copyright infringement, and Williams and Thicke ran to court, brought a declaratory judgment action. So they were the targets of the infringement accusation, but they became the declaratory judgment plaintiffs asking for a ruling of Non-infringement. And that's something you'll see in copyright cases with some regularity, is that a defendant will go to court first and try to seek a declaration of non-infringement. Yeah, it's a bit it's aggressive. It's definitely an aggressive move and it's risky. But yes, it certainly is not uncommon. And you can you can pick your court. That's. Yeah. That's one advantage. Yeah. For people who want to be in the driver's seat. But you know this case didn't work out that well for Williams and Thicke in the end, ultimately that it went to trial. There were all kinds of dueling music experts. There was salacious deposition testimony, complex music theory issues. And ultimately, the jury awarded the Gaye estate $7.5 million, which was later reduced. So this was upheld by the Ninth Circuit. It's really hard to overturn a jury verdict. Yeah, that's what it was. And I think there was a procedural issue where they didn't move for judgment as a matter of law or they didn't they didn't move at it was like a they didn't do like a 50 a motion. So they couldn't make a 50 B motion. So then you're just left with, you know, extreme discretion to a jury verdict. Cipro flashbacks. Yeah. So the song's melody, harmony and rhythm are not very similar. And we'll play you the clips in a minute, but you'll notice that the bass line, the rhythm, the groove, the drums, the kind of kind of the overall vibe of the song sound a little bit alike. And that drew a lot of criticism and kind of worry from the music community thinking, well, if if I'm inspired by somebody in a particular genre and I want to have a similar groove in my song, groove is not protectable, genre is not protectable, you know, again, musical building blocks, as we've been talking about, are not protectable. So how am I going to go and create and not get sued if I because all art is derived from prior prior works and is drawn from inspiration. And so there's a lot of worry here. And I think some of that worry I think, has been quelled just because of the cases we just went through, which it seems like if there's anything there's been a like perhaps a judicial backlash to this decision rather than seeing a lot more, you know, plaintiff verdicts. It's it's led to the opposite. Yeah. So so we'll we'll play you the clip. And so one thing you'll notice, as Scott alluded to, is whereas the first several cases we talked to, we talked about involves allegedly similar chord progressions or melodies or ostinatos. This is one that's all about rhythm and groove, whereas a melody involves the notes that one is playing. Rhythm involves the time. So melody is about notes, rhythm is about time, and then groove is kind of related to rhythm, but it has to do with the way the song sort of progresses moving forward, and the way the various instruments and components of the song sit together as as it chugs along. So let's hear it here. Here is Blurred Lines. It's a great groove. Yeah, I love the bassline. Yeah, so so sparse. Hey hey hey hey oh hey hey hey. So it's a. One, two, a five. And here's Marvin Gaye. So the drum beats are similar. I think one thing that sounds especially similar to me is, like, kind of a crowd noise and the talking, and I really wonder, okay, now he was close. I really wonder if this would have reached a different because now we're talking about what did a jury think? So I mean, you could see how just listen to that and not instructed on that. You can't consider common groove, you know. And I'm not even sure that they could listen to it because you're right. You're right. Again this is another pre 1972 song. But but the musicologists you know it's harder for a jury to, to understand in the abstract. But I believe there was some I might be conflating this with the Ed Sheeran case, but there might have been some kind of Midi type. Demos. Of what? Of what? Things that. No, that was that was the Ed. In case that there are ways to to express what it sounds like without playing the sound recording. Whether that happened in this jury trial, I'm not sure, but but that's why you needed the musicologists is because you couldn't really listen to it. But but I'm fairly confident that that crowd noise issue came up. There's a lot. It's that background that sounds that's that's the part that makes it. Because if it's just a drumbeat, I don't know. I mean, there you go. This was a very maligned decision. It made a lot of musicians and creators and record labels worry about where all this was going. I mean, I think that shows that when you the dangers of kind of experts coming in and representing stuff in a certain way and you can get very far afield from what the works themselves are. Yeah. Looking at that drumbeat and the in the groove on paper is that you can't really you can't account for not hearing it. And so you never know where it's going to turn out. So, so a worrying decision. But, you know, at least a lot of us as musicians and, and attorneys, you know, we think that the Ed Sheeran decision and the LED Zeppelin decision have gone a long way to quell some fears here. Yeah. All right. So there have hip hop obviously being one of the most common and popular forms of music in the world is has become fertile ground for infringement litigations. While it was a slow start of the year in hip hop infringement litigations, just recently, in August and September of 2023, a couple of months ago, there were three quick decisions from district courts two in New York, one in the Northern District of Illinois, variously dismissing and granting summary judgment on hip hop infringement claims. So we're going to talk to you a little bit about those. They're pretty interesting. The first one is the Northern Illinois case that we just talked about, that we alluded to at the beginning, Robinson versus Wilburn. In this case, the rapper gutta alleged that the rapper future song, when I Think About It, infringed the song when you think about it. And this was a pure lyrical infringement case. And you can see the clip on the slide here is taken directly from a table in the first amended complaint. And it shows that in the song's two choruses, I think you have future song on the left. Each line ends with the phrase when I think about it, got $1 million in jewelry. When I think about it, got more guns than terrorists when I think about it. And then in the allegedly infringed song On the right, my whole life I've been keeping it G when you think about it, laying low from the police when you think about it. So it's that kind of similar, very similar phrase ending each line kind of used in a similar way in in the two songs. But the court rejected this and and dismissed the case. It held that even using a similar phrase in the same place does not make the two songs substantially similar, and that's because nobody owns a copyright on the phrase. When I think about it, or when you think about it, there's are common phrases in all of English language separately. In this case, the the court talked about the plaintiff alleged that both songs were similar because they both discussed guns, money, and jewelry. So what are the what are the core have to say about similar songs involving guns, money and jewelry? The court essentially said these are common themes in this genre of music and therefore are senza affair, which basically are common themes, common tropes, common elements in a, in a specific type of art or genre of art. You know, love story, person meets person, fall in love, alien invasion. The mothership comes down to to to earth and beams people like there are things in sci fi and genre. And how about how about police fiction? What's what's something for that? Maybe. Maybe a foot chase or. Yeah, yeah, or a car chase or a hard boiled detective with a with a, you know, a dark past and, you know, chip on his shoulder. Exactly. Yeah. All this stuff, you can't you can't protect that. Those are the building blocks of those types of genres. So, um. Yeah. Yeah. And I just love this case because now we have a federal judicial decision, you know, from August saying guns, money and jewelry or sends affair and hip hop. I just love it. It's great. Hopefully people will be citing this one for a while to come. All right. Here is another recent hip hop case brought by a pro se plaintiff against rappers including Cardi B and Megan Thee Stallion. We are not going to say any of these words, but this alleged lyrical infringement of various words that can't be said on a legal podcast, the most asterisks as I've ever seen. Yeah, it's amazing reading this decision because. So grab em by the blank. It was the name of the plaintiffs song, and that was essentially the part of the allegedly infringed line. I would we have the site on here? I would just read the decision. It's pretty. I find reading a decision like this, and maybe it happens in other instances. But this struck me particularly as a copyright decision, just watching like a federal judge, you know, using formal legal language to describe just, you know, very, very profane rap lyrics. Um, this case also, you know, one of one of the elements of a copyright infringement claim is you have to show that the defendant had access to the plaintiff's work because, you know, you can't copy something if you've never heard it before. A lot of times that's either stipulated for the purpose of a motion or the plaintiff is able to show it. But this is a case where the plaintiff actually could not show access. What the plaintiff alleged was that she had previously prior to this lawsuit. Prior to all this going on, she had been a business partner with one of the defendant's fathers in like, an adult living business. I guess it was housing for single adults or something like this. And then that business relationship dissolved and went to court in her favor. And because of this, the defendant's father was mad about it. And he, you know, created. The scheme to infringe a rap song. Interestingly enough, that it wasn't Cardi B or Megan Thee Stallion. There was like, you know, ten or so defendants in this case. That particular defendant totally disputed that this guy was even his father. I guess they shared a name, but it was like a common name, like Richard Thorpe. And it. So it wasn't even clear that this was his father. But on a motion to dismiss, the court had to accept as true the allegation that this guy was really, really this defendant's father. But in the court nevertheless held that this theory of access was too attenuated to to plausibly plead it, especially when the plaintiff's independent living business seemingly bears no connection to her musical career. You got to think that the judge had a lot of fun with this decision. You can't make this stuff up. Yeah, it's so you can see on the slide what the allegedly infringed phrases are, but the court had that held that they were not original enough. And this is this is here we have the court not just looking to like common language because arguably these are not super common phrases. And like. Generally English, but in hip hop they are. So the money quote is at the bottom. The court had court held. The concept of using blank silhouette as a rhetorical device in a song is neither original nor new, nor unique to plaintiff. So the court dismissed. Here's one more recent hip hop case. Actually not not a lyrical infringement case. And it's got I'm actually interested in your thoughts on this one. So I'll set it up and maybe you can react. So this was brought by another soul musician, Ernie Hines. It was a successful soul musician who made a lot of great music. He alleged that a song by Jay-Z, paper Chase, and a song by Ginuwine, Toe to Toe, infringed the opening guitar riff in his song Help Me Put Out the Flame in My Heart, which we are abbreviating. Pottorff Butturff. So I want to play these because it's it's not super clear in the decision what happened here, but to me, if you listen to these, it actually sounds like this was sampled, but then it's not a case that alleged sampling. Okay. So and all that's issue in this case is this opening guitar if it lasts six seconds. So here we go. Here's the plaintiff's song. Here's first six seconds of. That's it. That's all we're talking about. All right. Cool. Really cool riff. Like, awesome surf style guitar. Yeah. I just want to play that one more time. All right. Cool. All right. And here it is in Jay-Z's. Right. That's what he sounds sampled. Because it's like like that high, high note in the lick. It's like boom, boom, boom, boom. It's like very cut off. It's like, I just feel like the, like to get that exact performance twice would seem kind of remarkable. Like this highlight. It's like cut off the same like. And then in genuine song. Here's that. Yeah. Right. It sounds simple. But this was this was not brought as a sampling case, and it's a sound alike. In some of these cases. You'd be surprised how remarkably similar you can make things sound. There's a Rick Astley case. I don't know where it sits right now, but where somebody used a sound alike of Rick Astley to sing part of Never Gonna Give You Up, and it sounds exactly like his voice, and it's not so I suppose it's possible, but you have to have a really talented musician. I mean, I mean, especially given sampling is a big part of the hip hop genre. So I have to think this is sampled and my, my theory again, it's just not super clear in the, in the decision, but I think it's because it's a pre 1972 sound recording. Oh so, so only the composition. So only the composition. So, so it could very well have been sampled. And there's just no claim because the sound recording wasn't protected yet. Yeah. So anyway, so the court was left with analyzing whether that lick is musically similar, not listening to the sound recordings, just whether the notes on the paper are similar. And it held that it's not one thing. There's this common public domain little piece of music called Mysterio pizzicato, the movie villains theme. You can look that up on YouTube. The the original riff is very similar to that which is public domain. I think I know it, yeah, you'll hear it's a bad guy thing. Um, and then the plaintiff tried to prevail under a theory of fragmented literal similarity, which is a copyright theory that plaintiffs somewhere sometimes use when they allege that something was literally copied. But you have to show that the thing that was copied was quantitatively or qualitatively significant to the plaintiff's work. And here we have a riff that's only the first six seconds of the song, and it was never repeated. All right. So now that we've talked about sampling let's go a little bit deeper on it. And so sampling happens when a defendant uses actually part of the recording that the plaintiff made. But there are some defenses to this. So if you get a sampling case Scott what are what are some arguments you might try. Yeah. I mean I think the two main defenses that that are mounted when it comes to things like sampling and even use of substantially similar, you know, musical compositions used in a different way or a very small bits of it could be subject to a fair use or de minimis use defense. So the fair use defense. And again, it could have an entire seminar on this. But it's it's presented as an affirmative defense. But it's actually an exemption from liability. It's a non-infringing use of a copyrighted work, even though there's no permission. And under section 107 of the Copyright Act, there are four factors purpose and character of the use. The nature of the work that's being that's that's allegedly infringed the amount and substantiality of the work used a portion, amount and substantiality of portion used in relation to the work as a whole, and the effect on the potential market for the value of the copyrighted work. So these four factors are analyzed in pretty much every fair use case. The first and fourth factor tend to be the most important. There's some overlap between them. The second and third are kind of, you know, boxes to check the more creative and less factual a copyrighted work, the more the second factor will weigh in favor of fair use or weigh against against fair use. Sorry. And the amount and substantiality used kind of goes to de minimis use, which we'll talk about in a minute, was the entire work used? Was a small portion of it used. How much are we talking about here? And sampling kind of begs the question of how much of a song are we talking about? Is it a is it a second? Is it five seconds? There's no magic number. Is it 0.028 seconds like in a case we're about to discuss? Yeah, exactly. And and even 0.028 is not necessarily a magic number because I have I've had clients ask me a lot in a number of times. Is there like can I use five seconds of something and is it fair use. No, it's it's there's no such thing as fair using something. It's fair use is not a verb. It is a it's a very gray and fact sensitive analysis. So and not necessarily made clearer by a recent Supreme Court decision. No. The so the reason we have a picture of Prince here is because there's there was a recent Supreme Court decision that came out that was supposed to well, supposed to everybody hoped would clarify what the first factor meant. And there's been a gloss on the first factor for for many years called transformative use. If something is if a work is used for a different purpose or different meaning or message has been added to it, it's been modified. Then under the first factor, you can argue that the first factor weighs in favor of fair use. If it's been transformative, there's, you know, ask two lawyers and you get three opinions on what transformative use means. And the Warhol Andy Warhol Foundation case dealt with really focused more on commerciality or commercial nature of the use. Right. So was the work used for the same purpose, the same commercial purpose? And that tends to weigh against fair use. So they didn't go into really what constitutes new meaning or message in terms of artistic creativity. So that's why Ben said that it didn't really provide all that much help in terms of when you're talking about artistic transformation. But now whenever you see a fair use case, you have to ask what the result be different under the Warhol decision. And yeah, yeah, we can speculate. Here's another defense that that you would commonly see in a sampling case. Yeah. De minimis use. Essentially it boils down to this quote on the right hand side of the slide. The law does not concern itself with trifles. So essentially if you've copied something that is so small in comparison to the the work as in its entirety, it can't legally be considered substantially similar. So you look to and this again is kind of overlaps a bit with the third fair use factor. So you look at the qualitative and quantitative significance of the copied portion in relation to the plaintiff's work as a whole. Now it's interesting in some, some cases, like set dressing cases where you see photographs in the background of a, sometimes it's actually in comparison to the, the defendant. That's not a hard and fast rule that comes from I think Newton and Diamond. So but in music cases you really you look at how much of the original work, the plaintiff's work did you take. Was it quantitatively, how much was it? And was it really important qualitatively? Was it really important to the to the original work? So, um, yeah. Yeah, copying is de minimis only if the average audience would not recognize the appropriation. So this is very, very common defense in sampling cases. Let's see how this played out in a few cases. So here's a case from 2017 against Drake. And the allegation was that Drake had infringed on the plaintiff's copyright by sampling this in his song Pound Cake. Paris Morton music two. Good God almighty. Like back in the old days, you know, years ago, they had A&R men to tell you what to play, how to play it. You know, whether it's disco rock. We just went in the studio and we did it. We had champagne in the studio, of course, you know, compliments of the company. And we just laid back and did it. So we hope you enjoy listening to this album half as much as we enjoy playing it for you, because we had a ball. It's just the best. I love that so much. I want to just hang out with that voice. I want that voice to narrate everything I ever do. It's the best. I love that quote. I can totally understand why Drake sampled it. Um, so the defense in this was fair use, and Drake argued that his use was transformative, and the court agreed. Um, even though the court held that even though Drake used more than half of the of the recording, it was reasonable in proportion to the needs of the case. Yeah. And there was a finding that there was a fundamental alteration of the message of the of the original work, that Jimmy Smith read this book and word piece and that the use, the use was transformative because it, it, it was used for a different purpose. And, you know, again, this it's a very fact sensitive question. What does that actually mean? There was so much argument about this that the Supreme Court during the Warhol arguments, and then we just got no clarity on, on anything related to artistic transformation. And so again, case by case basis. Good God. Here's an interesting case against Nicki Minaj in 2020. Kind of complicated facts. And I want to make sure we get to some of the licensing stuff. So so we'll sort of breeze through it. But what happened was Nicki Minaj wanted to do a remake of a song, and she thought that she was doing just like she wanted to do an experimental remake of a song. The song was called I think, sorry, and but she didn't know at the time that that song that she was doing a remake of was actually a cover of a Tracy Chapman song called baby, Can I Hold You. Eventually she found out and she tried to get Tracy Chapman to grant a license. Reached out to her personally on Twitter, but Tracy Chapman, uh, didn't grant the license. She ended up Nicki Minaj, ended up leaving it off of her album. But she there was a complicated chain of events where she allegedly texted the recording to a DJ in New York and asked him to debut it, but she was going to leave it off her album. Uh, you could see the text on the left. Hey, I got a record I want you to world premiere the week album drops. You'll be the only one with it. I'll have Gene hit you to explain. Keep it on the low. Wait till you see who's on it. Not going on album either. No one will get it. So the DJ got that text and and played the song. And Tracy Chapman sued. And there were a bunch of issues in this case. One of them was involved since it was infringement of a recording like, could you even send this recording like the master version over text message? Like that was an issue. So it just shows that these cases have a lot going on, but it really turned on a fair use. And the court found for Nicki Minaj on that issue. Um, I think one thing that was important was, was an experimental remake. Um, and, you know, the court said it wasn't commercial, but I'm not sure how you can square that with the fact that making music to release to the world is kind of a commercial endeavor. Um, but, you know, I think another thing here that maybe influenced the court, although we'll never know, is that it seems like Nicki Minaj really did try in good faith to get get a license for this one. Yeah, that can cut both ways too, because the plaintiff can allege that, hey, I said no and you did it anyway. That evidence is willfulness. You knew that I didn't want you to do it. True, true. But but yeah, it can be spun both ways. Good lawyers can can spin things both ways. Yeah. It's the commercial versus artistic question is really interesting. It comes up in copyright as well as right of publicity cases. You know, where do you draw the line between art and commerce and is something artistic speech, commercial speech. Is it both oftentimes it can still be artistic speech, even if it's essentially sold to the public. Advertise. You know, fine art is is a commercial endeavor, is often a commercial endeavor, but it is still protected by the First Amendment. So it's an interesting question, and it's not one we can really answer, but food for thought. Here's one more sampling case really illustrating the de minimis defense this involves from 2016. This case involves Madonna's song Vogue, which sampled a oh, I said a 0.28 second recording, but this is actually it's a 0.23 second segment of horns from the plaintiff's song. And this is really subtle. Let's let's see if you can. I'll play it without talking. Let's see if you can even hear it here. All. Right. So you're hearing little bots bop and then bop bop. So that's the alleged infringement. Are those horn hits and play it one more time. I'll say it that. Bop, bop. Nailed it. Um, and this is so subtle that even the plaintiff's musicologist expert could not figure it out. Uh, you'll hear there's a first a what we heard in that that very short clip was a single horn hit, and then later a double horn hit. And the the musicologist first thought that Madonna had sampled both of those sounds. So a single hit and then a double hit, what you actually done was she had sampled just that one hit and then pasted it together with with itself to make a double hit, and the musicologist got that wrong and was corrected in the court. I think rightly observed a highly qualified and trained musician, listened to the recordings with the express aim of discerning which parts of the song had been copied, and he could not do so accurately. An average audience would not do a better job. So among other lessons from this sampling case is prepare your expert. Can you hear it? There it is. All right. So let's I think we have five minutes left. So why don't we briefly at a high level talk about licensing and royalty streams. Yeah this is very very complicated. Just to give you a general idea of you know, we've been talking a lot about about musical compositions and sound recordings and they're different things. There's the foundational concept in music, copyright laws that there are two copyrights in any piece of music. There's the underlying music, the musical composition on on the left here, and then the sound recording on the right, which is the embodiment, the fixation in a in a phonorecord, which is the term of art in the Copyright Act, which can be a, you know, vinyl, CD, MP3 or other sound file of a musical composition as performed by a recording artist. So there's, there's two, two copyrights and they're often owned by different people. So the musical composition, the notes and lyrics are owned by songwriters and often split with music publishers and and are subject to or several exclusive rights under the Copyright Act listed below. And then on the sound recording side, this is usually owned by the record label, and you'll see that there are some differences in the in the exclusive rights. There's no public display because there's nothing to display and there's no public performance. There is a digital public performance, right? But there's no actual public performance, right, for sound recording. So whenever something is played on the radio for, for instance, you know, FM radio or, or broadcast television, um, recording artists and record labels are not paid for that. They are paid for digital public performance, which came later. Certain streaming services and online radio and things like that. Satellite radio. Um, now the composition owners, the songwriters and music publishers are played for for all public paid for all public performances. But the sound recording public performance, right, is much narrower. And so. So if you write the song and recorded your song and your song is used in a TV show, you would get paid for the musical composition but not the recording. So you would get paid for the yeah, for the public performance aspect of that. You would get paid as the songwriter, but not as the recording artist. And the record label wouldn't get paid you. If it's played in a TV show, you'd also get what's called a sync right? A sync royalty that's typically negotiated individually. Because if you're synchronizing music to to video, it's a separate royalty stream. So let's go to the next slide because there's there's a lot of different we'll talk music modernization act real quick is from about five years ago. Um, there a blanket licensing system was created for mechanical licensing. So instead of kind of this burdensome notice of, you know. Case by case kind of individual requests for mechanical licenses, which which basically just means fixing a composition into a mechanical form, like into a record or recording form. It was streamlined. There is now a compulsory license, which and a clearinghouse to kind of field all those requests. I have a question about the second part. So part two, it says it brings pre 1972 sound recordings partially into the federal copyright system and provides federal remedies. So how does this affect like a case like you know, the Marvin Gaye cases where we have pre 1972 sound recordings mean I guess those cases, if they were filed before this statute, would that would be one thing. But yeah, after the fact, I mean you're still so you're still not getting a public performance royalty. So definitely didn't solve that problem. But yeah, on on a, on a going forward basis, I would imagine you could sue for infringement of the sound recording. That's that's a good question. I'd want to look into that. I'm not sure they're the same remedies. So yeah, I mean it comes up for instance in the the Ernie Hines case, which is a very recent case that we talked about how, you know, it seems like it really should have been brought as a sampling case. And the reason the plaintiff lost is they brought it as a musical composition case instead. But I wonder how what, if anything, the music modernization acts impact is on that? Yeah. No, it's a good question. It's not something I had thought about, but I would think that you could then sue for infringement of the sound recordings. But I will look into that, and every once in a while I'll have a good question. Yeah. No, it's a great question. This is a very dense, complicated and long statute, especially title one. Setting up this compulsory licensing system is very complicated. Um, so just giving you letting you know that this exists and it has changed the flow of the royalties to you to some degree. So let's go, let's go. Yeah. So let's talk about the flow of royalties and who can make sense of this. Yeah. This is from the from the copyright office and this, this shows what, what the kind of flow looked like before the Music Modernization Act. So the sound recording side, it's not any different. Right. There are the first row. You've got all the different types of rights, sync rights like I mentioned, syncing things up to, to to video has to be negotiated directly. This is a person to person negotiation. This is not there's no clearinghouse for this reproduction. Distribution and public performance rights for digital interactive services are negotiated directly. Public performance rights for digital non-interactive streaming services are done through sound exchange, which is kind of like the digital public performance version of ASCAP and BMI, which are on the other side, and that covers things like internet and satellite radio that are not interactive. So not Spotify. Um, and then the public performance rights do not pass go, do not collect $200. There's no such thing. I just let me just say I love this because I'm sure somebody I mean, they did a great job putting this together. But I'm sure whoever the copyright office is putting this together is like, I'll just make it simple. I'll make it a nice, easy traffic, and it ends up looking like something that, like Charlie from Always Sunny in Philadelphia, but it's actually this is as simple as it gets, sadly. Like, this is how complicated music licensing is this. So for as complex as it is, it's this is one of the best ones I've, I've seen. So on the musical work side and composition side, you still need to sync sync. You need to sync licenses for a piece of music. Right. So that's a negotiated with publishers directly. Those are always going to be direct negotiations reproduction and distribution of mechanical rights. It used to be covered by the Harry Fox Agency publishers and then statutory notices. And this kind of middle middle column is what's covered by the the Music Modernization Act. Now middle column on the left. Yeah. Middle column on the left. And then for things like we'll get to this in the next slide. But for things like physical goods, CDs, vinyl, things like that still covered by the Harry Fox Agency, which was the mechanical licensing clearinghouse to begin with. And then public performance rights are ASCAP, BMI, cSAC, and global music rights. I think it's global music rights. And as mentioned before, things like traditional media and streaming. On the composition side, you get paid for public performances. Any bar, restaurant place like that, any, any place, that venue that plays music publicly has to have a license, otherwise they're infringing copyrights. So when you go, if you go see a cover band or if you're playing in a cover band at a bar, the cover band doesn't need the license. It's the bar that needs the license for. So it's venue. It's the venues. As it happens, I am performing in a cover band tonight at a bar in our town of Larchmont, New York, and and my band does not have a license. But the bar better. The bar better have it. Well, you wouldn't get in trouble anyway. I don't think you would. All right, go see Ben tonight if you're in Larchmont. Billy and Pete's burger bar. Oh, that's a great place. Yeah. All right. Next. Next to the music and possibly the burgers. Stay for the food. Yeah. So this is what the new mechanical licensing system looks like. I don't really have time to get into it in any depth, but in terms of securing mechanical rights, like if you want to make a, you know, do a cover song or, you know, put a composition into physical form, you're going to go through the mechanical licensing collective, which is which is the entity set up by the Music Modernization Act, which covers interactive streaming, digital downloads, things like that. Again, physical goods are still going to go through through Harry Fox. But and this does not cover sync to video. Correct. So it does not cover if you want to make a cover version of yourself. Singing, you know, singing a Taylor Swift song. Put it on YouTube. Nope. Not covered by this? Nope. You need sunglasses? Yeah. Or you need to just. Or. Yeah. Well, whether the incentive is for anybody to be sued, we don't know. But I think a lot of artists like the publicity of having their songs covered. That's true. But they also get their labels. Well, labels and publishers can can be aggressive when it comes to online uses. There's a case that that I think went up to the Ninth Circuit, where a mother had posted a video of her baby dancing to a Prince song and Prince's label. I forget if it was Universal or Warner or somebody else. Issued a takedown notice and then she issued a counter notice saying it was fair use and this whole thing went up to the Ninth Circuit. And there was a ruling as to, you know, what responsibility the labels, labels and publishers have to engage in a fair use analysis before issuing a DMCA takedown. So it's yeah, there's there's some risk of getting a claim, that's for sure. Last couple slides. Yeah. Just the this is the dealing with the flow of money. So mechanical royalties, public performance royalties and sync royalties all flow differently. And this is just kind of an adaptation of the prior slide. So when you're talking about on demand streaming and downloads, the services will pay the Mechanical Licensing Collective, which pays publishers who then pay songwriters for physical sales. Retailers pay the label, the labels pay the Harry Fox Agency. The Harry Fox Agency pays the publishers and publishers pay the songwriters. Public performance royalties are a little bit more straightforward. You have two songwriters and publishers register with the ascap's and bmi's of the world and PR. The pros typically issue blanket licenses they collect on those licenses, and then divide up the money to pay the songwriters and publishers their respective shares. Nobody really knows how that's calculated. It's a bit of a black box. Um, and then sync royalties is just negotiated directly. And the last one similar sync royalties always, always direct negotiation reproduction distribution on the sound recording side, for on demand streaming, those services pay the label. The label pays the band and whoever else needs to get a piece. Digital and physical sales kind of a similar thing. The retailer will pay the label, the label pays who needs to be paid. And then on the public performance side, again, limited digital public performance sound exchange, much like the ASCAP and BMI, will collect royalties from digital services. Pay the band excuse Me artists labels et cetera. Their respective shares and and sometimes there's a there are direct negotiations with with the labels but typically the sound exchanges is where you go. That's all we got. Thank you all so much for listening and checking out our presentation on the screen, our emails where we can be reached. We would love to talk to you. If you have questions about music or questions about the law, or if you want to know where you can see Lower Westchester's latest and greatest cover band on a Thursday night in November, please, please reach out. Thank you all so much and thank you to Quimbee for having us. Thanks a lot, everyone.