Music Notes

For copyright infringement cases involving musical compositions, courts and juries are often tasked with determining whether two songs are “substantially similar,” the legal standard required to show infringement. 

Members of the band Nickelback

On February 19, 2024, the Fifth Circuit affirmed the dismissal of a copyright infringement suit in the Western District of Texas, in which the plaintiff alleged that the band Nickelback had copied his musical composition.  The plaintiff, songwriter and member of the band Snowblind, alleged that Nickelback’s hit 2005 song Rockstar infringed the plaintiff’s 2000 song Rock Star.  The plaintiff, asserting that he had not heard Nickelback’s song until 2018—“an odd contention,” according to the Fifth Circuit, given the ubiquity of the Nickelback song—brought suit in 2020.  The district court dismissed the claim on summary judgment, finding that there was no genuine dispute of fact concerning factual copying.  The plaintiff appealed, and the Fifth Circuit agreed.

On January 26, 2024, a unanimous jury held that a tattoo of Miles Davis inked by celebrity artist Katherine Von Drachenberg (better known as Kat Von D) was not substantially similar to the reference photo on which it was based.  The jury also found that the Instagram posts showing the photo in the background were protected under the fair use doctrine. 

Posted in Copyrights

The Copyright Act lists “choreographic works” as one of the eight types of creative works that are protectable under federal copyright law (17 U.S.C. Section 102(a)(4)).  However, the Act itself does not define “choreographic works” and thus far, there has been surprisingly little case law discussing the scope of what can or cannot be protected.  A recent Ninth Circuit case, Hanagami v. Epic Games, Inc., took a stab at addressing this question and ultimately provided some helpful guidance.  

In Acuti v. Authentic Brands Grp. LLC, 33 F.4th 131 (2d Cir. May 4, 2022), the Second Circuit considered an appeal regarding the rights to the musical composition “Can’t Help Falling in Love,” written in part by Hugo Peretti and made popular by Elvis Presley.  The song was created in 1961, under the 1909 Copyright Act, which provided for an initial copyright term of 28 years with a contingent right to renew the copyright for an additional 28-year renewal term.

In Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., Case No. 20–915, 595 U. S. ____ (2022), the U.S. Supreme Court held that the safe harbor provision provided under § 411(b) of the Copyright Act does not distinguish between a mistake of law and a mistake of fact.  Lack of either factual or legal knowledge can excuse an inaccuracy in a copyright registration.

The Supreme Court vacated the judgment of the U.S. Court of Appeals for the Ninth Circuit and remanded the case for further proceedings.

The Copyright Act protects “original works of authorship.” 17 U.S.C. § 102(a) (emphasis added). Courts have uniformly understood “authorship” to refer to a quality that is uniquely “human,” often alluding to the nexus between the human mind and creative expression.  For example, some of the earliest copyright cases defined copyright as “the exclusive right of man to the production of his own genius or intellect.” Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 56 (1884). See also Trade-Mark Cases, 100 U.S 82, 94 (1879) (explaining that copyright law only protects “the fruits of intellectual labor” that are “founded in the creative powers of the mind”).

The retransmitter of unlicensed copyrighted programming could not escape infringement liability when its charges to users exceeded its costs, despite its effort to characterize its charges as “recommended donations.”  Following motion practice, the retransmitter service is no longer operational.

Update:  This article was republished in the October 2021 issue of The Licensing Journal published by Wolters Kluwer.

Biz Markie (born Marcel Theo Hall), popularly known as hip-hop’s clown prince, passed away on July 16, 2021 at the age of 57. Biz’s innovative beats and lovably goofy lyrics left their mark on the music industry in more ways than one.Photo  of Biz Markie

In Google LLC v. Oracle America, Inc., Case No. 18–956, 593 U. S. ____ (2021), the U.S. Supreme Court held that Google’s unauthorized copying of around 11,500 lines of Oracle’s computer code was a fair use and therefore not an infringement.

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