Codrington.pdf

Transcript

1. Thicke, Williams v. Estate of Marvin Gaye Skidmore v. Plant (Led Zeppelin) Harrington v. Sheeran Team Codrington Justice Carol D. Codrington & Abram Feuerstein, Ted Stream, Sophia Choi, Melissa Cushman, Jean Serrano, Tara Hanson, Joshlynn Pulliam, Melissa Wilner
2. Copyright Infringement Team Codrington
3. COPYRIGHT INFRINGEMENT
4. Presentation Outline • Defining Copyright • How to Assert a Copyright Infringement Claim – Proving Plaintiff Owns the Copyright – Proving Defendant Infringed the Copyright • Review of Key Points and Flowchart
5. DEFINING COPYRIGHT
6. Copyright Definition • Copyright law grants authors and artists the exclusive right to make and sell copies of their works, the right to create derivative works, and the right to perform their works publicly. • United States copyright law is governed by the Copyright Act of 1976.
7. Difference between Copyright, Trademark and Patent • Copyright: Protects literary, dramatic, musical and artistic types of works, such as books and videos. • Trademark: Protects items that help define a company brand, such as its logo or name. • Patent: Provides a property grant to the owner of an invention or discovery to exclude others from making, using, offering for sale, or selling that invention or discovery.
8. Works Subject To Copyright Law • The United States copyright law protects “original works of authorship fixed in any tangible medium of expression…” – 17 U.S.C. § 102 • This includes: – Literary works; – Musical works, including accompanying words; – Dramatic works, including accompanying music; – Pantomimes and choreographic works; – Pictorial, graphic, and sculptural works; – Motion pictures and other audiovisual works; – Sound recordings; and – Architectural works
9. Providing Notice By Using “©” or “copyright” • United States law no longer requires the use of a copyright notice (i.e. “©”), but because prior law did require notice, the “©” is still relevant to copyright status of older works. • Works published before January 1, 1978 are still governed by the 1909 Copyright Act which states that if a work was published under the copyright owner’s authority without proper notice of copyright, all copyright protection for that work was permanently lost.
10. Limits of Copyright Protection • Copyright law protects the expression of an idea, but not the idea itself. – See 17 U.S.C. § 102 (“In no case does copyright protection for an original work of authorship extend to any idea…”) • Mere facts are not copyrightable, however, compilations of facts may be copyrightable as long as there is some creative or original act involved in development – See Feist v. Rural (Copyright protection requires creativity, and no amount of hard work, i.e. “sweat of the brow” can transform a non- creative list (like alphabetical listing of phone numbers) into copyrightable subject matter)
11. Example of an Expression vs. an Idea Examples: (1) A story about intergalactic war and the battle of good and evil is not copyrightable, but once George Lucas creates a screenplay for “Star Wars” that expression of such an idea through the characters, the “force”, and made-up locations is copyrightable. (2) A tale about a boy wizard at magic school facing off against a villain who killed his parents is an idea and not copyrightable, but J.K. Rowling’s expression of it through the specific characters, made-up locations, and names of spells in the book Harry Potter is copyrightable
12. Limits of Copyright Protection In a work that is both artistic and functional, copyright law only protects the artistic expression and not the utilitarian function. Examples: (1) The design of a piece of luggage is purely functional and not copyrightable, but the addition of certain ornamental or artistic elements to the design make those parts “artistic” and copyrightable. (2) The design of a table is purely functional and not copyrightable, but the decorative scrollwork, knobs, beading, and carvings engraved into it are “artistic” and copyrightable.
13. Sample Jury Instruction – Copyright Definition “The owner of a copyright has the right to exclude any other person from reproducing, preparing derivative works, distributing, performing, displaying, or using the work covered by copyright for a specific period of time. Copyrighted work can be literary work, musical work, dramatic work, pantomime, choreographic work, pictorial work, graphic work, sculptural work, motion picture, audiovisual work, sound recording, architectural work, mask works fixed in semiconductor chip products, or a computer program. Facts, ideas, procedures, processes, systems, methods of operation, concepts, principles or discoveries cannot themselves be copyrighted. The copyrighted work must be original. An original work that closely resembles other works can be copyrighted so long as the similarity between the two works is not the result of copying.” – FEDCIV-JI9C 17.0, Model Civ. Jury Instr. 9th Cir. 17.0 (2007)
14. MAKING THE CASE FOR COPYRIGHT INFRINGEMENT
15. Copyright Infringement – Jury Instruction Anyone who copies original elements of a copyrighted work during the term of the copyright without the owner’s permission infringes the copyright. – FEDCIV-JI9C 17.4, Model Civ. Jury Instr. 9th Cir. 17.4 (2007)
16. Elements of Establishing a Claim To establish a successful copyright infringement claim, plaintiff has the burden of showing by a preponderance of evidence: (1) Plaintiff is the owner of a valid copyright, and (2) Defendant copied original elements of the work
17. Elements of Establishing a Claim “If you find that the plaintiff has proved both of these elements, your verdict should be for the plaintiff.” “If, on the other hand, the plaintiff has failed to prove either of these elements, your verdict should be for the defendant.” – FEDCIV-JI9C 17.4, Model Civ. Jury Intr. 9th Cir. 17.4 (2007)
18. (1) Proving Plaintiff Owns The Copyright
19. (1) Proving Plaintiff Owns The Copyright • This is easy to show • Plaintiff just needs a valid copyright
20. (1) Proving Plaintiff Owns The Copyright Registered vs. Unregistered Copyright: • An unregistered copyright is automatically granted to the creator of any original work the instant that work is put in tangible form. • BUT: In order to sue for copyright infringement, a person MUST register their copyright.
21. (1) Proving Plaintiff Owns The Copyright Sample Jury Instruction for Ownership: • “Copyright automatically exists in a work the moment it is fixed in any tangible medium of expression. The owner of the copyright may register the copyright by delivering to the Copyright Office of the Library of Congress a copy of the copyrighted work. After examination and a determination that the material deposited constitutes copyrightable subject matter and that legal and formal requirements are satisfied, the Register of Copyrights registers the work and issues a certificate of registration to the copyright owner.” – FEDCIV-JI9C 17.0, Model Civ. Jury Instr. 9th Cir. 17.0 (2007)
22. (2) Proving Defendant’s Infringement
23. (2) Proving Defendant’s Infringement Sample Jury Instruction: • “One who [reproduces] [ prepares derivative works from] [distributes] [performs] [displays] a copyrighted work without authority from the copyright owner during the term of the copyright, infringes the copyright.” – FEDCIV-JI9C 17.0, Model Civ. Jury Instr. 9th Cir. 17.0 (2007)
24. (2) Proving Defendant’s Infringement To prove infringement, Plaintiff must show: (1) Proof that work is a direct clone (usually not the case) OR (2) Proof that: – (a) Defendant had ACCESS to Plaintiff’s work; and – (b) The works are “SUBSTANTIALLY SIMILAR” in idea and expression
25. (2) Proving Defendant’s Infringement • Usually proof that the work is a direct clone cannot be shown. • Therefore, most cases will focus on whether (1) defendant had access, and (2) defendant’s work is substantially similar.
26. Access & Substantial Similarity • “Absent direct evidence of copying, proof of infringement involves fact-based showings that the defendant had ‘access’ to the plaintiff’s work and that the two works are ‘substantially similar’. – Three Boys Music Corp. v. Bolton (9th Cir. 2000) 212 F.3d 477, 481 • Inverse Ratio Rule: A lower standard of proof of substantial similarity is required when a higher degree of access is shown, and vice versa.
27. Access & Substantial Similarity Sample Jury Instruction: • “To prove that the defendant copies the plaintiff’s work, the plaintiff may show that the defendant had access to the plaintiff’s copyrighted work and that there are substantial similarities between the defendant’s work and the plaintiff’s copyrighted work.” – FEDCIV-JI9C 17.0, Model Civ. Jury Instr. 9th Cir. 17.0 (2007)
28. Proving Access to Plaintiff’s Work
29. Proof of Access Proof of access requires “an opportunity to view or to copy plaintiff’s work.” – Sid and Marty Krofft Television Productions, Inc. v. McDonald’s Corp. (9th Cir. 1977) 562 F.2d 1157, 1172 This is proven in one of two ways: (1)Establishing a particular chain of events between plaintiff’s work and defendant’s access to that work (through dealings with a publisher or record company), or (2)Showing that the plaintiff’s work has been widely disseminated (through sheet music, records, and radio performance).
30. Proof of Access Sample Jury Instruction: “As part of its burden in Instruction 17.4, the plaintiff must show by a preponderance of the evidence that the defendant had access to the plaintiff’s work.” “You may find that the defendant had access to the plaintiff’s work if the defendant had a reasonable opportunity to [view][read][hear][copy] the plaintiff's work before the defendant’s work was created.” – FEDCIV-JI9C 17.16, Model Civ. Jury Instr. 9th Cir. 17.16 (2007).
31. Proving Substantial Similarity to Plaintiff’s Work
32. Proof of Substantial Similarity Proof of substantial similarity is satisfied by a two-part test of extrinsic and intrinsic similarity. Extrinsic Test: Must show that the two works share a similarity of ideas and expression based on external, objective criteria – analytic dissection of a work and expert testimony are appropriate. Intrinsic Test: If extrinsic test is satisfied, the factfinder applies the intrinsic test which is subjective and asks “whether the ordinary, reasonable person would find the total concept and feel of the works to be substantially similar.” – Pasillas v. McDonald’s Corp. (9th Cir. 1991) 927 F.2d 440, 442.
33. Cases Helpful in Formulating Substantial Similarity Instructions The jury instruction for substantial similarity will vary with each case. However, the following cases may provide guidance in formulating substantial similarity instructions for music composition cases: (1) Swirsky v. Carey (9th Cir. 2004) 376 F.3d 841, 848-49 – noting factors and constituent elements applicable to “analyzing musical compositions” and that there will never be a uniform set of factors because “each allegation of infringement will be unique.” (2) Three Boys Music Corp. v. Bolton (9th Cir. 2000) 212 F.3d 477, 485-486 – upheld jury finding of substantial similarity based on a combination of five otherwise unprotectable elements: (1) the title hook phrase, (2) the shifted cadence, (3) the instrumental figures, (4) the verse/chorus relationship, and (5) the fade ending
34. AN OVERVIEW – PROVING COPYRIGHT INFRINGEMENT
35. Proving Copyright Infringement • To prove copyright infringement, Plaintiff must show: • (1) Plaintiff owns a valid copyright, and • (2) That copyright has been infringed
36. Proving Copyright Infringement • (2) That copyright has been infringed – Plaintiff must show: • (a) Defendant had access to Plaintiff’s work, and • (b) Defendant’s work is substantially similar to Plaintiff’s work – (1) Extrinsic test – similarity based on external, objective criteria – (2) Intrinsic test – similarity based on subjective “reasonable person” standard
37. Proving Copyright Infringement • Remember that the inverse ratio rule applies to access and substantial similarity. • If there is a higher degree of access, then a lower amount of similarity needs to be shown, and vice versa.
38. Copyright Infringement • If Plaintiff has a copyright and can meet all tests (access & substantial similarity) • Then plaintiff has satisfied its burden of proving copyright infringement.
41. Blurred Lines
42. Blurred Lines: The Song •R&B song by Pharrell Williams, T.I, Robin Thicke, Clifford Harris, Jr. •Released March 26, 2013 •A huge hit.
43. Blurred Lines
44. Blurred Lines: The Copycat? After the tremendous success of the song, attorneys for Marvin Gaye’s heirs contacted Williams and Thicke and pointed out certain similarities between “Blurred Lines” and “Got to Give It Up.”
45. Marvin Gaye’s Got To Give It Up
46. Blurred Lines: The Case •Taking the Gaye family’s attorneys’ statements as a threat, Williams and Thicke preemptively filed a declaratory relief action seeking a declaration of non-infringement. •The Gaye family filed counterclaims.
47. Blurred Lines Case: Legal and Other Issues •Depositions •Pretrial Motions •The U.S. Copyright Act
48. Blurred Lines Case: Legal and Other Issues •Trial early 2015 •The standard: •Ownership •Access •Extrinsic Test •Intrinsic Test
50. A Comparison of Bass Lines
51. Blurred Lines: The Verdict •The jury found Williams and Thicke liable for copyright infringement, because the “feel” of the two works was sufficiently similar to be an infringement •But also found the infringement wasn’t willful.
52. Blurred Lines: The Verdict Damages of $7.4 million awarded Subsequently reduced to $5.3 million
53. Blurred Lines: The Ninth Circuit Appeal Williams and Thicke appealed, supported by multiple amicus briefs by other musicians. They argued that: The “feel” of music can’t be defined and so can’t be copyrighted. The judge improperly allowed the jury to hear uncopyrightable elements of “Got to Give It Up” and gave improper jury instructions.
54. Blurred Lines: The Ninth Circuit Appeal Respondents’ briefs were filed late last month, arguing that what was copyrighted was everything Marvin Gaye wrote and performed as part of the song, not just the sheet music deposited with the U.S. Copyright Office.
55. Blurred Lines
56. Skidmore v. (Plant) Led Zeppelin Did the opening guitar sequence of Stairway to Heaven copy Taurus?
57. Plaintiff’s Complaint
58. Skidmore v. (Plant) Led Zeppelin What is in Dispute? The dispute largely comes down to a 10-second musical theme that appears 45 seconds into the “Taurus”instrumental portion from Spirit’s 1968 debut album, which is similar to the opening acoustic guitar pattern of “Stairway to Heaven” by Led Zeppelin.
59. Skidmore v. (Plant) Led Zeppelin Trial Taurus Proving the Case: •Jurors in the Led Zeppelin case had to decide two issues: •Did members of Led Zeppelin have sufficient opportunity (ACCESS) to hear Taurus before writing Stairway to Heaven? •If yes, were Stairway to Heaven’s opening chords SUBSTANTIALLY SIMILAR to Taurus?
60. At Trial: Testimony was presented at trial to show that both bands played on the same bill together back in the late 1960’s before Led Zeppelin (Jimmy Page) wrote the famous “Stairway to Heaven” song. There was also testimony presented that the band Spirit also played “Taurus” during those shows and therefore Led Zeppelin had the opportunity to hear the “Taurus” song.
61. Jury Findings: Sided with Skidmore on this issue, relying on the evidence presented in court: 1)Page had the Spirit record in his collection of more than 10,000 records and CDs, 2) Spirit had appeared as an opening act for Led Zeppelin, and 3) other members of Spirit testified to encounters with Led Zeppelin members.
62. At Trial: Both sides presented expert musicologists, who offered divergent opinions on Taurus’ composition. Defense experts testified the two songs shared little in common other than a chord sequence that dates back 300 years, and the band simply relied on a “century-old, common musical element” not copyrightable. Plaintiffs’ experts testified there were significant other likenesses, like the use of arpeggios, similar note combos, pitch and note durations.
63. Jury Findings: On June 23, 2016, the jury unanimously found in favor of Led Zeppelin, finding that there was no substantial similarity between Stairway to Heaven and Taurus to amount to copyright infringement.
64. Sound Recordings or Sheet Music? The original recording of Taurus was made prior to the Sound Recording Act, which protects sound recordings. Hence, the jury never got to hear the original recording of Taurus.
65. Sound Recordings or Sheet Music? How did the jurors assess Substantial Similarity? Expert renditions of the sheet music (i.e., underlying musical notes) for Taurus -Plaintiff expert played GUITAR -Defense expert played PIANO *This case was decided on the sheet music, NOT the sound recordings.
66. Taurus vs. Stairway to Heaven A Comparison of the 1st Three Measures
67. Taurus vs. Stairway to Heaven A Comparison of the 1st Three Measures Taurus: Measures 1-3 have 33 notes played on the guitar. Stairway to Heaven: Measures 1-3 have 27 notes played on the guitar. During those 3 measures, both have the same pitch played at the same time 9 times, as circled in red.
68. To Be Continued… •Skidmore has filed an appeal.
69. Harrington v. Sheeran Mark Harrington’s 2012 song “Amazing” performed by Matt Cardle vs. Ed Sheeran’s 2014 song “Photograph”
70. Ed Sheeran’s Photograph
71. “Photograph” Song Origin  Ed Sheeran wrote the song in May 2012 with Johnny McDaid from the British band “Snow Patrol” They developed ideas for the song, in a Kansas City hotel room, while Sheeran was playing with Legos and humming “loving can hurt” to a 3-note piano loop McDaid was playing on his laptop. After 4 hours, Sheeran picked up a guitar and they composed the song in 30 minutes. The song sold more than 3.5 million copies and had 206 million YouTube plays.
72. Matt Cardle’s Amazing
73. “Amazing” Song Origin  Mark Harrington and Thomas Leonard co-wrote the song on May 14, 2009 and recorded it June 12, 2009. The song was released on February 19, 2012 on Cardle’s album “Letters.” The song was No. 84 on the official United Kingdom singles chart and had more than 1 million plays on YouTube.
74. Basis of Lawsuit Richard Busch (same attorney as Marvin Gaye’s Estate), is suing Sheeran for $20 million! Lawsuit claims that “given the striking similarity between the chorus of Amazing and Photograph, the defendants knew when writing, recording, and releasing Photograph, that they were infringing on a pre-existing musical composition” Lawsuit claims Sheeran’s song has the same chord progression except for one chord and 39 identical notes as Amazing The case is still on-going in Los Angeles Federal Court
75. Comparison of Chorus •Chord Progression is the same:
76. Notes are Similar:
77. Song Comparison
78. Questions
79. 4 Chords = Similar Songs The same 4 music chords are repeated in most pop songs
80. 4 Chords Song