Naumann - Comment - Copyright in Music

Introduction
The music industry presents an interesting art fueled business. A
marketable artistic creation completely controlled by major corporations constructs
an entirely unique industry. Because of the digital age, file sharing, and
downloadable singles, the industry is constantly shifting, morphing and evolving.
Unlike any other form of art, music is constantly consumed during and after the
artists’ lifetimes. As one could imagine, many controversies, collaborations, and
concoctions have occurred in this medium. One of the most interesting parts of the
industry never makes it into the forefront of the consumers’ minds. The majority of
consumers mindlessly digest the hard work of musicians (legally or illegally)
without giving a second thought to the process behind that song just downloaded
from iTunes. However, it would surprise most avid music fans that a grueling
negotiating process occurs prior to the creation of any of those coveted downloadable
songs. Negotiations between the record label and the musicians. In the end who
has the legal rights to this music? The artist? The label? The answers to those
questions are surrounded by complicated legal precedence.
The legal precedence finds itself firmly rooted within copyright laws.
Copyright laws attempt to progress the creativity of artists. This legal right offers
specific protection over the work created. Much dispute arises over these rights and
artists’ attempts to protect their creative expression. The disputes usually involve
an artist that created a work that is similar to another artist’s work. Many of the
decisions revolve around the artists’ knowledge of each other. This causes

substantial problems with the ways artists voice their influences and inspirations.
Copyright laws attempts to solve many of these issues. However, many disputes
arise and discrepancies over the interpretation of the text are quite frequent.
Copyright laws exist to facilitate and protect the continued production of creative
arts. Although many artists dispute over the originality of songs, copyright laws
appear to be doing the intended job. Moving forward, courts and legislators should
look more favorably towards artists’ rights through allowing leniency around
influence and inspiration because limiting influential and inspirational avenues will
curb the creative process and possibly be completely counterintuitive to the entire
purpose of copyright protection.
Overview of Copyright Law
Copyright law originates from the Constitutional clause that grants power to
congress “to promote the Progress of Science and the useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries[.]”1 Until the Copyright Act of 1976 (1976 Act), authors
were able to gain copyright protection under the common law; however, the 1976
Act removed the ability for common law protection.2 An author is the person that
“master mind[s]” the work’s origin.3 Under the 1976 Act, copyright protection exists
whenever the original work is “fixed in any tangible medium” that has the ability to
1
U.S.C.A. Const. Art. I § 8, cl. 8
2
Copyright Act of 1976 17 U.S.C.A. § 301 (1976)
3
Burrow-Giles Lithographic Co. v. Sarony 111 U.S. 53 (1884)

be copied or communicated.4 In addition to being concrete, the original work must
generally be registered to receive protection.5 This gives the copyright owner
exclusive rights, given certain exceptions, over the distribution, reproduction, and
performance of the work.6 To garner protection, a work must be original.7 An
original work is a work created independently with any amount of creativity.8 Even
if a work resembles another work, it may still be original because the creative
threshold is a relatively easy threshold to cross.9 Despite the low level of creativity
required, copyright infringement still occurs. An author establishes infringement
by owning a valid copyright registration and the original aspects of the work have
been copied.10
In 1998, that 1976 Act was amended to extend the length of copyrights for
the “life of the author and seventy years after the author’s death.”11 With the
occurrence of a joint work, the copyright protection extends seventy years from the
death of the last surviving author.12 While some works are released anonymously,
the 1976 Act addresses that as well.13 In the case of an anonymous, pseudonymous
work, or works made for hire, the copyright protection persists for ninety-five years
from the initial publication, or a 120 years, depending on which expires first.14
4
5
Reed Elsevier, Inc. v. Muchnick 559 U.S. 154 (2010)
6
Copyright Act of 1976 17 U.S.C.A. § 106
7
Feist Publications, Inc. v. Rural Telephone Service Co., Inc. 499 U.S. 340, 345 (1991)
8
Id.
9
Id.
10
Feist Publication, Inc. v. Rural Telephone Service Co., Inc. at 361
11
12
Id.
13
Id.
14

However, if the author is revealed, the copyright protection defaults to the life of the
author, plus seventy years.15
Works that are based on some preexisting works are considered a derivative
work.16 These works do not need permission to be copyrighted; however, the author
or artist of the work does need permission from the owner of the copyright of the
preexisting work to use the preexisting work as the basis for a derivative work.17 A
derivative work is not judged on a heightened standard of originality, rather it is
judged on the standard of just enough creativity to separate it from any other
works.18 Protection is available to the creator of the derivative work; however, the
protection extends only to the creative additions of the author that differentiate it
from the preexisting work.19 Therefore, the work must be independently created
and lives up to that low bar of creativity.20
Another type of work that exists is a joint work or a co-authorship.21 To
create a joint work, the two or more authors must intend it to be a joint effort and
each make an independent, copyrightable contribution, inseparable from the
finished product.22 Each author possesses an undivided interest in the work and
each has the undivided right to license the work for use.23 One is not considered an
15
16
Schrock v. Learning Curve Intern., Inc. 568 F.3d 513, 518 (2009)
17
Id. at 515
18
Id. at 516
19
20
Feist Publications, Inc. v. Rural Telephone Service Co., Inc. at 345 (1991)
21
22
Janky v. Lake County Convention And Visitors Bureau 576 F.3d 356, 361 (2009); see also 17 U.S.C.A. § 101
23
Erickson v. Trinity Theatre, Inc. 13 F.3d 1061, 1068 (1994)

author if one only makes a valuable contribution to the work.24 An author is a
person that reserves any decision making authority over the creative process and
the final production; therefore, a person who only consults or contributes but has no
decision making authority cannot be an author.25
A final type of work contained within copyright is a work made for hire. A
work made for hire is defined as “a work prepared by an employee within the scope
of his [] employment.”26 Also, the a work “commissioned for used as a contribution
to a collective work…if the parties expressly agree in a written instrument signed
by them that the work shall be considered a work made for hire.”27 To make the
determination of whether a work is a work for hire or not, one must decide whether
the work in question was prepared by an employee or an independent contractor.28
If the employer retains control over the work, the person doing the work becomes an
employee.29 However, the less control over the work the employer has, the closer
the worker comes to being an independent contractor.30 If the worker controls the
manner the work is done, the tools used to complete the work, the time spent on the
work, and the location of the work, he may be considered an independent
contractor.31 For sake of copyright, an author is the person that actually created
24
Aalmuhammed v. Lee 202 F.3d 1227, 1232 (2000)
25
Thomas v. Larson 147 F.3d 195, 202 (1998
26
27
Id.
28
Community for Creative Non-Violence v. Reid 490 U.S. 730, 731 (1989)
29
Id.
30
Id.
31
Id.

the work or fixed the work into a tangible medium.32 The importance of a work
made for hire stems from who owns the copyrights to the work.33 The major
problem when determining whether a work is a work made for hire or not comes
from the fact that the statute does not define “employee” or “scope of employment.”34
When determining the meaning of “employee,” courts have concluded that Congress
meant it to mean the common “master-servant relationship.”35 Additionally, courts
have said there is no existing evidence to show that Congress has meant
“employment” to mean anything other than an employer-employee relationship.36
Another way to determine the meaning of employee would be to look to the federal
common law of agency.37 The undefined terms indicate that a work for hire can
arise one of two ways.38 First, a person acting as an employee.39 And, a person
working as an independent contractor.40
Prior to the 1976 Act, the Copyright Act of 1909 (1909 Act) governed
copyright protection for any work created before January 1, 1978.41 The 1909 Act
allowed for common law copyright protection from the time of creation of the
original work until the author registered for federal protection.42 To gain
32
Copyright Act of 1976 17 U.S.C.A § 102
33
Community for Creative Non-Violence v. Reid at 737
34
Id. at 738
35
Id. at 740
36
Id.
37
Community for Creative Non-Violence v. Reid at 740
38
Id. at 742
39
Id. at 743
40
Id.
41
42
Michael B. Landau, Publication, Musical Compositions, and the Copyright Act of 1909: Still Crazy After All These
Years, 2 Vand. J. Ent. L 7 Prac. 29, 30 (2000).

protection, an author must either publish his work with proper copyright notice or
register or provide copies of an unpublished work with the United States Copyright
Office.43 The author of the work had the ability to financially benefit and sell the
work to a limited audience, while remaining protected under the common law.44
However, a general publication occurred when the work was made available to the
public. As a result, the author loses common law protection.45 To maintain
protection, prior to a general publication, the author must register the work.46 If
the work is not registered and is a general publication, the work slips into the
public domain; as a result, anyone has the ability to reproduce the work.47 In
regards to publications, courts have shown that performances are not considered a
publication.48 Because a performance is not a publication, the author has not lost
his common law rights because of that performance.49
The 1909 Act did not protect the reproduction and unauthorized distribution
of sound recordings; therefore, the 1909 Act was amended with the Sound Recording
Act of 1971.50 The Sound Recording Act of 1971 becomes the first time in copyright
law that sound recordings become copyrightable.51 The amendment extends
protection from only a work fixed in a tangible medium to an “aggregation of
43
Copyright Act of 1909, 17 U.S.C. §10 (1909); see also Michael B. Landau at 31
44
Burke v. National Broadcasting Co., Inc. 598 F.2d 688, 691 (1979)
45
Id.
46
Id.
47
Id.
48
Ferris v. Frohman 223 U.S. 424, 435 (1912)
49
Id.
50
H.R. REP. 92-487 at 1567
51
Id. at 1570

sounds.”52 In any instance when copyright cannot be directly proven, it can be
inferred when the alleged infringer had access to the protected work and the works
are substantially similar.53
In terms of music, copyright law applies all the same. Musical creations are
considered sound recordings.54 A sound recording is any work “that results from the
fixation of a series of musical, spoken, or other sounds…regardless of the nature of
the material objects…in which they are embodied.”55 However, whoever owns the
copyrights to the sound recording has the exclusive right to license the sound
recording for the distribution of phonorecords.56 A phonorecord is any method,
known or “later developed,” that the sound recording is fixed.57 This means it gives
the consumer the ability to perceive or reproduce the sound recording.58 The owner
of the copyright has the ability to license the sound recording or phonorecord to
anyone and receive a royalty for the licensee’s use.59 A compulsory license granted
allows the licensee to make phonorecords and nothing more.60
Even more complicated is the practice of sampling, which is incorporating
small segments of sound recordings into a new sound recording.61 If the sampled
52
H.R. REP. 92-487 at 1570
53
Warner Bros. Inc. v. American Broadcasting, Inc. 654 F.2d 204, 207 (1981)
54
55
Id.
56
57
Id. at § 101
58
Id.
59
Id. at § 115
60
Leadsinger, Inc. v. BMG Music Publishing 429 F.Supp.2d 1190, 1194 (2005)
61
Newton v. Diamond 388 F.3d 1189, 1190 (2003)

portion of the original song is used so minimally, it would not be infringing.62
However, if the sampled segment became significant, the sampling would be an
apparent infringement.63 Some copying is permitted within copyright law and does
not lead to infringement; however, the copying must be substantial to become
actionable.64
Copyright law even applied to one of the Beatles. Singer/songwriter George
Harrison recorded the song, “My Sweet Lord,” in 1970.65 Bright Tunes music
brought a copyright infringement case against Harrison, claiming that “My Sweet
Lord” infringed on the song “He’s So Fine.”66 In the composition of “My Sweet
Lord,” the Court insisted that Harrison subconsciously used “He’s So Fine” as a
template for the new song.67 The Court came to this decision because “He’s So Fine”
was so popular upon its release in the 1960s and Harrison has access to the song; as
a result, his subconscious knew this progression of sounds worked musically.68
Harrison explained his writing process as no more than fiddling on the guitar
with chords musicians commonly play and playing with words.69 The court even
inquired into Harrison’s songwriting process.70 The court jested that this inquiry
was a fascinating one that spanned over forty pages.71 But, the court concluded
62
Newton v. Diamond at 1190
63
Id. at 1193
64
West Pub. Co. v. Edward Thompson Co., 169 F. 833, 861 (1909)
65
Bright Tunes Music Corp. v. Harrisongs Music, Ltd. 420 F.Supp 177, 178 (1976)
66
Id.
67
Id. at 180
68
Bright Tunes Music Corp. v. Harrisongs Music, Ltd 420 F.Supp 177, 180 (1976)
69
Id. at 179
70
Id. at 180
71
Id.

that Harrison was not consciously copying the He’s So Fine theme.72 The court
ultimately concluded that Harrison was toying with various possibilities for new
music; as a result, this combination manifested itself and Harrison thought it was
the right combination.73 The court determined that Harrison approved of this
particular combination because he had heard it before and, therefore, knew it was a
successful sound.74 Even though this copying was subconscious and no way
deliberate, it is clear that My Sweet Lord infringes the copyrights of He’s So Fine.75
In the case of LaCienega Music Co. v. ZZ Top, LaCienega accused the band
ZZ Top for infringing on a copyrighted work called, “Boogie Chillen.”76 Because
“Boogie Chillen” was released prior to the 1976 Act, the 1909 Act applied, which
meant it maintained protection for twenty-eight years from first publication and is
renewable by the author for an additional twenty-eight years.77 The main issue
within this case is whether the different versions of “Boogie Chillen” were valid
publications.78 ZZ Top held the position that the publications occurred each time
the recordings were released to the public, while LaCienega claimed the recordings
were not published until they were registered with the Copyright Office.79 The
72
Bright Tunes Music Corp. v. Harrisongs Music, Ltd at 180
73
Id.
74
Id.
75
Id. at 181
76
LaCienega Music Co. v. ZZ Top 53 F.3d 950, 952 (1995)
77
Id. at 952
78
Id. at 953
79
Id.

Court ruled that selling the recordings to the public warranted a publication under
the 1909 Act.80
In 1948, John Lee Hooker and Bernard Besman wrote a song called, Boogie
Chillen.81 The song was sold to the public that very year.82 Eventually, Hooker
assigned his rights to Besman, who then filed with the Copyright Office in 1967.83
A second version of Boogie Chillen was released in 1950 and was not registered
until 1970.84 Also in 1970, a third version of Boogie Chillen was released and later
registered in 1992.85 In 1973, ZZ Top released their cd containing La Grange, which
has been heard around the world.86 It was not until 1991 that Besman became
aware of ZZ Top’s international hit.87 ZZ Top first filed for a declaratory judgment
in Texas to settle the issue, while Besman filed a suit in California.88 The District
Court in California ruled in favor of ZZ Top’s argument that Boogie Chillen existed
within the public domain.89
On appeals the major dispute surrounded the multiple releases of Boogie
Chillen.90 LaCienega holds the position that Boogie Chillen was not published until
each time Boogie Chillen was registered with the Copyright Office.91 In addition La
80
LaCienega Music Co. v. ZZ Top at 953
81
Id. at 952
82
Id.
83
Id.
84
Id.
85
Id.
86
Id.
87
Id.
88
Id.
89
Id.
90
Id. at 953
91
Id.

Cienega claims the compositions were unpublished, therefore, under common law
protection, until proper registration.92 The appellate court adapts the rule that a
publication occurs when the recordings were sold to the public.93 The next issue the
court must decide for LaCienega v. ZZ Top is whether Boogie Chillen entered the
public domain.94 Under the 1909 Act if the owner of a copyright fails to renew to
copyright after 28 years, the composition enters the public domain and no longer
has protection.95
In 1991, famed singer/songwriter, Michael Bolton released a song entitled,
“Love is a Wonderful Thing.”96 Within a year, the famous Isley Brothers filed suit
against Bolton, claiming infringement of their own song, “Love is a Wonderful
Thing.”97 The Isley Brothers’ argument leaned on access by Bolton through their
song’s widespread distribution, which imbedded the song within Bolton’s
subconscious.98 In the Ninth Circuit, the courts followed the “inverse ratio rule;” as
a result, if there is substantial or high access, the requirement for substantial
similarity drops.99 Substantial similarity is proven through extrinsic and intrinsic
similarity.100 Extrinsic points to specific, objective elements through expert
testimony, while intrinsic relies on the subjectivity of a reasonable person.101
92
LaCienega Music Co. v. ZZ Top at 953
93
Id.
94
Id. at 954
95
Id.
96
Three Boys Music Corp. v. Bolton 212 F.3d 477, 481 (2000)
97
Id.
98
Three Boys Music Corp. v. Bolton at 483
99
Id. at 485
100
Id.
101
Id.

The Isley Brothers registered the copyright for Love is a Wonderful Thing
with the Copyright Office in 1964.102 Love is a Wonderful Thing was anticipated to
be a hit; however, the song never cracked the Top 100 in its heyday and was not
released on compact disc until 1991.103 Michael Bolton, on the other hand, ascended
to fame in the late 1980s and early 1990s.104 His ascension was characterized by
covering old soul-music, as well as writing original songs.105 Bolton released his
own Love is a Wonderful Thing in 1991 and it reached number 49 on the end of the
year pop charts.106 The trial court decision ruled in favor of the Isley Brothers,
stating that 66% of the profits of Bolton’s songs could be attributed to the elements
infringing the Isley Brothers’ song.107
On appeal, the appellate court established that infringement in music
becomes “highly circumstantial.”108 In addition, Three Boys Music must prove they
possess copyright protection for Love is a Wonderful Thing and that Bolton
infringed on the protected elements of their copyright.109 The court immediately
affirms the decision; however, decides to dive into the arguments.110 First, Three
Boys Music must prove that Bolton had access to their music, which translates to
having a “reasonable opportunity” or “reasonable possibility” to view the Isley
102
103
Id.
104
Id. at 481
105
Id.
106
Id.
107
Id.
108
109
Id.
110
Id. at 482

Brothers’ work.111 There are two ways to prove Bolton had access: there is a chain
of events between the Isley Brothers’ work and Bolton’s work or the Isley Brothers’
work has been “widely disseminated.”112 Proof of wide dissemination can be
determined by the song’s popularity, which leads to subconscious copying.113
The Isley Brothers access argument hinged on the fact that Bolton was a
huge fan of their work and the testimony of three disc jockeys explaining that they
had played the Isley Brothers’ song in the area Bolton grew up.114 In additional
support of the Isley Brothers’ claim, Bolton admitted that he was copying a Marvin
Gaye song.115 Bolton contends that the Isley Brothers are relying on twenty-five
years of subconscious memory.116 In regards to substantial similarity, the court
explained that the inverse-ratio rule applies and even though the Isley Brothers
presented a weak case of access, the court would not overturn the jury’s ruling.117
More recently, Robin Thicke, Pharrell Williams, and Clifford Harris (T.I.)
have found themselves struggling against Marvin Gaye’s family in a copyright
infringement case. This case disputes the similarities of Thicke’s song, “Blurred
Lines,” released in 2013 and Gaye’s song, “Got to Give It Up," released in 1977118
The Gaye family argues that the copyright protection included the work recorded as
111
112
Id.
113
Id.
114
Id. at 483
115
Id.
116
Id. at 484
117
118
Williams v. Bridgeport Music, Inc., No. 13-06004, 2014 U.S. Dist. WL 7877773, at *1 (C.D. Cal. Oct. 30, 2014).

Marvin Gaye recorded it.119 This argument hinges on the fact that Gaye did not
write his own sheet music, nor could he adequately read sheet music.120 The Gaye
family expert based her preliminary findings on the sound recordings and the sheet
music.121 She concluded that there were eight substantially similar segments
within the two songs and that the similarities are more than “generic
occurrences.”122 The similarities existed within the songs included: phrases in the
main vocals, hooks, the main theme, melodies, keyboards, and percussion.123 Her
conclusion states that it is, “improbable that a…work could be found that would
contain all of these similar features…”124 A second expert retained by the Gaye
family corroborated the conclusions of the initial expert.125 In addition to reaching
the same conclusion, the second expert proclaimed that limit[ing] the composition of
each song to its copyright deposit is musically misleading.”126 On the other hand,
Williams, Thicke and Harris’ expert opposed the findings of the Gaye family
experts.127 Williams, Thicke, and Harris’ expert came to an opposing conclusion
because she found that, “there are no two consecutive notes…that have the same
pitch, the same duration, and the same placement in the measure.”128 In addition,
119
Williams v. Bridgeport Music, Inc. at 9
120
Id. at 2
121
Id. at 3
122
Id.
123
Id.
124
Id.
125
Id. at 4
126
Id.
127
Id. at 3
128
Id.

she explains that these supposed similarities are nothing but “building blocks” that
are inevitably found in many songs, past and present.129
The court rejects the argument that the sound recordings should be
considered for comparison because Gaye registered “Got to Give It Up” in 1977,
prior to the January 1, 1978 effective date of the 1976 Act; therefore, the 1909 Act
applies, requiring the works to be reduced to sheet music or lead sheets.130
Williams, Thicke and Harris assert that the copyright protection only applies to the
sheet music; as a result, the protection cannot extend to the “groove” of the
recording’s sound or any other “performance elements.”131 The court explained that
there must be an “analytical dissection” of the music, which means the works must
be broken down into their “constituent elements.”132 These elements must then be
compared.133 In addition, each party employed their own experts; however, much
dispute arises in the extrinsic similarity tests because Williams and Thicke claim
Gaye’s expert relied on recordings of the song.134 The Gaye family request the court
extend the comparison to Marvin Gaye’s recordings because it encapsulates what
the actual song is, while the sheet music does not.135 The court expressly says this
misapplies the 1976 Act because the 1909 Act governs in this instance and any
instance where the composition was recorded prior to 1976 Act’s effective date.136
129
130
Id. at 9
131
Id. at 7
132
Id. at 6
133
Id.
134
Id. at 7
135
Id. at 9
136
Id.

In addition to substantial similarity, the Gaye family presented evidence of
Williams, Thick and Harris’ access to Marvin Gaye’s song.137 Thicke had made
public statements where he said Got to Give It Up influenced his recording Blurred
Lines.138 Also in a GQ Magazine interview, Thicke explained that he had told
Williams the influence Got to Give It Up had on the Blurred Lines recording.139
Thicke contends that he was intoxicated during these statements.140 Also in
another interview, after the action against him was initiated, denied that Got to
Give It Up influenced Blurred Lines.141 The court ruled that these inconsistent
statements do not produce evidence of direct copying because they were not
admissions of direct copying.142
The Court ruled in favor of the Gaye family, despite their expert taking into
account elements not protected by the 1909 Act.143 The Court stated that the Gaye
family still produced elements of “Blurred Lines” that were substantially similar to
“Got to Give It Up.”144
Copyright’s Application in Music Today and in the Future
The Harrisongs case presents an interesting take on how a person can come
to copyright a song. Does it work to claim George Harrison’s exposure to the song
137
138
Id.
139
Id. at 11
140
Id. at 10
141
Id. at 11
142
Id.
143
144
Id. at 5

only manifested itself in a subconscious way? According to the court, this is a
perfect reason for George Harrison to have known he was copying a previously
famous song.145 The court bases its ruling off of the fact that “He’s So Fine” was at
one point a very popular song.146 As a result, George Harrison had been exposed to
the song and knew that the musical makeup of the song worked in a successful
way.147 Even if George Harrison wrote the song in a somewhat free association and
organic way, his mind already had a subconscious idea of what has already worked.
This idea of a subconscious knowledge of an influential or popular song
makes perfect sense. Anyone who listens to the radio knows that certain songs
receive significant airplay. How many times have you thought about a sound or a
combination of sounds and thought to yourself, “that sounds like this song, but I
cannot think of which song.” Then, it goes on to bug you for a while. That
subconscious knowledge that those sounds remind you of some song you have heard
before basically points to what happened to George Harrison. Even though
Harrison innocently recorded what he thought to be an original progression of
sounds, he copied the work, although subconsciously.
Harrison presents an interesting conundrum throughout the overall
evolution of music. There are so many influential, popular, and catchy songs that
anyone would know. If an artist creates a new song and it happens to be
substantially similar to another previous song, the artist is in danger of
145
Bright Tunes Music Corp. v. Harrisongs Music at 178
146
Id.
147
Id.

infringement. Even if the artist independently created this new song, there is an
argument for infringement because the widespread distribution of the older song
could have supplanted itself in the subconscious of the new artist. This could lead
to a danger of new artists concealing their influences. However, this precedent from
Harrisongs allows for protection, despite the good will of a new artist, through the
overall access of the song.
It seems inevitable that an artist would eventually subconsciously copy a
popular song. As a result, it may be the artist’s responsibility to eliminate all
possibility of infringement by making sure the new song is not substantially similar
to anything else. That almost seems to be too extensive and intense. It seems too
burdensome and too suffocating for an artist to have to make sure this new song
does not infringe on any other existing protected song. A more likely scenario would
be the artist diligently making creative efforts to independently create a new work.
In this instance, interpretation of the right amount of diligence to avoid copying
would be up to the courts. If the courts were to create a system which artist must
research and compare their songs to every other protected song, it would severely
limit the creative process and the production of new, innovative music.
The Michael Bolton case uses the same subconscious arguments, but also
uses the “inverse ratio rule.”148 When the access becomes greater, the need for
substantial similarity becomes more lax.149 This specific test attempts to
148
Three Boys Music Corp. v. Bolton
149
Id.

accomplish the same concepts of access and exposure. In this instance, it hurt
Michael Bolton that he was such a massive fan of the Isley Brothers.150 It would
have worked in his favor if he were not a fan or even had not heard of the Isley
Brothers. Even though this Isley Brothers’ track was not as popular as their other
smash singles, it did have significant radio play.151 Also, Michael Bolton claimed to
have owned the entire musical collection of the Isley Brothers.152 Bolton’s super-
fandom dug his own grave in this case.
The “inverse ratio rule” provides an interesting analysis because again it
hurts artists to claim or praise who their influences were. Even though this rule
works through the intricacies of copyright law and makes perfect sense, it seems to
be curbing artists’ proclamation of their influences. However, the point of copyright
law stems from the Constitution itself to inspire an original and creative expression.
Without this rule, however, many similarly influenced and sounding songs may
have been written and recorded. This inverse ratio may be a driving force behind
many artists’ ability to find creative and original ways to honor their influences.
Again, the major problem with this rule, like the subconscious copying, it
stifles artists’ ability to pay tribute to the preceding artists that paved the way. It
may be a privilege for some artists to honor their heroes with a song. However, it
seems the best thing for artists to do to avoid copyright infringement would be to sit
in a dark room, claim they thought of the song independently and express no other
150
151
Id.
152
Id.

artists influenced this new song. That almost sounds outrageous. Artists should be
able to express their love for each other’s work, even pay tribute to it in a new,
creative song.
In addition to the “inverse ratio rule,” an extrinsic and intrinsic test exists.
This test gets more to the composition of the songs. The extrinsic test calls on the
expert to compare the two songs and make a judgment on the similarity of the
competing songs. The expert comes to a conclusion by breaking down the song into
individual pieces. Each of these are then compared through a strict analysis. By
calling on experts, it brings an objective and pragmatic view. An expert has the
ability to take steps back and analyze the musical composition of the songs. This
analyzation focuses on the sheet music; as a result, it takes the sounds and human
bias out of the analysis. Hearing the actual song comes into play in the intrinsic
test. The intrinsic half of the test relies on the human sense of hearing. This allows
the average juror to weigh in on what an average person would hear. Also, what
the average person would perceive as sounding substantially similar. With the
intrinsic test, the songs go to a jury for their ears to decide. The jurors’ ability to
judge the similarity gets to the subjective aspect of the perception of a song. The
combination of these tests provides a thorough analysis that attempts to parse out
the similarities between songs.
It seems the extrinsic and intrinsic tests present the most artist friendly test.
While the “inverse ratio rule” offers great protection, it may find infringement on a
less substantial similarity. The basis of access provides a more lenient

interpretation of similarity. However, the extrinsic and intrinsic tests provide an
additional way to analyze the similarity of the songs. While these tests seem to be
applied together, it may serve artists better to have less emphasis on the inverse
ratio rule. If greater weight were given to the extrinsic and intrinsic tests, the
artists may have a more fair chance to protect rights, as well as artists defending
their songs. Artists taking interest in their rights may offer a vigilant approach to
protecting their original works. However, there must be a fair test that protects
rights while simultaneously encouraging musical advancement and creativity. A
fair test would contain the extrinsic and intrinsic tests, while taking into account
the exposure and access; however, the subconscious knowledge stemming from the
inverse ratio rule could be a stretch. It is possible that artists independently crafted
a similar song. The copyright protection must extend to protect even unintended
copying. Therefore, the existing test, combining the inverse ratio rule, the extrinsic
test, and the intrinsic test may present the best and most fair option.
The true trouble comes when an infringement case encounters a song
registered prior to the 1976 Act. When this happens, the 1909 Act governs. In
these circumstances, the process of finding a clear answer becomes much more
difficult. Because the 1909 Act did not contemplate the evolution of technology,
specifically sound recordings, the 1909 Act only looks at the sheet music or lead
sheets registered with the copyright office. This means that no recording or
performance can be evidence of the entirety of the song. The entirety consists of
whatever the artist registered. The fact that an artist is limited to whatever is

registered severely limits their claim as to what is actually protected. This is the
exact problem that persists through the “Blurred Lines” case. As this case persists
on appeal, it will be interesting to see how the clashing of the two acts continues.
Much of the argument from the Gaye family revolves around the registered sheet
music. Marvin Gaye, according to his family, could not read music or convert his
music to sheet music; as a result, the sheet music does not reflect the whole work,
as it would be performed live or recorded. However, Thicke, Williams, and Harris
remain firm on the fact that a sound recording would not reflect the whole work, as
defined by the 1909 Act. Thicke, Williams, and Harris have the correct
interpretation. The Gaye family is limited and restrained to the exact work that is
registered with the Copyright Office.
The Blurred Lines case presented an interesting result. The 9th Circuit ruled
in favor of the Gaye family, despite significant arguments from Thicke, Williams,
and Harris.153 Even though the Gaye family attempted to introduce elements of the
sound recording, the court limited them to the registered sheet music. Even with
the restraint, the court still found substantial similarities between Got to Give It
Up and Blurred Lines.
A possibly dangerous precedent has been set by this decision because it
protected the style or groove of Marvin Gaye’s song. It seems more likely that the
parts from “Blurred Lines” considered substantially similar relate more to the “feel”
of a song. These parts contribute to the overall groove or movement of a song,
153

rather than directly copying the composition of Marvin Gaye’s “Got to Give It Up.”
The elements deemed to be substantially similar to Got to Give It Up seem to
correspond to something the sets the foundation of any song, rather than copy
protected elements from Marvin Gaye’s song.
By allowing this type of protection, it endangers any artist from claiming any
influence from a preceding artist. Artists should be vigilant in protecting their
original works; however, artists should not be able to monopolize a sound, a feel, or
flow. These things create a foundational aspect of certain genres of music. If any
80s “hair-metal” band could claim protection over the signature sound of fast guitar,
loud drums, and high pitched vocals, Motley Crue, Def Leppard, Poison, Guns ‘n’
Roses, and every one-hit-wonder in between never would have been able to co-exist.
Whoever “created” the sound would have sweeping protection against bands
competing the same market. Copyright exists for protection, but ensures, enables,
and encourages creative, original, and independent expression. The Blurred Lines
decision over extends the 1909 Act protection, allowing Marvin Gaye protection over
any groove or feel substantially similar to his song. That provides massive
protection for Marvin Gaye. Marvin Gaye, if this decision stands, may have to
ability to claim infringement in many songs incorporating the common R&B style.
Going forward on appeal, it seems as if the Court will have to make a decision
strictly on the sheet music submitted by Marvin Gaye in 1977. This will not sit well
with the Gaye family; however, the 1909 Act never allowed for the submission of
sound recordings. The Court will again look through the expert reports. The expert

for Marvin Gaye claims several similarities within the song. However, the analysis
went through the sound recording in addition to the sheet music. Still, the court
was able to determine there were substantial similarities based on the elements
contained within the registered sheet music. It will be difficult for Williams,
Thicke, and Harris to craft an argument to overturn this decision. The previous
argument hinged on the fact that the similar parts were simply common factors or
building blocks of all songs. On appeal, the Court must decide whether or not these
so called building blocks are protected under copyright. Again, if these building
blocks become protectable, it could open the floodgates. Allowing protection for
foundational aspects of a certain of genre substantially curbs the creative ingenuity
copyright laws was crafted to protect.
If the decision against Williams, Thicke and Harris stands, there will be a
dangerous understanding of what is protected under copyright going forward. First,
most artists do not own the copyrights to their own sound recordings.154
Additionally, rights to songs are divided in two. There are the sound recording
rights and the musical composition rights.155 The sound recording rights refer to
final result of the musical composition being reduced to a tangible medium.156
Musical composition refers to the music written, including the words that
accompany the music.157 Usually up and coming artists are struggling to pay rent,
154
Alan Korn, Who Owns A Band’s Master Recordings?, Law Office of Alan Korn (November 21, 2015, 9:30 PM),
http://www.alankorn.com/article-band-recordings.html
155
Copyright in Music, Digital Media Association (November 21, 2015, 10:00 PM),
http://www.digmedia.org/issues-and-policy/copyright-and-royalties/139-copyright-in-music
156
Id.
157
Id.

let alone purchase studio time to record several songs. This is where a record label
comes into play. The record label draws up a contract, pays for studio time, and
receives the sound recording rights to the songs, while the artists retain the musical
composition rights. Second, the record labels own the sound recordings; therefore,
they are the entities capable of claiming infringement of the copying of the sound
recording. Remember, the sound recording is the musical composition fixed in a
tangible medium that is perceivable by the consumer. Therefore, the Blurred Lines
decision, as it stands, may give these record labels the courage to attempt to
monopolize certain grooves or feels within music. Finally, this puts artists at even
larger disadvantage against record labels. Artists already get the short end of the
stick and are at the mercy of the record label.
Artists absolutely need to be vigilant in protecting their rights. Also, artists
need to become educated on the existence of copyrights. In the future, it would be
exciting for artists to control their rights as they see fit, instead of major record
labels. In recent times, certain artists have been vigilant in protecting their rights
while being respectful and understanding. For instance, Sam Smith’s popular song
Stay With Me now credits Tom Petty as a writer.158 Tom Petty noticed that there
were substantial similarities between Sam Smith’s Stay With Me and his own I
Won’t Back Down. Sam Smith claimed that this was a complete coincidence
because he was completely unaware of Tom Petty’s international hit. If Tom Petty
158
Daniel Kreps, Sam Smith on Tom Petty Settlement: ‘Similarities’ But ‘Complete Coincidence,’ Rolling Stone
Magazine (January 26, 2015), http://www.rollingstone.com/music/news/sam-smith--tom-petty-settlement-
20150126

were to have filed a copyright infringement suit, it seems likely he would have been
successful. Applying the inverse ratio rule to this particular case, I Won’t Back
Down is one of the most recognizable songs in the last thirty years, Tom Petty tours
extensively, and the song continues to have significant radio play. Obviously, Sam
Smith had access to the Tom Petty song. As a result, Tom Petty would have had a
more lenient burden of proving similarity.
Additionally, many artists send cease and desist letters to politicians for
using their music. However, unless the artist owns the sound recording rights, the
artist has no claim against the politician. As noted before, the majority of artists do
not own their sound recording rights; the label does. Therefore, the label could
license the sound recording to politicians without the artist’s consent. Essentially
by sending a cease and desist letter, the artist attempts to garner trademark like
protection over a song. When the dust fades, it is rare for the artist to have a
substantial claim against a politician, as long as the politician purchased a license
from whoever owns the sound recording rights.
If Williams, Thicke and Harris want to win this appeal, it seems they will
need a creative foundation to their “building blocks of music” stance. The
foundation could be two-fold. First, a legal argument rooted in the idea that these
building blocks are in the public domain. Second, a simple public policy argument.
Williams, Thicke, and Harris could possibly find evidence in previously registered
songs that these building blocks exist. If they exist throughout music, exist past the
expiration of copyright protection, and exist without the necessary independent

creativity, copyright protection for the building blocks could be unwarranted.
Finding this evidence would prove that Marvin Gaye’s song simply used a groove
that existed within previous songs and persisted after the creation of his song.
Therefore, these building blocks exist within the public domain.
Even more foundational than the public domain, Williams, Thicke and
Harris, could propose that this ruling could adversely affect the creativity of artists
and grant even more control to the record labels. Upholding the ruling could affect
the creativity because artists that coexist within a genre of music would be unable
to use identifying styles of that genre because it is possible these stylistic building
blocks could be protected by this decision. In addition, this decision increases the
gap of control between artists and their respective labels. The courts should be
working on leveling the playing field between labels and artists. Instead, this
decision may have major implications. Labels will continue to flex their muscle over
artists and attempt to monopolize entire genres of music. Essentially the current
verdict curbs creativity and encourages labels to extend their reach. If Williams,
Thicke and Harris craft their building blocks stance with a public domain and
public policy foundation, they may have a successful appeal that favors the
creativity, success, and future of all artists.
Conclusion
Copyright laws are extensively in existence to protect the artists’ abilities to
be creatively expressive. As shown in the Blurred Lines case, it seems Williams,
Thicke, and Harris’ creative expression is being trampled. Moving forward

copyright law may evolve to understand that every artist finds some inspiration
from their predecessors. Should a case present itself where and artist blatantly
copies his influential predecessor, the case should absolutely come down in favor of
the predecessor. However, as the industry continues to evolve, more of these cases
may wade through the murky waters of the 1909 Act. The major problem arises
from the competing acts. The 1909 Act never contemplated sound recordings, while
it became obvious by the 1976 Act.
The music industry will continue to evolve with new artists continuing to
push the boundaries. The boundaries will expand; however, that expansion may
cross some lines that do not sit well with other artists. These types of lawsuits will
never cease. However, the questionable verdict of the Blurred Lines case can be
avoided in the future. Judges need to continue fostering the creativity of new
artists by allowing them to be influenced by other artists, but making it explicitly
clear that copying your influences is prohibited. This obviously creates a very fine
line. The fine line may cause a twofold benefit to music. First, it will allow artists
to publicly pay tribute to their influencing idols. Finally, it will allow new artists to
push the envelope of creativity originally pioneered by their influences. In
conclusion, it seems the Blurred Lines decision will be overturned on appeal. The
possible protection the current decision provides establishes a broad, overarching
monarchy over a groove. This absolutely competes with the underlying foundation
of copyright laws; as a result, the current Blurred Lines standard inhibits

creativity. In the future, it will become clear that fostering creativity is the utmost
important reason behind copyright laws.

Naumann - Comment - Copyright in Music

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