Music has changed over the years. From the earliest Gregorian Chant to classical works by Beethoven and Mozart, and from the early days of rock and roll to current hip hop and pop music, music has evolved and absorbed the current trends and interests of the eras it belonged to.
Like music itself, music copyright cases and law have evolved through the years as well, adapting to how music is recorded, distributed, performed, and consumed. For example, the 1908 case of White-Smith Music Publishing Co. v. Apollo Co. involved an infringement claim against a company that created piano rolls of copyrighted songs. That case prompted Congress to establish a mechanical reproduction right and a compulsory mechanical licensing system for musical works, which was later updated for the age of digital streaming in 2018 through the Music Modernization Act.
The importance of sound recordings has also evolved, as they were not initially recognized by the Copyright Act. It was not until 1972 that limited copyright protection was granted to sound recordings created on or after February 15, 1972. In 1995, that protection was expanded to provide a digital performance right to sound recordings through the Digital Performance Right in Sound Recordings Act – however, the performance right for sound recordings still does not extend to over-the-air broadcasts. The Music Modernization Act further updated the law for sound recordings by providing a sui generis (unique) right for “pre-1972” sound recordings.
Since the music industry—both in terms of songwriting and recording—has played an important role in shaping some of the main principles of copyright law over the years, it is important for musicians and others in the music community to be aware of some of the key music copyright cases and to understand the principles affecting the creation and protection of a given song or sound recording.
Arnstein v. Porter: Establishing a Two-Step Test for Proving Copyright Infringement
The Copyright Act states that infringement occurs when “[a]nyone violates any of the exclusive rights of the copyright owner,” including the right to copy or reproduce a work. But in many copyright infringement cases where the allegedly infringing activity involves reproducing or copying the original work (as often is the case for music), it can be hard to produce direct evidence of copying.
In the 1946 case Arnstein v. Porter, the Second Circuit established a two-part infringement test that courts use today (or a version of it) when determining whether copyright infringement has occurred.
The case involved two composers: Ira Arnstein, who had success early in his career but had faded in popularity, and Cole Porter, who was a household name at the time. Arnstein sued Porter, alleging that Porter copied Arnstein’s musical compositions for Porter’s most famous titles, including “Night and Day” and five other songs.
The court’s two-part analysis stated that to prove that an infringing copy was made, the plaintiff must show that:
- the defendant copied from plaintiff’s copyrighted work, which could be proven through either:
- the defendant’s admission that the work was copied, or
- circumstantial evidence showing the defendant had access to the original work.
- the copying went so far as to constitute improper appropriation, which is proven by determining if the average lay person listening to the music would think they were so similar that they seem “inexcusably alike,” or “substantially similar” to the original.
Whether an allegedly infringing work is “substantially similar” to a plaintiff’s work has become a cornerstone to determining whether there has been improper appropriation. However, determining what qualifies as “access” to the original song or what kinds of musical similarities infringe the original song are nuances that courts have developed through the years, as we see in the subsequent music copyright cases below.
Bright Tunes Music v. Harrisongs Music: Determining Subconscious Copying
Under the first prong of the infringement test established in Arnstein v. Porter, a copyright owner must demonstrate that the infringer had access to the original work. This theory of access—and what constitutes access—was at the center of Bright Tunes Music v. Harrisongs Music.
Bright Tunes involved Beatles member George Harrison’s infringement of a song recorded in 1962 by the Chiffons. The plaintiff, Bright Tunes Music, owned the copyright to the song “He’s So Fine,” and sued Harrisongs Music, the copyright owner of “My Sweet Lord,” written by George Harrison in 1970. The songs were built on a similar set of two motifs (but not completely identical) with identical harmonies and different words.
“He’s So Fine” had been on the charts in both the U.S. and England at the same time the Beatles were gaining popularity, and it was one of the top hits in England for seven weeks in 1963. Presumably, Harrison would have heard the song, along with everyone else in England listening to the radio. Harrison and his group created “My Sweet Lord” by vamping chords, adding words, and sharing musical ideas. The court determined that even though Harrison did not intend to copy “He’s So Fine,” his subconscious knew the tune was pleasing from being familiar with the tune of “He’s So Fine,” and thereby the similar motifs were incorporated it into his song.
The court’s holding of “subconscious copying” established that a songwriter who may not consciously intend to copy another song may still be found liable for infringement, and that determining the level of access in an infringement claim can be proven merely by evidence of the likelihood of being familiar with another famous song.
Gray v. Hudson: Laying Out Guidelines in Analyzing Similarities in Music Copyright Infringement
The second prong in the infringement analysis asks whether there is a substantial similarity between the protected elements of the original song and the infringing song. There are certain aspects of songs that are such basic “musical building blocks” that they are not considered copyrightable. Yet, when these basics of music are arranged in a creative way, forming a song, the song as a whole can be copyrightable.
Gray v. Hudson provides some guidance on musical elements that are not protectable. The case involved Marcus Gray, a Christian hip-hop artist, and pop star Katy Perry. Gray sued Perry for infringement, claiming his song “Joyful Noise” was infringed by Perry’s song “Dark Horse,” which included a similar eight-note ostinato pattern from “Joyful Noise.” The court ruled for Perry, holding that there was no infringement because the ostinato pattern and its individual musical elements were not actually protected by copyright law due to being too common in music.
This case highlighted the fact that certain basic elements of music, such as rhythm, timbre, and pitch, are not protectable as original expression on their own. Though the court did note that a selection, coordination, and combination of these basic elements can amount to sufficient originality to be protected by copyright law, the ostinato at issue was too commonplace and not original enough under copyright law to be protectable.
Through this decision, the court provided some specific guideposts for musicians which demonstrate that basic musical building blocks and a simplistic or commonplace arrangement of such elements will not be protected by copyright.
Campbell v. Acuff-Rose: Establishing Fair Use Principles Through Musical Parody
Fair use is an affirmative defense to copyright infringement codified in Section 107 of the Copyright Act, and it is determined by analyzing four factors:
- the purpose and character of the copyrighted work;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
- the effect on the potential market for or value of the copyrighted work.
When a court decides a fair use case, it analyzes each factor of the test separately and weighs them all together to determine whether the allegedly infringing use qualifies as fair use.
In 1994, the U.S. Supreme Court considered in Campbell v. Acuff -Rose whether a song by 2 Live Crew, which parodied “Pretty Woman” by Roy Orbison, qualified for the fair use exception. The group had originally sought a license to create the song from the copyright owner, Acuff-Rose, but was turned down. They created the song anyway and ended up selling nearly a quarter of a million copies a year later. 2 Live Crew’s “Pretty Woman” took the original Orbison song and turned it into a play on words, “substituting predictable lyrics with shocking ones” to show “how bland and banal the Orbison song is.” Acuff-Rose sued 2 Live Crew for infringement, and the case made it to the Supreme Court.
The Court analyzed the case under all four fair use factors, but it was their analysis under the first factor that got the most attention. Looking at factor one, the purpose and character of the work, the Court found that the 2 Live Crew song had a commercial purpose, which usually weighs against fair use. However, the Court noted that the 2 Live Crew song was also a comment on and criticism of the original Orbison song through parody.
This case was the first to articulate the “transformative use” test that has come to dominate fair use decisions today and which the Supreme Court is considering in Andy Warhol Foundation v. Goldsmith. In determining whether a work is transformative, courts look at whether the subsequent work “add[ed] something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Subsequently, the Court stated that the 2 Live Crew song “reasonably could be perceived as commenting on the original or criticizing it, to some degree,” and held that the commercial nature of the song did not automatically bar a finding a fair use.
However, the Court also went on to explain that even if a work is a parody and is “transformative,” that does not automatically mean a work qualifies as a fair use. If a parody is so popular that it risks serving as a substitute for the original in the market (the fourth factor), the parody factor may be given less weight in the overall analysis.
This landmark music copyright case was crucial in laying the foundations of the transformative use test under the first factor, but also for setting out some guiding principles for evaluating parodic works under the fair use analysis.
Capitol Records v. ReDigi: Establishing Digital Music Files Cannot be Resold
Over the years, the way music is distributed and performed has changed dramatically. Today, music is mostly consumed digitally. Copyright law’s first sale doctrine, which creates an exception to a copyright owner’s distribution and display rights, allows the owner of a lawfully acquired copy of a copyrighted work to sell, lease, loan, gift, display, or otherwise dispose of that particular copy of the work without the copyright owner’s permission. Importantly, the exception does not apply to the reproduction right.
When copies of copyrighted works were primarily in physical form, such as CDs, vinyl records, and cassette tapes, the first sale doctrine was easier to apply because the reproduction right was not implicated when the CD, record, or tape was distributed or otherwise disposed of. But in the digital age, when a digital copy is transmitted, a copy is necessarily made, and that raises questions surrounding the doctrine’s applicability to digital versions of copyright protected works.
In Capitol Records v. ReDigi, the Second Circuit affirmed that the first sale doctrine did not apply to the resale of digital files of songs. In 2011, Capitol Records sued ReDigi, which operated a website that allowed users to sell digital copies of legally obtained digital music files to other ReDigi users. ReDigi users would upload eligible music files (purchased from iTunes or another ReDigi user) to ReDigi’s server, and the file would be deleted from the user’s computer. Then, another user would purchase the file and download it to their own computer, thereby deleting it from ReDigi’s server. Capitol sued ReDigi for both unlawful reproduction and distribution of their copyrighted content.
The court held that to transfer a file from one device to another, a copy must be made on a server, which constitutes an unlawful reproduction. Therefore, the first sale doctrine did not apply to the transfers occurring over ReDigi because the item that was being resold was a copy of the originally purchased file, not the original itself.
The court recognized that the first sale doctrine does not apply to digital files because their transfer—unlike physical works—implicates a copyright owner’s reproduction right. The case was an important one in that it established boundaries to unauthorized use in the digital age and ensured that musicians and copyright owners could license, protect, and enforce their copyrights in digital forms of their works.
Through these impactful music copyright cases, musicians can learn about how copyright law protects songs and determines infringement. From providing some guidelines on how copyright law protects original works and distinguishes unprotectable elements to establishing principles adapting our current laws to the digital sphere, musicians can see that copyright is an important part of their craft. We hope this music copyright cases blog was useful in showing how it can work to protect musicians and their works.
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