Bruno Mars RecordOn Friday, October 28, 2016, musicians Mark Ronson and Bruno Mars were hit with a copyright infringement suit based on their wildly popular hit “Uptown Funk.”  The plaintiffs, consisting of one living member and the estates of the 1980s funk group, Collage, assert that Ronson and Mars copied the bass line, guitar riff, and various other elements of Collage’s 1980s work “Young Girls.”  In the complaint, the plaintiffs assert that the ensuing damage cannot be overstated due to the commercial success of “Uptown Funk.”  The only remaining member of Collage and the estates of the deceased members of the band assert that there are eleven people that should be credited for “Uptown Funk,” whereby each party should receive royalties for Ronson and Mars’ allegedly copying.

This lawsuit comes on the heels of last year’s controversial verdict out of the Central District of California where a jury found that Pharrell Williams and Robin Thicke’s “Blurred Lines” copied key elements from Marvin Gaye’s “Got to Give It Up.”  See Pharrell Williams, et al v. Bridgeport Music Inc. et al, Case No. 2:13-cv-06004 (C.D. Cal. Mar. 10, 2015).  That verdict departed from the traditional standards applied to cases involving copyright law and music in that the court subjectively considered intangible components such as the rhythm and “feel” of the song.  Traditionally, courts applied a more tangible standard that considered similarities of lyrics, melody, and harmony.  The judge awarded a $7.4 million verdict to Gaye’s estate and ongoing royalties to Gaye’s estate, which was later reduced to $5.4 million.  Williams and Thicke are currently appealing this case to the Ninth Circuit, where 212 music artists have joined an amicus brief supporting the appeal because, as reported by the Hollywood Reporter, the verdict is “very dangerous to the music community, [and] is certain to stifle future creativity, and ultimately does a disservice to past songwriters as well.”  In addition, musicologists have expressed by amicus brief that allowing the “Blurred Lines” verdict to stand is dangerous towards the music community.

The verdict in the “Blurred Lines” case has already demonstrated the potential danger artists face in the current music climate.  If the “Uptown Funk” court applies the seemingly subjective considerations that were applied in the case of “Blurred Lines,” the proverbial floodgates for the estates of deceased artists to recover for minute similarities in modern songs, and consequently raise the potential of stifling creativity in the music industry, will have been opened.  However, if the Court applies the traditional standards of copyright law in accordance with the appeal to the Ninth Circuit and the support of over 200 artists, it would “unblur” the imaginary line between the traditional and untested subjective standard.

See “Young Girls” by Collage: https://youtu.be/pfTr_fgQpvg

See also “Uptown Funk” by Bruno Mars and Mark Ronson: https://youtu.be/OPf0YbXqDm0

Written by: Joseph M. DiCioccio

Following up on a previous post regarding the lawsuit winding its way through federal court seeking clarity on whether the music publisher Warner Chappell owns or has the exclusive right to license the copyright in the ubiquitous “Happy Birthday to You” song, U.S. District Judge George H. King (Central District of California) has ordered that certain tangential claims be stayed until further notice, while the case will move forward on the central claim, essentially whether Warner’s copyright in the song is valid and enforceable or not.

Continue Reading Court Narrows Claims Surrounding “HAPPY BIRTHDAY TO YOU” Copyright Suit

Written by: Joseph M. DiCioccio

Ownership of a copyright in one of the most popular songs in the English language has recently been challenged in several lawsuits around the country.  At the heart of the dispute is whether the music publisher Warner Chappell legitimately owns a copyright in, and thus has the right to license (and enforce) the rights to, the ubiquitous song “Happy Birthday to You.”  Since it acquired a company in 1998 that claimed to own the rights in this song, some have estimated that Warner makes as much as $2M per year licensing the rights to use this song in various movies and television shows.  Two recently filed lawsuits are challenging this ownership claim and seek a ruling that the rights to the song have passed into the public domain.

Continue Reading DOES A VALID COPYRIGHT EXIST IN THE SONG “HAPPY BIRTHDAY TO YOU”?

Written by: Susan Neuberger Weller

 The Tenebaum copyright infringement file sharing case, about which we first reported in an earlier blog, reached another milestone this week when the First Circuit upheld the jury’s $675, 000 damages award. Tenenbaum had been found liable for illegally downloading 30 songs and a jury awarded statutory damages of $22, 500 for each song infringed. The award was appealed on grounds that it was so large that it violated Tenenbaum’s constitutional right to due process of law.

 The court analyzed the function and purpose for statutory damages under the Copyright Act, which are to provide “reparation for injury” and  “to discourage wrongful conduct.” The court rejected Tenebaum’s argument that the amount of the award violated due process because it was not tied to the actual injury that he caused, stating that such an argument disregarded the intended deterrent effect of statutory damages. Moreover, the award of $22, 500 per song was only 15% of the maximum award possible for willful copyright infringement and even less than the maximum award for non-willful violations. Accordingly, the court held that the jury’s award did not violate the Constitutional right to due process and the judgment was affirmed.

Unless this decision is appealed to the US Supreme Court, this dispute is concluded. It is unlikely the Court would review any such appeal since review of similar cases have previously been declined.

Written by Susan Neuberger Weller

It appears that Newt Gingrich and Frankie Sullivan, a member of the rock band Survivor, and his company Rude Music , have reached a tentative settlement in the latter’s copyright infringement suits against Gingrich for use of the song “Eye of the Tiger” during Gingrich’s presidential campaign bid. In Rude Music Inc. v. Newt 2012 Inc., the copyright owner claims that Gingrich began unauthorized use of the song in 2009 in various venues throughout the country, and that unlicensed videos of these events with the music playing were posted online. Gingrich contended that the venues at which the music was used were responsible for obtaining or had obtained licenses to use the music. As we reported in this blog and in a more detailed article, the unauthorized use of music and other copyrighted works in political campaigns is and will continue to be a hot topic going forward.  Stay tuned for further developments.

National Public Radio had a story yesterday on politicians’ use (or misuse) of music at campaign events.  It sets forth three seemingly simple rules for politicians to follow in order to avoid copyright and/or trademark based claims arising from such use:  (1) know your venue; (2) know when to ask for permission; and (3) “know when to fold’em.”   The American Society of Composers, Authors and Publishers (ASCAP) has prepared a helpful Q&A on the topic.  The alleged misuse of music at campaign events is an issue that has plagued politicians, including most recently Newt Gingrich.  Given that we have 11 more months of political campaigning to look forward to before the presidential election, something tells me that we’ll be talking about these three simple rules again (and again).