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3.5: Landmark Musical Work Copyright Infringement Cases

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    The following cases constitute some of the more high-profile and significant copyright infringement disputes over the previous 100 years:

    “Happy Birthday to You” (2016):

    In 2016, a federal judge ruled that the traditional birthday celebration song, “Happy Birthday to You,” is in the public domain and therefore the many copyright claims over the past 80-years related to the song are invalid. Since 1988, the Warner/Chappell Publishing Company had been enforcing its claim that it owns the copyright for “Happy Birthday” and collecting royalties based on that claim. Warner had been charging and collecting royalties from anyone wishing to use the song in a profit-making context. This, in turn, resulted in many new and creative birthday songs to avoid paying royalties to Warner. The song apparently brought in about $2 million in royalties to Warner annually.

    It turns out that what Warner actually owned was a copyright in a particular piano arrangement of a related song with the same melody, but different lyrics, obtained in a series of transactions dating back to 1935, but not to the underlying song itself. The song was based on a new lyric put to the melody of “Good Morning to You,” a published song written in 1893 by a school teacher and her sister. The birthday themed lyrics were conjoined to that melody in the early 20th century. The judge held that the original party from whom Warner thought it had purchased the copyright in 1935 never owned a copyright to the birthday lyrics, only to a particular arrangement of “Good Morning to You.” The “smoking gun” evidence for the decision came from a 1922 songbook that included the “Happy Birthday” song without any copyright mark, which at that time was required to assert a copyright claim. The copyright in the underlying melody written in 1893 had long since lapsed into the public domain.

    In 2018, Warner agreed to pay approximately $14 million to settle class-action claims made against it by those who had paid royalties to Warner for use of the “Happy Birthday” song since 1949!

    This case amuses us if for no other reason than that it concerns one of the most widely known and performed songs in history. It also satisfies our sense of fairness when a large corporation is forced to return money to “the little guy” after being shown to have profited unjustly from claiming ownership of something that seems so obviously to be a part of our common cultural heritage. But it also shows how profitable copyright ownership can be in an era when the length of the copyright term has been extended as far as it has. My guess is that many students reading about this case would be surprised that people had been paying millions of dollars to Warner over the years just to have someone sing “Happy Birthday to You” in a film. I know I was surprised to learn of this when this case was decided. Were it not for a legal technicality, those profits would have been perfectly legitimate and Warner would have continued to rake them in from owning something most people would think could not be owned.

    The Beach Boys’ “Surfin’ USA” (1963):

    In one of the first high-profile plagiarism disputes involving two well-known rock ’n’ roll artists, legendary rock pioneer Chuck Berry accused The Beach Boys of infringing his copyright on the song “Sweet Little Sixteen,” which he released in 1958. Brian Wilson of The Beach Boys has said that he meant for his song “Surfing’ USA” to stand as a tribute to Berry, and apparently had not thought about the legal implications of adapting Berry’s city-inspired lyrics as a travelogue of favorite surfing spots. After Berry had his lawyers send a letter to The Beach Boys threatening a law suit for copyright infringement, The Beach Boys wisely admitted the clear similarities and offered to avoid litigation by giving Berry the songwriting credit for “Surfin’ USA,” thus avoiding an embarrassing lawsuit. Beginning in 1966, all copies of “Surfin’ USA” contain the attribution to Chuck Berry as songwriter, rather than the original attribution to Brian Wilson.

    George Harrison’s “My Sweet Lord” (1970):

    In 1970, publisher Bright Tunes Music sued Beatles’ guitarist George Harrison for copyright infringement, claiming his 1970 song “My Sweet Lord” violated the copyright of the 1963 Chiffons hit “He’s So Fine,” written by Ronnie Mack in 1962. Mack was not a party to the suit, as he had died in 1963. In their early years, 1962-1964, The Beatles were known for having been highly influenced by American girl groups, covering several of their songs including two songs by The Shirelles (“Boys” and “Baby It’s You”) that appeared on The Beatles’ first album. The Beatles’ fascination with the sound of the girl groups made the issue of “access” easy to prove, as Harrison readily admitted in court that he and the rest of The Beatles listened to American girl groups frequently, and that their style was influential to The Beatles’ original songwriting. Harrison’s “My Sweet Lord” was also produced by Phil Spector, the legendary producer of several girl group hits from the early 1960s.

    The case against Harrison went to trial in February of 1976 after attempts by Harrison to settle the claim out of court failed. Harrison acknowledged the striking harmonic and melodic similarities between his song and “He’s So Fine,” but claimed not to have been consciously influenced by it when he was writing “My Sweet Lord”. The jury had little trouble hearing those significant similarities and awarded the plaintiff $1,599,987 to be paid by Harrison from his earnings from “My Sweet Lord.” Recall that lack of intent does not constitute a defense to copyright liability — unconscious copying can result in the same liability for infringement as deliberate plagiarism, and the judge’s opinion in the “My Sweet Lord” case explicitly points out that Harrison’s liability for copyright infringement “is no less so even though subconsciously accomplished.”

    Harrison’s involvement in this copyright infringement suit inspired him to write “This Song” in 1976, the year of the trial, which contains lyrics that include the phrases “don’t infringe on anyone’s copyright” and “this tune has nothing Bright about it,” a clear reference to the “My Sweet Lord” plaintiff, Bright Tunes Music.

    Led Zeppelin’s “Bring It on Home” (1969) and “Whole Lotta Love” (1969).

    In 1972, Chess Records’ publishing arm, Arc Music, sued Led Zeppelin, claiming their 1969 recording of “Bring It on Home” infringed on their copyright in a song of the same title recorded in 1966 by Sonny Boy Williamson and written by Willie Dixon. In 1985, Willie Dixon sued Zeppelin under his own name, claiming their 1969 song “Whole Lotta Love” infringed on his song “You Need Love” (recorded in 1962 by Muddy Waters). Both lawsuits were settled out of court, with Arc Music and Willie Dixon receiving unknown settlements from Led Zeppelin. The settlement also provided Dixon with copyright acknowledgement on subsequent releases of the recordings. Dixon was also forced to sue Arc Music in the 1970s to receive his correct portion of the copyrights for “Bring It on Home” and other Chess Records blues classics that he argued had been improperly kept from him at the time of those recordings.

    Led Zeppelin’s seeming disregard for the laws of copyright as exemplified by these Willie Dixon songs raises numerous difficult questions regarding the common use of American black blues compositions by white blues-rock artists as source material in the 1960s and ‘70s. While some blues-rock groups such as the Rolling Stones and Cream went out of their way to credit the original black artists as inspiration for their cover songs and originals, other groups, such as Led Zeppelin and ZZ Top, either crossed into or flirted with copyright infringement by claiming to be the originators of songs that clearly plagiarized earlier blues songs.

    The fact that these blues imitators of the 1960s and ‘70s were white and those they copied were most often black also raises the question of whether a lack of cross-racial respect plays some role in this. Were white blues imitators less respectful of the copyrights of black blues originators than they would have been if the copyrights were held by white songwriters? Or was there a sense that there was little to risk due to a belief that black songwriters were less likely to have the legal awareness or resources to defend their rights? Led Zeppelin’s Robert Plant provides a candid confirmation of the views of some blues-rock musicians from the 1960s and ‘70s when asked about this case: “At the time, there was a lot of conversation about what to do. It was decided that it was so far away in time and influence that … well, you only get caught when you’re successful. That’s the game.”

    “Blurred Lines” (2013):

    This case, involving the 2012 No. 1 pop song “Blurred Lines” by Robin Thicke and Pharrell Williams, has been one of the most controversial music copyright infringement disputes in history, and it continues to generate commentary and concern from those interested in the future of music copyright law. The dispute is a relatively straightforward infringement claim involving whether “Blurred Lines” infringed on the musical work copyright to Marvin Gaye’s 1977 hit song “Got to Give It Up”. Despite this simple premise, however, the controversial trial and resolution of this case highlights aspects of copyright law that observers feel point to fundamental problems with how these disputes are decided and the financial incentives for bringing infringement claims that has resulted in a flood of such cases in recent years.

    Before looking under the hood at the various legal issues presented by this case, let’s examine the unusual procedural history and ultimate outcome: The original complaint was actually filed by Robin Thicke and Pharrell Williams, the writers of the allegedly infringing song, “Blurred Lines.” Typically, copyright suits are originated by the owner of the copyright that has allegedly been infringed. However, Thicke and Williams had been in failed negotiations with the estate of the deceased Marvin Gaye, who had threatened to sue them for this alleged infringement, so Thicke and Williams decided to initiate the legal proceedings themselves, hoping a judge would quickly dispense with the infringement claim therefore putting an end to the claim before it could even be asserted. This aggressive legal strategy backfired, however, as the judge refused to rule that the claim had no merit and the Gaye estate counter-sued to enforce their copyright.

    After a lengthy trial featuring the usual back-and-forth between expert witnesses arguing the musical merits of each side’s case, the jury concluded that “Blurred Lines” had in fact infringed on the copyright to “Got to Give It Up,” and awarded the Gaye estate a total of $7 million dollars in damages. Then, rather than force Thicke and Williams to stop selling “Blurred Lines,” as requested by the Gaye estate, the judge also awarded the Gaye estate a 50% share of the copyright to “Blurred Lines” and any additional royalties earned from the song.

    The primary legal issue that surrounds this case is that of whether and how the sound recording of Gaye’s song could be used in trial as evidence. The Copyright Act of 1976 made a significant change in copyright evidentiary law by providing that a sound recording of a song could stand in place of the traditional music notation as the “deposit copy” documenting the existence of a song copyright. However, that act also specified that only sound recordings made on or after January 1, 1978 could serve that purpose, and that songs copyrighted prior to that date are evidenced only by the sheet music deposited with the U.S. Copyright Office.

    Gaye’s “Got to Give It Up” was composed before 1978, so the protected musical elements of the song could only be proven by the sheet music deposit copy, not the recording. The controversy arose from the fact that the Gaye estate’s attorneys and expert witness during trial played portions of the sound recording to illustrate similarities between the two songs that were not shown on the sheet music, giving the jury an opportunity to consider elements of similarity that perhaps should have been excluded. The 9th Circuit Court of Appeals ruled that the trial court was within its discretion in allowing the jury to hear these portions of the recording in order to “interpret” the sheet music.

    Those musical elements that Gaye’s expert witness pointed to in the sound recording that were missing from the sheet music included a bass line, a keyboard part, and a now-infamous cowbell rhythm. Allowing the jury to consider similarities of those elements arguably also allowed the jury to base their decision on musical elements that have not traditionally been considered to be protected by copyright, elements that would be considered more related to the arrangement of a song rather than the traditional melodic and harmonic details of the song itself. As interpreted by critics of the ruling, the trial court had allowed the “groove” or arrangement of the song to be a protected element, which would indeed represent a significant expansion of what has historically been considered the musical elements protected by copyright. Can a rhythmic groove be copyrighted? A cowbell pattern? A background keyboard part? Does any song that imitates the generic groove or feel of a historical style now potentially violate the copyright of every song that also used those generic elements of that style? What are the limits to that approach to music copyright?

    After losing at the trial court and court of appeals level, Thicke and Williams decided against further appealing this highly controversial decision to the U.S. Supreme Court, so this case stands as an outlier whose ultimate influence on copyright law is yet to be determined.

    In another twist to an already bizarre case, “Blurred Lines” co-songwriter Pharrell Williams was accused in a 2019 complaint of having committed perjury (lying under oath) during the trial. The nature of the complaint stems from the finding in the original case that Williams did not intentionally commit copyright infringement, so was not liable for the plaintiffs’ attorneys fees on top of the damages award. (A judge can add a plaintiff’s attorney’s fees to a damage award when the defendant is shown to have intentionally committed copyright infringement.) The Marin Gaye Estate’s legal fees in the copyright infringement case amounted to approximately $3.5 million, so this is far more than a mere squabble over words and feelings.

    The supposed perjury occurred when Williams testified in his deposition that “I did not go in the studio with the intention of making anything feel like, or to sound like, Marvin Gaye.” However, in a 2019 interview with producer Rick Rubin, Williams admitted that one of his songwriting methods is to “reverse engineer” previous pop songs to come up with something similar and that he “got himself in trouble” by doing just that with “Blurred Lines.” “What [we’d] always try to do,” Williams said, “was reverse engineer the songs that did something to us emotionally and figure out where the mechanism is in there, and as I said to you before, try to figure out if we can build a building that doesn’t look the same but makes you feel the same way”. The Marvin Gaye Estate claims this is factually inconsistent with Williams’ having said in his deposition that “When I am searching for music, which I don’t expect you to understand this, but we look into oblivion. We look into that which does not exist”.

    Williams has responded to this new allegation by claiming that his concept of “reverse engineering” songs is not legally equivalent to intentionally committing copyright infringement. The court has not yet responded to this new claim as of the time of this writing.

    Led Zeppelin: “Stairway to Heaven” (2015).

    This epic legal battle involved one of the best-known recordings of the 1970s: Led Zeppelin’s “Stairway to Heaven” from their 1971 album Led Zeppelin IV. The copyright infringement claim was filed by the estate of deceased songwriter Randy Wolfe (aka “Randy California”), who was also the leader of the 1960s band, Spirit. The claim is that Zeppelin’s famous power ballad infringed on the copyright to Spirit’s song “Taurus,” composed by Randy Wolfe in 1966 and released on the band’s first album (Spirit) in 1967.

    The portion of “Stairway” that the Wolfe estate claimed to have violated the “Taurus” copyright was limited to the slow introduction, featuring a slow, arpeggiated chordal guitar part in A-minor (famously played on the 12-string half of Jimmy Page’s famous Gibson double-neck electric guitar). The arpeggiated chords are played over a chromatically-descending bass line. Spirit’s song “Taurus” contains a remarkably similar arpeggiated chordal guitar part in A-minor over a similar descending chromatic bass line. The dispute in this case was not over whether the “Stairway” introduction is similar to “Taurus” (they are nearly identical), but whether the musical elements of that introduction constituted copyright-protected elements, or whether instead they are musical conventions that are so generic as to be unprotectable and thus not subject to copyright infringement claims.

    The initial copyright infringement complaint in this case was filed in the United States District Court in California (Central District) in 2014, 43 years after the release of the “Stairway to Heaven” recording. The complaint was filed by Michael Skidmore, a co-trustee of the Randy Wolfe Trust that had been established by Wolfe’s mother after his death in 1997. The complaint named all the members of the Led Zeppelin band as well as their publishing and record companies (Warner and Atlantic, respectively). The reason this complaint could be filed despite the long duration between the initial record release and the date of the complaint is that the alleged infringement was ongoing due to the continued popularity of the song (to say the least) reflected in continued sales and streaming.

    In 2015, a five-day jury trial resulted in a verdict in favor of Led Zeppelin, finding that, although the Wolfe trust did hold a valid copyright to the song “Taurus,” and Led Zeppelin had access to that song at the time they wrote “Heaven,” the two songs were not substantially similar under the objective extrinsic test. The jury was persuaded by Led Zeppelin’s expert musicological testimony during the trial that the similarities between the two songs are based on “unprotectable common musical elements.” In other words, the musical similarities between the songs involve generic musical conventions, such as the minor arpeggio over a descending chromatic bass line, that have been common musical building blocks for many songwriters over several centuries. One might wonder how Led Zeppelin was shown to have had access to the little-known song “Taurus,” but this issue was easily adjudicated after Zeppelin guitarist Jimmy Page testified in court that he owned the Spirit album on which the song appeared and that the two bands had performed together before “Starway to Heaven” was written.

    Another important issue decided by the District Court trial was that the issue of the “deposit copy” for the song would be governed by the 1909 Copyright Act, which allows only notated sheet music as evidence, rather than the 1976 Act, which allows for either notation or a recording to serve as the deposit copy. Due to this ruling by the District Court judge, the jury was only allowed to look at the skeletal notations of “Taurus” and “Stairway to Heaven,” rather than listen to the recordings in order to compare them. This is a similar issue to the one presented in the “Blurred Lines” case discussed above, although the “Stairway to Heaven” jury was not allowed to listen to edited “mashups” of the recordings as was allowed in the “Blurred Lines” case. The restriction of the evidence to notation likely contributed to the jury’s finding for Led Zeppelin, as the similarity between the two songs is even more apparent when listening to the recordings rather than just looking at notation. This is particularly true given that most of the jurors likely could not read music and thus relied on expert testimony rather than being able to form their own subjective (intrinsic) opinions regarding the similarity of the songs. This is not to say that the result would necessarily have been different had the jury been able to listen to the recordings, but it raises the likelihood of a different decision.

    Skidmore (trustee of the Randy Wolfe trust) appealed the District Court verdict to the Ninth Circuit Court of Appeals. Skidmore’s appeal challenged various rulings and jury instructions made during the trial, including the finding that the song recordings were not available for evidence to the jury in determining “substantial similarity.” A three-judge panel of the Ninth Circuit Court of Appeals ruled in 2018 that the District Court judge had made errors in instructing the jury regarding elements of substantial similarity and remanded the case to the District Court for a new trial.

    The trial court’s 2015 ruling in favor of Led Zeppelin had the effect of reducing the level of concern among musicians about copyright infringement following the 2013 “Blurred Lines” decision. Musicians had justifiably been concerned following “Blurred Lines” that courts would allow juries to find substantial musical similarities from relatively common musical elements without requiring similarities among a combination of more specific musical elements such as unique lyrics, melodies, and harmonies. The initial jury verdict seemed to indicate that “Blurred Lines” was an anomaly and that traditional copyright analysis had been restored. However, the Ninth Circuit’s reversal of that verdict in 2018 rekindled the flames of fear, if not outright panic, that the copyright rug was pulled out from under the feet of songwriters. (Of course, those who believed that songwriters should be held to a stricter level of originality would have been pleased with the reversal.)

    One of the quirks of an appeal to a federal Circuit Court is that it has two levels: The first appeal is to a three-judge panel rather than a larger group of judges. If the appellant wishes, however, they may further appeal the decision of the three-judge panel and ask for the case to be heard en banc, meaning in front of a panel of eleven judges, including the Chief Judge of the court. The Court of Appeals is not required to accept this request for an en banc hearing, but will do so when there is enough support on the court to revisit the decision of the smaller panel. After Led Zeppelin appealed the decision of the three-judge panel, the Ninth Circuit agreed to hold an en banc rehearing of the appeal.

    After the en banc rehearing of the appeal, the Ninth Circuit in 2020 reversed the decision of the three-judge panel to remand the case to the District Court for retrial, this upholding the original jury verdict in favor of Led Zeppelin. After this second Ninth Circuit decision, songwriters again felt relieved that a sense of order had been restored to copyright law after the shock of the “Blurred Lines” decision. That sense of renewed calm was reinforced in 2022 when the Ninth Circuit ruled in favor of Katy Perry, who had been found liable for copyright infringement by a jury in 2019. Perry had been sued by rapper Marcus Gray (“Flame”) for perceived similarities between his song “Joyful Noise” and Perry’s song “Dark Horse.” The Ninth Circuit ruled that, despite the jury’s verdict, Perry’s song was not substantially similar to Gray’s because the portion of Gray’s song allegedly copied did not constitute an original musical expression. This finding is similar to the one in the “Stairway to Heaven” case, where the musical similarity between the two songs involved generic musical elements rather than original musical expression. Perhaps what these recent cases indicate more than anything else is that juries do not have the appropriate musical training to assess whether musical similarities involve generic musical elements rather than original musical expression. This provides opportunities for juries to be swayed by expert witnesses who are being paid to make a case for their client, rather than provide unbiased opinion. The “battle of the experts” does not always lead a jury to a result that can withstand lengthy and costly appeals.


    This page titled 3.5: Landmark Musical Work Copyright Infringement Cases is shared under a CC BY-NC-SA 4.0 license and was authored, remixed, and/or curated by Larry Wayte via source content that was edited to the style and standards of the LibreTexts platform; a detailed edit history is available upon request.

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