Success of Copyright Infringement Actions Threatens to Revoke Musician’s Creative License

Copyright lawsuits where one artist sues another artist are on the rise within the music industry.¹[1]Wang, Amy X. “How Music Copyright Lawsuits Are Scaring Away New Hits.” Rolling Stone, Rolling Stone, 9 Jan. 2020, https://www.rollingstone.com/pro/features/music-copyright-lawsuits-chilling-effect-935310/. In those suits, the plaintiff typically alleges the defendant has released a song that copies from one of plaintiff’s songs. The proliferation of these lawsuits, and their success thus far, has deterred many artists from reaching their creative potential due to the persistent fear of being involved in a legal dispute.²[2]Id.

First, this article will discuss three cases that resulted in large payouts music infringement lawsuits. Next, it will explore how the fear of a lawsuit has led to many artists’ creative minds being halted by the fear of being sued for a slight overlap with their work and previously produced music. Lastly, this upward trend in the number of lawsuits has formed a new set of precautions that artists should take to prevent courts from rewarding a plaintiff seeking damages for infringement.

The Opportunity for a Life-Changing Pay-Day

The increasing prevalence of copyright infringement cases in the music industry has provided a spotlight on the exorbitant level of damages available in such cases.³[3]Id. For instance, the song “Blurred Lines,” by Robin Thicke, Pharrell Williams, and T.I. is commonly referred to as the music industry’s, “worst nightmare”⁴[4]Id. A copyright dispute involving “Blurred Lines” resulted in a $5 million payment to the estate of Marvin Gaye because “Blurred Lines” was deemed to infringe on Gaye’s 1977 hit, “Got to Give it Up.”⁵[5]Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018)

Although Gaye is a well-established artist, this decision has initiated a trend of artists seeking to find commonalities between their original work and new works of other artists with the goal of suing for and recovering substantial money damages.⁶[6]Id. For example, a notorious case involving Katy Perry, led to a, “2.78 million dollar windfall” when her song “Dark Horse”, was deemed to have infringed on the copyright of “Joyful Noise.”⁷[7]Gray v. Perry, 2017 WL 1240740 (C.D. Cal. Apr. 3, 2017) The court concluded that the use of six, “nearly identical” melodies was sufficient to compensate Gray for the infringement on his work.⁸[8]Id. Despite the claim that she never heard of Gray’s song, Katy Perry’s creation of this “number 1 hit” cost her millions.⁹[9]Aswad, Jem. “Katy Perry’s ‘Dark Horse’ Case and Its Chilling Effect on Songwriting.” Variety, Variety, 6 Aug. 2019, https://variety.com/2019/biz/news/katy-perry-dark-horse-lawsuit-joyful-noise-chilling-effect-on-songwriting-1203292606/. Perry’s attorney, Christine Lepera said in her closing argument, “They are trying to own basic building blocks of music” and that, “[T]he alphabet of music should be available to everyone.”¹⁰[10]Id.

Similarly, Brandon Cooper and Timothy Valentine sued Chris Brown and Drake, alleging that Brown and Drake’s song “No Guidance” infringed on their song, “I Love Your Dress.” In 2019, the song “No Guidance”, by Chris Brown and Drake topped at number 5 on the billboard chart.¹¹[11]B Eggertsen, Chris. “Chris Brown and Drake Sued for Copyright Infringement over ‘No Guidance’.” Billboard, 7 Oct. 2021, https://www.billboard.com/pro/chris-brown-drake-no-guidance-lawsuit-copyright-infringement/. Cooper and Valentine alleged that “No Guidance” “copied” or “derived” crucial elements from the beat of “I Love Your Dress.”¹²[12]Id. Further, Cooper and Valentine alleged Chris Brown and Drake infringed by using the hook, “You got it.”¹³[13]Seitaram, Devi, et al. “Drake, Chris Brown Argues ‘No Guidance’ Copyright Lawsuit Is ‘Baseless’.” Urban Islandz, 13 Jan. 2022, https://urbanislandz.com/2022/01/13/drake-chris-brown-argues-no-guidance-copyright-lawsuit-is-baseless/. This short phrase constitutes the main lyrics used throughout “No Guidance.” “I Love your Dress” by Cooper and Valentine used this same three-word phrase throughout the song. But “I Love Your Dress” had a completely different storyline as compared to Chris Brown and Drake’s song.¹⁴[14]Id. James Sammataro, the defendants’ attorney, noted that the original creation by Cooper and Drum’n Skillz was a “love ballad about the song writer’s wife,” whereas the, “fast-paced” song by the defendants was about, “a new romantic interest.”¹⁵[15]Id. Plaintiff’s infringement claim based on a, “generic lyrical phrase” was argued by the defendants to be too broad of a claim, which could set a damaging standard in the music industry.¹⁶[16]Id. Examples like this dispute show that minor similarities such as few similar words can lead to an artist seeking to sue and recover millions in damages. Although this case remains pending, a settlement or judgement in favor of the plaintiffs will likely contribute to the growing trend of copyright infringement lawsuits in the music industry.

Impeding on the Creative Minds Within the Music Industry

This surge of copyright lawsuits in the music industry has resulted in million-dollar that have stunted creativity among musicians due to fear of litigation.¹⁷[17]Id. Consequently, this is resulting in musical masterminds being less willing to display their full creative abilities due to the underlying fear of a copyright infringement case against them.

For example, interpolation, implementing snippets of older songs into new projects, is a popular songwriting technique.¹⁸[18]Millman, Ethan. “’No Shelf Life Now’: The Big Business of Interpolating Old Songs for New Hits.” Rolling Stone, Rolling Stone, 8 Sept. 2021, https://www.rollingstone.com/pro/features/olivia-rodrigo-doja-cat-interpolation-music-1220580/. But interpolation exposes an artist to the threat of copyright infringement if the artist did not acquire permission from the artist of the older song to use those snippets.¹⁹[19]Id.

Precautions to Prevent a Lawsuit

The consequences of rewarding artists for finding slight similarities has resulted in a common fear throughout the industry.²⁰[20]“Copyright Infringement and the Climate of Fear.” – Forensic Musicologist Services. Latest News Coverage and Analysis of Current Copyright Infringement Cases., 25 Aug. 2021, https://www.musicologize.com/copyright-infringement-and-the-climate-of-fear/. As a result, some of the most creative minds in music now direct their attention to avoiding the repercussion of infringement rather than focusing on creation.

One step artists are taking to protect themselves is to hire a forensic musicologist before releasing a new song. A forensic musicologist evaluates the originality of music before it is released in order to mitigate the risks of litigation.²¹[21]Id. Sandy Wilbur, a forensic musicologist, says that she receives “triple the number of requests” to “double-check new songs” as a new precautionary step.²²[22]Wang, Amy X. “How Music Copyright Lawsuits Are Scaring Away New Hits.” Rolling Stone, Rolling Stone, 9 Jan. 2020, https://www.rollingstone.com/pro/features/music-copyright-lawsuits-chilling-effect-935310/. This drastic increase in precautionary steps has been noted since the conclusion of the 2015 “Blurred Lines” case.²³[23]Id. Unfortunately, artists now have to take such steps to ensure they will not face a lawsuit before they release a new song or melody.²⁴[24]Id.

Written by: Matthew Sobel
Matthew is a 2024 J.D. Candidate at Brooklyn Law School