Another musician faces copyright infringement suit over a handful of notes.

Another musician faces copyright infringement suit over a handful of notes.

A copyright is a set of exclusive rights granted to the creator of a new work of expression.  When a creator fixes the work in a tangible medium they are automatically granted a copyright to the work.  The creator can strengthen the rights associated with the copyright in the United States by registering the work with the United States Copyright Office, but registration is not a condition precedent to the grant of a copyright.  The owner of a copyright is granted the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original, if someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement.  A copyright owner can combat copyright infringement by requesting an injunction from a court and damages can be awarded to a copyright owner that successfully demonstrates copyright infringement.

The purpose of copyright law is to promote the progress of useful arts and science by protecting the exclusive right of creators to benefit from their works.  Works protected by copyright include, books, maps, movies and music.  Inspiration for a new work is frequently drawn from an earlier work.  Therefore copyright law will excuse a certain amount of borrowing from earlier works.  When a significant portion of a new work borrows from an old work, the concept of fair use is relevant.  When a trivial portion of an old work appears in a new work, the concept of De Minimis Use becomes relevant.

De Minimis Use is when the use of an old copyrighted work in a new work is so trivial that a court will not bother adjudicating the case.  De minimis is a shortened version of the phrase “de minimis non curat lex” which translated means “the law does not concern itself with trifles.”  Even though copying may have occurred, and there is no other defense available, the copying is so small that copyright infringement has not occurred.  Music sampling, where one musician takes a sound recording made by another musician, chops up the original song and uses bits of the original song in a new song is an example of a De Minimis Use.

While most people involved with the music industry felt that De Minimis Use was a settled issue, there were some that disagreed.  Marcus Gray wrote a song entitled Joyful Noise and claimed that Katy Perry’s song Dark Horse infringed on it because the two songs shared a sequence of six musical notes.  Evidence was presented at trial that the six notes appeared in earlier works and the writers of the song claimed that they never heard Mr. Gray’s song before they created Dark Horse.  The jury in the trial sided with Mr. Gray and awarded a judgement of $2.8 million for copyright infringement.

Now another song writer is claiming copyright infringement over a group of three notes.  Steve Ronsen wrote a song entitled Almost in 2012 and uploaded it to a music sharing website.  Mr. Ronsen is now claiming that the song Shallow, co-written and performed by Lady GaGa, infringes on the copyright for Almost.  The two songs only share a group of three musical notes.  A lawsuit has not been filed yet, both sides claim that the facts and the law are on their side.  Given the precedent set by the Dark Horse case it seems that Mr. Ronsen’s position has an iota of merit.  However, the controversy is over three musical notes, at some point the court will have to draw the line and say that De Minimis Use bars a finding of copyright infringement.

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