How much can you borrow from a musician before it is copyright infringement?

How much can you borrow from a musician before it is copyright infringement?

When a musician records a new song they are granted a copyright to that song.  A copyright is a set of exclusive rights granted to a creator, by a government, to encourage musicians, artists, and other creative people to deliver new art to the public.  If someone other than the copyright owner exercises one of the exclusive rights granted by copyright law, this is considered copyright infringement. The copyright owner can sue to stop copyright infringement with an injunction and to get monetary damages for the copyright infringement.

An exact copy of a song would clearly be copyright infringement because it would infringe on the right granted in 17 U.S. Code § 106(1) – the right to reproduce the copyrighted work in copies or phonorecords.  However, what if a song was not exactly copied and only elements of a copyrighted song were borrowed to make a new song.  Would that violate the right to prepare derivative works based upon the copyrighted work granted in  the right granted in 17 U.S. Code § 106(2)?

In the creative arts such as music, musicians frequently draw inspiration from the work of others.  Copyright protects the expression of an idea not the idea itself, so a musician is free to write their own song which may have been inspired by another musician’s song.  However there is a limit to how much inspiration can be borrowed.

The limit to how much inspiration one musician may borrow from another is a blurred line. A case which illustrates this point is Williams v. Gaye, Case: 15-56880 (9th Cir. 2018).  This case revolves around the similarity between Marvin Gaye 1976 song “Got To Give It Up” and a 2012 song by Pharrell Williams and Robin Thicke titled “Blurred Lines”.  An interesting point in this case is that “Got To Give It Up” was created just before United States Copyright Law was amended to grant sound recordings copyright protection so the copyright infringement analysis revolved around the sheet music for the song, not the recorded version of the song.  Expert testimony at trial focused on the structural similarity of the notes in the two songs and how those notes were composed.

The district court found for the Gayes and awarded damages of $5.3 million.  Williams appealed the verdict to The United States Court of Appeals for the Ninth Circuit.  The Ninth Circuit upheld most of the decision of the district court.

The Ninth Circuit’s decision was based on the difference between broad and thin protection for a copyrighted work based on the range of expression involved in a copyrighted work.  If there’s a wide range of expression, then copyright protection is broad and a work will infringe if it’s ‘substantially similar’ to the copyrighted work. If there is only a narrow range of expression, then copyright protection is thin and a work must be virtually identical to infringe.  To illustrate the difference between broad and thing protection the Ninth Circuit said there are many ways to make an aliens attack movie, but there are only so many ways to paint a red bouncy ball on blank canvas.  If there are many ways to express something, a copyrighted work will be give broad protection, if there only a few ways to express something a copyrighted work will be given thin protection.

Circuit Courts in the Untied States typically do not review the facts of a case, only how the district court applied the law to the facts presented at trial.  The Circuit Court determined that the District did not make an error in granting “Got To Give It Up” broad copyright protection and that the two songs did not need to be virtually identical for copyright infringement to occur.

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