Sounds like copyright infringement, the flood gates open.

Sounds like copyright infringement, the flood gates open.

Copyright is an exclusive set of rights granted to the creator of a new artistic work.  When an artist, such as a musician, writes a new piece of music or records a new song, the artist is granted a copyright to the song.  Copyright law grants the musician the exclusive right to sell, copy and distribute their song.   When someone other than the copyright owner sells, copies or distributes a song that is considered copyright infringement.  The copyright owner can file a lawsuit to stop copyright infringement with an injunction and get monetary damages for the infringement.

When a song is copied completely there is little question that copyright infringement has occurred.  When two songs are similar, but not exactly the same, the argument that copyright infringement has occurred is weaker.  Music is stored as notes, musical instruments have a finite number of notes, and a finite number of ways to string notes together to make pleasant music.  Further, copyright law protects the expression of ideas, not ideas themselves so musicians are allowed to write their own songs about a topic even if other musicians have written songs about the same topic.  To put it another way, if a musician writes a song about love and heart break, other musicians are still allowed to write songs about love and heart break.

In a prior blog post, How much can you borrow from a musician before it is copyright infringement? we discussed how Alan Thicke was found guilty of copyright infringement for writing a song, Blurred Lines, which shared musical elements from a prior song.  The two songs were different, but the jury in that case found that the songs were similar enough to justify a verdict of copyright infringement.  The musical community took note of this case and more copyright infringement cases are being filed in the United States based on songs sounding similar.

Take for instance the case May v. Cyrus et al, 1:2018cv02238 (S.D.N.Y. 2018). In that case Micheal May, a Jamaican song writer and musician claims that his copyright on the song We Run Things from 1988 is being infringed by Miley Cyrus’s 2013 song We Can’t Stop.  May alleges that Cyrus’s song infringes on the lyrics of May’s song.  May claims that Cyrus borrowed the phrase “We run things. Things no run we.” from May’s song.  The phrase does appear in both songs and the fact that the phrase is grammatically incorrect creates an appearance that the phrase was taken from May’s song.

May alleges that Cyrus would have had access to his song because May’s song was extremely popular through out Caribbean and two of Cyrus’s co-writers on the song are from the United States Virgin Islands.  The bothers that co-wrote We Can’t Stop with Cyrus, Theron and Timothy Thomas, are quoted in a 2015 article from the magazine Vibe as saying that the song is heavily influenced by Caribbean music and incorporates common Caribbean melodies.  May alleges that the brother went beyond borrowing common Caribbean melodies and misappropriated lyrics from May’s song which directly contributed to the success of We Can’t Stop.

The Blurred Lines case seems to have opened the flood gates on copyright infringement litigation based on two songs sounding similar.  The Blurred Lines case was litigated in the courts of the Ninth Circuit Court of Appeals, which are in the west coast of the United States.  The present case is being litigated in the courts of the Second Circuit Court of Appeals, on the east coast of the United States.  The two circuits are not required to follow each other’s precedent exactly but if May does not win his case it is possible that this case will be going to the United States Supreme Court to resolve the differences between the Circuit Courts.  We will have to wait and see the outcome.

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