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In copyright protection, the line between mere inspiration and copyright infringement, commonly known as plagiarism, has never been particularly clear. In music, this line is even more blurred, if possible, and the courts have been called upon to interpret on many occasions.
The Gray v. Perry case is one of those cases that immediately arouse the reader’s interest. The appeal judgment (United States District Court, 20/03/2020) was published recently. In it, the District Court rejects the first-instance decision of September 11, 2019, which declared that the ostinato—brief musical phrase or rhythmic pattern in a musical composition—of Katy Perry’s song “Dark Horse,” comprising eight musical notes, constituted an infringement of the ostinato in the claimants’ song titled “Joyful Noise” and ordered the respondents to pay 2.8 million dollars in compensation.
Artists, musicians, industry lawyers, and musicologists filed an amicus curiae before the District Court of California in favor of the respondent. In their statement, they underlined that the disputed ostinato was too simple to be protected by copyright and highlighted the harmful effects that its protection would have for the music industry in general and for authors and composers in particular, who would not know what to expect regarding the possibility of using general musical conventions and ideas.
Originality of the musical compositions
Beyond the anecdotal aspect of the case, the judgment is important because it defines a concept as unspecific as the degree of originality required for a musical composition, such as the ostinato under examination, to be protected by copyright.
To analyze a potential infringement of intellectual property rights, the Court examines “substantial similarities” established by caselaw (Three boys Music Copr. v. Bolton, 212 F. 3d 477, 485 [9th Cir. 2000)], which must be conducted from two distinctive viewpoints:
- The “extrinsic” perspective, which consists in conducting an objective comparison of the elements susceptible to protection, for which it is normal to seek the opinion of expert musicologists; and
- The “intrinsic” viewpoint, which conducts the analysis to determine whether there is similarity in the form of expression of the elements susceptible to protection from the point of view of a “reasonable average observer,” i.e., without the help of an expert.
As a general starting point, the Court excludes common musical elements such as progressions, tempos and hook phrases from copyright protection, either because they are not sufficiently original or because they are “unavoidable and naturally associated with the treatment of a specific musical idea.” However, the Court acknowledges that a combination of elements that individually are not susceptible to copyright protection can be protected if “if those elements are numerous enough, and their selection and arrangement original enough so that their combination constitutes an original work of authorship.”
The Court, therefore, extends the similarity test from the extrinsic viewpoint to three issues (i) whether the elements of the disputed ostinato are individually susceptible to copyright protection; (ii) whether the selection and arrangement of the elements of the ostinato are original enough; and (iii) whether the elements of the claimant’s song’s ostinato susceptible to protection are objectively similar to those of the allegedly infringing ostinato.
The Court answers no to the three issues. Regarding the first one, i.e., whether the individually considered elements are original, it states that they are “commonplace elements to which courts and tribunals have routinely denied copyright protection, at least when considered individually.” With regard to the second issue, i.e., whether there is originality in the selection and arrangement of the elements, it considers that the characteristic elements of the ostinato do not constitute a “particularly unique or rare combination,” taking the current state of the art in the music sector as a point of departure. Finally, with respect to the objective similarity between the ostinatos, the Court takes into account the author’s small margin of creative freedom when assessing the degree of originality required for a combination of eight musical notes such as the ostinato, and it concludes that, to identify an infringement in a case such as this, the respondent’s ostinato would have to be “virtually identical,” which is not the case.
The situation in Spain
In Spain, we do not have much caselaw yet on the concept of “plagiarism” or copyright infringement, in general, and in musical works, in particular.
With regard to the concept of plagiarism, caselaw considers that there is plagiarism when there are “basic and fundamental or essential structure coincidences that are not accessory, added, overlapping or insignificant modifications” (Supreme Court Judgment 1125/2003, of November 26, ES:TS:2003:7529). In musical works, Provincial Court of Barcelona judgment 274/2011, ES:APB:2011:11342 is interesting. Like the judgment discussed, it rejects the infringement as, although it recognizes that there is “substantial similarity” between the disputed elements, it rejects that they are susceptible of copyright protection as they lack the required originality. The new element of this judgment of the Provincial Court of Barcelona is that, in addition to the objective and technical comparison of the elements comprising the musical work, it states that a sort of “test of the average listener” should be used to assess the degree to which the “average consumer, with no technical or musical knowledge, can distinguish one work from another” and whether there is an infringement.
By Marta Zaballos
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