A Blog by Jonathan Low

 

Sep 26, 2019

Stairway To Heaven: Why the Music Industry Wants To Blow Up Copyrights

There is general agreement on the need for copyright protection, but in the digital era, it may be too easy to electronically pick out notes or beats and litigate, which could stifle innovation in music. JL


Vernon Silver reports in Bloomberg:

Whether Led Zeppelin’s Stairway to Heaven was a ripoff may soon tilt the tables in favor of creators of new music by limiting protection for their predecessors. At issue is whether an antiquated copyright system based on sheet music for most of the 20th century can be weaponized against artists of the era because their record companies consistently failed to put every single note of their recordings onto paper. The legal liberalization music companies are advocating would give current creators freer rein to cannibalize familiar sounds. Composers need copyright protection, “but they also need copyright law to let them create new music incorporating ideas from past musical works.”
Most Monday mornings, a cheery cabal of Hollywood-area music makers meets at a private club on the beach in Malibu. They call themselves the Composers Breakfast Club, and in recent months, over smoked salmon and fresh fruit, they’ve grappled with one of the biggest threats facing their vocation: a tsunami of copyright infringement lawsuits that has many of them worried they’ll be the next ones forced to pay out millions of dollars for stealing a catchy riff.
In the composers’ eyes, infringement claims have gone too far. At one breakfast in July, they reenacted the 2015 copyright trial in which a jury found Pharrell Williams and Robin Thicke had ripped off Marvin Gaye’s Got to Give It Up for their hit Blurred Lines, resulting in a $5.3 million judgment. The tongue-in-cheek proceedings (overseen by a “judge” whose day job is overseeing music legal issues at Walt Disney Studios Motion Pictures Production) resulted in the exact opposite verdict when the jury of about 50 composers in attendance overwhelmingly found that the newer song didn’t exactly copy Gaye’s. In August a breakfast club member lamented the $2.8 million judgment against Katy Perry and her collaborators for copying a Christian rap song in her 2013 hit Dark Horse. The assembled composers shook their head in agreement that the jury of musical laypeople just hadn’t understood the difference between sounding similar and actually copying unique combinations of notes.
Yet there’s hope in Malibu, both for the breakfasting composers and for today’s top pop stars. Another battle, over whether Led Zeppelin’s Stairway to Heaven was a ripoff, may soon tilt the tables in favor of creators of new music by limiting protection for their predecessors. At issue is whether an antiquated copyright system based on sheet music for most of the 20th century can be weaponized against artists of the era because their record companies consistently failed to put every single note of their recordings onto paper. A Bloomberg Businessweek investigation this year found that potentially unprotected riffs include famous guitar, sax, and keyboard solos from rock and soul treasures. Lynyrd Skynyrd’s Free Bird, with an album version running more than nine minutes, has an initial deposit copy—the draft of sheet music that stands as a copyright application before 1978—of only eight lines and no registration that includes its guitar solos.
Such a shift in thinking about intellectual property has the eager backing of the music industry and the Trump administration, which has formally taken Led Zeppelin’s side. From a business perspective, what the big record companies and music publishers are seeking in the Stairway case is to blow up copyright protection for the oldies, including the most iconic rock and soul songs, in favor of music by newer, more lucrative acts.
On Sept. 23 a rare 11-judge panel of the Ninth U.S. Circuit Court of Appeals in San Francisco will hear arguments in the Stairway case, which Led Zeppelin originally won in a 2016 trial. The core question is this: Will the court back the music industry’s argument that songs registered before 1978 should be afforded only “thin” protection limited to the bare notes on often cursory sheet music that songwriters’ record companies deposited—hence “deposit copies”—at the U.S. Copyright Office? Until 1978 federal copyright law required composition deposits on paper and didn’t allow recordings. The song that Led Zeppelin is accused of lifting, an obscure instrumental, Taurus by the band Spirit, was registered in 1967 as barely one page with 124 notes.
The legal liberalization that the music companies are advocating would give current creators freer rein to cannibalize familiar sounds with impunity. Yes, composers need copyright protection, “but they also need copyright law to let them create new music incorporating ideas from the vast cultural library of past musical works,” the Recording Industry Association of America and the National Music Publishers’ Association wrote in a joint amicus brief to the appeals judges. “Authors, including composers, must and should use unprotectable elements created by those creators coming before them.”
To the owners of the old copyrights, the industry position reads like an attempted heist. “They want to legalize copyright infringement,” says David Pullman, an investor in music rights who’s a plaintiff in one of the biggest pending cases. He and other rights holders to Gaye’s Let’s Get It On are demanding more than $100 million for the alleged theft of the song for Ed Sheeran’s hit Thinking Out Loud. That New York litigation, in which Sheeran denies any copying, is suspended pending the outcome of the Stairway appeal.
Pullman, who’s best known for turning David Bowie’s music royalty flows into “Bowie bonds” in 1997, takes a long and gimlet-eyed view of the business. “The publishing and record companies would love to be able to have stars infringe, because they can make more money this way,” he says.
The Trump administration’s decision to join the fray underscores the stakes. A U.S. Department of Justice lawyer will even make arguments at the hearing, using time allocated to Led Zeppelin’s legal team. The government’s brief argues that even the least complete deposit copies should at a minimum include basics such as melody and that “failure to incorporate elements such as these in the deposit copy
would reflect a failing on the part of the copyright owner or its agent.”
The government stance doesn’t fully reflect the messy historic truth about how music and copyright deposits were made during a golden age of popular music. Songs were often composed by recording artists with no knowledge of musical notation and then transcribed by record company clerks for the registrations. Those deposit copies capture only a fraction of what’s on the studio recordings.
As a result of the sketchy sheet music, there are unregistered bits of song that could be up for grabs if the courts restrict pre-1978 compositions’ protection to their deposit copies. The deposit copy of Gaye’s Let’s Get It On only has chords, lyrics, and melody, making it conceivable that someone could record a karaoke track identical to the record and never infringe the song’s copyright—because all the other backing notes and sounds such as the bass line, wah-wah guitar, backup singing, strings, and horns aren’t present in the sheet music.
Even more lucrative possibilities? Commercial exploitation for ringtones, ads, video games, or entire new songs would be a logical next step. For now, who could own what is in flux. The government addressed the possibility of orphaned riffs in its Stairway brief, saying the law change in 1978 grandfathered in any protectable, original elements of older songs that hadn’t been in deposit copies. Their owners need only register them to gain protection. In practice, it’s unclear whether any of those famous (and overplayed) riffs, such as the Eagles’ Hotel California guitar solos or the Doors’ keyboards from Riders on the Storm, would still count as original if registered today and used in court to challenge an infringement.
But isn’t it far-fetched that someone would try to cash in on, say, an unregistered but totally familiar Santana solo?
Nope.
In Malibu at the Composers Breakfast Club, such opportunities are the stuff of dreams and dollar signs. It’s easy to find music makers drooling at the possibility that some of the most familiar tunes of the 20th century will be unprotected. Malte Hagemeister, 46, wearing a Beatles T-shirt and a leather man bag across his chest that resembles a gun holster, is among the most eager to learn more about what he could legally lift. In his native Germany, Hagemeister got his start recording and selling vinyl gray-market mashups that lacked legal clearances from the underlying composers. Now in Venice Beach, Calif., he “feeds his family”—wife and five children—by creating music that he licenses for TV and ads. A greenlight from the Stairway case to use old riffs would make it easier for him to create lucrative tunes and jingles. “The ad world loves recognizable pieces,” Hagemeister says. “You make a piece with an energetic beat and an element that everybody knows, quote it, and you can then license it to advertising.”
This doesn’t mean Hagemeister and his breakfast club colleagues want to cheat or steal. The creative process—and its history—is more complicated than that. “The Beatles got inspired by so many black artists, then came hip-hop, then everybody got sued. It’s just fascinating that we all stand on the shoulders of giants,” he says.
What’s needed, Hagemeister says, is a copyright overhaul that recognizes the need for creating new works with the old building blocks—just as the record companies are advocating—but in a way that fully compensates the giants on whose shoulders he’s perched. Among the barriers is the law that allows for recording a cover version of a song and compensating the songwriter but doesn’t provide a similar license for using small bits of lots of songs. “There should be a way to divide the bounty without suing,” he says. “From an artist’s perspective, it’s beautiful that we have something to protect our rights of creativity. It is precious, but it’s gotten too complicated.”
For a taste of the complication, just read through the docket of the Stairway case. First there was the trial. Then last year, a three-judge panel on San Francisco’s federal appeals court ordered a do-over of that trial for procedural reasons (which hasn’t happened). The panel also declared that for older songs, the deposited sheet music “defines the scope of the copyright.” That ruling set off a second round of appeals by both sides that led the court to convene this second, bigger panel that’s poised to hear the case again.
Court watchers (the hearing will be streamed live online) will want to home in on the idea of “thin” copyright protection, which is entwined with the deposit copy issue. It’s the second half of Led Zeppelin’s one-two punch. First there are very few protected notes in the Taurus deposit copy. Then at best those notes are simply an arrangement of commonplace elements, such as an A-minor chord and a descending scale, the government brief argues. “Such a combination is subject at most to a thin copyright,” thegovernment brief says.


Observers will also want to keep an eye on the bar-brawling Philadelphia lawyer who brought the Stairway suit, Francis Malofiy. His response to the Trump administration’s brief begins, “The Trump Administration’s foray into this copyright case is an embarrassment that fails to understand the applicable law for the history of copyright,” then cites President Trump’s bashing the San Francisco appeals court as reasons the judges shouldn’t try to legislate from the bench.

Regardless of any fireworks, whatever the appeals judges decide will have immediate ramifications for the copyright disputes already in courts and the countless claims being hashed out in private.





The implications for intellectual-property rights may even go far beyond music, especially if the judges embrace the idea of “thin” copyright. Until now, case law shows a similar concept has been applied to creative works such as sculpture and computer interfaces, where judges saw limited combinations of elements possible in, say, a statue of a woman or the layout of a laptop screen. Under “thin” copyright protection, such designs could be protected only from “exact” copying. Apply the same thin protection to screenplays or video games, and knockoffs are suddenly a lot easier.

In the music business, the next biggest decision to come will be the Let’s Get It On litigation in New York federal court. Whereas the Stairway case is about ancient rock, this one involves Sheeran, one of the biggest stars of this century, and the way music is made today. Between that $100 million case and a possible trip for Led Zeppelin to the U.S. Supreme Court, we may learn soon how music will be made in the future—and whether record companies and their big stars will rake in billions while the aged rockers and their heirs will be left with a pittance.

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