(This article discusses a case involving Juice WRLD, who since I wrote the article tragically passed away. )
It’s similarity, right? Both are important, sure, but where there’s tremendous significant similarity between two works, you can somewhat assume access. Less so the other way around. Similarity is paramount, isn’t it?
Lately though, I’m noticing that litigators are putting at least as much energy into establishing their access argument. And though access is critical, everything can’t be prioritized, else nothing’s prioritized, and substantial similarity was the priority, in my mind at least! However, Blurred Lines, Stairway To Heaven, and Dark Horse, probably the three biggest infringement cases of the past few years, have all got me rethinking how this game is most rationally played. Maybe access is the priority? And now I’m looking at the complaint filed in a new action involving Juice WRLD’s Lucid Dreams and I’m seeing a lot of evidence of this.
Backtracking for a minute, copyright infringement, we’ve said many times before, is a bit of a three-legged stool. The most obvious leg is of course “similarity” — where one song just sounds too much like another to be a coincidence. The next leg involves “originality” — that is, the earlier and perhaps infringed work needs to be original enough itself to deserve copyright protection in the first place. And the third leg is “access” — the accused infringer needs to have been exposed to the earlier work somehow, else how could they have copied it?
You need all three stool legs to make a case for infringement.
I remember being somewhat annoyed during the Katy Perry “Dark Horse” case, when so much was made about Joyful Noise’s Youtube views and debate over whether 100,000 views is really a lot or just sounds like a lot. How big a “lot” do you need before it’s probable that Perry had access? The answer as far as I was concerned was, “Who cares? The handful of notes in question aren’t original enough to be protectable!” But, we discussed at length Katy Perry’s being a Christian music fan, or at least a former Christian music fan and Joyful Noise was a Christian song, successful in that circle, so Perry, if still listening to Christian music sometimes, maybe heard it? And to me again the answer was, “Who cares? I’m pretty sure she didn’t write the notes in question anyway. They were probably brought to her as an already a produced beat.”
And anyone paying attention to the Stairway To Heaven case knows that on a few occasions forty years ago Led Zeppelin was sharing stages with the band, Spirit, and that Jimmy Page has an enormous record collection including the Spirit album on which (Stairway soundalike) Taurus appears. Also forty years ago, Page was interviewed and said something like, “Spirit is a band I really love.” All of this was exhaustively pursued in court. In fact, according to Rolling Stone’s account of the court proceedings, the first two hours were spent on implications of “access” before there was anything related to musical “similarity.” Indeed, one of the main reasons the original verdict of no infringement was set aside on appeal was a technicality; that of the jury not having been allowed to see Jimmy Page’s face as he listened to Taurus through headphones. The appellate court reasoned that the jury might have witnessed an “ah-ha” expression of recognition on his face, and that, maybe, that would turn the tide of the access argument.
Getting back to this new case, Juice WRLD’s is being sued by the band, Yellowcard because his “Lucid Dreams” is somewhat like Yellowcard’s 2006 track, “Holly Wood Died.” By the way, Juice WRLD, according to this Genius article already owes the lion’s share of his Lucid Dreams profits to Sting because Lucid was based so heavily on Sting’s “Shape of My Heart.” Yellowcard, a pretty successful emo rock band in the nineties, is coming for some of whatever is still left.
Listening to the two tracks, I get it. There are indeed similarities. Here are the two tracks, if you’re interested.
Juice WRLD is a name, probably THE name, associated with “Emo Hip Hop” short more or less for “emotional” hip hop, where trap music stylings and rap are melded with the sort of emotional lyrics and themes and also the accompaniment and orchestration choices that characterized the hits of the 2000’s emo-pop acts like Jimmy Eats World and Fall Out Boy.
The complaint argues, as it should, that Juice WRLD was almost certainly familiar with Yellowcard’s song. But they don’t have direct evidence of it, so they need to get at it by inference. They go to some lengths and paint a vivid picture. I think this is fascinating, by itself and in the broader context.
I want to look at the points made and how they paint that picture. (The complaint’s points are in italics.)
“Yellowcard” has had multiple hit singles, including “Way Away,” “Ocean Avenue,” “Only One,” “Lights and Sounds,” “For You, and Your Denial,” and “Holly Wood Died.”
Right off the bat, which of these things is not like the others? We can argue about what makes a song a “hit,” but offhand I’d say five of those are pretty big hits, and the other is the allegedly infringed song. I’m not a big Yellowcard expert, but if you hop over to iTunes Music Store and sort Yellowcard songs by popularity, Holly Wood Died ranks 32nd. I also visited the “Top Tens” website which is like a modern-day “Book of lists,” where you can find the top ten anything (subject to opinions of course). Five of those Yellowcard songs are #’s 1, 2, 3, 5, and 6 on that list. And one of them is ranked #25. (For perspective, do you know what the 25th song on the list of best The Beatles tunes is? It’s Day Tripper! Nobody likes Day Tripper.)
Yellowcard’s “Only One” has 32 million YouTube views. “Ocean Avenue,” 37 Million; about a hundred times more than Holly Wood Died has.
Ever see those “Essentials” compilations on iTunes? They’re like “greatest hits,” right? “Hollywood” is not on it.
So is it a hit? Arguably. But it’s not an unassailable starting point.
From there the complaint offers that “Holly Wood Died,” again, was huge success; that Yellowcard recognized the ripoff instantly upon hearing Lucid Dreams; and that JuiceWRLD’s “studied” the genre of Emo pop-rock.
It paints a picture.
Evidently JuiceWRLD indeed tells, or at least once told, a story about having a crush on a girl in fifth grade who was “really emo” and he wanted something to talk to her about. And we might quibble further about what constitutes a “huge” success, but for now, let’s accept that too. The complaint continues, “Upon information and belief, based upon his current age, these initial events would have occurred in approximately 2006.” (2006 is when Yellowcard’s Lights and Sounds album was released and Holly Wood Died is the 14th track.) But Juice WRLD was born December of 1998, so throughout nearly all of 2006, he’s a 7-year-old, probably in first grade, right? Isn’t he more likely reading Cat In The Hat than he is “studying” emo-pop-rock stylings?
It’s plausible, but it strikes me as a bit of a journey to put this record in his eleven-year-old hands somehow. That takes effort.
The complaint further reasons that since JuiceWRLD has said he likes a Fall Out Boy album that was released in 2005, and Fall Out Boy is emo-pop, then, therefore “at the time ‘Holly Wood Died’ was released” Juice WRLD was “studying that same genre.”
Again, totally possible but these albums were released in 2005 and 2006, when Juice WRLD was just barely seven. Also, this Fall Out Boy record is one of the top emo albums of all time, and their hit, “Sugar We’re Going Down” is maybe THE most famous emo single of all time. My daughters weren’t even born yet and they both know that record by heart.
I’ll tell you something they DON’T know — they’ve no idea who Nathan Chapman is, and in all likelihood neither do you. Stay with me on this for a sec… Nathan Chapman happens to have produced the first five of Taylor Swift’s albums. My girls have never heard of him. The next argument in this complaint goes that since the Fall Out Boy record and the Yellowcard record were both produced by Neal Avron, and “it is very common for a fan of works produced for an artist by a specific producer to listen to other works by that same producer,” it’s likely Juice WRLD was exposed to Yellowcard’s Lights And Sounds and Holly Wood Died.
The very next paragraph of the complaint describes another published interview in which Juice WRLD discussed his rock background. I’ll just quote… “He (Juice WRLD) mentioned the following groups, “Black Sabbath,” “Foo Fighters,” Fall Out Boy,” and “The Devil Wears Prada.” These groups were peers of “Yellowcard,” and “Yellowcard’s” music is rooted in the same genre of music as these groups.”
Can we dotted line Yellowcard to Ozzy Osbourne? Sure we can. But it’s gonna take a little effort.
Whether or not all this is persuasive, factual, creative, brilliant, that’s not the point. The point is, what if we’re entering a world where the mindset from the get-go is evermore that juries don’t just require all three legs of the stool — similarity, protectability, and access — but are equally impressed by one as by another; as persuaded by access as by similarity! Then, where everything about a litigation is an abstraction of the threat of a jury trial, the calculus begins to get crazy. And all of this emphasis on access makes perfect sense.