And if you write one “best/worst of the year” article, you somewhat obligate yourself to do it annually. So here are the 5 best and worst music copyright stories of 2023. And 2023 seems like a more important year than most in this regard. At the 2022 year-end, I named five music infringement cases all of which were flat out silly (though a couple of them are still on their last legs) and they were silly because of how and why copyright works. In 2023 those how’s and why’s themselves are more than usually in flux.
Every court decision becomes a potential basis for another decision, and in a more general, less musical, listicle, my number one would’ve been the Warhol vs Goldsmith case (about Warhol silkscreens of Prince based on Goldsmith’s 1991 photo). After years of civil court battles, this finally ended with a Supreme Court decision that narrowed the availability of “fair use” as a defense against infringement claims, and thus perhaps changed art, diminishing the artistic strategy of “appropriation.”
It’d also be hard to ignore the several current infringement suits launched against artificial intelligence companies that “trained” their products on copyrighted works to produce works that are arguably necessarily derivatives which on a case-by-case basis may or may not constitute unlawful appropriation. And then to boot, those AI companies may use those tools in competition with the copyright holders whose works the tools trained on, which runs into one of the main “fair use” factors. And these cases are probably just the beginning.
2024 is going to be awesome.
But let’s talk music cases.
We’ll cheat a tiny bit with a case that was sort of in 2023 and both sorta about music and somewhat related to the ongoing AI debates. It began in 2019 but the Genius.com versus Google case took a couple years, like the Warhol case, and in 2023 the Supreme Court also ended this one by opting not to consider the matter. I still feel like I’m cheating, but I’m also bridging the gap to 2024 which will be all about AI and how it cheats rightsholders out of everything on the internet. Genius is a great site and calls itself “the world’s biggest collection of song lyrics and musical knowledge.” I use it all the time to look up lyrics and facts about tracks. And of course, Genius considers itself THE source, but you can ask Google for song lyrics and it will happily provide them whole or in part. And as far as I can tell, they now cite sources, but perhaps that’s only after they got sued a few times. Genius claimed that its watermarks were found in the lyrics Google was presenting. But in the end it mostly came to the fact that the lyrics to, say, “Bridge Over Troubled Water” are what they are, and Genius doesn’t own them, so they aren’t Genius.com’s to protect. Want more detail?
Down a few slots from the top position last year, defending champion Vince Vance has rebooted that same better-left-for-dead lawsuit against Mariah Carey. Vince Vance and the Valiants had their own “All I Want For Christmas Is You” hit before the Queen of Xmas (or whatever she wants to be called) had hers. And it’s a nice little song, preferable to Mariah’s if you ask me. But the only thing these two tracks have in common is a title which of course appears in the lyric. There are no interesting similarities in the other lyrics or anywhere in the music, melodically or harmonically, and any claim to the contrary could be easily refuted. And while copyright protects not ideas themselves but only the particular expression of ideas, the idea of “all I want is my beloved and not a lot of material or ornamental things,” is well worn anyway. Titles are also not protectable by copyright, and even if they were, there are plenty of song registrations by the same name. AND LASTLY, though not relevant except in a “glass houses” sense, if the rights-holders to “You Belong To Me” which was recorded by lots of big names, here by Patsy Cline, I’ll take their call. Vance’s “All I Want For Christmas Is You” has a ton more in common with that track than with Mariah Carey’s holiday cash cow.
Poor Karol G had just made the cover of Rolling Stone when she was hit with this lawsuit.
There’s no doubt “Don’t Be Shy” by Karol G and superstar DJ Tiesto’s sounds a bit like “Algo Diferente,” an instrumental by 74-year-old Cuban-American flute player René Lorente. But infringement requires copying something original and protectable, and the elements these two songs have somewhat in common, are neither of those things. The misunderstanding is well demonstrated by the expert report that accompanied the complaint. It’s fascinatingly wrong, opining:
“It must be clearly stated that in the realm of the arts, “coincidences” are highly
Case 3:23-cv-01443-PAD Document 1-5 Filed 08/29/23
improbable…”
“When inspiration arrives, it is unique, personal, and irreplaceable
in its form, content, and melody.
From this, we assert that any similarity that arises in its
entirety is simply plagiarism, a copy, theft, usurpation of the
rights of the copyright holder, or a violation of copyright.”
Wow. No. On the contrary, coincidences are common and inspiration is weakly correlated to uniqueness. The assertion and philosophy is baseless.
And for all that, they got no better than third place.
At number two, we have a still ongoing and oddly stalled case in which 1990s Jamaican artists Steely and Clevie are suing nearly every Reggaeton artist on Earth; the notion being that their “Fish Market” track is either sampled, compositionally copied, or both in virtually every Reggaeton song. The case has been on Judge Birotte’s desk since a hearing two months ago and the long-expected (by me) dismissal of the lion’s share if not the whole shebang should be coming along any time. This case makes #2 for all the wrong reasons; its claims are unreasonable, its target is massive, and the impact of a screwy judgment could be disastrous.
It’s often said that you can’t copyright a rhythm. I would prefer to say you can’t copyright a brief and simple rhythm. Some musical genres of course are defined largely by their rhythm; samba, for example. Reggaeton is reliant upon a distinctive rhythm, and indeed Steely and Clevie’s Fish Market is widely seen as the recorded rhythm which by way of another song, Dem Bow, became ubiquitous in Reggaeton. And then of course Reggaeton conquered the world, unfortunately. (Yeah, I’m not a big fan.) Long story short though, this brief and simple drum rhythm that defense attorney Kenneth Freunlich performed perfectly adequately by drumming with his hands on the courtroom podium back in a November hearing, is neither substantial enough nor sufficiently original to Steely and Clevie to be protected by copyright.
This case will go away. Mark my words.
Wasn’t even close.
Here we have a case that I called the “biggest music copyright infringement case ever.” And I meant it. Perennial super-defendant, Ed Sheeran, makes the list for the second time in as many years. And Sheeran deserves praise for heroically taking this “Let’s Get It On” vs “Thinking Out Loud” case to trial just as he did last year against the preposterous claim that the “Oh I’s” in his “Shape Of You” were stolen from the “Oh Why’s” in a Sam Chokri track.
This time, contrary to what most thought, the plaintiff was not a greedy-going-back-for-seconds Gaye family, but the family of Gaye’s co-writer, Ed Townsend. The plaintiffs here were just as delusional, but also in my view sincere in the thought that their Dad deserved this. They were just wrong. There was no unlawful copying here, and a finding of liability would’ve been cataclysmic; it would’ve REALLY blurred lines. Musicologize explored every argument, real and imagined, however spurious. The only similarity worth mentioning between the two tracks was in the accompaniment to Sheeran’s verses. “Thinking Out Loud’s” lyrics and melodies weren’t similar to “Let’s Get It On.” The paucity of observable likeness was in an accompaniment element bit only a couple of measures long; four similar chords in a similar rhythm. Long story short, a short chord progression, neither unique nor original to Let’s Get It On, and not even quite the same, but merely similar. A combination of “nothing much and not identical” makes for a tough row to hoe in an infringement claim. Thankfully, the jury found that Sheeran had not copied “Let’s,” so whereas the unfortunate “Got To Give It Up” vs “Blurred Lines” verdict supposedly struck fear in the hearts of creatives and perhaps somewhat stifled the creation of new music (the opposite of copyright’s purpose I might add), this case along with Sheeran’s other, I’ll repeat it, heroic defenses, begin to restore balance.
And that’s the list. Next year’s list? Bet your last buck it’ll be five cases involving artificial intelligence.
