March 23, 2021 Musicology No Comments

A cautionary tale for composers?

Arty (DJ Artem Stoliarov) is suing Marshmello whose biggest hit, “Happier,” in Arty’s view infringes on a work of his called “I Lived (Arty Remix).) There’s a Musicologize article about the question of similarity between “Happier,” and “I Lived (Arty Remix)” which is a remix of One Republic’s “I Lived.” We don’t have to cover all of that in any real depth here. In short I’ll just say the lawsuit is not silly. “Happier,” at least part of it, sounds a lot like Arty’s remix, at least part of it.

Similarity aside, we know thanks to court filings and Eriq Gardner’s coverage for THR, that Marshmello’s legal team is going hard at the idea that Arty’s remix was a “Work Made For Hire,” and that Arty doesn’t own any of it and has no standing to sue Marshmello. Indeed, “Work For Hire” agreements exist primarily to assign the rights to creative works away from their creators and to whoever ordered the creation, but as Gardner points out, Arty is claiming infringement of a “derivative work;” his remix of the One Republic track which contains portions of the original song and new elements that Arty added. And that can matter a lot, so let’s unpack that a little bit.

One can claim the copyright to a derivative work, but only for the added material portion, which of course must itself be original. Marshmello might argue that the parts Arty added to “I Lived” are actually taken directly from “I Lived,” or are otherwise unoriginal and unprotectable.

“The question of whether Plaintiff has standing to sue for copyright infringement is not even close,” reads the latest memorandum filed by the Marshmello side.

No, it’s quite close.

Disclaimer: I’m not a lawyer. I’m a musicologist. You know this already, right?

There will be scrutiny of the terms of the remix agreement Arty had with One Republic wherein Arty will have signed away a certain rights to the remix. But will we find that he knowingly signed away authorship of the part that (I’m telling you) sounds a lot like “Happier” and not much at all like “I Lived?” I doubt it, and I’ve signed countless Work For Hire agreements. Arty is no Marshmello in terms of professional notoriety, but he’s no slouch either. And only a slouch gives up the whole thing. If memory serves, it’s next to impossible; in Canada or in Europe, I’d have to look it up, I don’t think you can give up your authorship of a song even if you want to.

In general, copyright and the law make sense. Despite all the times I’ve written, “Don’t rely on poor man’s copyright!” and “Register your copyrights or you can’t sue anyone and protect them!” none of that negates that copyright DOES indeed exist from the time a musical work is fixed in a tangible medium. And when you own something, the rights you don’t explicitly sign away won’t easily go out with the bathwater even in a Work For Hire.

Fortunately, I have a copy of the remixer declaration that Arty signed. Unfortunately, it’s not a slam dunk either way. The Remixer Agreement between Arty and One Republic or Interscope Records mostly refers to the rights to the “Remix Master” which makes sense. Arty delivered a remixed production; a recording; a “master.” And in fact, the agreement language carves out and sets apart the “underlying composition,” which also makes sense.

“Remix Master (excluding the underlying musical composition) … shall constitute a ‘work made for hire’ …”

Evidently Arty’s Remixer Declaration. Case 2:19-cv-03934-PSG-JPR Document 48 Filed 02/05/20

However, further down that same document, there’s a somewhat contradictory acknowledgment (which is kinda wordy so I’ll paraphrase it in my own interpretation and words) that says he doesn’t have “any ownership or financial interest in the underlying musical compositions embodied in the Remix Master.” And that he’ll make no claims to the contrary!.

Dude, seriously? What does “ownership” or “financial interest” mean here if not copyright? He specifically included the underlying composition and said he didn’t “own” it. It seems reasonable to believe Arty didn’t intend these to contradict; that he is talking about two distinct sets of rights, maintaining one and assigning the other. But, yuck.

Moreover, Arty and Ryan Tedder both evidently agreed at deposition that Arty doesn’t have “any publishing rights.” At least that’s what a defendant memorandum filing asserts. I might at this point ask, “Who cares what they think about publishing rights? They could both not know what they signed.”

And I don’t have nearly the whole story. There’s a ton to read as both sides try to settle the matter of what the Remixer Declaration says, intends, means, customarily means, etc. The attorneys on both sides are earning their fees.

Broad picture, Marshmello may or may not have infringed upon “I Lived,” but I sure don’t blame him for fighting the hell out of this “no standing to sue” phase before getting to the “do they sound too much alike” phase. In front of a jury? That’s going to be really fun. He’d way rather win this thing now. But, fat chance.

If I had to guess, I’d say this: Musically, the melody in question is barely relatable to One Direction’s song. It’s new material that happens to sound a lot like one of the main hooks in “Happier,” and generally the copyright for original works vest in the author when it hits the hard drive. And then in looking at the Remixer Declaration language I described, I’m going to apply the principles from Instant Replay in sports which call for evidence sufficiently clear and conclusive as to overturn the original call, or something like that. Since the default state is that copyright vests in the creator at creation and the language in the Remixer Declaration sorta sucks? I foresee the judge taking the path of least resistance — and leaving the author of the underlying new material with his right to protect his work.

Can’t wait to see though.

Written by Brian McBrearty