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 read 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. But 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!

This is just weird. Here, he again specifically included the underlying composition and said he didn’t “own” it, contradicting the previous two exclusions, right? Well, maybe not. Why assume a contradiction when sloppiness is an available explanation. It seems at least as reasonable to believe Arty didn’t intend these to contradict but that he is talking about two distinct sets of rights, maintaining one and assigning the other, or that he’s referring to “I Lived” here as an underlying composition. But, that doesn’t really need to be said, so… y’know… I don’t know what this paragraph intended to say.

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.

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, and so forth. The attorneys on both sides are earning their fees.

Broad picture, Marshmello may or may not have infringed upon “I Lived,” (probably not, btw) 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? He’d way rather win this thing now. But, fat chance.

Guess work now… I’d say this: the melody in question (Arty’s remix hook) is hardly relatable to One Direction’s song. It’s new material that, yes, 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 in looking at the Remixer Declaration language I’ve 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. My logic is that since the default state is that copyright vests in the creator at creation and the language in the Remixer Declaration sorta sucks and is subject to a good bit of interpretation, let’s say? 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.

Update: I was wrong.

Written by Brian McBrearty