Jay-Z and Timbaland still have to deal with Ernie Hines after all. If there is no settlement, and I really hope there is not, this case is way more interesting than it at first appears; a lot to look at. How’s it likely to end? We’ll get to that. First though, let’s look at the pretty crazy way we got here.
Back in May 2019, Ernie Hines sued both Jay-Z and Timbaland because Hines heard his “Help Me Put Out The Flame (In My Heart)” on their tracks “Paper Chase” and “Toe 2 Toe.” I hear it; you’d hear it; WhoSampled.com hears it. It’s in there.
This is Ernie Hines’s “Help Me Put Out The Flames In My Heart.” The guitar intro at the beginning is the only material that’s material here; just the first six seconds. By the time the vocal comes in, you’ve heard everything that Jay-Z sampled.
Here’s Toe 2 Toe.
And as for “Paper Chase,” I don’t know if it’s on youtube at all. Of course, it’s on Tidal. So here’s a link. If you’re not a registered Tidal user, you’ll probably get the point just from listening to a 30 second preview.
Or again, whosampled.com will show you where the guitar intro was sampled for both tracks.
Brief rant… Is there not a lot more creativity involved here than what we get nowadays? Jay-Z and Timbaland didn’t just loop two bars of someone else’s record. They created a new groove, working from their chopped up fragments of somebody else’s record. This matters, a lot, not just to this case, but to music in general. Anyway….
The first litigation.
The suit begins 20 years after the Vol 2 and Ginuwine albums. But Mr. Hines who “has no interest in rap music” didn’t hear those records until 2018 and the statute of limitations clock (I AM NOT A LAWYER) starts ticking only after you become aware of the infringement, so Hines can still sue if he’s hell-bent on getting his share of earnings (again, not a lawyer) that are oncoming. In other words, he can’t go back and get the big naughts money. Is it still worth his while? I don’t know. Maybe? The defendants have numerous times effectively said “no, it’s really not. There’s very little to be gained from this.” (Of course, that’s what they would say.)
In the early rounds, the defendants argued procedural stuff like the timing of filings and the failure to specify exactly what parts of Hines’ work appeared in exactly what parts of theirs — that sort of thing, and this worked. In April 2020, the judge ruled the plaintiff in its complaint didn’t meet its burden of specifying how the allegedly infringing works were substantially similar to his own and dismissed the case. But it was a “without prejudice” ruling meaning the plaintiff, Hines, gets another bite at the apple if he amends his complaint and a much bigger “if” if he paid the legal costs incurred by the defendants to that point. Jay-Z, Timbaland, and their respective record companies employ some top-notch legal help. It was high five figures at that point, I think. More than enough to expect Hines to go away, wouldn’t you think?
The second litigation.
What happens next is Hines indeed elects NOT to amend that complaint and pay tens of thousands in legal fees, and instead, he withdraws the first case and initiates a new one in May 2020 that sues some different defendant companies. Instead of the record companies, he goes after publishing companies like EMI but still includes Jay Z and Timbaland. (We’re almost done with the recap.) And so the defense asked for dismissal of this new case, this time with a more robust musicological argument, and with a demand for a bond that would effectively ensure that when this case gets tossed like the first one did, the defense will get its legal costs which according to the defendants were then around $120k and climbing.
But the case did not get tossed. Last week, June 8, 2021, Judge J. Paul Oetken ruled that he can’t resolve the question of “whether the copying goes to trivial or substantial elements of the original work.” So the case goes on. And they didn’t get their bond either by the way.
So is this gonna turn out to be infringement?!
First battleground, we know by now, after Stairway, after Blurred Lines, and midway through a slew of Ed Sheeran cases that the four corners of protected material for a song recorded in 1970 are defined by the sheet music deposit copy registered with the copyright office. I’ve seen the deposit copy of Help Me. Guess what’s not on there — the two bar introduction to Help Me Put Out The Flame. And unlike a lot of the stuff in Vernon Silver’s article about lots of famous intros and solos being unprotected Hines’s guitar intro does not appear anywhere else in the composition. So, if Hines were not allowed to sue over the intro he really can’t pivot to some sort of inference of the intro material being implied elsewhere in the song reflected in the deposit copy. However! You can effectively update your copyright registration to include the material on the recording apart from what was on the deposit copy. And Hines did so in June 2019, which is well after he launched the original suit, so take from that what you will.
The high ground argument for this case is around substantial similarity and unlawful appropriation — whether the guitar riff in Help Me is original and protectable by copyright, not because it isn’t or isn’t in a registered deposit copy but whether it’s sufficiently original musically. And indeed the defense’s principal argument so far seems to be that the sampled guitar riff melody was copied from a musical phrase known as the Mysterioso Pizzicato, which you’ve probably heard.
This two-measure musical idea is from a hundred years ago and was heard in silent films and cartoons when a villain was sneaking up on someone. “I hear it as “we. are. here. to. SCARE. you.” because it was on some “Halloween Haunts” type of record I had as a kid along with “Monster Mash” and “They’re Coming To Take Me Away, Ha Ha.” Anyway, the melody is obviously very much in the public domain.
To be honest though, I’m not sure Mysterioso Pizzicato would even make its way into my analysis. I’ll get into it more later, but for now, the series of pitches is nearly the same, but as you probably heard, the rhythm is very different. It’s also subject to interpretation. The “Help Me” guitar intro occurs at the beginning of the piece without a rhythmic reference point that clearly shows its rhythmic intent. Nobody counts out “1, 2, 3, 4” beforehand. There’s nothing beforehand. And so, there are multiple ways it might be interpreted rhythmically. If I were to write out the music, I’d need to make some assumptions. And I can readily find perfectly available interpretations that make “an allusion to Mysterioso Pizzicato” a pretty sketchy way to explain this bit of music.
Where did the defense get the idea the Help Me intro is taken from Mysterioso Pizzicato? From the plaintiff’s own musicologist report, which wasn’t written until months after they launched the suit! The defense sought dismissal based very substantially on the argument that infringement is implausible since the riff is copied, by the plaintiff’s own admission as they see it, from a hundred year old ditty. But I don’t see it as an unwitting concession at all. The “Help Me” guitar intro riff is not nearly a note for note copy of “Mysterioso Pizzicato,” it just has some commonalities and it’s a plausible defense argument. So I see this as pre-arguing and at a minimum dulling the point, effectively “one might well liken the guitar riff to that villain music, and heck the author might even have had Mysterioso Pizzicato in mind when he created it, but it’s dissimilar enough to be original.” And I buy that, especially if such a recollection came from Hines himself in the first place, which I suspect it may have.
But let’s remind ourselves of some reference points; where the bar is for an inference of copying.
See, e.g., Gaste v. Kaiserman, 863 F.2d 1061, 1068–69 (2d Cir.1988) (probative similarity “between pieces of popular music must extend beyond themes that could have been derived from a common source or themes that are so trite as to be likely to appear in many compositions””New Old Music Grp., Inc. v. Gottwald, 122 F. Supp. 3d 78, 86 (S.D.N.Y. 2015)
Hines’s guitar riff, even if it’s not Mysterioso Pizzacato, is not very long, and it’s not very unique. It is very scalar, up and down an ordinary “natural” minor scale, the Aeolian mode. And I do think it’s substantially “trite as to be likely to appear” at least in part, “in many compositions.”
That doesn’t mean it’s unprotectable. It might be afforded only what’s called “thin copyright” protection, the long and short of which is that “Paper Chase” and “Toe 2 Toe” would need to have copied them not just considerably, but near identically. That would be too much coincidence to ignore and we’d have something, maybe.
They don’t do that. They chopped up the recording of the melody, and from those recordings created a new melody. It’s far from a verbatim musical quote.
Defendants also like to include:
See, e.g., Knitwaves Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir. 1995) “Where we compare products that contain both protectible and unprotectible elements, our inspection must be ‘more discerning’” [a court] “must attempt to extract the unprotectable elements from…consideration and ask whether the protectable elements, standing alone, are substantially similar.”
That one drives me nuts. It argues that whenever part of something is unique and part is not, then we should strike and ignore what’s not, look at the distillate, and then ask “is what’s left substantial enough to be protectable on its own?” Ridiculous not least because everything in music is contextual. If you strip away something, you redefine all else that was in its periphery. Every bit of music and probably art and literature is comprised of material that came before it so the distinction is irrelevant in the absolute. To have a court draw a line and say “everything to the left of this line is to be excluded from the conversation” would be corrosive to truth finding. And a demand that a plaintiff do this preposterous thing — draw its own version of the line, distilling some portion as the original portion and then only from there, make the comparison to the allegedly infringing work to avoid summary judgment, makes no sense. This needs to go the way of the inverse ratio rule.
If it sounds like I’m very sympathetic to the plaintiff, believe me, I’m not. It would be far truer to say I sympathize with the defendants. I’m just not shocked they didn’t get summary judgment. They’re going to need to go a few more rounds to eventually inevitably be found not guilty. That’s a waste of something, the legal system’s time, kinda, but something. But this is the system within which we have to work.
And since the judge and I agree that the case isn’t over, there’s some interesting stuff that could come of this.
Can Jay-Z have infringed upon something that was recorded in 1970 but not registered for copyright until 2019? I’d think not until after 2019, he cannot have.
The defendants haven’t responded to the idea that the record was sampled. They can’t avoid the fact that they knew the work existed. There’s no discussion to be had about “access.”
If you DID in fact 100% willingly copy something without permission, what’s de minimus?
If, as is indeed the case here, you copied it to some extent since you sampled it, but you created something quite new from it, is that a “fair use” transformation, or a derivative work?