April 13, 2021 Musicology No Comments

Marshmello got summary judgment, and here’s why that doesn’t make sense.

Arty, a fairly successful DJ and remixer, sued Marshmello whose biggest hit “Happier,” contains an instrumental hook that sounds a ton like a hook from Arty’s remix of a New Republic song, “I Lived.”

Musicologize has articles about the similarity, but for now, it appears irrelevant. Marshmello has successfully argued and won summary judgment that Arty’s remix is, lock, stock, and barrel. a work for hire not owned by Arty, and therefore he has no standing to sue anyone.

The arguments from Marshmello’s attorney, Robert Jacobs, and Arty’s, Richard Busch, focused on the “Remixer Declaration,” which spelled out the terms under which Arty created the remix for Interscope Records. And the main point of contention was whether Arty had carved out “the underlying composition” (that phrase is used thrice in the declaration) and reserved rights to it for himself. An article here explored that as well.

This ruling surprises me. And I don’t like it. So I’m gonna tell you why it’s wrong.

Again, the phrase “underlying musical composition” appears three times in the declaration. In the first, Arty agreed that the “Remix Master (excluding the underlying musical composition)” was a work for hire. Arty would contend and it seems clear enough this is Arty NOT signing away his underlying composition in the remix as a work for hire. Maybe it appears clear to me because it’s my own standard. I don’t remember if I’ve ever entirely signed away authorship of a piece of music, and I’ve done tons of work for hire agreements. In the second appearance of “underlying musical composition” Arty (I’m paraphrasing, and here’s where I point out that I AM NOT A LAWYER but a musicologist) that if the Remix Master (excluding the underlying musical composition) is somehow NOT a work for hire, that Interscope gets pretty much all the rights that a work for hire would get. A phrase of that nature is pretty standard in every work for hire I’ve ever signed too.

Okay great, so Interscope got all the rights it wants to the Remix Master excluding the musical composition.

In the third occasion, however, Arty agrees:

I acknowledge and agree that the services rendered (or to be rendered) by Remixer hereunder do not entitle Remixer or me to any ownership or financial interest in the underlying musical compositions embodied in the Remix Masters, and I specifically agree that neither Remixer nor I will make any claims to the contrary.”

(I retyped this from the remixer declaration. Think I got it right.)

Facepalm.

Looks contradictory and creates confusion and ambiguity, but the court believes, if I’m reading it right, that any ambiguity in the first and second instances is resolved or at least satisfactorily overwhelmed by the third.

As he usually does, Eriq Gardner shared the decision itself in his THR post, should you care to read it.

And I’m perplexed. Am I being stubborn?

A remix master is necessarily a recording in which there are, separately, an embodied composition and an embodied performance. The copyright for the recording is distinct from that of the composition. So if the recording “excluding the underlying musical composition is a work for hire,” then the rights to the recording have been signed away and the underlying musical composition has specifically not been. What else could it mean? He carved it out TWICE!

In the disclaimers paragraph, where Arty assures everyone that he hasn’t stepped on anyone else’s copyrights, didn’t steal samples, holds Interscope harmless if he breaches, (again this stuff has been in perhaps every work for hire I’ve ever signed) he makes a seemingly contradictory acknowledgment and says his services don’t entitle him to any ownership in the musical compositions embodied in the Remix Masters.

And here Arty argued he meant One Direction’s “I Lived.” And thus NOT a completely nonsensical contradiction of his previous TWO uses of “underlying musical composition.”

The ruling reasoned that since the embodied performance is “of the Remix Composition by Plaintiff,” then “underlying composition” in the disclaimer can only refer to Arty’s composition. And I disagree. The performance is of but distinct from the underlying song being performed.

How do you get around it? Why on earth carve it out twice only to unambiguously assign it at the end of the disclaimers? And really, nothing is “assigned,” so much as disclaimed. Why? Because it’s I LIVED, which is not his to assign, only to disclaim.

Tell me I’m wrong.

Written by Brian McBrearty