March 18, 2024 Musicology No Comments

In broadcast and advertising especially, music producers are frequently asked to write music that mimics in some fashion an existing and perhaps unaffordable piece of music. As I have opined before, soundalikes can be an innocent endeavor; the composer is generally asked to get “close but not too close,” where “too close” is colloquially equivalent to “close enough that we get sued.” Composers meanwhile typically accept indemnification clauses that sound like they shield the broadcasters, advertising agencies, and their clients from liability. Come on. If you’re Paul McCartney and it’s your “Yesterday,” getting soundaliked, who will you sue, the composer or the big Madison Avenue agency that produced the commercial and their $500 billion market cap client? 

Actually, it’s probably answer D, All Of The Above. You’re gonna sue everyone.

However, the deep pockets — the creative agency, and the big corporate client — didn’t write the music. In all likelihood, the composer is an independent contractor and not a regular employee of either of theirs, so maybe direct infringement isn’t easily hung on them. But there exist secondary infringements, contributory and vicarious. Just ask Twitter.

A group of music publishers collectively sued Twitter for $250 million for both direct and secondary infringements related to all the copyright-protected music illegally posted on X.

Preventative musicology is very concerned with preventing secondary infringements or even a whiff thereof, so Musicologize was interested in the recent decision that dismissed most of the Twitter lawsuit. What is secondary infringement and what can we learn from the Twitter/X dismissals?

Two flavors of secondary Infringement: Contributory and Vicarious.

In short, “contributory infringement” is what it sounds like. You didn’t create the infringement, but you kinda, sorta, set it in motion, added some guidance, or facilitated it in some way.  Perhaps you suggested “Yesterday” as the creative direction and in McCartney’s view thus “contributed” to the infringement. You wouldn’t put it that way of course, but Paul may.

Or he may claim vicarious infringement, casting you as the responsible party that should’ve thought to itself, “Wow, that sounds a ton like Yesterday, we can’t go ahead with that.” But did go along with it because you stood to gain. You get to infringe vicariously through another.

The music publishers, Concord Music Group and the others, sued Twitter for the trifecta — direct, contributory, and vicarious infringement. The vigilance is understandable; the music industry has had a rough go for a long time now, since the invention of mp3’s, Napster, and iPods. It’s all rather like the way AI technology today has creatives quaking in their Ugg’s. Technology is either channeling your music for free or it’s studying and tokenizing it to replace you altogether, eventually. Of course, the publishers and record companies sue! The DMCA (Digital Millennium Copyright Act) seeks to enable controlling the sort of widespread infringement that goes on in social media, and provides “safe harbor” protections for those companies as long as they satisfactorily put their thumb in the dam. Most of them though have licensing agreements set up. Twitter is the only holdout among the biggest social media outlets that hasn’t struck a deal. Even TikTok did.

Secondary infringement through the Twitter lens.

Secondary infringement requires the existence of primary infringement. Here, no problemo.

There are fair uses for copyrighted music, but everyone accepts that there’s plenty of copyright infringement going on in social media. The question is whether Twitter’s encourages and contributes to it. Do they turn a blind eye and profit when we think they’re obligated to, if they see something, say something? When they do enact a DMCA type of takedown, do they take their sweet time getting around to it? What level of vigilance should we expect from these platforms?

All of that was recently decided and the matters of two of the three types of infringement — direct, contributory, and vicarious — were dismissed. Can you guess which survived?

Start by crossing off the easy one; direct infringement was always a stretch, right? Twitter itself didn’t select, copy, or post the music. The plaintiffs argued that Twitter transmitted it, tantamount to having performed it. That would be direct infringement. It’s interesting too, and I didn’t know this, that the law seems to hold that “transmission” might leave both the transmitter and the transmitee liable. It’s not “takes two to tango.” It’s more like, “If a copyright-protected tree is felled in the forest, that’s a no-no on the woodsman, but if an end user drives to that forest specifically to film the tree falling, they might be on the hook too. All that for nought and aside, Twitter argued that if a post is even transmission at all, then it was by the account holder who created the twitter post and included the protected music. Twitter’s involvement is passive, and passive won’t do it for direct infringement.

The court agreed that direct infringement requires conduct; not merely passive participation. 

Onto the secondaries.

Remember that “vicarious infringement” would be Twitter’s ignoring an obligation to prevent the wrong because they benefit from letting it go. Plaintiffs argued Twitter “had the legal right and practical ability to supervise and control the infringing activities.” But that “right” didn’t translate to obligation. Twitter account holders are not employees of Twitter, and Twitter is not into charge of our individual tweets. The fact that they have the ability to act as a vigilant gatekeeper on every one of them doesn’t amount to an obligation to do whatever it takes to prevent every occurrence.

As for contributory infringement, does Twitter “induce, cause or materially contribute” to the infringing tweets? (This working definition of contributory infringement is from Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376 F.3d 615, 621 ) But hosting doesn’t amount to any of that. They could always work harder and faster at policing and executing takedowns, but no law seems to say they must. And Twitter isn’t Napster or Grokster, both of which were more uni-task-y. Twitter can be used to copy and distribute protected content, but it doesn’t exist merely or primarily for that purpose. There are some bad actors and the question is whether Twitter acts adequately to control that. That’s the element of this case that survived for now. It might be contributory infringement if Twitter can be shown to have turned too blind an eye. Record companies can still try to show that Twitter, taken from the decision:

(1) allowed users to pay for more forgiving treatment under its anti-infringement policies through its “verified user” program, 

(2) was unreasonably dilatory in its response to notices of infringement

(3) failed to take appropriate steps regarding the accounts of severe repeat infringers

For creative agencies, music supervisors, and anyone hiring composers to write music, these kinds of indirect or secondary infringement risks are mitigated through preventative musicology in a way that makes too much sense to forfeit.

Preventative Musicology

Forensic musicologists are mostly known for their expert witness work in music copyright litigation, but preventative musicology prevents copyright infringement claims in the first place. Musicologize provides analysis of new music before release to ensure there should be no copyright claims, but the underappreciated part is the value proposition around specific types of infringement concerns.

Infringement claims invariably presume that defendants intentionally and shamelessly steal. It’s practically boilerplate and it’s no surprise since the statutory penalty for infrinement is between $750 and $30k per work unless the infringement was intentional or willful in which case the limit rises to $150,000 per infringed work. No wonder every complaint I’ve ever read claimed willful infringement!

But it’s hard to argue willfully infringed on “Yesterday” when there’s been a preventative musicological analysis performed to ensure a work didn’t infringe on “Yesterday” at all.

And the same goes for the sorts of indirect secondary infringements discussed here. If a creative agency asks a composer to get close but not too close “Yesterday,” but the composer does get too close, the agency may be argued to have “induced” the composer to create the infringing work and specifically to have provided the creative direction (“Yesterday” or some other known existing work) that materially “contributed” to the infringement. Further, since the agency is obviously going to benefit from the infringement, they can expect to be accused of failing to prevent the wrong when they approved the infringement music and placed it in their production.

The beauty of a preventative musicological analysis is that it makes all of those accusations nonsensical. It’s plainly intended to ensure there is no infringement, that the creative direction did not lead to an inadvertent infringement much less a willful one, and that not only did the composer, agency, and broadcaster not “turn a blind eye,” they were actually quite vigilant in ensuring against the possibility that any party should come forth at all, but if one did, they’d be mistaken. That’s the whole point.

An ounce of prevention is worth a pound of cure.

And it’s priced accordingly. Preventive musicology is inexpensive and the value proposition is extraordinary. Preventive forensic musicology ensures against infringement, and helps take the risks associated with willful, contributory, and vicarious infringements off the table altogether. And who wouldn’t rather prevent conflict than fight through it?

Written by Brian McBrearty