(This article discusses a case involving Juice WRLD, who, since I wrote the article, tragically passed away. )
And as I’m looking through some of it, I’m considering, “What’s more important to an infringement case: Similarity or access? It’s similarity, isn’t it? Where there’s tremendous significant similarity between two works, you can assume access, but not the other way around. That’s why the inverse ratio rule should never have been called a “rule.”
Similarity is paramount, isn’t it? Maybe not.
Lately, I’m noticing that litigators are putting at least as much energy into establishing the access argument. And I have to say, Blurred Lines, Stairway To Heaven, and Dark Horse — probably the three biggest infringement cases of the past few years — have collectively got me rethinking how this game is perhaps most rationally played; maybe access should be the priority. And now I’m looking at the complaint filed in a new action involving Juice WRLD’s Lucid Dreams, and I’m very much seeing the rationale.
Backtracking for a minute: copyright infringement, we’ve said many times before, is a bit of a three-legged stool. The most obvious leg is of course, “similarity” — where one song just sounds too much like another to be a coincidence. The next leg involves “originality” — the earlier and supposedly infringed work needs to be original enough to deserve copyright protection in the first place. The third leg is “access” — the accused infringer needs to have been exposed to the earlier work somehow, else how could they have copied it?
They aren’t entirely distinct. They play off each other. But you need all three stool legs, ostensibly at least, to make a case for infringement. And that means, if you, the defendant, can defeat one…
I found myself annoyed during the Katy Perry “Dark Horse” case when so much was made about Joyful Noise’s Youtube views and the debate over whether 100,000 views is really a lot or just sounds like a lot, and around how many views you need before it’s plausible or probable that Perry had access? I would think, “Who cares? The handful of notes in question aren’t original enough to be protectable!” And then I’d reason, “Since they’re not original enough to be protectable, there’s no particularly good reason to think Perry ever heard “Joyful Noise.” It works both ways. But, nevertheless, we had to discuss at ridiculous length Katy Perry’s being a Christian music fan, or at least a former Christian music fan. Joyful Noise was a Christian song, successful in that circle, so Perry, if still listening to Christian music sometimes, sorta-maybe would’ve heard it? And again, the answer probably should’ve been, “Isn’t it circular reasoning to imagine she did? To say nothing of the question of whether she even wrote the notes in focus anyway?”
But alas.
As for the Stairway To Heaven case, anyone paying attention to that one knows that on a few occasions forty years ago, Led Zeppelin was sharing stages with the band, Spirit, and also that Jimmy Page has an enormous record collection which includes the Spirit album on which the Stairway soundalike, “Taurus,” appears. Also, forty years ago, Page was interviewed and said something like, “Spirit is a band I really love.” All of this was exhaustively pursued in court. In fact, according to Rolling Stone’s account of the court proceedings, the first two hours were spent on implications of “access” before there was anything related to musical “similarity.” Indeed, one of the main reasons the original verdict of no infringement was set aside on appeal was on a related technicality; that the jury was not allowed to see Jimmy Page’s face as he listened to Taurus through headphones. The appellate court reasoned that the jury might have witnessed an “ah-ha” expression of recognition on his face, and that, maybe, that would turn the tide of the access argument.
And as for “Blurred Lines,” the fact that Pharrell Williams and Robin Thicke admitted to admiring Marvin Gaye’s “Got To Give It Up,” and wanting to do something like it, almost certainly overwhelmed the defense’s musicological argument that the music wasn’t significantly similar. Which I’ve repeatedly insisted is the case.
Getting back to this new case, Juice WRLD’s is being sued by the band, Yellowcard because megahit “Lucid Dreams” is somewhat similar to Yellowcard’s 2006 track, “Holly Wood Died.” By the way, Juice WRLD, according to this Genius article already owes the lion’s share of Lucid Dreams profits to Sting because Lucid was based so heavily on Sting’s “Shape of My Heart.” Yellowcard was a pretty successful emo rock band in the nineties, and they’re coming for some of whatever is left.
Listening to the two tracks, I get it. There are indeed similarities. Here are the two tracks, if you’re interested.
Juice WRLD, for anyone without teenagers, is a name, probably THE name, associated with a genre called “Emo Hip Hop,” and that’s short for “emotional hip hop,” where trap music stylings and rap are melded with the sort of emotional lyrics and themes and also the accompaniment and orchestration choices that characterized the hits of the 2000’s emo-pop acts like Jimmy Eats World and Fall Out Boy.
The complaint argues, as it would, that Juice WRLD was almost certainly familiar with Yellowcard’s song. But lacking direct evidence of it, Yellowcard needs to get at it by inference. They go to considerable lengths, painting a vivid picture of why Juice WRLD must certainly have known Holly Wood Died, and I just think this is fascinating, by itself, and in the broader context.
Let’s look at the points made and how they paint that picture. (The complaint’s points coming up are in italics. I might paraphrase for succinctness, which leaves room I suppose for a misinterpretation here and there on my part. But hopefully not.)
“Yellowcard” has had multiple hit singles, including “Way Away,” “Ocean Avenue,” “Only One,” “Lights and Sounds,” “For You, and Your Denial,” and “Holly Wood Died.”
Right off the bat, which of these things is not like the others? We can argue about what makes a song a “hit,” but offhand I’d say five of those are pretty big hits, and the other is the allegedly infringed song. I’m not a big Yellowcard expert, but if you hop over to iTunes Music Store and sort Yellowcard songs by popularity, Holly Wood Died ranks 32nd. I also visited the “Top Tens” website which is like a modern-day “Book of lists,” where you can find the top ten anything (subject to opinions of course). Five of those Yellowcard songs are #’s 1, 2, 3, 5, and 6 on that list. And one of them is ranked #25. (For perspective, do you know what the 25th song on the list of best The Beatles tunes is? Day Tripper. Nobody likes Day Tripper.)
Yellowcard’s “Only One” has 32 million YouTube views. “Ocean Avenue,” 37 Million; about a hundred times more than Holly Wood Died has.
Another perspective. Have you seen those “Essentials” compilations on iTunes? They’re like “greatest hits,” right? “Holly Wood Died” is not on it.
So is it a hit at all? Arguably. But it’s not an unassailable starting point.
“Holly Wood Died,” again, was a huge success; Yellowcard recognized the ripoff instantly upon hearing Lucid Dreams; and JuiceWRLD’s “studied” the genre of Emo pop-rock.
It paints a picture alright.
Evidently, JuiceWRLD has told a story about having a crush on a girl in fifth grade who was “really emo” and he wanted something to talk to her about. So he checked out emo himself.
And we might quibble further about what constitutes a “huge” success, but for now, let’s accept that too.
“Upon information and belief, based upon his current age, these initial events would have occurred in approximately 2006.” (2006 is when Yellowcard’s Lights and Sounds album was released and Holly Wood Died is the 14th track.) But Juice WRLD was born December of 1998, so throughout nearly all of 2006, he’s a 7-year-old, probably in first grade, right? Isn’t he more likely reading Cat In The Hat than he is “studying” emo-pop-rock stylings?
It’s plausible, but it strikes me as a bit of a journey to put this record in eleven-year-old hands somehow. It takes effort.
The complaint further reasons that since JuiceWRLD has said he likes a Fall Out Boy album that was released in 2005, and Fall Out Boy is emo-pop, then, therefore “at the time ‘Holly Wood Died’ was released” Juice WRLD was “studying that same genre.”
Again, totally possible but these albums were released in 2005 and 2006, when Juice WRLD was just barely seven. Also, this Fall Out Boy record is one of the top emo albums of all time, and their hit, “Sugar We’re Going Down” is maybe THE most famous emo single of all time. My daughters weren’t even born yet and they both know that record by heart. That’s a hit.
I’ll tell you something they DON’T know — they’ve no idea who Nathan Chapman is, and in all likelihood neither do you. (Stay with me on this for a sec.) Nathan Chapman happens to have produced the first five of Taylor Swift’s albums. My girls have never heard of him. I bring him into this because the next argument in this complaint goes a little something like…that since the Fall Out Boy record and the Yellowcard record were both produced by Neal Avron, and “it is very common for a fan of works produced for an artist by a specific producer to listen to other works by that same producer,” it’s likely Juice WRLD was exposed to Yellowcard’s Lights And Sounds and Holly Wood Died.
The next paragraph of the complaint describes another published interview in which Juice WRLD discussed his rock background. “He (Juice WRLD) mentioned the following groups, “Black Sabbath,” “Foo Fighters,” Fall Out Boy,” and “The Devil Wears Prada.” These groups were peers of “Yellowcard,” and “Yellowcard’s” music is rooted in the same genre of music as these groups.”
Can we dot a line connecting Yellowcard to Ozzy Osbourne? Maybe, but it’s gonna take a lot of twists and some imagination.
Whether or not all this is persuasive, factual, creative, brilliant — that’s not the point. The point is, what if we’re entering a world where the mindset from the get-go is evermore that juries don’t just require all three legs of the stool — similarity, protectability, and access — but are equally impressed by one as by another; as persuaded by access as by similarity! Then, where everything about a litigation is an abstraction of the threat of a jury trial, the calculus begins to get crazy. And all of this emphasis on access, I’m afraid, makes perfect cold calculated sense.
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