Ask Dr. Copyright Dear Doc:
What’s new and exciting in the world of copyright law?

Very Bored and Easily Amused

Dear Very and Easily:

Funny you should ask! There is much to report in the fascinating realm of copyright, as authors and other creative types battle the force of evil to protect their creations (and as their often-evil corporate assignees battle the rest of us.)

Take, for starters, this tidbit…Almost twenty years ago, Congress passed the Mickey Mouse, er, Sonny Bono Copyright Term Extension Act, which lengthened the term of existing copyrights by 20 years. That law was the 11th extension granted by Congress in the prior 40 years, and was perfectly timed to insure that Mickey Mouse would not pass into the public domain. Congress sets the term of copyright because the Constitution says that copyrights are to last for “limited times” and that copyrights are supposed to exist for the purpose of “promot[ing] Progress”. Shortly after the Congress pulled a Bono, a law suit was filed claiming that simply lengthening the term of copyrights on already-created works did nothing to promote progress at all. Despite seemingly impeccable logic, the Supreme Court disagreed, and said that Congress could set any term it wanted, as long as it wasn’t forever.

Well, here we are, twenty years later, and Mickey Mouse is in danger of entering the dreaded “public domain” when his copyright runs out. Guess what? Congress is now considering the “Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act” (or CLASSICS Act), which would grant a total term of 144 years of protection. If this bill passes, we can certainly count on Disney and others to argue that since songs have 144 years, Mickey should have no less. Stand by for another progress promotion, in the form of a corporate giveaway to large media companies.

Now that Disney has made a monkey out of some of our legislators (admittedly, not too difficult), it seems that People for the Ethical Treatment of Animals (PETA) has not made a monkey out of the Ninth Circuit Court of Appeals. You may remember the case, often discussed by the Doc, of Naruto, whose selfie was a bone of contention back in 2016. Now, the appeals court has stripped the last banana from that bunch, ending the case (the Doc hopes.) The Court has held that Naruto (and all other non-humans) lack “standing” to bring suit under the Copyright Act because the Act does not allow a non-human to be the author of a work, including a selfie, no matter how cute. The Doc can hear a chorus of snorts, whistles, neighs, whinnies, grunts and barks from every talented non-human artist the world-over! Check these out: elephants who make art, other creative species, and animals who make art.

Finally, you may recall the not-too-clear case of “Blurred Lines“, the song that Robin Thicke and Farrell Williams wrote, and that the heir’s of Marvin Gaye claimed infringed on the “musical style” (not the melody, not the rhythm, not the harmony, not the bass line…) of Gaye’s “Got to Give it Up“. At trial, expert witnesses dazzled the judge and jury with much musicological jargon, and the jury awarded the Gayes $3,188,527.50 in actual damages, profits of $1,768,191.88 against Thicke, and $357,630.96 against Williams and More Water from Nazareth Publishing, and a running royalty of 50% of future songwriter and publishing revenues.

Naturally, the case was appealed, and in a 2-1 decision, the Court of Appeals upheld the verdict. The dissenting judge in the case wrote, “The majority allows the Gayes to accomplish what no one has before: copyright a musical style” …”‘Blurred Lines’ and ‘Got to Give It Up’ are not objectively similar. They differ in melody, harmony, and rhythm.” She went on, explaining that the Gaye’s witness “… identified four similar elements, none of which is protectable: (a) each phrase begins with repeated notes; (b) the phrases have three identical pitches in a row in the first measure and two in the second measure; (c) each phrase begins with the same rhythm; and (d) each phrase ends on a melisma (one word sung over multiple pitches).”

Got that? So now, it’s not just songs that sound too much alike that infringe copyright. It’s songs that have similar musicological elements. Tell that to every 15 year old in a garage band.

Have an urge to create copyrightable works? Want to protect them broadly, and just about forever?  Call the attorneys at LW&H. They do this stuff (and they think it’s fun and entertaining, too.)  Until next month…

The “Doc”

— Lawrence A. Husick, Esq.