PG Music Home Forums General Discussion Off-Topic Katy Perry copyright case - this is a bit of a worry

at this rate its just a matter of time until lawsuits will arise because of sentence fragments.
(My song includes the phrase "In a pair of jeans", so you can't use that phrase, I own it.)

At first look, I'd say that's the functional equivalent of what happened in the case cited above... but there are more words than notes, so the number of possible note combinations is more limited than the number of possible word combinations... which makes it even more ridiculous to claim ownership of a series of notes.

FYI - I just copyrighted the notes A, B, C, D, E, F, and G. I now have the right to sue anyone who uses these notes and/or and variation of said notes such as sharps or flats.

To quote my friend "which makes it even more ridiculous to claim ownership of a series of notes." Lawyers are going to kill the music industry if this keeps up. Unfortunately with the jury selection process in this country as it is now you can bet that no one with any music knowledge will be on a jury for a trial like that.

Mario, may I use Ab, please? Thanks.

The jury selection process is not unlimited. I've been as far as to be in the jury box three times. Jury selection can take some time like a day or two with lots of questions from both sides. In two of them one side simply dismissed me while the third one I stayed. They get six dismissals each for no reason but after that if they want to dismiss a juror they have to explain the reason to the judge so it should even out for both sides. This was state court but I think federal court is the same.

As for arbitration I've was involved in one of those as well. Arbitration is private and is set up by both parties signing a voluntary contract. In my case it was about selling a franchise business where I had been an advisor on the sale and the franchise contract contained an arbitration clause. Both sides had to sign it or no sale. I was impressed because the arbitrator was a Superior Court judge and she had to follow the rules of arbitration set by the state. It may not be full court but there are still strict rules of evidence the arbitrator must decide on.

In something like a copyright case who would be required to sign a contract with an arbitration clause in it? Certainly not the person who thinks he's been ripped off. An artist could have that in a contract with a record company but that has nothing to do with the person who decides to sue you. And, just wanting to sue you doesn't mean he gets to do it. He has to first convince a judge he has a case and that's not easy and certainly not automatic. Court dockets are full.

Bob

Jurors take an oath to decide a case solely on the basis of the evidence presented in court.

Do you have any sort of domain knowledge beyond a layman that's relevant to the evidence? That literally means you can - and should be - dismissed for cause.

Of course, the end result is that we get decisions that fly in the face of logic... because we don't see the evidence tabla rasa.

The U.S. Copyright office has oversight over copyrights ... obviously. I don't see why it would be impossible or impractical to have copyright-related matters directed to the copyright office first. There, an arbitration panel of TRUE experts would determine if there was a valid claim and/or case. The two parties could then either settle or go to trial. This, by the way, is in many ways similar to the way employment issue are handled in the state of TN (I can't speak for other states). In TN, if you have a legal claim against your employer, it goes to the state employment commission first. They investigate, and if they determine you have a valid complaint, it moves forward - or it is dismissed. You are not allowed to go straight to court, by law.

Songwriters are treated differently in the eyes of the law anyway. Songwriter royalties are the only income stream in U.S. dictated by the Federal government. We are not allowed to negotiate mechanical or performance royalties, even if our cost of business increases or if the marketplace warrants an increase. The mechanical (sales) rate is set by a panel of 3 Federal judges (the Copyright Royalty Board) who meet every 5 years to review rates. The original mechanical rate was 2 cents, set in 1909. It is currently 9.1 cents. Performance royalties, paid to writers/publishers by performing rights organizations (BMI, ASCAP, SESAC). The two largest, BMI and ASCAP, have been under consent decrees dating back to WWII requiring them to go to rate court to have their royalty rates set. Songwriters are under a compulsory license, which means even if I disagree with the amount of money I'm to be paid, I am forced to grant the license if it meets the criteria set by the Federal government. To add insult to injury, most royalty income on a given song comes in one year. Unlike other creators such as book authors, songwriters are not allowed to use income averaging to spread the tax liability over a number of years, which typically throws a songwriter into a near-50% tax bracket.

I've been involved for almost two decades in working with Congress and the Copyright office from matters ranging from capital gains taxes on song catalog sales, to the Music Modernization Act, piracy, and pretty much everything else under the sun regarding songwriting issues. I can state for a fact that vast majority of copyright infringement claims are frivolous or unwarranted. If an arbitration-like panel did nothing else but clear these out, it would be worth it to creators.

The problem with the "jury of your peers" concept as it applies to copyright infringement is this: in the event of a trial, the plaintiff has to prove two things. 1, access to their work by the defendant, and 2) musical similarity. Therein lies the rub - juries shouldn't be put in the position of determining musical similarity. The so-called musicolgists who are brought it as "expert witnesses" in infringement cases are for all intents and purposes just hired guns who testify in favor of whomever hired them.

I'm a fierce defender of intellectual property rights. I believe if your work is genuinely infringed upon, you should have recourse. I don't believe, and I would submit that current events show, the current process is either fair or unbiased, and far too often justice is not even remotely served. I'm familiar with dozens of cases that started out with the plaintiff's attorney saying, in effect, my poor struggling client was ripped off by the greedy, rich songwriter(s) who stole his song. Even if that is complete and utter BS, it's hard to get a jury to discount it, because they don't have a clue about either the music business or copyright law. I've had a U.S. senator tell me that he had read through information on advanced satellite reconnoissance technology that was easier to understand than copyright law.

I could make a pretty strong argument that tort reform is needed across the board in the justice system, but I can think of nowhere it is needed more desperately than in cases regarding infringement.

C

You didn't know that I knew Spanish did you?

I stumbled on Adam's videos a couple of days ago before seeing this thread, we are correct to be alarmed. It will be interesting to see if cases such as these make it to the ultimate authority, SCOTUS. I imagine they ultimately will.

Janet

About 10 years ago I was fooling around on the flute and wrote a melody. Being more of an improvisor than a song writer I never did anything with it other than messing around with it as a warm up to a practice session.

This went on for a year or so.

Then one day I bought a CD of an LP I had as a boy, "Time Further Out" by The Dave Brubeck Quartet. It's playing along, and all of a sudden, there was my song!!! Well there was what I thought I had written but merely remembered but forgot that I had heard it before. I was glad I never fleshed it out and tried to write an actual song out of that melody.

It's easy to do something like that.

If I unconsciously ripped off someone else's song, I would want to make it right without going to court.

Insights and incites by Notes

I can't believe that I haven't heard about this yet. The guy who made the video definitely sets an interesting point right from the beginning with all the examples he provided.

Rick Beato sees this as the scam it is, JazzMammal. Now, given that all rap music sounds the same, what kinds of headaches do you suppose these guys are opening up for themselves?

Very easy to unconsciously adapt a pattern from memory.

Some time ago here on the user showcase, a Japanese song writer posted a song that sounded eerily like the melody of a well-known Christmas carol. Not being a Christian, he didn't have a conscious awareness of the song, so it didn't set off any alarms. But, given the pervasiveness of Christmas carols, he had evidently heard the carol at some point and it stuck with him. When it was pointed out to him, he changed the melody. But I have to wonder if it would even matter since the song in question was probably in the public domain.

Now they have come for Gaga for three notes:

Lady Gaga’s song “Shallow” earned the Grammy-winning singer-songwriter her first Academy Award. The song, featured in the 2018 film A Star Is Born, is now the subject of a multi-million-dollar lawsuit. Steve Rosen, an until-now-unknown songwriter claims Gaga stole a three-note progression from his 2012 song “Almost.” Through his lawyer, Mark D. Shirian, he has filed suit for copyright infringement and damages in the “millions and millions” of dollars. Lady Gaga and her lawyer have denounced the suit as a “brazen shakedown” and have indicated that they will fight it “vigorously.”

And so it begins...

This one will hopefully get tossed. If not, it'll be open season for infringement suits. A lot of my peers (and most likely myself) will simply quit writing if this continues to escalate. The paltry amount of money to be made from writing will become simply not worth the risk of getting sued.

They key words here: "paltry amount of money". Lawsuits gravitate toward LARGE amounts of money. If you never make it, the lawyers can't take it.

Pat,
It affects everyone who makes their living writing songs, including me. The perception of how much money songwriters make is grossly exaggerated. Often the assumption is that the artist writes their own material (very often the case these days, not so much in the past). The lawsuits can, and will, be filed regardless of the amount of actual income the song makes - because the plaintiffs typically don't have a clue how much money is actually in play.

I've been threatened with lawsuits over album cuts, and that was back in the day when you made pretty good money off of those. Fortunately I had my paperwork in order to the point where they went away, but this precedent is dangerous and makes everyone who has ever had a song recorded potentially a defendant.

I had a Patty Loveless cut a number of years ago that I wrote by myself, an album cut. I made less than $300. Why would I, or any other writer, risk getting sued for that kind of money? As I said somewhere else, the average legal expense incurred just to get a frivolous infringement claim thrown out is $30,000 - the cost skyrockets if the claim is determined to have merit. I had a co-writing appointment just this week with a hall of fame songwriter who told me he was going to retire because of the Katy Perry case. He said it's just not worth the risk of getting sued this late in life.

It's going to have a serious and dramatic effect on the profession of songwriting.

Wow, Roger very impressive. I've been reading about this sort of thing for years but you are by far the best informed of anyone I've virtually run into online. Considering how glacial getting relatively obscure new legislation passed is, what do you think the chances are of getting new laws passed on this? Take your thoughts on arbitration as one example. That by itself would require new legislation, no?

I'm also interested in your comment about income averaging regarding songwriters, authors, etc. I'm an Enrolled Agent licensed to represent people before the IRS. Is there an IRC section that talks about that because that would be an exception to the law that normally applies stating that individuals cannot income average. Or, are you simply talking about changing the law or a rule that says the payors of the monies do not have to pay it all out in the first year?

Ed, your comment about all rap sounding the same is not close to being correct. I'm assuming (could be wrong of course) it's only because you can't stand it, never listen to it and could care less about it. I don't like it either but I have listened very critically to some of it and I've watched several videos done by famous producers explaining how it's done. I do this because rap is huge, it took over the entire musical landscape for over 20 years and I wanted to have some small understanding of it. There are tons of different styles of rap and just as many subtle things going with the background music and rhythms as there is in any other style of music.

Bob

re: income averaging....songwriters were at one time allowed to do so - there are still a few entities allowed to use income averaging (farmers for example). The problem is that if you have a song recorded, the majority of the royalties are paid in a 1 year period. That means you could go from making $20,000 one year to $275k the next, and then back down to around $30k the next. Lump on self-employment tax, plus the higher tax bracket, and you can pay as much as 49% of the royalties in taxes in the big year. It was a much more fair system to allow that tax liability to be averaged and spread across a few years (I think it was five, I don't recall exactly). I was under the impression that book authors were still allowed to do so, but maybe I'm incorrect on that.

I'm of the opinion that the arbitration process I mentioned could happen if the political stars align correctly. The MMA that was passed is a hybrid of a bill we've been trying to get through for over a decade. Once all the pieces fell in place, it happened relatively quickly.

Part of the issue that the music industry has in DC is our own internal bickering and self-serving interests have made politicians leery of sticking their necks out too far on any piece of legislation that pertains to it, unless their is industry-wide consensus for it. That type of consensus is oft times impossible to get - what is good for songwriters may not be good for publishers, or what is good for songwriter/publishers may not be good for record labels, which may not be good for streaming services, etc.

The good thing, at least for the prospects of an arbitration process, is that nobody in the music industry likes litigation, especially when it's a frivolous claim. So I don't suspect there would be any industry opposition to it, which gives it a better shot than it would otherwise have.

You are absolutely correct about the glacial speed of getting legislation passed. A number of years ago we were able to get a correction made to the capital gains tax code. Songwriters were being unfairly taxed when selling their publishing shares of their works - instead of it being a property sale, taxed at the capital gains tax rate, it was treated as standard income and writers had to pay regular income tax on it. It was a pretty obvious mistake and there was no opposition in DC about changing it. It still took 7 years to get it done.

Not being a songwriter of any importance, but being a musician who plays songs in ASCAP dues paying venues, I see this lawsuit copyright development as theft. The fact that in the Katy Perry case it is a so-called Christian musician makes it even more reprehensible.

Since I was a child, I have made my living thanks to songwriters. In school it was Dvorak, Beethoven, and their peers, after that it was the Brill Building and other pop composers, then when I went to the retirement crowd it was Gershwin, Porter, Ellington, and the like, and although I'm still in the retirement end of the business, it has morphed back to Brill Building and the baby boomer pop composers.

Songwriters should be compensated for their work, if not, we won't have professional songwriters and all the wonderful songs I've played by people like Otis Blackwell, Ellie Greenwich & Jeff Barry, Gerry Goffin & Carole King, Neil Sedaka & Howard Greenfield, Cole Porter, Duke Ellington, and so many others just wouldn't be around to delight me and my audiences.

For one songwriter to steal from another with a frivolous lawsuit is just the lowest of the low.

At least that's the way I see it.

Insights and incites by Notes

Bob: I gave rap a listen, years back. I was initially captivated by the earthy tonality. I quit listening to it mainly due to conflicts with the content. I couldn't expect people to block out some of the things being said. Now, if you happen to be an aficionado, which I take it, you are not, you would no doubt hear many intricate voices and rhythms. To most people, though, it all sounds the same. One reason for that is, especially at first, most rap was produced by a tiny handful of producers. I've forgotten the names and numbers, though at one time I might have named them. The backing tracks were easy for performers to come by, pretty much standard loops, the richness of textures resulting in much the same way as do drum circle sounds. My guess is that if you looked into it, you'd find a dozen or so standard tracks, the excitement being produced by the mix.
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The music business has been shaken up, caught people off guard. Many of them have become desperate.
A well known modus operendi among lawyers of the shyster variety is to build portfolios of precedents with frivolous and/or outlandish claims before "sympathetic" judges. The pornographers made a science of this in the 60's. It looks like that is going on, here. It sounds like Lady Gaga's lawyer called it what it is, "a brazen shakedown."
Lady Gaga has the money (and the expertise) to fight them, but that is little consolation to the smaller operations, which are and always have been the bread and butter of the rainmakers and ambulance chasers; meaning, the little guy who hasn't much choice but to settle. Remember, ASCAP was visiting open mikes in coffee shops. These suits are, of course, a corruption of the original intent of copyright, which was to discourage copycats from pillaging book runs, a scheme that threatened to shut down publishing in the 1600's, virtually since Gutenberg's invention.
The lawyers suing Lady Gaga will lose, but they don't care. They have their sights on bigger, easier, prey. Very strange that the Christian artists should find themselves on the chopping block.