From recounting infamous music copyright cases to predicting what the future of policy in Washington, D.C., holds, several sessions at South by Southwest tackled hot-button issues in the industry.
“This is about deep-pocket defendants,” entertainment attorney Stan Soocher said as he opened the March 17 panel “Copyright Infringement: Get a Hit, Get a Writ.”
Soocher, a tenured associate professor of music and entertainment industry studies at the University of Colorado’s Denver campus, took attendees through a musical history of copyright infringement lawsuits starting with litigation over George Harrison’s “My Sweet Lord,” which, he said, was the most famous musical copyright infringement case of all time before the most recent “Blurred Lines” case involving Pharrell Williams and Robin Thicke.
The Harrison case stretched from 1971 until 1998 through appeals and litigation over damages. Harrison was found to have “subconsciously” copied the 1963 hit “He’s So Fine,” performed by the Chiffons.
Soocher advised the audience of attorneys—with a few musicians sprinkled in—that key elements plaintiffs must show in a musical copyright infringement case are: ownership of the product, that the defendant had access to the plaintiff’s work, and that the products are substantially similar.
There is a virtual tidal wave of copyright infringement cases flooding courts these days, Soocher said, with some deep pockets in the defendant’s chair. Several involve tiny segments of songs.
For example, singer Gwen Stefani is being sued over her song “Spark the Fire.” A former hairstylist of hers claims she stole fragments of his “Who’s Got My Lightah.” Part of the case centers on the pronunciation of the word “fire” as “fi-yah” in both of the songs.
The much-followed legal challenge to Robin Thicke and Pharrell Williams’ hit song “Blurred Lines” by Marvin Gaye’s family dominated discussion at another copyright-related panel at SXSW, “Musical Soundalikes and Infringement in Media.”
Richard Busch, an attorney with King & Ballow who represented the Gaye family, recounted the backstory of the case, laying out what led to their $7.4 million winning jury verdict and how he was able to use conflicting public statements and sworn testimony by Thicke and Williams to convince jurors that their song copied Gaye’s “Got to Give It Up.”
“You want to know how we won? It’s more than just the music,” Busch said. “You have to figure out how to connect to the jury and that’s what we did.”
Musicologist Judith Finell explained to attendees the process she generally follows when contacted to be an expert for a copyright infringement case. She evaluates if the piece of music is unique, transcribes the lyrics and musical notes, and analyzes any technical similarities between the two pieces of music.
“These days musicians do utilize one another’s material in ways that was never as possible as it was before,” Fennell said. “It creates a really fertile ground for using other people’s materials without their permission and also creates vulnerabilities for entities that produce and distribute the music.”
Federal music policy
U.S. Copyright Office officials hope to comprehensively overhaul the copyright and music licensing systems to increase efficiency and the ease of use, office director and acting copyright register Karyn Temple Claggett said at a March 17 panel “Music Law and Policy in D.C.”
“We need to make licensing more efficient for everyone,” Claggett said. “Since 2015, we have done a series of studies looking at ways we could upgrade our systems and found we need a complete overhaul of the copyright system.”
State Bar of Texas member Todd Dupler, senior director for advocacy and public policy for the Recording Academy, steered the discussion of the panel, asking questions of Claggett as well as Jason Everett, chief Democratic counsel of the House Committee on the Judiciary’s Subcommittee on Courts, Intellectual Property, and the Internet; and Joe Keeley, chief counsel for the subcommittee.
Claggett said her office has been seeking input from the public about whether there are problems with section 512 of the Digital Millennium Copyright Act, which shields qualifying online service providers from copyright infringement claims by their users. So far, many online service providers have said there are no issues, while creators have said otherwise, she said.
Everett and Keeley said intellectual property issues have often received bipartisan support and that they are hopeful lawmakers will make progress on the issues, including the possibility of making the register of copyright a Senate-confirmed presidential appointment.