The Search for Originality: How Copyright Holders Should Evaluate Potential Claims in Light of Increasing Overturned Verdicts
Despite some juries finding infringement based upon substantial similarity of competing works, district and appellate courts have reined in and reversed such verdicts, finding the operative elements of the original works not protectable by copyright.
September 28, 2022 at 10:00 AM
8 minute read
Litigation is expensive, but copyright infringement litigation is even more expensive and comes with the risk of an award of attorney fees and costs to the prevailing party. But this has not stopped many copyright holders from pursuing infringement claims against mainstream music artists whose popular songs "sound like," or have similar elements to, previously copyrighted compositions. While some artists like Drake and Ed Sheeran have defeated infringement lawsuits based on "fair use" and findings of non-similarity, other gangbuster jury verdicts have empowered copyright owners to take a shot in pursuing infringement claims. For instance, the family of Marvin Gate won a $5.3 million verdict against Pharrell and Robin Thicke for infringing on Gaye's "Got to Give it Up" in the making of the hit "Blurred Lines."
Despite some juries finding infringement based upon substantial similarity of competing works, district and appellate courts have reined in and reversed such verdicts, finding the operative elements of the original works not protectable by copyright.
Proof of copyright infringement requires the plaintiff to show: (1) ownership of a valid copyright, and (2) that the defendant copied protected aspects of the original copyrighted work. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). The second prong of the infringement analysis contains two separate components: "copying" and "unlawful appropriation." In order to show unlawful appropriation, the plaintiff must show that the original and infringing works share substantial similarities. Only substantial similarities in protectable expression may constitute actionable "copying," resulting in infringement liability; "it is essential to distinguish between the protected and unprotected material in a plaintiff's work." Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004). While recognizing that the original selection and arrangement of unprotected elements can be protectable, the Ninth Circuit, in Skidmore v. Led Zeppelin, 952 F.3d 1051, 1079 (9th Cir. 2020), cautioned that a protectable selection and arrangement of musical elements requires more than just picking and choosing a number of unprotectable elements shared by two works that are otherwise dissimilar.
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