Isley Brothers v. Michael Bolton

“Original works of authorship” such as:
› Lyrics of a song
› Musical composition/beats
 Whether published or registered
 With copyright notice or not

“The owner of a copyright is granted
certain exclusive rights, including the right
to reproduce the work; to prepare
derivative works; to distribute copies to the
public by sale or lease; and to publicly
perform or display the work.”
13 Witkin, §66, see 17 U.S.C. §106
Violation of a copyright owner's
exclusive rights constitutes
infringement, for which the owner
can obtain legal and
equitable relief.
17 U.S.C., §501 et seq.
All rights have expired; or
 The authors have explicitly put
a work in the public domain; or
 They were never protected by
copyrights

Date of publication often controls.
Publishing is the act of “distribution
of copies or phonorecords of a work
to the public by sale or other
transfer of ownership, or by rental,
lease, or lending.”
1976 Copyright Act
 The
law changed a number of times, creating a
headache for anyone trying to figure out whether
their works are protected. In general…
 Pre-1923 works: In the public domain
 1923-1963: If published w/ notice and copyright
renewed, then 95 years after publication date
 1964-1977: If published w/ notice, then 95 years
after publication date
 1989 on: Use of a copyright notice becomes
optional.
AKA: Sonny Bono Act, or “Mickey Mouse Protection Act”
 General rule:
› For individual artists: A work may be copyrighted for the
life of author plus 70 years
› Corporate authorship: 95 years from publication or 120
years from creation, whichever is earlier.
 Also, works made in 1923 or after that were still protected
by copyright in 1998 were extended by 20 years, so those
works will not enter the public domain until 2019 or after.
 So Mickey will need protection again in 2019!


Eldred v. Ashcroft (2003) 537 U.S. 186
› Justice Breyer’s Dissent

GW Law Professor Robert Brauneis (Giles S. Rich AIOC)
› Deficient authorship records
› Defective defense

Good Morning to You Productions v. Warner/Chappell
It might seem crazy what I heard today,
“Injunction here, you must take a break.”
I’m a shocked hare cartoon, who can’t show my face,
With no gig, no Porky Pig on your Saturday.
Clap along if you feel like a lonely Looney ‘toon.
’Cause I feel crappy
Clap along if you feel there’s more bad news comin’
soon
Because I’m crappy
Clap along if you feel that there is no hope for you,
Because I’m crappy
Clap along if you feel like you don’t know what to do.
Since Warner Chappell wants their cut of cash,
(Yeah) I can’t serenade you at your birthday bash,
’Cause, I just can’t afford it, ain’t got a dime,
Don’t try to help, you’ll just waste your time.
Here’s why
Clap along if you feel like you’re too long in the tooth.
You should feel crappy
Clap along if you feel obsolete to all the youth.
Because they’re crappy
Clap along if you know that crappiness is your truth,
Because we’re crappy
Clap along if you feel crap is happening to you.
Don’t you-
Help me now, can’t nothing,
Help me now, why bother to try,
Help me now, can’t nothing,
Help me now, I said, I tell you now
Help me now, can’t nothing,
Help me now, just leave me to die,
Help me now, can’t nothing, help me now, I said
I FEEL CRAPPY!
“…the fair use of a copyrighted work, including
such use by reproduction in copies or
phonorecords or by any other means specified
by that section, for purposes such as criticism,
comment, news reporting, teaching (including
multiple copies for classroom use), scholarship,
or research, is not an infringement of copyright.”
 (1)
The purpose and character of the use,
including whether such use is of a commercial
nature or is for nonprofit educational purposes;
 (2) The nature of the copyrighted work;
 (3) The amount and substantiality of the portion
used in relation to the copyrighted work as a
whole; and
 (4) The effect of the use upon the potential market
for or value of the copyrighted work.
For further information on this topic,
please refer to this academic guide:
Association of Research Libraries, Code
of Best Practices in Fair Use for Academic
and Research Libraries (2012)
http://www.arl.org/storage/documents/
publications/code-of-best-practices-fairuse.pdf
“A parody is a work that ridicules another,
usually well-known work, by imitating it in a
comic way. Judges understand that, by its
nature, parody demands some taking from the
original work being parodied. Unlike other forms
of fair use, a fairly extensive use of the original
work is permitted in a parody in order to
“conjure up” the original.”
http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/
The
2LiveCrew v. Roy Orbison case
Commercial use not presumptively unfair
Parody relies upon recognition of the
original’s most recognizable features
› “oh pretty woman”; music composition
› 2LiveKrew version: “big hairy woman”
A
parody that kills demand for the
original is not a harm protected under
the Copyright Act of 1976.
Compare this to copyright infringement,
which usurps demand from the original.
The 2LiveCrew version does not replace
the market for the Roy Orbison version.
Synchronization:
Case law; see Leadsinger,
Inc. v. BMG Music Publishing, 512 F.3d 522 (9th
Cir. 2008)
Mechanical: 37 CFR § 385.3(a)
Master Use: Case law; see Newton v.
Diamond, 388 F.3d 1189, 1191 (9th Cir. 2004)
Performing Rights: 17 USC §106
§
§
“CAN THEY DO THAT?” EDITION
§
“CAN THEY DO THAT?” EDITION
SURVEY
SAYS?
INFRINGEMENT
“Ice Ice Baby” by Vanilla Ice sampled the 1980
song “Under Pressure by Queen and David Bowie,
but Vanilla Ice never got permission to use it.
Without a lawsuit even being filed, Vanilla Ice
paid Queen and Bowie and they have been
given songwriting credit for the sample.
NO DICE, ICE!!!
NO DICE, ICE!!!
NO DICE, ICE!!!
NO DICE, ICE!!!
NO DICE, ICE!!!
§
“CAN THEY DO THAT?” EDITION
SURVEY
SAYS?
NO INFRINGEMENT
(Northern District of CA)
JURY VERDICT:
SAME STYLE ≠ SAME SONG
Real case name is Fantasy Records v. Fogerty, 510 U.S. 517 (1994).
 Fogerty assigned the copyright for his song “Run Through the
Jungle” to Fantasy Records.
 Later, he wrote “Old Man Down the Road” that was distributed
by Warner Bros. and Fantasy Records claimed that it was “Run
Through the Jungle.”
 The district court rejected Fogerty’s claim that he was immune
from claims of copyright infringement of “Run Through the
Jungle” given his interest in the economic success of the song.
A jury found that “Old Man Down the Road” was not unfairly
derivative of “Run Through the Jungle.”

§
“CAN THEY DO THAT?” EDITION
SURVEY
SAYS?
INFRINGEMENT
‘SUBCONSCIOUS
PLAGIARISM’ COSTS
OVER HALF A MILLION



In Bright Tunes Music v. Harrisongs Music, 420 F. Supp. 177
(S.D.N.Y 1976), the district court found Harrison liable for
copyright infringement.
The court found that it was apparent from the testimony
that Harrison and the other songwriter were not conscious
of the fact that they were using the “He’s So Fine” theme.
The court found that the songwriters subconsciously used
“He’s So Fine” in creating “My Sweet Lord” because it is
perfectly obvious to a listener that in musical terms, the two
songs are identical except for one phrase.
§
“CAN THEY DO THAT?” EDITION
SURVEY SAYS?
INFRINGEMENT
SAME SONG =
$5.4 MILLION
In 1994, a jury found that Michael Bolton’s 1991 pop hit, “Love
is a Wonderful Thing,” infringed on the copyright of a 1964 Isley
Brothers’ song of the same name and awarded the Isley
Brothers $5,400,000 in damages. Bolton appealed.
 In Three Boys Music v. Michael Bolton, 212 F.3d 477 (9th Cir.
2000), the Ninth Circuit affirmed the district court decision.
 A central issue in this case was whether Bolton had access to
the Isley Brothers’ version of the song. Bolton denied ever
hearing that version, but the Ninth Circuit held that it was
entirely plausible that two Connecticut teenagers (Bolton and
his brother) obsessed with R&B music could remember an Isley
Brothers’ song that was played on the radio and television for
a few weeks, and subconsciously copy it twenty years later.

§
“CAN THEY DO THAT?” EDITION
SURVEY SAYS?
INFRINGEMENT
THE HEADLINES READ:
“AMICABLY RESOLVED”
SETTLEMENT
WITH CONFIDENTIALITY
AGREEMENT
In 1984, Ray Parker Jr. was signed by the
producer of the movie Ghostbusters to
develop the film’s title song.
 Huey Lewis and the News sued Parker, citing
the similarities between “Ghostbusters” and
their song, “I Want a New Drug.”
 Parker and Lewis settled out of court with a
confidentiality agreement.

“The offensive part was not so much that
Ray Parker Jr. had ripped this song off, it
was kind of symbolic of an industry that
wants something — they wanted our wave,
and they wanted to buy it. … [I]t’s not for
sale. … In the end, I suppose they were
right. I suppose it was for sale, because,
basically, they bought it.”
§
“CAN THEY DO THAT?” EDITION
SURVEY SAYS?
NO INFRINGEMENT
THREE NOTES =
DE MINIMIS


In Newton v. Diamond, 204 F. Supp. 2d 1244
(C.D. Cal. 2002), the District Court granted
Defendant’s MSJ. Plaintiff appealed.
In Newton v. Diamond, 349 F.3d 591 (9th Cir.
2003), the Ninth Circuit affirmed that the use
of a sampled segment of three notes
separated by a half-step over a C note was
de minimis use and therefore not actionable.
BUT: Does it make sense that
you can directly lift these notes
from someone else’s song and
plop them into yours?
§
“CAN THEY DO THAT?” EDITION
SURVEY SAYS?
UNDETERMINED…
Pharrell
Williams, et al. v. Bridgeport Music,
Inc., et al, LA CV 13-06004 – JAK-(AGRx)
Williams, Robin Thicke, and TI preemptively sue Bridgeport Music and
Marvin Gaye’s Estate to determine the
rights to their song.
 Their
suit claimed: "The intent in producing
'Blurred Lines' was to evoke an era. In reality, the
Gaye defendants are claiming ownership of an
entire genre, as opposed to a specific work, and
Bridgeport is claiming the same work.“
 Marvin
Gaye’s estate and Bridgeport file a
countersuit, claiming copyright infringement.
MSJ
denied on October 31, 2014:
“Defendants have made a
sufficient showing that elements of
'Blurred Lines' may be substantially
similar to protected, original
elements of 'Got to Give It Up.'"
Trial Date on February 10, 2015
§
“CAN THEY DO THAT?” EDITION
Queen & David Bowie
CCR / John Fogerty
The Chiffons & Ronnie Mack
The 80’s
The Isley Brothers
Huey Lewis and the News
James Newton
Marvin Gaye
Vanilla Ice
John Fogerty
George Harrison, MBE
Stanley Burrell (MC Hammer)
Michael Bolton
Ray Parker Jr.
The Beastie Boys
Pharell Williams & Robin Thicke
Glove and Boots
For permission to use their original work
https://www.youtube.com/channel/UC1qC39KQoTG6LqgL_YnjSSQ
Jocelyn Burton
for the use of her office for meetings and practice
Magistrate Judge Kandis Westmore
for the use of her courtroom
Our Audience!