Saturday, March 7, 2020

How Music Copyright Lawsuits Are Scaring Away New Hits

Written by Amy X. Wang — Most of the world knows Robin Thicke, Pharrell Williams, and T.I.’s “Blurred Lines” as a half-forgotten hit song from 2013. The music industry remembers it as its worst nightmare.

In the five years since a court ruled that “Blurred Lines” infringed on Marvin Gaye’s 1977 “Got to Give It Up,” demanding that Thicke and Williams fork over $5 million to the Gaye estate for straying too close to the older song’s “vibe,” the once-sleepy realm of music copyright law has turned into a minefield. Chart-topping musicians have been slapped with infringement lawsuits like never before, and stars like Ed Sheeran and Katy Perry are being asked to pay millions in cases that have many experts scratching their heads. Across genres, artists are putting out new music with the same question in the backs of their minds: Will this song get me sued?

“There is a lot of confusion about what’s permissible and what’s not,” says Sandy Wilbur, a forensic musicologist who served as an expert witness for the defense in the “Blurred Lines” case. Because cases are decided by “the average listener, who is not an educated musicologist or musician,” she notes, “labels are very afraid.” Since that game-changing ruling in 2015, Wilbur says, she’s received triple the number of requests from music companies to double-check new songs before they are even considered for release.

How did this culture of fear drift into the recording studio? The answer is twofold. While copyright laws used to protect only lyrics and melodies (a prime example is the Chiffons’ successful suit against George Harrison in 1976 for the strong compositional similarities between his “My Sweet Lord” and their “He’s So Fine”), the “Blurred Lines” case raised the stakes by suggesting that the far more abstract qualities of rhythm, tempo, and even the general feel of a song are also eligible for protection — and thus that a song can be sued for feeling like an earlier one. Sure enough, a jury in 2019 ruled that Katy Perry owed millions for ostensibly copying the beat of her hit “Dark Horse” from a little-known song by Christian rapper Flame, stunning both the music business and the legal community. “They’re trying to own basic building blocks of music, the alphabet of music that should be available to everyone,” Perry’s lawyer Christine Lepera warned in the case’s closing arguments.

That case, which Perry’s team is currently in the process of appealing, suggests a second point: Plaintiffs in copycat cases are largely targeting megahit songs because they’ve seen where the money is, and the increasing frequency of those court battles in headlines is causing an avalanche effect of further infringement lawsuits.

All of this is striking fear into professional musicians’ hearts. A few months ago, Emily Warren, a songwriter who’s worked with the likes of Shawn Mendes and Dua Lipa, released a song with a country artist that had a similar chorus to a pop song released at the exact same time — a total coincidence, she says. “Even though I’d never heard [the other song], it still felt like a tricky thing,” Warren says. Neither of the two artists took any action against each other, but the situation opened Warren’s eyes to how easily sticky situations can arise by accident. “The more cases are publicized, the more fearful people are,” she says.

While some record labels may have the budget to hire on-call musicologists who vet new releases for potential copyright claims, smaller players who can’t afford that luxury are turning toward a tried-and-true form of protection: insurance. Lucas Keller — the founder of music management company Milk and Honey, which represents writers and producers who’ve worked with everyone from Alessia Cara and Carrie Underwood to 5 Seconds of Summer and Muse — recently began encouraging all his songwriter clients to purchase errors-and-omissions insurance, which protects creative professionals from legal challenges to their intellectual property. “We all feel like the system has failed us,” Keller says. “There are a lot of aggressive lawyers filing lawsuits and going ham on people.” (He’s particularly critical of publishers whose rosters are heavier on older catalogs than new acts: “Heritage publishers who aren’t making a lot of money are coming out of the woodwork and saying, ‘We’re going to take a piece of your contemporary hit.’ ”)

Under E&O policies, insurance companies can cover several million dollars of an artist’s costs if they lose a copyright lawsuit. Joe Charles, senior vice president at insurance provider Alliant Insurance Services, says that as many as half of his personal A-list music clients — a roster of stars who already pay for tour insurance and other standard entertainment-industry policies — have recently shown interest in E&O coverage. “When a major claim is all over the press, we’ll get 10 to 20 calls from musicians asking how they can protect themselves and what it will cost,” Charles says. The number who’ve actually purchased the insurance is smaller due to the high costs, which can run from $20,000 to $250,000 a year, depending on the artist’s prior legal run-ins, their audience size, and how much they want to insure.

Artists are understandably reluctant to publicly disclose that they have copyright insurance, which could open them up to an increase in lawsuits. But music attorney Bob Celestin, who’s helped represent acts like Pusha T and Missy Elliott, says it is safe to assume that the majority of artists who show up in Top 10 chart positions are covered in this way. Big labels, too, usually have comprehensive insurance policies that protect them against copyright issues. Yet these policies have gaps. “An artist could find themselves uninsurable if they’ve had numerous claims and the insurance companies have already paid out millions in costs and settlements,” Charles says. “Or they might find a carrier willing to write it, but the rates are going to be astronomical.”

Songwriters, who may not have the financial wherewithal of celebrity artists but are equally liable for copyright claims, are often the most vulnerable. “We’re all nervous and afraid to fall into a battle over something as minor as a few notes or words,” says Ross Golan, a producer and songwriter who has released songs with stars like Ariana Grande and Justin Bieber. Warren says she’s even heard of some megawatt artists keeping musicologists on personal retainer to help them avoid lawsuits.

“There’s more conversation on the front-end as songs are being created,” says Joel Timen, vice president of A&R and publishing at Curb Word Entertainment. “A lot of my songwriters have been asking more questions: ‘Does this melody or pre-chorus section remind you of anything? Should we be careful?’”

The popularity of cheap music-production software, which offers the same features to every user, has added another layer of risk. “Music is now more similar than it is different, for the first time,” Golan says. “People are using the same sample packs, the same plug-ins, because it’s efficient.” Then there’s the issue of the finite number of notes, chord progressions, and melodies available. Or, as Wilbur puts it, “There are no virgin births in music. Music comes out of other music.”

The copyright lawsuit boom, and its unintended side effects, may be just getting started. In 2014, rock band Spirit accused Led Zeppelin’s Robert Plant and Jimmy Page of lifting the opening guitar riff of “Stairway to Heaven” from a 1968 instrumental called “Taurus”; a jury threw out the case in 2016, determining that Plant and Page didn’t plagiarize the musical motif — only to see the case turned around two years later on appeal, when a three-judge panel ruled that the original trial involved errors in jury proceedings. (“The jury is a whole other conversation,” says Keller, the music manager. “In British court, they’d just ask a musicologist to decide. In American court, we bring in 10 random people.”) In 2019, the court of appeals decided to reconsider the original panel’s ruling; it will likely issue a decision in the spring of 2020.

Artists, songwriters, producers, and labels are now awaiting the next Zeppelin verdict, with many hoping that a judgment in Page and Plant’s favor could unwind some of the headache-inducing ambiguity introduced by the “Blurred Lines” ruling. Others see the case, which has a chance of going all the way up to the Supreme Court, as a reopening of Pandora’s box. Will the latest ruling clarify the scope of music copyright — or muddy it even further? “At what point is an element of creative expression protectable?” says media intellectual-property attorney Wesley Lewis. “Litigators are all hoping for more clarity.”

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