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Summary judgment plus attorneys fees! A fiasco that could spawn little fiascos.

Updated: Jul 31, 2023

How "no standing," and perhaps bad faith, clobbered what might have been a valid infringement claim and, importantly, why it could be a harbinger of confusing things ahead.


The other day, I saw a tweet (before we called them "X's") about a music copyright infringement case that resulted in an award of $80,000 in attorney fees and costs following summary judgment. Certainly, the pendulum is swinging away from courts gladly suffering specious and spurious cases. So, that's one takeaway. Another is, as the tweet pointed out, there are two types of music copyright, and if you're headed to court, best to know the difference between them. And there are at least a few other lessons to learn here. First among them:


Clear your samples before you publish!


Everyone knows that, right? So why doesn't everyone adhere to it?


Here are two tracks, and you're bound to hear a good bit of the first one in the second one. Dawn Richard, formerly of Dannity Kane, appears to have sampled a 1990 gospel track by Ohio gospel trio, The Nevel Sisters', called "Abundance of Rain," and employed the sampled phrase prominently in her 2019 track, "Sauce," and with regard to clearing the sample, evidently meant well.


I cued up the part of Abundance that's relevant.



And here's Dawn Richard's "Sauce."


Dawn Richard didn't have a license to use Abundance Of Rain and was subsequently sued for copyright infringement. But the way this story ends is that Dawn will win summary judgment here, and not only that; she'll also be awarded $81,168.80 in attorney's fees and costs! So what happened here?


There are two copyrights associated with a recorded song.


Four plaintiffs -- the three Nevels sisters and songwriter Eddie Howard -- sued Richard for copyright infringement. But there are two flavors of music copyright, one for recordings and another for musical compositions themselves. So if someone uses a recording without permission (say, they sample it,) that might infringe on the recording copyright. If they borrowed from your composition in some way, perhaps publishing something that sounds too similar, that might infringe on the music composition copyright. Copyrights take effect once the song is in fixed form, so the Nevels' recording of their own original song accomplishes both forms, and they have copyrights at that point.


However...


Years ago, when I wrote Musicologize's "5 Steps To Take If Someone Stole Your Song," I wrote that step two should be to "Register Your Copyright." (Step one is "find a good lawyer.") Registration is step two because although you may have your copyrights from the moment your creation is in fixed form, you can't sue anybody for infringing them (in the United States, at least) unless you've registered your copyright with the US Copyright Office. It's simply a prerequisite to legal action, for better or worse. And the complaint says they were issued a copyright registration back in 1990.


But you know how this ends, so how'd it all go sideways? It's really pretty amazing.


Richards argued that only two of the four plaintiffs were named on that copyright registration, and therefore the other two have no standing to sue. Further, the remaining two plaintiffs' registration appeared to be for a three-song compilation called "Seek The Lord" and it was unclear if "Rain" even is among the three songs.


Also, it was a registration only for the musical composition, not the recording! Keeping up so far?


Richards also argued fraud and wondered why she was being sued. There had been ongoing discussions between the parties around licenses, credits, and splits in exchange for consideration. Moreover, there's evidently a "Version One" and a "Version Two" of "Sauce," one indeed containing an audio sample from "Abundance Of Rain," and a second, described by Richard as an "adaptation;" which I take to mean a rerecorded version of the sample. (I'll explain in a sec.) And along the way, both versions of Sauce were evidently taken down by Richards until the dust settles. That was prudent. But this was to be her second single off the album, so I'm sure she wasn't thrilled.


I said I'd explain "re-recorded samples." In short, if you can't or don't want to license a sample, you can make a new recording that sounds as close to the original as you want. Copyright law specifically says you can make a soundalike without infringing on the sound recording. The underlying song, though, is protected by its own copyright, and your rerecorded sample is a copy of that music, so you may need a license for that. So, it would make sense that Dawn would seek to license the sample, but made a rerecorded version as leverage in the negotiation and as a backup plan. She might then just negotiate for the license for the underlying music, and not the audio sample. The recent Yung Gravy / Rick Astley situation is a good example of that sort of strategy.


As for the underlying composition, the musical element you can hear in both works is the melody and words "Let It Fall On Me." It appears in "Sauce" many many times. It's somewhat the basis of the whole track.


But remember, you know how this ends.


Richards motioned for summary judgment. (She asked the judge to dismiss the case.) The basis was that the plaintiffs don't have the required registered copyright for the recording. And as for the music composition copyright, for which only two of the four plaintiffs have a registration, Richard argued that since, first, there is an old gospel hymn in the public domain that is called "Let It Fall On Me," the musical and lyrical elements in question are not original to the plaintiffs, and second, it's only three notes, "di minimis" or too little to matter, and for both of these reasons, this piece of music is unprotectable by copyright.


That is a musicological opinion, and this is Musicologize, so let's pause to consider it briefly. I haven't considered it long nor done any research, but that seems very wrong. While the "Let It Fall On Me" phrase is sung to just three "pitches," as Richard argued, it's better described as five "notes" with pitch, duration, and rhythmic placement of the whole phrase and the notes individually. It is set and given meaning in a harmonic context and the whole thing is not only preserved faithfully in Sauce, but it is arguably the four measures of music around which Sauce's instrumental track revolves. And I don't find Abundance so similar as to be obviously taken from or even necessarily related to any version of that old hymn I've heard.


The plaintiffs' incredulous response to the summary judgment motion expressed shock, claimed to have obtained the original deposited materials from the copyright registration showing that Rain was indeed among the three, and argued that the registration perhaps did cover a sound recording. They claimed some safe harbor protections around accidental registration filing errors were relevant, but to establish that, they required numerous favorable assumptions about intent from 30 years ago. They argued that the deposit copies included the lyrics to three songs (one of which was "Rain") and an audio cassette that was clear evidence of intent to register the sound recording. But I don't see it that way; a cassette is just as appealing as the deposit copy for a PA (song) copyright as for a sound recording copyright. Can't assume either one.


Also, very importantly, the plaintiffs asked for time to fix the registrations to include their sound recording. They would not get that time. And in hindsight, that would then have been a good time to read the room. The court wrote:

"Granting Plaintiffs' motion at this advanced point in the case would cause delay and prejudice to Defendant. Both parties have completed substantial discovery and Defendant's motion for summary judgment is fully briefed. Further, Plaintiffs knew, or should have known, that they did not hold the sound recording registration for “Abundance of Rain” at the time they filed this suit and included a sound recording copyright infringement claim." JAMES S. GWIN, UNITED STATES DISTRICT COURT JUDGE. OPINION & ORDER Aug 10 2022.

And then came summary judgment.


And it was pretty simple. The sampling part went away in a flash. As we said at the top, you really do need a copyright registration to sue. They didn't have one for the sound recording at all. They weren't allowed to run and get one in the late stages and the court was unimpressed with the argument that their selecting "Music Composition" instead of "Sound Recording" thirty years ago was a mistake covered by copyright's "Safe Harbor" provision. (In fact the court quoted the registration form's very simple and straightforward instructions in the footnotes of the decision.)

Then as to the claimed infringement of the musical composition for which two of the plaintiffs do apparently have a registration, the court considered the question of the originality of the musical phrase from "Rain" that appears in "Sauce," and applied a well worn convention of first filtering out elements that are not original to the author and then considering the originality and substantiality of only what's left." It found, of course, that the phrase "Let it fall on me" is not original to the plaintiffs. Then they considered what was left, the melody, and found, "The melody and rhythm follow the same pattern as the (public domain) hymn, 'Let It Fall On Me'" It was not original to the plaintiffs. And that was all she wrote for compositional infringement.


Summary judgment in hand, the plaintiff moved on to attorney's fees and costs. And for the last time, you know how this ended.


An award of attorneys fees and costs for the defense of over $80k.


And all the while, "Sauced" contains "Abundance Of Rain." And quite a lot!


The judgment tells the story of how poorly handled this was by the plaintiffs, and how well by the defendants. And there are obvious takeaways: Understand the difference between an SR, a sound recording copyright and a PA, a performing arts copyright that covers the underlying composition. And don't try to sue anyone until you've registered the copyright!

But I think the court erred as well, and worse, I think it deserves consideration especially in the context of artificial intelligence and the landscape for copyright infringement that we're going to be navigating. This court is out on a limb in deciding the musical composition here was unoriginal and unprotectable. As a forensic musicologist, I disagree with the logic, as I've said, but I'm more surprised at the court's confidence in making a hard call at this stage. Sure, "Let It Fall On Me" is not, as a series of words, original to "Abundance of Rain." But when you put those five words to five notes, with pitch, duration, rhythmic placement, and harmonic context, you have an original asset, WHICH WAS SAMPLED. You can't avoid that fact. You can't sue without a registered copyright but that doesn't negate the copyright itself. How did we get to the idea of "unprotectable as a matter of law" after Dawn Richards selected this piece of music, looped it over and over as a sound recording, and made it the musical basis for a new work. It's not almost the same; it's the same, interpolated, a direct quote! You can perhaps find that the lyric is unoriginal. And you can find that the melody is not original, perhaps. (I didn't like the argument for it in this case. The old hymn doesn't do it.) But can you find that the combination of the lyric and the music is not original at this stage? I don't see how! Fair use? I don't see it, and the court didn't say that.


That's not the defense's fault; none of this appears to be. But what does it mean going forward?


All roads lead to the AI boogeyman.


I'm as tired as anyone of weak and wasteful infringement claims making it to court. I see the need for a response. But as with the fairly young and immature concept of "selection and arrangement" in music copyright adjudication, we must be thoughtful about the filtering doctrine. Hey, we're all watching The Bear on Hulu, right? In the last episode of season one, a character casually mentions one of the best French chefs and credits him for the inspiration for her tomato compote or coulis or whatever she had just prepared. That same French chef has an egg dish copied all over the place. It's an egg with maple syrup in it, among other things. Everyone doing similar knows they're copying the "Arpège egg." It doesn't matter that Alain Passard didn't invent the components -- poached egg yolk, chives, syrup. He created the "Arpege egg" appetizer! You can't filter out that he didn't invent maple syrup, or whipped cream and arrive at it not being an original creation. The filtering isn't clarifying.


Here's what's coming:


Real damages have always been a function of "how much value did the infringer derive from the infringed intellectual property." AI, though will make it easy to mimic the Nevels' voices, or anyone else's. Would we want to be able to quote five or ten second snippets of music, re-record them, and maybe not have to worry even about the copyright for the composition?

How is that acceptable? You get all the value, say, from a familiar audio recording, but if you choose an unoriginal phrase and melody, it's free?


And ask Rick Astley in a few months if right of publicity is going to be worth fighting.


I think it's a reasonable hypothesis that the court here was not happy, and may have believed the plaintiffs were acting in bad faith, running up the bills in the hopes of getting a big settlement. Whether they were or weren't, I'm all for discouraging such behavior. But is the shaky reasoning grounds for an appeal? I'll leave that to the lawyers. I'm a forensic musicologist, concerned about how this portends future shenanigans as copyright law hurries to adjust to a new musical economy that artificial intelligence will bring forth.

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