Tuesday, August 23, 2016

Copyright - Thankfully in the Ninth Circuit

     I'm sure that Demi Lovato isn't pleased to be on the receiving side of a copyright infringement lawsuit claiming that her 2015 song "Stars" infringes the independent rock group Sleigh Bells' 2010 song "Infinity Guitars".  See link, link (with copy of the Complaint).

     But it wasn't like Sleigh Bells ambushed her.  Last year, the band tweeted "Demi Lovato flattered you guys sampled Infinity Guitars & Riot Rhythm for 'Stars' but we were not contacted. Gotta clear those."  See link.  In its Complaint, Sleigh Bells describes the material that was copied:
A comparison of the two songs reveals that, at the very least, the combination of the hand claps and bass drum, structured as 3 quarter beats and a rest, with the bass drum providing a counter-rhythm to the hand claps, is at least substantially similar in both works. This infringing material repeats throughout the Defendants’ song.
 See link at ¶ 14.  And, the thrust of Sleigh Bells' copyright infringement claim is:
Defendants did not seek or receive permission from Plaintiffs to copy, take, sample, or interpolate any portion of “Infinity Guitars” when creating “Stars.” Yet, Defendants exploited a material portion of “Infinity Guitars” in constructing “Stars.”
See link at ¶ 22.

     Here is a link to the Sleigh Bells song "Infinity Guitars" and, here is a link to the Demi Lovato song "Stars".

     Because this is a sampling claim, I'm pretty sure that Ms. Lovato is pleased to be that the lawsuit was brought in the Ninth Circuit instead of the Sixth Circuit.  In the Sixth Circuit, sampling is effectively per se unlawful.  "Get a license or do not sample".  Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005).  There is no de minimis defense.  See id. at 801-02. In the Ninth Circuit, as of earlier this year, there is a recognized de minimis defense.  See VMG Salsoul, LLC v. Madonna Louise Ciccone, et al. (9th Cir. 2016, June 2, 2016) (concluding that "a reasonable juror could not conclude that an average audience would recognize the appropriation of the horn hit").

     Whether Ms. Lovato and the other defendants can assert successfully a de minimis defense will have to seen.

- Henry Park

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