Law Journal Newsletters: Entertainment Law & Finance

April 2009

Music Fans May Help Settle the Score in Satriani v. Infringement Suit

By Joseph M. Beck, Christopher P. Bussert and James A. Trigg

A recently filed music copyright suit in the U.S. District Court for the Central District of — Satriani v. Martin, 08-07987 — has revealed a new and unexpected application for the Web, namely, its potential as a forum for infringement analysis by amateur musicologists. Long before any party to this litigation will be required to submit expert reports or summary judgment briefs, YouTube postings have offered remarkably insightful analyses of the strengths and weaknesses of the parties’ respective cases.

The plaintiff in this case is , an accomplished guitarist who has performed with the likes of and , and who has been nominated for Grammy awards on multiple occasions in the category of Best Rock Instrumental Performance. The principal defendants are the members of the group Coldplay, one of the most successful rock groups of the past decade, having sold upwards of 50 million and won several Grammy awards, including 2009 Song of the Year for the track “.” Satriani asserts in his complaint that “Coldplay copied and incorporated substantial, original portions of Plaintiff’s composition, ‘If I Could Fly,’ in Defendants’ musical composition and sound recording, ‘Viva La Vida.’” In public statements, Coldplay has vigorously denied any wrongdoing.

Access Is Key

Ultimately, as with any copyright infringement case where there is no direct proof of copying, this action will turn on whether Coldplay is deemed to have had “access” to Satriani’s song and whether the two works are “substantially similar.” See, e.g., Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000). Of course, the U.S. Supreme Court’s ruling in Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), teaches that it is not enough that two works share similarities; the accused work must be substantially similar to the plaintiff’s original, protectable expression: “Originality remains the sine qua non of copyright;

USADMIN 9430837.1 accordingly, copyright protection may extend only to those components of a work that are original to the author.” Id. at 348. As the Court instructed in Feist, originality has two components: 1) the plaintiff’s work must be his or her own creation; and 2) it must contain sufficient creativity to merit protection under the Copyright Act. While numerous courts have held that only minimal creativity need be shown, a series of music cases over the years has confirmed that certain rudimentary aspects of musical works do not meet even this low threshold. For example, musical elements such as key, meter, tempo and genre are not protectable expression. See, e.g., Tisi v. Patrick, 97 F.Supp.2d 539, 548-49 (S.D.N.Y. 2000) (finding, among other things, key of “A” major and use of a particular tempo to be unprotectable scenes a faire).

Based on a review of the songs at issue in the Satriani case, the plaintiff’s claims do not appear to extend to the entirety of “If I Could Fly,” but rather to its chorus, which consists of a four-chord pattern featuring a melodic overlay played on electric guitar. In the Satriani piece, which runs for over six minutes, the chorus progression first appears at approximately 0:50 into the song, and repeats four times until the 1:15 mark. It appears again — at half the length — between the 2:00 and 2:11 marks in the song. In the four-minute “Viva La Vida,” a somewhat similar chord progression and vocal melody open the song. “Viva La Vida” utilizes this motif throughout the song, in contrast to “If I Could Fly,” which veers off into a different direction after the 2:11 point.

While the Coldplay song is similar only to a relatively small portion of “If I Could Fly,” quantitative similarity is not required for Satriani to establish infringement. Copying a “riff” consisting of only a few measures or even a few notes may be sufficient. As the Ninth Circuit has observed: “Even if a copied portion be relatively small in proportion to the entire work, if qualitatively important, the finder of fact may properly find substantial similarity.” Baxter v. MCA, Inc., 812 F.2d 421, 425 (9th Cir. 1987) (reversing finding of summary judgment for the defendant); cf. Harper & Row Publishers Inc. v. Nation Enters., 471 U.S. 539 (1985) (finding infringement where the defendant copied only 300 words from 200,000 word memoir because the defendant took “heart” of the plaintiff’s work). Of course, where limited copying is involved, a balance must be struck between an inference of copying and the possibility of coincidence, i.e., that the allegedly copied portion was independently created.

As mentioned above, Coldplay already has avowed that it did not knowingly copy Satriani’s song. However, a copyright owner is not required to establish intentional copying; unconscious copying is actionable assuming that access can be shown. This was most famously illustrated in Bright Tunes Music Corp. v. Harrisongs Music Ltd., 420 F. Supp. 177 (S.D.N.Y. 1976), aff’d sub nom, Abkco Music Inc. v. Harrisongs Music Ltd., 722 F.2d 988 (2d Cir. 1983), where ’s song “My Sweet Lord” was found to infringe The Chiffons’ hit “He’s So Fine,” notwithstanding the court’s belief that Harrison had not intended to copy. The Harrisongs court made much of the popularity of “He’s So Fine,” which reached number one on the United States pop charts in 1963.

In the Satriani case, Coldplay faces a difficult argument disproving access, as courts have required only that the alleged infringer have “reasonable opportunity” to view or hear the allegedly copied work. See, e.g., Three Boys Music Corp., 212 F.3d at 482 (affirming the jury’s finding that singer Michael Bolton had access to an Isley Brothers song). While “If I Could Fly”

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may not have enjoyed the same commercial success as “He’s So Fine,” the on which it appeared, Is There Love In Space?, climbed to number 80 on the Billboard charts, according to Billboard.com. It is certainly plausible that one or more members of Coldplay could have heard “If I Could Fly.”

The YouTube Effect

What makes this case unique is the lively debate that it has prompted, which will likely impact how this action and similar infringement cases will be prosecuted and defended going forward. Within days of the suit’s initiation, the popular Web site You- Tube was inundated with postings in which fans freely offered their opinions concerning the merits of Satriani’s claims (or absence thereof). Some of these submissions were supported by surprisingly detailed analyses of the works.

One of the first postings was a seemingly incriminating video that began with an excerpt of the allegedly infringing portion from the Coldplay song, which faded into the allegedly copied portion from Satriani’s song, concluding with a “mashup” of the above-described sections of the works played simultaneously. (A mashup consists of combining two or more works into a new work, such as by placing the vocal of one recording over the instrumental track of another.) Soon after this video was posted, a Canadian guitar teacher posted a YouTube clip, commenting in detail on the musically similar elements of the two songs, including their chordal, harmonic and melodic structures. Notably, the clip also points out certain similarities in unprotectable elements, such as tempo and meter, though it should be noted that the teacher later added a written comment to his video admitting that he had been “incorrect in thinking that the meter and the harmony alone could merit a plagiarism lawsuit.” (See, www.youtube. com/watch?v=OEGGFJLpbu4.) The same teacher later posted a second clip offering additional analysis of the two songs.

While some of the initial postings appear designed to persuade viewers of at least unconscious copying by Coldplay, another group of You- Tube submissions suggest that Satriani himself may have borrowed from other songs, whether consciously or unconsciously. Among others, there are YouTube videos comparing the chorus melody of “If I Could Fly” to earlier songs by former British pop star Cat Stevens and Argentine rock group Los Enanitos Verdes. The authors of this article have located an electric guitar passage from a 1982 song by the rock group Toto, entitled “I Won’t Hold You Back,” that also bears similarity to the chorus melody of the Satriani piece. (Interestingly, yet another YouTube clip shows Satriani and Toto guitarist Steve performing together.)

In copyright infringement litigation, “prior art,” like the works described above, can prove to be critical, as it bears on the copyright owner’s claim of originality and/or the scope of protection to which the copyright owner’s work is entitled, at least where the copyright owner had access to the prior works. See, e.g., Tisi, 97 F. Supp.2d at 545 (granting summary judgment for the defendant in a music infringement case and noting that “what similarities exist between [the works] can also be found in prior art contained in works by other groups and composers”).

In this case, the parties should take note of the prior art works that have surfaced as part of the public debate. Such works could prove to be helpful to Coldplay in defending against

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Satriani’s claims, as they could reflect that Satriani himself may have “unconsciously copied” from an earlier work. Or they may simply reflect these oft-quoted words from the Second Circuit: “It must be remembered that, while there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing; and much fewer still suit the infantile demands of the popular ear. Recurrence is not therefore an inevitable badge of plagiarism.” Darrell v. Joe Morris Music Corp., 113 F.2d 80, 80 (2d Cir. 1940); see also, Smith v. Jackson, 84 F.3d 1213, 1219 (9th Cir. 1996) (when considering prior art, “the court examines whether ‘motive’ [i.e., brief musical phrase] similarities that plaintiffs attribute to ‘copying’ could actually be explained by the commonplace presence of the same or similar motives within the relevant field”).

What makes the Internet commentary regarding the two songs particularly interesting is that much of it replicates the type of expert analysis that both sides will likely use if the case goes forward. In music copyright infringement cases, it is rare for parties to rely solely on bare assertions of copying or independent creation. Instead, they frequently engage “musicology” experts to undertake detailed analyses of every element of alleged similarity between the two works and conclude whether all or portions of one work were copied from the other. The parties and their experts in Satriani should consider the analyses of the “amateur musicologists” that have weighed in via the Internet and other media, if for no other reason than they may be informative of how a jury might ultimately view the case.

Potential Award

Finally, even assuming infringement, there is a substantial question here as to any monetary relief that Satriani might claim. Coldplay’s lawyers will likely argue that apportionment of the group’s profits would be appropriate, because only a quantitatively small portion of Satriani’s work was allegedly copied. The Copyright Act limits profits recovery to those “profits of the infringer that are attributable to the infringement,” although it is the infringer’s burden to prove “those elements of profit attributable to factors other than the copyrighted work.” 17 U.S.C. §504(b). In some cases, courts have allowed significant reductions in the profits award to account for variables other than the infringing element. See, e.g., Three Boys Music Corp., 212 F.3d at 487 (affirming the jury’s finding that 28% of the defendant’s album sales were attributable to profits derived from the infringing song and reducing the profits award accordingly; then further reducing the profits figure based on the conclusion that 66% of the song’s profits related to copied elements).

To combat apportionment arguments by Coldplay, Satriani is likely to use expert musicologist testimony to argue that the allegedly copied portion is entitled to significantly more weight in the valuation analysis because it is the “hook” or the most memorable portion of the song; again, evaluation of Internet commentary could offer insight as to how listeners regard the importance of the allegedly copied portions of Satriani’s work. In the final analysis, no matter how strong of an apportionment argument Coldplay establishes, the cases are clear that a prevailing plaintiff should be given the benefit of the doubt with respect to any uncertainty in the apportionment analysis. See, e.g., Gaste v. Kaiserman, 863 F.2d 1061, 1070 (2d Cir. 1988) (“Confronted with imprecision in the computation of expenses, a court should err on the side of guaranteeing the plaintiff a full recovery … .”)

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While Satriani v. Martin may not go to trial for a variety of reasons, it is clear that user- generated content sites like YouTube have the potential to alter the way music cases — and other types of copyright case — are developed. Because advances in technology allow the public to participate in a real-time infringement debate, future parties would do well to monitor this “chatter” as it could uncover evidence and theories that may be helpful to the case of the copyright owner, the alleged infringer or both.

Joseph M. Beck (jbeck@kilpatrick stockton.com), Christopher P. Bussert ([email protected]), and James A. Trigg ([email protected]) are Partners in the Intellectual Property Group at Kilpatrick Stockton LLP. They specialize in copyright law and have litigated music copyright cases on behalf of both plaintiffs and defendants.

Reprinted with permission from the "April 2009" edition of the “Law Journal Newsletter” © 2009 Incisive media Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

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