NYU Music Copyright Robin Thicke & Pharrell Williams vs Gaye Case Paper I need a 5 pages essay on a copyright case. I chose the case of the song “blurred l

NYU Music Copyright Robin Thicke & Pharrell Williams vs Gaye Case Paper I need a 5 pages essay on a copyright case. I chose the case of the song “blurred lines” between Robin Thicke and Pharrell Williams vs Gaye. The “need” for knowing music theory is just so you can at least make some strong points on the analysis of the case. I will attach the requirement and guideline of the essay, also the Amicus brief I found and a link to an important video that can be quoted but also that will help you understand the case a little better https://www.youtube.com/watch?v=UQpToBfGn78, however you will need to do all the research on the case as I have no extra materials on it. Guideline for essay—
Ferrara: Music copyright case meta-critique, 5-page minimum, due 9/24:
Dear Performing Arts in Western Civilization (PAWC) students:
As per the course syllabus, your first written assignment in PAWC is due, namely:
1. A summary, analysis and meta-critique of a music copyright case.
The following are some guidelines to help you in completing the essay.
Copyright Case Analysis and Meta-critique
If you choose to complete an analysis and meta-critique of a music copyright
litigation as your written essay, you should provide a summary of the facts in the
litigation and a meta-critique (your own opinion) of any aspects of the litigation
and/or outcome of that litigation. The litigation you choose can be one that went to
trial or that ended with a Court decision, but no trial, such as in Newton v Diamond.
You can complete this summary and meta-critique of any of the copyright litigations
we analyzed in class or any other litigation that we may have mentioned but not
analyzed such as the Skidmore v Led Zeppelin trial. Thus, if you are aware of an
ongoing litigation or one from the past that we have not discussed or mentioned,
please feel free to complete the analysis and meta-critique described immediately
above regarding the works in that litigation.
Case: 15-56880, 04/23/2018, ID: 10847513, DktEntry: 99, Page 1 of 24
No. 15-56880
Nos. 16-55089, 16-55626 (consolidated)
====================================================
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________________________
PHARRELL WILLIAMS, ET. AL.,
Plaintiffs-Appellants-Cross-Appellees,
v.
FRANKIE CHRISTIAN GAYE, ET AL.,
Defendants/Appellants-Cross-Appellants,
_______________________________________________
On Appeal from the United States District Court
For the Central District of California
Case No. CV13-06004-JAK (AGRx)
Hon. John A. Kronstadt, District Court Judge
======================================================
BRIEF OF AMICUS CURIAE MUSICOLOGISTS
IN SUPPORT OF PLAINTIFFS-APPELLANTS-CROSSAPPELLEES’
PETITION FOR REHEARING EN BANC
Date of Decision: March 21, 2018
Judges: M. Smith Jr., Murguia, and Nguyen
======================================================
Kenneth D. Freundlich
FREUNDLICH LAW
16133 Ventura Blvd. Ste. 645
Encino, CA 91436
April 23, 2018
(310) 275-5350
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IDENTITY OF AMICI
This brief of amici curiae is submitted on behalf of the following
persons or entities:
Nicole Biamonte, PhD
Associate Professor of Music
Theory
John Covach, PhD
Professor of Music Theory
Chair, The College Department of
Music Director, Institute for
Popular Music Mercer Brugler
Distinguished Teaching Professor
Schulich School of Music
McGill University
Montreal, Canada
The College Department of Music,
University of Rochester
Editor-On-Chief, Music Theory
Online
Charles Cronin, PhD
B.M., J.D., M.A., Ph.D.
(musicology)
Robert Fink, PhD
Professor IV
Department of Musicology
Chair, Music Industry Program
Vice-Chair of the Faculty
M.I.M.S. (Masters, Information
Management & Systems)
UCLA Herb Alpert School of
Lecturer in Law, University of
Music
Southern California Law School
Professor in Humanities
UCLA
Michael Harrington, D.M.A.
Brad Osborn, Ph.D.
Professor and Course Author
Assistant Professor of Music
Berklee College of Music / Berklee Theory
Online
Boston, Massachusetts
University of Kansas School of
Music
Music Business Program Faculty Murphy Hall 332
Chair
SAE Institute of Technology
Nashville
i
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André O. Redwood, PhD
Independent Scholar
Eleanor Selfridge-Field, PhD
Consulting Professor, Music
541 Lasuen Mall
Braun Music Center #129
As of September 2018
Assistant Professor of Music
Theory
University of Albany, SUNY
Mark Spicer, Ph.D.
Professor of Music
Stanford University
Stanford, CA 94305-3076, USA
Hunter College and the Graduate
Center
City University of New York
Case Western Reserve University
Cleveland Heights, OH
Robert Walser, PhD.
Professor of Music
ii
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CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, the
undersigned states that none of the amici is a corporation that issues
stock or has a parent corporation that issues stock.
iii
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STATEMENT OF COMPLIANCE WITH RULE 29(c)(5)
This brief is submitted pursuant to Rule 29(a) of the Federal Rules
of Appellate Procedure. All parties have consented to its filing. No
party’s counsel authored the brief in whole or in part; no party or
party’s counsel contributed money intended to fund preparing or
submitting the brief and no person or entity – other than the amicus
curiae, its members, or its counsel – contributed funds for preparing or
submitting the brief.
Dated: April 23, 2018
FREUNDLICH LAW
s/ Kenneth D. Freundlich
Kenneth D. Freundlich
Attorneys for Amici Curiae
iv
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TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE ………………………………………………………. 1
ARGUMENT …………………………………………………………………………………… 1
I.
The Alleged Similarities Do Not Rise to the Level of Actionable
Infringement as a Matter of Law ……………………………………………… 1
a.
Musical Works are Susceptible to Straightforward
Comparison …………………………………………………………………….. 3
b.
There is No Substantial Similarity Between the Melodies…. 4
i.
An Accurate Comparison of the “Signature Phrases”
of BLURRED and GIVE (As Follows) Demonstrates
That They Are Dissimilar ……………………………………….. 6
c.
The Melodic “Hooks” of GIVE and BLURRED
Are Dissimilar ………………………………………………………………… 9
d.
The Two Theme “X” Phrases – a Finell-Identified Four
Note Sequence – Are Entirely Dissimilar ……………………….. 10
e.
II.
The Bass Lines of GIVE and BLURRED are Not Similar … 10
The Panel Majority’s Decision Upholding an Instruction to the
Jury that Access could be Considered in Connection with
Determining Actionable Similarity Was Wrong and Musical
Nonsense ………………………………………………………………………………. 11
III. Conclusion……………………………………………………………………………… 15
CERTIFICATE OF COMPLIANCE WITH FRAP 32(A)(7)(C) AND
CIRCUIT RULE 32-1……………………………………………………………………… 16
CERTIFICATE OF SERVICE ………………………………………………………… 17
v
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TABLE OF AUTHORITIES
Page(s)
Cases
Arc Music Corp. v. Lee,
296 F. 2d 186 (2d Cir. 1961) ……………………………………………………….. 14
Eaton v. NBC,
972 F. Supp. 1019 (E.D. Va. 1997) ………………………………………………. 14
Peters v. West,
692 F. 3d 629 (7th Cir. 2012) ………………………………………………………. 14
Rentmeester v. Nike, Inc.,
883 F.3d 1111 (9th Cir. 2018) …………………………………………… 13, 14, 15
Miscellaneous
4 Melville D. Nimmer & David Nimmer, Nimmer on
Copyright 13.03[D] (rev. ed 2017) ………………………………………………. 13
3 William F. Patry, Patry on Copyright §9:91 (2017) ………………………… 13
vi
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INTEREST OF AMICI CURIAE
Amici are musicologists and music theorists who research, teach
and write about music and music composition. Amici believe that the
panel majority’s decision to affirm the verdict below should be reviewed
en banc because (i) that verdict below is based on a demonstrably
erroneous finding of musical similarity between the disputed songs, and
(ii) because the District Court’s instructions to the jury improperly
established a lower standard of substantial similarity for well-known
and widely distributed hit songs, based on the access evidence in this
case, under the so-called “inverse ratio rule.”
Amici further submit that en banc review is urgently needed
because of the overwhelming importance of the outcome of this case for
the sustained vibrancy of the American popular music industry. If
allowed to stand, the panel’s decision will unquestionably cast a pall on
this industry, and specifically will inhibit songwriters at their core,
given the threat of far-fetched claims of infringement bolstered by
speculative and misleading musical testimony like that presented by
the Gaye Parties in this case.
ARGUMENT
I.
The Alleged Similarities Do Not Rise to the Level of
Actionable Infringement as a Matter of Law
Judge Nguyen, in her dissent, meticulously analyzed the musical
evidence presented below concluding that GIVE1 and BLURRED2 are
not objectively similar as a matter of law under the extrinsic test
GIVE is “Got to Give It Up” composed by Marvin Gaye.
2 BLURRED is “Blurred Lines” composed by Pharrell Williams, Robin
Thicke, and Clifford Harris, Jr.
1
1
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because they differ in melody, harmony and rhythm. Slip op. 57. Amici
agree with Judge Nguyen that parsing two pieces of music to determine
extrinsic similarity may be difficult. Slip op. 84. Here, however, as
Judge Nguyen has demonstrated, this difficulty can be surmounted by a
straightforward comparison of the notated music without consideration
of the partisan advocacy of the paid experts.
In this case there was no dispute as to the evidence and its
sufficiency. From the record below, it is apparent that Judge Kronstadt
failed in his gatekeeping role simply because the Court was faced with
competing experts. Amici urge that the fact that the experts disagreed
is not an appropriate basis on which to determine whether a case
should go to a jury. Simply put, if two pieces of music share no
similarities in melody, harmony or rhythm, as was the case here, Amici,
like Judge Nguyen, believe such a case should have been disposed of by
summary judgment and never proceeded to trial.3
Amici encourage this Court, en banc, to undertake a review of the
music in this case, like Judge Nguyen’s, to decide whether, as a matter
of law, a comparison of the two songs could possibly support a finding of
substantial musical similarity. Otherwise, this decision will stand as
precedent in this Circuit, that to withstand summary judgment,
plaintiffs may simply retain experts to flood the record with technical
Amici express no opinion as to the procedural issues raised by the
panel majority, only to say that the result in this case, with both district
court and the panel majority failing to undertake any objective review
of the music, is a musicological travesty creating a chilling effect on
songwriters due to the uncertainty of where the Court will draw the line
of creative expression versus permissible influence.
3
2
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jargon and deceptive information to confuse the Court and have the
matter sent to an equally confused jury.
Amici’s previous brief detailed why BLURRED and GIVE are not
objectively similar. Certain portions of that brief bear repetition as this
Court considers whether to grant en banc review:
a. Musical Works are Susceptible to Straightforward
Comparison
Musical notation is as straightforward as the visual recording of
any form of expression. Sections of the sheet music for BLURRED and
GIVE were the bases of the Gaye Parties’ musicologists’ testimony, and
these were the bases for Judge Nguyen’s detailed analysis of the two
pieces of music.
The fundamental elements of musical works are melody, harmony
and rhythm, which can be precisely recorded in symbolic notation.
There is only one way to notate a melody, rhythm and harmony. The
GIVE Deposit Copy, for example, which Judge Nguyen referred to and
analyzed in her dissent, uses standard musical notation which includes:
(i) a staff (five horizontal parallel lines), (ii) vertical lines (or “bar lines”
that divide the horizontal staff lines into “measures”), (iii) a key
signature (three sharps (“#” signs) at the beginning of each piece), (iv) a
time signature (4/4 here), (v) musical notes (circles with or without
duration-indicating stems), (vi) rests (to indicate silences), and (vii)
letters and numbers above the staff to indicate the chord symbols (in
which several notes are played simultaneously to create harmony). The
same is true for the BLURRED sheet music.
In both BLURRED and GIVE, there are four quarter note beats to
each measure (indicated by a 4/4 at the outset of each piece of sheet
3
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constitutes melody, and just a few pitches in a particular rhythmic
pattern are unlikely to constitute protectable original melodic
expression. Pitch sequences should never be analyzed without regard to
their duration and their placement within a musical phrase.
If the melodies of two songs are dissimilar, no other musical
parameter (harmony, instrumentation, dynamics, etc.) can render them
similar. Accordingly, songs with identical chord progressions but
different melodies are fundamentally different works. Likewise, the
same pitches set to a different rhythm result in a different melody.
Judge Nguyen understood this fundamental truth when she
reviewed the “Alleged Melodic Similarities.” Id. at 66-76. Not one of the
so-called similarities Ms. Finell identified is protectable musical
expression – repeated notes, pitches in a row, rhythmic similarity at the
outset of a phrase and the existence of a melisma – nor are they
protectible as a “constellation”.
The chart of Trial Exhibit 376-3 was also referred to in Amici’s
brief to the panel and supports Judge Nguyen’s conclusion that all
elements of the Gaye Parties’ expert’s (Judith Finell) alleged melodic
similarities are commonplace and de minimis and therefore
unprotectable. Moreover, every one of these elements are demonstrably
dissimilar, as is apparent from a straightforward reading the notation
on the page.
5
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i. An Accurate Comparison of the “Signature
Phrases” of BLURRED and GIVE (As Follows)
Demonstrates That They Are Dissimilar
The alleged “repeated notes” of the “signature phrase” are the 5-55-5- in GIVE versus the 3-3-#2-3 in BLURRED. 5 These are not only
different notes in the scale (3 versus 5) but there are only two notes
repeated in BLURRED versus four in GIVE. Simply repeating notes
The numbers correspond to a note’s place in the scale with “1” being
the tonic note (A here), “3” meaning the third note from the tonic in
sequence, and “5” meaning the fifth note in sequence. The default
description of a scale is based on its ascending form, i.e. from the lowest
note to the highest.
5
6
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like this should not be protectible in any event. And the #2 itself is a
critical color note that is missing from the BLUR sequence.
Finell’s analysis of “pitch similarity’” relied entirely on her
selective analysis of bits and pieces of three sets of note sequences
without regard to their placement in the measures, a distortion which
Judge Nguyen laid bare in her comparison of the two charts. Ms. Finell
even posited that the phrases are similar simply because: “both songs
repeat their starting tones”. ER 2048, ER 122. In fact, as the chart
demonstrates, the starting tones of the two signature phrases are
different, they repeat a different number of times, and these phrases
are set to different harmonic progressions (chords) and lyrics. Even if
both songs had identical starting tones, such a commonality would have
no probative significance whatever on the question of musical
similarity. There are innumerable works in every musical genre whose
melodies open with repeating tones, like those of “Happy Birthday”,
“Baa Baa Black Sheep”, “Yankee Doodle”, and the opening of
Beethoven’s 5th Symphony, to name a few.
Ms. Finell’s isolated similarities of de minimis pitch sequences –
the 5-6-1 sequence and the 1-5 sequence she calls “b” have no probative
import on the issue of musical similarity. These de minimis sequences
comprise utterly commonplace melodic kernels found in innumerable
works across music genres for centuries.
The most distinctive melodic element of the “signature phrase” in
GIVE is its ascent to the second step of the scale (the darkened circle on
the third line under Ms. Finell’s “2”). This ascent does not occur in the
“signature phrase” of BLURRED. The note following the 5-6-1 phrase in
BLURRED (the darkened circle on the second space in Ms. Finell’s
7
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chart) is not only different from GIVE but is also shorter in duration
than the corresponding portions of BLURRED (one with the dot after
the darkened circle and one without) and therefore bears no musical
relationship to the compared note in GIVE.
Regarding any alleged rhythmic similarity, Finell also argued
similarity by comparing short rhythmic phrases that occur at different
times in the songs at issue. For instance, this Court can see for itself
that the placement of these sequences in the two pieces is different
signifying different points of each song.
Finally, the two “melismas”6 at the end of the “signature phrases”
in GIVE (the second half of the word “parties”) and BLURRED (the
word “girl”) are simply dissimilar in terms of their metric placement,
melodic profile, and pitch content.
To summarize, an objective comparison of the signature phrases
reveals that they are completely different, having different starting,
middle, and end notes, and different pitch, harmonic, and rhythmic
sequences.
6
Melismas are notes sung to the same syllable of text.
8
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c. The Melodic “Hooks” of GIVE and BLURRED Are
Dissimilar
The melodic “hooks” of the songs are illustrated as follows:
ER 2142, ER 125.
One can visually see striking differences between these two
phrases. First, the two notes in the first measure of each occur at
different beats in the measure – the first two notes of BLURRED, which
are eighth notes, occur on beat four of the first measure of this example
(the notes are preceded by a half note rest and a quarter note rest which
take up the first three beats of the measure); the first two notes of
GIVE, on the other hand, occur on beats three and four respectively (the
notes are preceded simply by a half note rest taking up the first two
beats of the measure). This is a stark and critical difference in the two
“hooks”.
Moreover, there are critical differences between first note in the
second measure of each (the pitch occurring on the first beat of measure
two of GIVE with is the quarter note with a dot after it on the middle
line of the staff) versus the pitch occurring on the first beat of
BLURRED (the quarter note on the second space of the staff). These
9
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different notes are of different durations (on a dotted quarter note and
one a simple quarter note) which results in phrases that sound
completely different.
Finally, as can be seen from examination of the chart, the no…
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