Stairway to Heaven: The impact of Zeppelin on Katy Perry’s copyright infringement case – overturned

On Appeal – individual elements of the ostinato unoriginal and unprotectable 

Under US law, substantial similarity is determined by a two-part test – as recently clarified in the Led Zeppelin case – the intrinsic and extrinsic test. The extrinsic test has two steps in finding similarity; first identify the protectable elements and second, whether those protected elements are objectively similar to the corresponding elements in the allegedly infringing work. Therefore, the first question considered was whether the elements of the ostinato were protectable.

The court noted that whilst there is a generally low threshold for originality in copyright, as a result of the limited notes and chords available, many if not most of the elements in popular music are not individually protectable. Moreover, music, perhaps more so than other types of works, borrows and must necessarily borrow, and use much which was well known and used before. Quoting the court in Zeppelin:

these building block belong in the public domain and cannot be exclusively appropriated.

At trial, the plaintiffs argued that there were “five or six” protectable elements in their ostinato; length (8 notes), rhythm, melodic content, melodic shape, timbre or quality and colour of the sound, and the placement. Although in their opposition papers they extended this to nine elements. The defendants argued that none of these elements were individually protectable and the court agreed. Highlighting that the plaintiff’s evidence from their expert musicologist was that any single one of those elements would not have been enough, but it was the combination of them that supported his conclusion. Therefore, the plaintiff’s burden to prove the protectable elements of their ostinato was not met.

Furthermore, the evidence of the musicologist [for the plaintiff, apparently] was that several of the elements where unoriginal to such an extent that the choices were tendencies in popular music “the way that the ostinato resolves is not so much original so much as it is necessary.” The court demonstrated that, as a matter of law, the courts have routinely denied copyright protection for such commonplace elements. As such, pursuant to the extrinsic test, the individual elements of the ostinato were deemed not to be protectable by copyright. [In line with Zeppelin, where the court specifically stated that descending chromatic scale, arpeggios, and other common elements are not protected by copyright, which at the time seemed at odds with the KP case].

Could it be a protectable combination (selection and arrangement) ?

A plaintiff can still prove copyright infringement if they can demonstrate that their work is comprised of a protectable combination of otherwise unprotected elements. Again, referring to Zeppelin, the court recognised this means explaining how the elements are particularly selected and arranged.

A: A portion is a slice of pizza, not the whole pizza Image: Georgi Todorov

Referring to the  1994 Three Boys case [where selection and arrangement was found in relation to Michael Bolton’s song Love is a Wonderful Thing], it was noted that successful claims of selection and arrangement referred to a mix of compositional elements present throughout the compositional work as a whole, not within a single portion. [Pop Quiz: What’s a portion?!] The court concluded that the ostinato was not a particularly new or rare combination and was therefore not arranged in a sufficiently original manner to warrant copyright protection. Thus, the extrinsic test was not satisfied, and the plaintiffs evidence failed as a matter of law.

The court stated that even if the ostinato was protectable [which it’s not] the defendants would still be entitled to judgement as a matter of law because the evidence at trial did not prove that the two ostinatos were objectively, substantially similar. Which, as highlighted in Zeppelin, requires the same selection and arrangement – meaning they would need to be virtually (but not absolutely) identical to be substantially similar. In this case, the evidence was not that the ostinatos were not virtually similar.

The defendants also moved for a judgement as a matter of law pursuant to the intrinsic test, which is subjective and asks whether the ordinary reasonable person would find the total concept and feel to be substantially similar – usually determined by the jury. The court declined to resolve the issue as a matter of law, which has been done in other cases, since a reasonable jury could find the two ostinatos to be intrinsically similar. [Demonstrating the issue of copyright infringement cases being tried by jury?]

The meaning of ‘access to the work’ in the digital consumption age… 

Lastly, the defendants argued there was insufficient evidence to find access [the first part of the test for copying is that the defendant had access to the plaintiff’s work]. As discussed in the previous posts on the Perry and Zeppelin cases, the issue of access is controversial in the digital consumption era. In Zeppelin, the court noted that access has become diluted and so is able to be stabled by a trivial showing that the work is available on demand.

Whilst the court in the present judgement acknowledged this point as raised in Zeppelin, they maintained that in this case access was shown due to factors such as the 6 million YouTube and myspace views, a Grammy nomination and billboard ranking. [This Kat maintains that a closer look at the numbers reveals that it was 3.88 million views on YouTube across 6 videos since 2008, which in context of YouTubes 30 million daily visitors should be considered a small number. Although this was not the only factor, it should still be considered as having relatively low impact]. 

In any event, the court granted the defendant’s motion for judgement as a matter of law and the jury’s verdict as to liability and damages was vacated because the plaintiff failed to satisfy the extrinsic. So, perhaps already we are seeing the impact of the Zeppelin case on music copyright infringement cases, showing that common elements are not protectable and the threshold for protection selection and arrangement is higher than a mere unoriginal combination in a portion of a song.