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Litigation Journal

Winter 2024 | Litigation Road

“Roll Over Beethoven”: A Battle of Stories in Music Copyright Cases

Moon Lee


  • Music copyright cases are a battleground for testing the ability of copyright law to account for the realities of the creative process.
  • They must achieve a balance of protecting an artist’s original expression without hindering future artists’ use of the essential building blocks for creating new works.
  • It is not always clear whether the accused song is the result of piracy or independent creation.
“Roll Over Beethoven”: A Battle of Stories in Music Copyright Cases

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The combination of music and copyright is not music to everyone’s ear, but when I started my career as a copyright litigator in 2017, a veteran trial lawyer advised me: “Learn to love music copyright law; it’s why we have jobs.” That was true. We have seen, in recent years, hit songwriters and artists like Led Zeppelin (“Stairway to Heaven”), Robin Thicke and Pharrell Williams (“Blurred Lines”), Taylor Swift (“Shake It Off”), Dua Lipa (“Levitating”), and Ed Sheeran (“Thinking Out Loud”) top the charts with music copyright suits. These high-stakes cases invoke a legal framework that has become increasingly complex and technical. To begin, the two distinct music copyrights—one for musical compositions and another for sound recordings—are governed by complicated sets of separate legal and licensing schemes. To truly get one’s sea legs, a trial lawyer also has to learn the norms of the music business and how the industry understands and applies the law.

Music copyright cases are challenging for another reason: They have become a battleground for testing the ability of copyright law to account for the realities of the creative process—to achieve a balance of protecting an artist’s original expression without hindering future artists’ use of the essential building blocks for creating new works. Fresh out of law school, I temporarily set aside my bar exam books and tuned in live to the Ninth Circuit argument in a dispute over Robin Thicke and Pharrell Williams’s song, “Blurred Lines.” In March 2015, a California jury found that Thicke and Williams, when they composed “Blurred Lines,” took copyright-protected aspects of Marvin Gaye’s 1977 song “Got to Give It Up.” The verdict was seen by many as a condemnation of copying a musical style. My current law firm did not work on the case in the trial court but took over the appeal. It was too late. There was no motion for judgment as a matter of law, so the Ninth Circuit panel majority, bound by a highly deferential standard of review, affirmed. The dissenting opinion lamented that the case struck a devastating blow to future musicians.

Rewarding Original Work, Penalizing Pirates

Copyright law aims to reward artists for original work and penalize pirates. In the early 2000s, the biggest music copyright cases involved wholesale and obvious copying. For the first time—through services like Napster and Grokster—it became possible to easily create, distribute, and download digital copies of sound recordings from a personal computer. The lawsuits that recording labels and others brought against those services were not easy to unpack. For example, the U.S. Supreme Court had to borrow a principle from patent law to impose liability for indirect copyright infringement on Grokster. Still, there was no ambiguity that the users of these services were creating copies of songs without permission. Following a series of legal victories for the recording labels, services like Napster, Grokster, Kazaa, and Morpheus have mostly fallen by the wayside as the music industry pivoted to monetizing sound recordings through legal downloading of select songs on iTunes or through subscription radio or streaming services like Pandora and Spotify.

In recent years, cases involving famous songs—like Led Zeppelin’s iconic prelude to “Stairway to Heaven” or Ed Sheeran’s “Thinking Out Loud”—are often brought by a musician claiming that another musician made a similar-sounding song. In these cases, it is not always clear whether the accused song is the result of piracy or independent creation. The alleged similarities are not necessarily literal. Finding the musical overlap may require analytic dissection of the selection and arrangement of musical building blocks like chord progression, rhythm, and note combinations.

As in the case involving “Blurred Lines,” the creator of a song typically claims that the creator of a later-in-time song unfairly pirated copyrighted expression from the earlier song. Fighting back, the creator of the later song will balk at the accusation and claim that the later song was the result of independent creative effort, that there are only so many notes in the scale, and that the musical canon is built off of preexisting building blocks. Put another way, if the songs sound similar, that’s because they share common musical elements that are available for anyone to freely use.

When the jury found that Thicke and Williams were liable for copyright infringement, many—including more than 200 producers and others in the music business who signed an amicus brief—worried that the specter of copyright lawsuits would stifle creativity. A copyright lawsuit can accompany musical success. A good example is Taylor Swift. Late in 2022, Swift was finally able to shake off the lawsuit over the lyrics of “Shake It Off” but not before facing two lawsuits over the same lyrics and years of litigation. And until their finales, both in May 2023, Ed Sheeran was fending off two lawsuits over his Grammy-winning song “Thinking Out Loud.” In one suit, the family of Ed Townsend, who co-composed the song “Let’s Get It On” with Marvin Gaye, claimed that “Thinking Out Loud” copied the original expression in “Let’s Get It On.” The case was tried before a New York jury in May 2023, which sided with Sheeran. At the time of that verdict, another suit, also claiming that “Thinking Out Loud” copied “Let’s Get It On,” was still pending. Two weeks later, the district court also sided with Sheeran in the second copyright lawsuit. Upon reconsideration of its earlier decision, the court granted summary judgment in favor of the defendant. Sheeran, weary from the legal battle, said that if he lost his copyright trial in New York, he would be done. He would leave the music business.

These suits and the often fatalistic views of the accused obscure that copyright law tries to promote, rather than curtail, creativity. Copyright law recognizes that artistic expression is not created in a vacuum, but that it necessarily iterates existing creative expression. When that process of imitation, variation, and experimentation results in something new, the follow-on musician can rightfully say, “Roll over, Beethoven, and tell Tchaikovsky the news,” and not be found liable for copyright infringement.

The “Stairway to Heaven” Suit

In an epilogue to the “Blurred Lines” case, the Ninth Circuit seized the opportunity to give important guidance on copyright infringement suits based on alleged similarities between songs. Randy California of the band Spirit brought suit in 2014, claiming that the famed introduction in Led Zeppelin’s “Stairway to Heaven” copied Spirit’s 1967 song “Taurus.” In a 2020 blockbuster opinion, the en banc court affirmed the jury verdict in favor of Led Zeppelin. The opinion deals with myriad important issues in music copyright law and should be a primer for anyone interested in litigating music copyright cases.

Judge McKeown, writing for the majority of the en banc court, reaffirmed that the creative process that so enriches the public—the very activity copyright law is supposed to incentivize—inevitably requires lawful incorporation of raw material for new expression. She went on to explain that giving a monopoly right to the first author who used a musical concept or common elements in a musical genre would be contrary to the purpose of copyright law and would curtail the creation of new works. With that in mind, the opinion concluded that descending chromatic scales and arpeggios cannot be copyrighted by any particular composer as original expression. Therefore, no copyright infringement liability can result from the mere fact that two songs contain these common building blocks.

This was a watershed moment for future composers, and the effect was felt right away in cases pending in the Ninth Circuit and elsewhere. Based on the “Stairway to Heaven” decision, a California district court set aside the verdict against singer Katy Perry, whose song “Dark Horse” was found to have copied Marcus Gray’s “Joyful Noise.” The district court relied on the “Stairway to Heaven” decision as a blueprint to conclude that the series of notes in “Joyful Noise” that was claimed to be copied were not particularly unique or rare. A district court in New York changed its mind too. Harking back to the reasoning in the “Stairway to Heaven” decision, the court decided to revisit Sheeran’s summary judgment motion in the second “Thinking Out Loud” case and concluded that the chord progression and harmonic rhythm in “Let’s Get It On” were commonplace elements that should remain as basic musical building blocks and not be copyrighted.

This theme of creation versus piracy is, of course, not unique to music copyright cases. But with musical expressions, the number of combinations of notes and chords that are pleasing to the ear and useful in a composition is severely circumscribed when compared, for example, with the combination of words that are available to create literary works. Not only that, most pop songs are built on limited chord progressions in a familiar scheme that incorporates intro, verse, and chorus. To a jury, two songs may sound similar because the songs share these limited combinations of useful melody, harmony, and rhythm. Copyright law does not protect expression that has become standard, stock, or common to a particular subject matter or medium. But cowboy hats, sheriffs, and saloons in two westerns are much easier for a jury to discern as common tropes than a common groove or a particular chord progression that may be found in two songs.

For that reason, experts have taken on an outsized role in music copyright cases. Experts tend to be given the important job of telling the jury whether a particular combination of notes or harmony shows original expression (says the plaintiff’s expert) or belongs in every songwriter’s tool kit (counters the defendant’s expert). The dueling musicologists often take center stage at trial, and the outcome of these cases may rise and fall primarily on whose expert the jury likes and believes. Many think of music copyright cases as a battle of the experts. When used well, expert testimony can lend an objective voice on why a combination of notes, chords, or other musical expression is or is not copyrightable. The experts can go beyond the songs at issue and show how the musical motif appears in other songs across time.

Storytelling Is Crucial

That said, litigators should rethink giving musicologists the lead role at trial. That coveted academic objectivity can lend credibility, but it also may take the spotlight away from the musicians, their songs, and the creative process. The crucial question—is the defendant a thief or an artist?—cannot be answered in full by technical opinions and snippets of sheet music on slides. The creation story makes visceral how the musicians—the plaintiff and the defendant—made the music they claim as their creative output and shows that the music belongs to them.

Some may think this storytelling has no place in music copyright trials because copyright law does not seem to make room for it. Neither the intent nor the amount of effort the musician put into creating music addresses the elements of copyright infringement, which is often characterized as a strict liability tort. Even unintentional or subconscious copying of a highly publicized (and thus accessible) song can be deemed copyright infringement if there are sufficient similarities between the copyrighted aspects of the songs. Given this legal scheme, a songwriting narrative may seem superfluous. It is not. That is because the question of whether the musical overlap between the two songs is due to the copying of protectable expression or the use of musical raw material cannot be answered by a mathematical formula or an academic parsing of the notes. There is no bright-line rule on how many notes or other musical elements are sufficient, in combination, to create copyright-eligible expression. To decide whether the expression belongs to the plaintiff or to everyone, the fact finder must know how those elements were incorporated into the songs.

An important takeaway from the “Stairway to Heaven” decision is the centrality of storytelling in music copyright cases. The case offers important guidelines—particularly for the plaintiffs who want to protect their creative expression—on how to weave a story that comports with copyright law. With heavy reliance on experts’ musical dissections, litigators representing the plaintiffs commonly argue that certain musical elements—even if they are common musical building blocks that cannot be copyrighted—appear “in combination” in both the plaintiff’s and the defendant’s songs. Why does this matter? Copyright law allows protection for a specific “selection and arrangement” of creative elements that could not be protected on their own. This legal doctrine took particular prominence in the similar-songs cases because the argument must be that the songs—which are not obviously identical—are similar enough. The problem, as explained in the “Stairway to Heaven” decision, is that for any given piece of music (or a painting or a book), it is possible to break the whole into smaller enough pieces, catalogue what the pieces are, and say that some of those pieces appear in the defendant’s work. But these random similarities scattered throughout the works, the decision explains, cannot be the basis for infringement. Instead, the presentation of the evidence must show the particular way in which the artistic elements were selected to form a coherent pattern, synthesis, or design. That is, you have to tell the story of how the musical elements relate to each other uniquely in a song and how that particular scheme was taken. Tell the story about the song, the Ninth Circuit tells us. And how, in the creative process, the pieces all came together into a coherent whole that we experience as music.

These fundamental principles are why great copyright litigators know that PhD-level analysis alone is not enough and instead get the musicians to tell the creation narrative. Take Sheeran’s recent trial in New York. It featured dueling musicologists—scènes à faire in music copyright trials. Sheeran’s expert testified that the four-chord groove that appeared in both songs, “Thinking Out Loud” and “Let’s Get It On,” was a common song element. The plaintiffs offered a music professor who said the opposite. Then, at a crucial point in trial, slide decks were set aside and Sheeran picked up the guitar. Sheeran’s live show of his Grammy-winning song “Thinking Out Loud” likely charmed the jury. The serenade also demonstrated that Sheeran was not a hack but an artist who independently crafted the song. The mini-concert made the creative works the centerpiece of the case again. And on that stage, Sheeran told the story of how he and his co-writer Amy Wadge were inspired to write a song about family members who were recently lost. He said he heard his co-writer trying out chords to the song as he was coming out of the shower, and the two of them quickly put the rest of the song together. Sheeran did not deny the existence of the musical elements found in both songs, but he explained that these were the commonplace tools he was allowed to use. The jury cleared him and his co-writer.

The creation process should factor into the persuasive strategy throughout the case, including in pretrial motion practice. CBS, one of the largest radio operators, became one of several class action defendants in the so-called “pre-1972 sound recording” lawsuits in which CBS, Sirius, and Pandora were separately sued under the theory that these radio stations must pay royalties to owners of pre-1972 sound recordings. The federal copyright statute recognizes and protects copyright in sound recordings—as opposed to musical compositions that have been protected since the first copyright statute—that are fixed on or after February 15, 1972. Under the federal copyright act, radio broadcasters are exempt from paying sound-recording royalties. Sound recordings created before 1972, and thus not protected under the federal copyright law, are governed by state copyright law. The plaintiffs argued that, under the patchwork of state laws, the radio stations must pay royalties for broadcasting pre-1972 recordings. That argument had gained some traction. But the lead attorney for CBS did not concede that the radio stations were playing sound recordings that were created before 1972. He presented a novel argument that the remastered versions of the old tracks that the modern radio stations played were imbued with new creative expression that was fixed after 1972. He explained that remastering is not merely a mechanical cleanup process. The sound engineers that created remastered recordings exercised subjective and artistic decisions to move some of the sounds and performative aspects to the foreground while deemphasizing others to create an entirely new aural experience. The district court agreed and granted summary judgment for CBS.

The Ninth Circuit ultimately disagreed that remastering necessarily resulted in new creative expression as a matter of law and reversed the grant of summary judgment for having made fact determinations that needed to be resolved at trial. Those who practice some forms of expression, particularly those that tend to rely on technology, do face an uphill battle in proving themselves to be artists rather than thieves. For example, most courts do not readily recognize that musical collages made from sampling sound recordings—even of a small amount—are non-infringing creative expression.

That difficulty, however, does not diminish the importance of storytelling. It affirms that music copyright litigators have an important job. With the clients’ stories, lawyers inform the courts and juries how music gets made and help identify the musical building blocks that should remain in a songwriter’s toolbox so that future musicians can create new tunes that capture the human experience in surprising and unique ways. Technological advances tend to swiftly become tools of both piracy and new expression. Digitization, for example, has allowed the layering of sounds in a process that was previously unavailable to musicians to create new sound aesthetics, but it also engendered wholesale copying through services like Napster and Grokster. The law can be slow to catch up. To help the law evolve, music lawyers cannot delegate to the experts the job of discerning original expression from raw material. “The music will never stop”—and neither will the persuasive work of copyright litigators.