One Word: Tactics

My main post on the “Dark Horse” case1Which, remember, is way too early because the post-trial motions are still pending. focused on the very thin evidence of access. To my mind, that’s what the case should be reversed on.

But something else has been bothering me: the “beat” in “Dark Horse” sound like the “beat” in “Moments in Love,” a hugely influential song from “my” era of music (i.e., around 1984). Lots of people have noticed this. Isn’t this significant, and if so, why didn’t the court just find that the “beat” in question just wasn’t original enough to be copyrighted?

The Problem With Protecting Short Phrases

Most of criticism focused on the copyrightability of the underlying composition’s “beat,” which musicologists call an “ostinato,” i.e., a repeated element (that, to my mind anyway, underpins the song’s other elements, like melody). This argument is expressed in several ways, some of which were even featured at trial.

  • You can’t “own” a beat because it’s a “building block” of music.
  • There are many similar beats, some of which are pretty old.
  • Only “top-line” melodies are protectable in music (with the implication that everything else is a “building block.”
  • Songwriters will write worse songs because they’ll be afraid of infringement.

These all get to the same difficult problem in copyright law: Where do you draw the line between originality and a mere scènes à faire (or “commonplace expression” as that term is used in the jury instructions)? Let me define these terms, so you can see why this is such a vexed question.

Originality is the sine non qua of copyright. It means that the expression came out of the creator’s 2Who must be a human being. mind and has some modicum of creativity. This means that the putative creator did not borrow the expression from somewhere else, because otherwise it did not “originate” from the author’s mind. And this means that mere hard work isn’t what’s important, but some spark of creativity that only—and I’m struggling here—a human being can produce or appreciate.3Feel free to start speculating about the originality of computer-generated expression. The amount of originality needed for copyrightability is tiny, though appreciable.

The unfortunately named scènes à faire4From a theater term for incidents that naturally follow—this is called “commonplace expression” in the jury instructions—can better be thought of as a toolbox that all creators in a given field have access to. These are or can be highly creative, but they are not original because they come from outside the creator’s mind.

Aside: The Monopoly Problem

As an aside (an in response to one of the criticisms above): This focus on originality mostly solves the monopoly problem. One risk with protecting short elements is that the owner of the copyright in or covering that element would prevent others from using it, thus having a kind of monopoly over it. This would be bad if the element really was commonplace, i.e., something songwriters have grown accustomed to using. I’ll point out that it’s not quite a monopoly because you still have to copy it, so you still need have access to it. This is another protection against monopolies forming, but it evaporates where, as in the “Dark Horse” case, either the underlying work or the infringing work is extremely popular, such that no songwriter can plausibly deny ever having heard of it. Thus, even though you might never have heard of “Joyful Noise,” you have heard of “Dark Horse” and so got “infected” that way.

Don’t Make a Scène

Sounds easy, then. Scènes à faires are by definition not original (and therefore not copyrightable). But how common must an expressive element be before it’s a scènes à faire? Some expressive elements are so common they’re taught in schools and by masters to their students. But the beat at issue in “Dark Horse” wasn’t that common, but it was far from unique. The defendants’ musicological expert testified that the “ostinatos” (a continually repeated musical phrase) in question could be found in “Jolly Old St. Nicholas” and “Merrily We Roll Along.”

While I honestly don’t know what he’s talking about, the “beat” at issue is a dead-ringer to one found in Art of Noise’s “Moments in Love” from 1983 (and reissued several times in several different forms thereafter). This article has all three songs for you to compare. According to the article’s author, this ostinato from “Moments in Love” has been sampled a lot. This journalist, reviewing the Katy Perry album, made the connection at the time.5“The standout ‘Dark Horse’ picks up where ‘E.T.’ left off, an inventive trap/grime/EDM mash-up that makes sly nods to Art of Noise’s “Moments In Love.’”

One prior song doesn’t put the beat, er, ostinato, into the songwriter’s toolbox. But it could be evidence that it is, if you can show that “Moments in Love’s” ostinato derives from somewhere else, and so forth. But I can find no evidence that “Moments in Love” was even mentioned at trial, but the musicologist focused on the public domain ostinatos instead. This might seems strange, since it appears the defendants’ case leaned heavily on the idea that you can’t protect “commonplace elements.”

I Couldn’t Have Robbed the Bank Because I Was Busy Robbing the Jewelry Store

It seems much more likely that Dr. Luke and Cirkut got their ostinato from “Moments in Love” or one of the many recordings that sampled it, than they did from a rando song in a genre they probably don’t listen to. So why not make a bigger deal of “Moments in Love”? Why didn’t Dr. Luke and Cirkut just testify (perhaps completely truthfully), “Hey, I was just riffing on ‘Moments in Love.’”? Or, why not at least introduce testimony about how popular and influential “Moments in Love” was (and remains), especially its immediately recognizable ostinato?

Going out on a limb here, because we don’t have the transcript, but maybe the defendants didn’t want to leap out of the “Joyful Noise” frying pan into the “Moments in Love” fire? Do you really want to admit that you copied from Art of Noise, or at least strongly suggest that “Moments in Love” is the more likely source of “Dark Horse’s” ostinato? Someone owns the copyright to the composition of “Moments in Love,” and that owner might not be very cool and might be a more formidable than this bunch of Christian rappers whose lawyers can probably be knocked off with some guff about their copyright registration or ownership issues?

If that’s the case, then obviously the defendants guessed wrong. The plaintiffs’ lawyers were resilient and fought through all that business about the registrations and whatnot, and got the case to a jury. The owners of the copyright in “Moments in Love” are probably industry veterans interested in making a few bucks but not in a massive payday, you know?

Copyright doesn’t have “prior art” because originality isn’t novelty. Just because it has been done before doesn’t mean it can’t be done again—and be protectable—provided the creator wasn’t borrowing from that earlier version.

Should We Protect Short Elements at All?

If a creative element could be developed independently, is it worth protecting at all? You hear ideas like this a lot at times like this. The idea is that copyright shouldn’t be in the business of protecting (for example) just a few notes. Some folks thought Sam Smith should’ve gotten away with copying Tom Petty and Jeff Lynne because it was only five notes, repeated at a lower register.

As you can tell, I disagree with this. Songwriting is hard, and coming up with five or six beautifully strung-together notes is hard. If someone borrows your small act of creativity, should deserve to be compensated. Too bad that (1) there’s no easy way to do that without literally making a federal case out of it, (2) the U.S.’s out-of-kilter damage awards are so excessive that no one can behave rationally, and (3) not everyone had the pull or the resources of Tom Petty. But those are more general problems with the U.S. legal system, not with copyright law.

But excluding short phrases from protection would clear out a lot of these lawsuits, which would make a lot people happier! And it would make songwriting a lot easier! Heck, you’d hardly need songwriters, since any hack could just borrow nice-sounding five-note phrases from Tom Petty or whomever, and once someone hits on a really good beat, everyone could just borrow it for their two-cent composition. Popular music6I think some songwriters won’t take the easy way out and will keep trying to be original, for art’s sake. will become even blander than it is now, as the same successful elements get recycled. You might already be used to this from blockbuster movie scoring, thanks to the use of “temp music” and where large studios own huge catalogs of music they can legally re-use.

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.


    1 Which, remember, is way too early because the post-trial motions are still pending.
    2 Who must be a human being.
    3 Feel free to start speculating about the originality of computer-generated expression.
    4 From a theater term for incidents that naturally follow
    5 “The standout ‘Dark Horse’ picks up where ‘E.T.’ left off, an inventive trap/grime/EDM mash-up that makes sly nods to Art of Noise’s “Moments In Love.’”
    6 I think some songwriters won’t take the easy way out and will keep trying to be original, for art’s sake.