IPSC Breakout Session #3: Distributive Effects/Art and Music

Bita Amani, Some More Equal Than Others: Critical Contexts for the (False) Promises of Intellectual Property Rights       

IP and sustainable development goals: What is equality itself? Often formal equality is presented in the pretext of equal application as if IP were immune from feminist and critical race critiques. IP rights define boundaries of exclusion, inclusion and belonging, tied to nation-state building. Substantive equality is in many international instruments, and can be found in the exceptions for the blind/print-impaired.

Alfred Yen, A Federal Rules of Evidence Perspective on Forensic Musicology and Music Copyright Infringement

Juries hear a lot of forensic musicology evidence they shouldn’t which confuses them and leads to poorer decisionmaking in music © infringement cases. Contrary to FRE, experts testify about subjects w/in their competence that are irrelevant; experts testify about subjects that are relevant, but beyond the expertise of musicology.

Why? Courts make errors about the law of infringement, leading them to think that certain things are relevant when they are not. Courts also have mistaken assumptions about the field of musicology; abdicate their duties under Daubert/Kumho Tire.

Musicologists in litigation: (1) identify formal similarities—instrumentation, chord progression; (2) opine on how aesthetically similar/significant those similarities are; (3) opine about the rarity of similar features; (4) opine that copying did or didn’t occur.

The case for forensic musicology: expert music testimony bears resemblance to handwriting analysis; they can both identify and evaluate similarities. At some point, the similarity is enough to say it’s the same source—same writer or same work. We assume an expert can better ID similarities that prove or disprove the proposition in question.

Legal mistake: collapsing copying and improper appropriation, primarily through imprecise use of substantial similarity. Same concept of similarity governs both elements of the copyright claim! When the expert witnesses testifies that the two works are aesthetically similar, that’s not relevant to copying—not every piece of aesthetic similarity is probative of copying—same instrumentation of drums and electric guitar for a rock song. But once this happens, the jury starts to think that, if they sound a lot alike, they must be copying. Jury misled into thinking that aesthetic similarity, not probative similarity, establishes copying.

Mistaken faith in musicology: let’s find an expert to talk about copying. FRE 702: testimony must be product of reliable principles and methods and expert reliably applied methods to facts of case. Musicology articles talk about copying all the time. Typical “accusation” is that they identify similarity. There is no method of convincing; it is pure intuition. Not product of reliable principles or methods. Not reliably applied—what constitutes proof is entirely up to the expert. Good musicologists do things like examine handwritten manuscripts that show drafting, not listening to two different pieces of music dozens of times.

Which similarities matter is up to the analyst and how many similarities matter is up to the expert; this is the kind of ipse dixit that district courts shouldn’t allow. Couldn’t test it if we wanted to. At least w/handwriting we can test them on real exemplars. Do we include the chords or not? Does it matter if similarity is only in theme and not in chorus?

Secondarily, what about rarity? When a musicologist says “I’m not saying these are copied but these similarities are really rare,” if they’re making an empirical claim, their foundation is shaky. [Chris Buccafusco and I have a paper in progress about this.] You’d want a big sample or a representative sample to make such a claim, but no one has such a sample. Second, musicologists claim expertise not by looking at representative works but unusual works—the leading examples in the field, not garden-variety examples. Defendant can do this more concretely by showing common examples. P would need reasonable claim to comprehensiveness or representativeness, subject to cross-examination.

Calculating probabilities is even shakier—notes aren’t randomly distributed and the chance that one note follows another is not independent of the note. Also, the fact that something is unlikely in any given instance doesn’t mean it’s unlikely to have happened by now: law of large numbers. If you’re one in a million, there are over 300 of you in the US, so the chances of overlap are really quite large.

What’s left? Musicologists should be allowed to testify to the existence of formal similarities, but not on aesthetic similarity or significance; about rarity if they have a foundation; not about whether copying did or didn’t occur.

Thus: here are similarities; here is some information about how common those similarities are; now the jury decides. Could also bifurcate into copying then improper appropriation.

What if anything does this say about sufficiency of evidence/ability to survive sj?

Betsy Rosenblatt: hinging on experts is wealth-dependent; is there any way to get rid of that reliance? Maybe special jury forms.

[in response to Q] If musicologists have this problem the rest of us do too. This is often poor res ipsa analysis.

RT: bifurcation might not work well b/c copying drives so much, but worth testing empirically.

[rarity: the inferences are unfounded—that is, what’s the point of testifying about rarity? It’s either about copying, which they don’t have the data for, or aesthetic similarity, which they shouldn’t be testifying about.]

A: Evidence saying: A brick is not a wall. Stuff that isn’t proof but that is relevant is permitted. Goes back and forth on whether rarity is relevant to an overall determination even if the ultimate conclusion is beyond the expert. That’s why he’s interested in the expert’s foundation.

Kristelia Garcia: the bullets you give apply to the plaintiff’s side. But defendants’ experts are doing something completely different—identifying prior art, which cuts off the need to identify whether there was copying. This can lead to settlement/end of cases: Even if there was copying, we don’t know they copied from you! The musicologists are now completely split into P and D sides.

A: that’s what tells me they are unreliable! But prior examples do at least provide a foundation for testimony. But do you need an expert to infer lack of copying if it’s already out there ten times?—either the plaintiff doesn’t own it or the defendant didn’t copy it from the plaintiff or it increases the inference that it was coincidence.

Garcia: most D expert reports don’t opine on whether there was copying, just on existence of prior art.

A: not as critical of that; allowing dodgy evidence to push a case forward is his target.

Amanda Levendowski, Open Source Perfume         

Not a conventional copyright negative spaces story, but not a proprietary space either. Perfume is exclusive and exclusionary; perfumers are more scarce by some counts than astronauts; most are white men who trained in a small town in France.

Primer: Le Labo is a “mainstream perfumery,” not niche; owned by licensees Estee Lauder, designed by outside “nose,” who works for a “composition house” that develops perfumes for other people. Santal 33: Composed of “notes” with top, middle, and base, with an “accord” of sandalwood etc. notes to create a specific type of scent. Fragrance family: woody.

Proprietary perfume: Iconic hues are functional, so unprotectable. Method and “captive” molecules are patented by composition houses, but rarely by perfumeries. Fragrances aren’t fixed, which undercuts copyrightability—Chanel ad “the fragrance becomes you.” Trade secrets can’t deter competitors or composition houses w/GC/MS machines that can discover the formula, but they prevent aspiring perfumers who don’t have the machines from sampling scents—they’re only available in large quantities and they are often not sold outside of commercial contexts.

Shalimar: white guy from France who never visited India creates a fragrance inspired by an Indian ruler who loved his wife. Colonialism/exoticization—the fragrance family “Oriental” was coined by the nose to describe the family of which Shalimar is a part, and it’s been dropped by the house but still in use elsewhere despite protests.

Perfumery can be democratized, though. Open Source Smell Culture: perfumers can share formulas using CC licenses. CC has limited impact on formulas, but applies to evocative descriptions and destroys trade secrecy. There are ways to make these more shareable/accessible to aspiring perfumers.

Glynn Lunney: why use an existing open source structure?

A: resource constraints—but open source hardware only has a set number of licenses, and probably won’t create one for perfume. Thinks that perfumers can get by with existing CC licenses; tailoring a perfume-specific license could come later.

Q: does Le Labo go after dupes/smell-alikes?

A: Dupe houses exist—a lot of protectability comes from trade dress/branding/packaging, not from the scent. Dossier is a classic dupe provider. Houses don’t like when you borrow an accord; that will get more attention than a straight dupe.

Q: you can rent a GC/MS machine.

A: but aspiring perfumers don’t know that “shooting the juice” is even a thing. Until you get deeper into subreddits of perfumery, you won’t find out these machines give you a formula. And even if you get a formula to work with, it gets hard/expensive.

Q: suggestion you describe the people you are discussing in more detail—not familiar with chemistry until they get there, often marginalized.

Emma Perot, Music Copyright Ownership: Factors Behind the Surge in Writer Credit and Rights Clearance

Why so many writers on songs? Why so many interpolation credits? Law is part of it, but industry factors also affect this. Blurred Lines had a big impact in legal circles and in public opinion. Other big cases: Led Zeppelin, Katy Perry, Ed Sheeran. Before Blurred Lines, disputes over sampling: Bridgeport v. 9th Circuit; standard for originality is contested; subconscious copying accepted; access in the age of the internet is tricky.

Still, high standard for striking similarity, and inverse ratio overruled in the Led Zeppelin case.

Risk mitigation: add writers preemptively to avoid a problem; clear samples; add writers where accused; add writers to protect reputation whether the legal standards for infringement are met or not.

Practical influences: “change a word, take a third”; producers now part of songwriting process; songwriting camps; files shared digitally can be altered by many; sampling/interpolation as common techniques.

Change a word, take a third: producers/managers/artists may take credit to get revenue. Big artists ask for 20-30% credit even when not present for composition. Producers are in the room too, creating music and beats, b/c of how tech and creative processes have changed. Common in hip hop and R&B but now the norm in pop as well. Producers now may make their own songs, eg DJ Khaled.

Songwriting camps: labels bring people together for a specific project. Rihanna’s Rated R album: over a dozen people gathered in California for 2 weeks. Inherently leads to many hands being involved. Norm in Nashville but more recent in pop industry. Used in Kpop—network of 700 songwriters. Need new material very quickly.

Files shared digitally, encourages more editing; their contributions are credited.

Sampling: labels encourage use of existing tracks; listening audience likes nostalgia; past hits are a recipe for success; catering to social media and music streaming algorithms like TikTok charts; remakes of relatively recent songs are popular.

Dynamics are risk mitigation—do not lose money—and practical revenue maximization—make more money.

Tang: is this more songwriters per song or pop song?

A: Billboard top 100, not only pop but that tends to be the source.

Q: can you look at whether rise in hip-hop/R&B accounts for increased number of writers? More collaborative.

Q: Big artists demanding songwriting credit—songwriters get so much less from streaming. Why does Beyonce care about songwriting when it’s so much less than what you get from the recording on streaming?

A: may be that streaming is making less than normal analog sales. Artists still like to be known as songwriters b/c it adds to their reputation.

RT: Labels may see this as getting something for free b/c the songwriters’ share is set by statute/agreement, so they can readily give away money that would otherwise go to a smaller number of songwriters—are there any costs to the labels? Even when they front the costs, do they deduct it from the artist’s revenues?

A: yes.

Rosenblatt: a lot of self-dealing—licensing samples from yourself so you can pay yourself. Real question: why aren’t we seeing WFH? [I thought we were with Spotify, at least.]

Newman: coauthorship isn’t purely a matter of contract, though it’s true that we rarely second-guess an agreement. But it sounds like the industry has disregarded the theoretical rule.

A: songwriters have tried to push back, but not with success. But there are questions with reversion rights. Can the real songwriters terminate?

Chien-Chih (Jesse) Lu, Determining Music Copyright Infringement in the Taiwan Context

Sleeping Beauty case: P performed song at school in 2001; D, also a student there, composed a melody 90% the same. District court found that access had not been proven. Did not adopt rule of striking similarity; did not accept “reasonable probability of access” as relevant standard. The district court wanted a particular chain b/t the P’s work and “wide dissemination.” But there was no evidence that the work was in an archive or library. Although the performance was recorded on CD, and became a sensation after the end of semester performance, the district court assumed he work had not been widely disseminated. Needs more flexibility, where there might be no records.

Liangshan Love Song Case: local tourism office invited P and D to compose; D took P’s version and changed more; differences in composition didn’t affect similarity of main melody. But we need to figure out who is the original author. Without a registration system, it can be difficult to identify who came first.

Taiwan’s copyright law has changed over time for the same reasons US did. Developing country shifting from farming to global markets, manufacturing and tech. Adopted IP rules to fit into global system. Criminal IP enforcement was very strict in order to fight image of “pirate kingdom.”

Taiwan should adopt the idea of “striking similarity.” Use a reasonable standard to demonstrate what is highly suspicious. If the degree of similarity is not high, more substantial evidence of access should be required. But if the degree of similarity is high, only reasonable opportunities should be required. Judges sometimes hire experts in Taiwan, could be used for substantial similarity. Amicus briefs can also assist the court.

Another issue: not a focus on actual harm. Instead of civil litigation, Taiwan copyright owners tend to raise criminal cases to get stronger penalties/save money. High cost to public interest b/c criminal prosecution is carried out by prosecutors and increases judicial workload.

Last issue: Taiwan has no registration system; registration could help with information problems like questions of authorship and ownership. Gov’t is interested in improving licensing, but focused on TM and patent. Ministry of Culture might be better home for ©.

RT: I worry about infringement creep—we have seen in the US claims of striking similarity of 4 note sequences, which is very different than 90% overlap. Maybe striking similarity is acceptable for 90% overlap, but it is very risky to use a sliding scale without having a very strong lower bound for what is potentially actionable.