Are Copyright Suits Stifling New Artists?

By Joyce Zellin

Lizzo is the latest artist to win a bitter copyright battle over the hook of her smash hit ‘Truth Hurts’.[1] Plaintiff songwriter brothers Justin and Jeremiah Raisen claimed the iconic line about the results of Lizzo’s DNA test were taken from a song they previously co-authored with Lizzo.[2] In fact, the Raisen brothers were not the original authors of the line, it was penned in a tweet back in 2017.[3]  The United States District Court in Los Angeles dismissed the Raisens’ claim, holding “as a matter of law, a joint author of one copyrightable work does not automatically gain ownership of a derivative work in which the joint author had no hand in creating.”[4]

Katy Perry, Led Zepplin and Ed Sheeran, are a few other popular artists that have faced similar copyright infringement issues with their chart-topping hits.[5] In the aftermath of the ‘Blurred Lines’ case, where the court ordered Robin Thicke and Pharrell Williams to pay $5 million dollars to Marvin Gaye’s estate for having a similar “vibe,” the line between what is inspiration and copyright is muddled.[6] The United States Copyright Office has even noted the “rules for the licensing of musical works and sound recordings” as an area in significant need of reform.[7]

Copyright laws protect the original works of authorship in tangible mediums.[8]  Historically, copyright laws focused on lyrics and melodies, but the ‘Blurred Lines’ court suggested “far more abstract qualities of rhythm, tempo, and even the general feel of a song can be eligible for protection.”[9] Under this much lower standard of “eliciting a similar feeling”, an increase in copyright cases can be expected and artists who cannot defend against these suits have cause for concern.

New artists may be shielded from this type of legal action. As the lawyers for Katy Perry argued, plaintiffs in “copycat cases are largely targeting megahit songs because they’ve seen where the money is.”[10] Yet unfamiliar artists can still be vulnerable. In today’s age, social media platforms such as Instagram and TikTok have had tremendous influence in launching unknown artists’ careers quickly by transforming their songs into chart-toppers. [11] These platforms can also facilitate and accelerate the copyright infringement of that same work.[12] These songs may even sound familiar because musician’s work in a finite innovation space; there are limited sounds generally pleasing to people’s ears.[13] It comes down to the originality of the work, but what is required to meet the originality standard is low.[14]

While record labels have the ability to leverage musicologists to help them navigate these nuisances, others are encouraged to purchase errors-and-omissions insurance, which “protects creative professionals from legal challenges to their intellectual property.”[15] Few artists have actually purchased the insurance due to the high costs, so the majority, especially new artist are left particularly susceptible.[16] Only time will tell if the increase of copyright infringement lawsuits will dissuade release of new music by unknown artists, but it does not seem to be slowing soon. The popular streaming service Spotify said that nearly 40,000 tracks are uploaded to their site daily.[17] This may change as courts decide the ownership of the “basic building blocks of music.”[18]

[1] Ben Sisario, Lizzo Notches a Win in ‘Truth Hurts’ Copyright Case, New York Times (Aug. 17, 2020), https://www.nytimes.com/2020/08/17/arts/music/lizzo-truth-hurts-lawsuit.html.

[2] Id.

[3] Mina Lioness (@MinaLioness), Twitter (Feb. 24, 2017, 11:34 PM), https://twitter.com/MinaLioness/status/835347243020451840.

[4] Sisario, supra note 1.

[5] Amy X Wang, Why All Your Favorite Songs Are Suddenly Being Sued, Rolling Stone (Aug. 2, 2019, 12:46 PM), https://www.rollingstone.com/pro/features/katy-perry-led-zeppelin-ed-sheeran-music-lawsuits-865952/.

[6] Id.

[7] Copyright and the Music Marketplace, U.S. Copyright Office (Feb. 2015), https://www.copyright.gov/docs/musiclicensingstudy/copyright-and-the-music-marketplace.pdf.

[8] 17 U.S.C.A. § 102 (1990).

[9] Wang, supra note 5.

[10] Amy X Wang, How Music Copyright Lawsuits Are Scaring Away New Hits, Rolling Stone (Jan. 9, 2020, 2:08 PM), https://www.rollingstone.com/pro/features/music-copyright-lawsuits-chilling-effect-935310/.

[11] Ann Potter Gleason, Copyright Owners’ Love/Hate Relationship with TikTok and Instagram Raises Legal Issues, The National Law Review (Aug. 28, 2020), https://www.natlawreview.com/article/copyright-owners-lovehate-relationship-tiktok-and-instagram-raises-legal-issues.

[12] Id.

[13] Sisario, supra note 1.

[14] Hall v. Swift, 782 Fed. Appx. 639, 639 (9th Cir. 2019).

[15] Wang, supra note 10.

[16] Id.

[17] Wang, supra note 5.

[18] Id.