Takeaway No. 2: Similarities in A Genre Do Not Amount to Copyright Infringement (Copying)
Ed Sheeran has been fighting with Marvin Gaye’s heirs since 2017 over copyright infringement for the deceased 1973 hit song, “Let’s Get It On.” Finally wrapping up in 2023, Sheeran won this court case and cleared his name of all accusations. In IP WORKS LAW’s Takeaway 2, Catherine Cavella Esq. further examines similarities in artists’ work and how the jury determined Ed and his cowriter did not infringe on Marvin Gaye’s copyrights.
Takeaway No. 2: Similarities common to the genre do not amount to copyright infringement (copying)
Music shares certain building blocks. Within a genre (pop ballads), the common building blocks are even more likely to be shared – because they define the genre.
In other words, songs within a genre should be expected to be more similar than songs of different genres. Music of the Western tradition favors certain scales, rhythmic features, and chord progressions, while music of the Eastern tradition favors different scales, rhythmic features, and chord progressions.
If the only similarities are the elements commonly used in the genre, no copyright has been infringed.
This concept comes from cases involving literary and dramatic works. In literary and dramatic works, genre defines basic “scènes a faire”: Westerns feature cowboys, outlaws, a dusty Old West town with a saloon, a Sherriff, a shootout, and a bust-up in the saloon. “Film Noir” style mysteries feature night-time scenes in a dark and gritty cityscape, a lonely and disillusioned private eye, a beautiful and mysterious femme fatale and an all-night diner. Cozy British mysteries commonly involve a quaint and sleepy village in the English countryside, a manor house that has seen better days, and seemingly ordinary, unassuming village folk hiding seamy back-stories, vices, and nefarious plans. Spy movies, romantic comedies – all have their “scènes a faire,” their common elements that go with the genre – the elements making up the “formula” for the genre.
The copyright law doctrine of “scènes a faire” provides that elements common to a genre are not protectible. It is what the author does with the elements – the work as a whole — that is protected by copyright. “Scènes a faire” are simply unprotectable ideas that are free for anyone to use – like shootouts and saloon fights in Western movies or the chord progressions common to Western music.
In practice, the doctrine makes it harder for an author to prove someone copied their work: They need to show the infringing work copies more than just scènes a faire.
The Scènes a Faire defense is often used in screenplay infringement cases, to great success. But it rarely appears in music cases. I believe this is one reason we have seen high profile music copyright cases end with big payoffs to the party claiming infringement – case in point, the “Blurred Lines” case of Pharrell Williams et al. v Bridgeport Music et al. where Robin Thicke and Pharrell Williams were ordered to pay over $5 million to the estate of Marvin Gaye after a jury found they copied the 1977 hit “Got to Give It Up” in his 2013 hit.
An excellent article by second year law student Michelle Shabat on the topic: Scènes à Faire in Music Copyright Cases: Why Don’t the Courts Make a Scène About Music? – Cardozo AELJ
Stay tuned for Takeaway No. 3: Sometimes the Principle is Worth Fighting For, which will be posted tomorrow and be available on IP WORKS LAW’s online educational section under BLOGS.
POWER YOUR IDEAS ®
Catherine Cavella, ESQ.
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