# Katy Perry plagiarism verdict overturned on appeal



## JohnG (Mar 18, 2020)

Katy Perry wins appeal in $2.8m plagiarism case


Judge rules against jury verdict in case over Dark Horse, which had previously been found in favour of rapper Marcus Gray




www.theguardian.com





The plaintiffs say they will appeal the appeal. I am baffled that this case made it to court in the first place.


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## Daryl (Mar 18, 2020)

So am I.


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## TGV (Mar 18, 2020)

JohnG said:


> I am baffled that this case made it to court in the first place.


Money and lawyers, name a more iconic duo.


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## RonOrchComp (Mar 18, 2020)

TGV said:


> Money and lawyers, name a more iconic duo.



Lawyers are not to blame here. They are not the ones who brought the suit.


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## Jeremy Spencer (Mar 18, 2020)

What a joke.


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## Daryl (Mar 18, 2020)

RonOrchComp said:


> Lawyers are not to blame here. They are not the ones who brought the suit.


Actually, some of the blame rests with "musicologists". They are supposed to be impartial witnesses, but they purposely skew the cases one way or the other, to suit their clients.

Realistically these sort of opportunistic claims should be shut down, as it totally flies in the face of, what all musicians know, the fact that all music is built upon the shoulders of past composers. The idea that any of us work in a vacuum is ludicrous.


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## Polkasound (Mar 18, 2020)

RonOrchComp said:


> Lawyers are not to blame here. They are not the ones who brought the suit.



Of course they brought the suit. I can't imagine that Flame would have filed it without legal representation. In fact, I'll even propose that Flame probably went to a lawyer to ask about potential copyright infringement, and it was the lawyer who said, "Yes, I can build a case," before rubbing his hands together like an evil scientist in a 1950s horror movie.

In my opinion, the lawsuit was motivated by greed, facilitated by a musicologist who sold himself out, and decided by jury of people who know absolutely nothing about the music business. I'm glad the jury's verdict was overruled.


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## davidson (Mar 18, 2020)

At this point it's just a pissing contest with the legal teams.


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## dzilizzi (Mar 18, 2020)

I'm hoping this is over. And they should make it big news. To me? I couldn't even hear how it was alike it was so buried in Katie's song.


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## Stringtree (Mar 18, 2020)

Has a dirgey "Moments in Love" feel anyway, both of them. There's probably no way we're writing new music unless we're on fire and forging ahead. 

I'm with the lady. We need more in this business. 

Greg


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## Michel Simons (Mar 18, 2020)

Polkasound said:


> Of course they brought the suit. I can't imagine that Flame would have filed it without legal representation. In fact, I'll even propose that Flame probably went to a lawyer to ask about potential copyright infringement, and it was the lawyer who said, "Yes, I can build a case," before rubbing his hands together like an evil scientist in a 1950s horror movie.



But that's their job, isn't it? Don't get me wrong, I too think that this and similar cases are ridiculous, but going to court defending clients is their way to make a living (and then some).



Polkasound said:


> In my opinion, the lawsuit was motivated by greed, facilitated by a musicologist who sold himself out, and decided by jury of people who know absolutely nothing about the music business. I'm glad the jury's verdict was overruled.



I agree. And this whole trial by jury thing is to me an antiquated idea anyway. I was surprised how many countries still use that.


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## Guy Rowland (Mar 19, 2020)

Good news.

I’ve been even saying for years, these cases should all cease, as we move to arbitration panels of composers / songwriters run by the PROs


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## Polkasound (Mar 19, 2020)

Michel Simons said:


> But that's their job, isn't it? Don't get me wrong, I too think that this and similar cases are ridiculous, but going to court defending clients is their way to make a living (and then some).



A defense lawyer, yes. But a prosecuting lawyer's decision to accept a civil case like this and bring it to court should be based on desire to right a wrong. Katy Perry didn't do anything wrong. I believe Flame's legal team probably felt Katy didn't do anything wrong, but knew they had a shot at winning a large sum of money anyway by playing the system, so that's what they did. That's why I'm especially happy a judge reversed the jury's verdict.


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## C.R. Rivera (Mar 19, 2020)

Michel Simons said:


> And this whole trial by jury thing is to me an antiquated idea anyway. I was surprised how many countries still use that.



Yes, because trial decisions by Judge Anti-aircraft Cannon fire, aka North Korea, is so much better for everything. And those of us old enough to remember, the enlightened Soviet Union used a jury-less process, often refered to as a Judge "9mm Heart Attack."


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## Michel Simons (Mar 19, 2020)

Polkasound said:


> A defense lawyer, yes. But a prosecuting lawyer's decision to accept a civil case like this and bring it to court should be based on desire to right a wrong. Katy Perry didn't do anything wrong. I believe Flame's legal team probably felt Katy didn't do anything wrong, but knew they had a shot at winning a large sum of money anyway by playing the system, so that's what they did. That's why I'm especially happy a judge reversed the jury's verdict.



Again, I'm happy too. I just don't think that even (or especially) prosecuting lawyers feel that their first priority is righting a wrong, but earning money.


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## GtrString (Mar 19, 2020)

Daryl said:


> Actually, some of the blame rests with "musicologists". They are supposed to be impartial witnesses, but they purposely skew the cases one way or the other, to suit their clients.
> 
> Realistically these sort of opportunistic claims should be shut down, as it totally flies in the face of, what all musicians know, the fact that all music is built upon the shoulders of past composers. The idea that any of us work in a vacuum is ludicrous.



So, do you have any examples of this postulate? In what way has any musicologists skewed any of these cases?

Rather, the problem is that US courts uses layman jury's in these cases, and they do not have the trained skill to listen critically (with criteria) to music.

Consequently, this will roll forever with endless appeals, untill they actually listen to the musicologists. But I do agree that opportunistic claims like this should not be possible at all, its ridiculous!


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## Daryl (Mar 19, 2020)

GtrString said:


> So, do you have any examples of this postulate? In what way has any musicologists skewed any of these cases?


Yes, but until the documents are signed, I can't talk about it.


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## JohnG (Mar 19, 2020)

GtrString said:


> So, do you have any examples of this postulate? In what way has any musicologists skewed any of these cases?



Yes -- this one. The plaintiffs used a musicologist who harped on one figure in Ms. Perry's song that remotely resembled the plaintiffs' arrangement.


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## Tim_Wells (Mar 19, 2020)

Don't know a thing about this case, but I'm glad it was over-turned. I think with the exploding proliferation of recorded music, that the burden of proof for plagiarism should be very high. The law should contain words like "flagrant" and "clearly intentional". Something that sounds similar just won't cut it.

I mean, how many of us are required to listen to reference tracks and to emulate them? That's been going on in pop music for decades.

Jerry Garcia said it nicely... "we're just very clever thieves".


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## GtrString (Mar 20, 2020)

JohnG said:


> Yes -- this one. The plaintiffs used a musicologist who harped on one figure in Ms. Perry's song that remotely resembled the plaintiffs' arrangement.



Yes, but that will happen when the cases are ruled by laymans jury, because they dont have the technical knowledge, and will then focus on small resemblances in arrangement or other parts of the work (despite this is not technically correct). The musicologist‘s brief is then to support an argument on one side, not to rule the case. I will argue that the problem is not the musicologists, but the way they can be involved in this ruling system.

If musicologists should be used differently (and more properly), the whole ruling approach should be changed. Try read this paper on the subject, there is a lot to consider in these cases, and the main problem is how intellectual property is defined as well as the audience chosen in the cases. The problem is how the US courts have chosen to set this up, it is flawed.

A lot could be accomplished if the US courts changed the design of these rulings and extended the audience to be experts as well as consumers in these cases. A “hybrid“ approach as the researchers suggests in the paper..



https://law.stanford.edu/wp-content/uploads/sites/default/files/publication/440308/doc/slspublic/Fromer%20and%20Lemley%20Audience%20in%20IP%20Infrigement%20Olin%20Working%20Paper%20447.pdf


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## VivianaSings (Mar 20, 2020)

TGV said:


> Money and lawyers, name a more iconic duo.



Katy Perry and Plagiarism?


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## givemenoughrope (Mar 20, 2020)

damn shame what she did to those nuns...


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## Daryl (Mar 20, 2020)

GtrString said:


> The musicologist‘s brief is then to support an argument on one side, not to rule the case. I will argue that the problem is not the musicologists, but the way they can be involved in this ruling system.



According to my musicologist, they are supposed to be impartial "experts", in the same way that doctors are supposed to be, in trials. However, this is obviously not the case in the Katy Perry instance, and, when the time is appropriate, I will be able to share some shocking examples from my experiences.


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## Polkasound (Mar 20, 2020)

Michel Simons said:


> Again, I'm happy too. I just don't think that even (or especially) prosecuting lawyers feel that their first priority is righting a wrong, but earning money.



There are decent, ethical lawyers out there, but unfortunately there will always be a Jackie Chiles for anyone who wants one.









givemenoughrope said:


> damn shame what she did to those nuns...



From everything I've read, the damage to the nuns was done by themselves, and the turmoil was really between the nuns and the archdiocese.


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## robgb (Mar 20, 2020)

You can find an expert to confirm whatever POV you want to confirm. All you have to do is search. And unless the opposing side can somehow discredit the guy, the jury will pay attention. Especially a jury that isn't educated in music. And I guarantee that any knowledgable jurors where weeded out by the plaintiff's attorneys during voir dire.


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## dzilizzi (Mar 20, 2020)

robgb said:


> You can find an expert to confirm whatever POV you want to confirm. All you have to do is search. And unless the opposing side can somehow discredit the guy, the jury will pay attention. Especially a jury that isn't educated in music. And I guarantee that any knowledgable jurors where weeded out by the plaintiff's attorneys during voir dire.


The bad thing was, at least from what I heard, the musicologist who said it was a copy actually would teach just the opposite to his students. Not that specific case, but that certain things are not copyrightable. So that could be perjury, though they would never go after him for it.


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## givemenoughrope (Mar 20, 2020)

Polkasound said:


> From everything I've read, the damage to the nuns was done by themselves, and the turmoil was really between the nuns and the archdiocese.



Even if that is true to a slight degree she could have pushed for an equitable outcome for all three parties but of course she didn't. Feminism and empowerment is part of her brand, not her actions.


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## dzilizzi (Mar 20, 2020)

Here you go. 








Everything you’re hearing about Katy Perry and the L.A. Catholic sisters is probably wrong


The only part of the Katy Perry and the nuns story that is accurate is that Sister Holzman tragically passed away in a Los Angeles courtroom.




www.americamagazine.org





Summary: The Archdiocese owned the property and sold it to Katy Perry as it hadn't been used in a few years. The nuns used to own the property but since no one lived there anymore, the ownership passed to the archdiocese. Two of the nuns sold it to some unscrupulous woman who paid a small fraction of the price before taking ownership. The remaining nuns were against the sale to this woman. The sale was declared invalid by the court and the woman declared bankruptcy when they to her to court to pay the remaining amount due. There is probably more to it. In the court case, the nuns and Katy Perry are on the same side.


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## givemenoughrope (Mar 20, 2020)

Yet KP got what she wanted in the end. I wonder how that happened. She could own any home in the world but she just had to have this property.


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## Technostica (Mar 20, 2020)

dzilizzi said:


> In the court case, the nuns and Katy Perry are on the same side.


As the devil?


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## dzilizzi (Mar 20, 2020)

givemenoughrope said:


> Yet KP got what she wanted in the end. I wonder how that happened. She could own any home in the world but she just had to have this property.


Hollywood Hills is a nice area, but not always a lot of land. And she primarily bought the priest's retreat. The nun's old convent was just on the land also. The retreat maybe beautiful as the church in LA used to have a lot of money. Not so much anymore as it costs a lot to fix things.


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## Polkasound (Mar 20, 2020)

givemenoughrope said:


> Even if that is true to a slight degree she could have pushed for an equitable outcome for all three parties but of course she didn't.



Let's say you were searching for a house, found one you really liked, and agreed to buy it. Then two people who used to be tenants there unlawfully "sell" it to someone else just because they don't like you and don't want you to own the house.

What would you do? Stand up against the unlawful sale, or let the house go because you don't want to hurt the feelings of those two former tenant's who hate you?

Those two nuns are 100% at fault for turning what should have been relatively routine property sale into a media circus.


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## givemenoughrope (Mar 20, 2020)

It's not about what I or the average home buyer would do. It's about what a rich and powerful person who never takes no for an answer and always gets what they want does. She didn't get to be KP the corporation by doing what normal people who are reasonable or even moderately ethical do. I'm sorry, I just will always find it hard to defend people like her ever. It's in the wiring. I say this as someone who is not the biggest fan of Catholic nuns having had them as teachers in grade school. I assure you there is much more to this than who temporarily sides with who or what the legal-ese tells us. Everything you are regurgitating just tells me that she has some fine PR people. All you have to do is see who gets what in the end. That should tell you enough.


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## J-M (Mar 20, 2020)

Finally, some common sense. And like Adam Neely said, I hate the fact that I was on Perry's side in this one.


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## dzilizzi (Mar 20, 2020)

givemenoughrope said:


> It's not about what I or the average home buyer would do. It's about what a rich and powerful person who never takes no for an answer and always gets what they want does. She didn't get to be KP the corporation by doing what normal people who are reasonable or even moderately ethical do. I'm sorry, I just will always find it hard to defend people like her ever. It's in the wiring. I say this as someone who is not the biggest fan of Catholic nuns having had them as teachers in grade school. I assure you there is much more to this than who temporarily sides with who or what the legal-ese tells us. Everything you are regurgitating just tells me that she has some fine PR people. All you have to do is see who gets what in the end. That should tell you enough.


Did you even read the article? These 2 nuns not only did not have the right to sell the house, they didn't even live there since 2011.


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## Polkasound (Mar 20, 2020)

givemenoughrope said:


> I'm sorry, I just will always find it hard to defend people like her ever.



I respect your opinion, and it's nothing to apologize for. You're choosing to interject your own personal bias into the matter, and that's fine. Personally, I try to be as fair and objective as I can regardless of a person's reputation, wealth, or popularity. I would defend Katy no different than I would defend you or the average home buyer.

Based solely on what I've read, the nuns were 100% at fault for making a problem out of a legitimate property sale. The nuns were the only ones who committed ethics violations. To feel any differently, I'd have to write new material in between the lines and then read my own material, and I'm just not wired to do that.


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## givemenoughrope (Mar 20, 2020)

Look, the stuff in that article is old news. The sisters, not Katy Perry, not Dana Hollister, not the Archdiocese of LA, are the only ones ethically not in the wrong. The place was bought for them and they've lived there since the early 70s. DH is a crook. The Ad of LA needs the money obviously. KP Can live anywhere she wants but she knows that if a place like this existed on the West side it would be triple the price. It's not my personal bias that rich people are often crappy. 








Every twist and turn in Katy Perry's bitter legal battle with nuns over her purchase of their former convent


Years ago, the 34-year-old pop star offered millions of dollars to buy a sprawling Los Angeles estate. But two of its former residents rejected her.




www.insider.com


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## Polkasound (Mar 20, 2020)

givemenoughrope said:


> The place was bought for them.



According to the article you posted, the sisters bought the property. I have no idea how convents are purchased, funded, and operated, but nonetheless, the purchase apparently did not make the convent theirs to own. It was the property of the archdiocese. They alone had the authority to sell it. If those two nuns were not clear about that, it certainly should have been clear to them in 2011 when the archdiocese kicked them out so that the archdiocese could sell the property.

The sale to Katy Perry was a legitimate sale. And it doesn't matter if the buyer was Katy Perry, a practicing Catholic, or a satanist -- everything the nuns did to interfere with the sale, whether done out of ignorance or motivated by contempt for Perry, was wrong.


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## Kery Michael (Mar 20, 2020)

Well this conversation to a weird turn... copyright infringement to nuns-right infringement?!


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## givemenoughrope (Mar 20, 2020)

Polkasound said:


> According to the article you posted, the sisters bought the property. I have no idea how convents are purchased, funded, and operated, but nonetheless, the purchase apparently did not make the convent theirs to own. It was the property of the archdiocese. They alone had the authority to sell it. If those two nuns were not clear about that, it certainly should have been clear to them in 2011 when the archdiocese kicked them out so that the archdiocese could sell the property.
> 
> The sale to Katy Perry was a legitimate sale. And it doesn't matter if the buyer was Katy Perry, a practicing Catholic, or a satanist -- everything the nuns did to interfere with the sale, whether done out of ignorance or motivated by contempt for Perry, was wrong.



Again, I know what happened and the legalities, etc. But just pull back for a second. Does this sound right to you? Or fair in any way? The nuns pooled their money and bought it, close to 60 of them in 1971, yet the Archdiocese owns it forever and can decide to sell it. That's a pimp move if I ever heard one. You know, sometimes even clickbait can touch upon things, even while twisting them into a salacious narrative or omitting most of the facts, that we implicitly know to be true. That might be why we actually click on it at sometimes. KP and all involved know this is f-ed up and didn't do right by these people even though they all had the means and the money to do so.

I sort of accidentally walked or biked by this place once. The outside entrance is massive and official. It's just not a property where a person should live. That's disgusting to me. But hey, it's sorta legal so don't question it.


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## RonOrchComp (Mar 20, 2020)

Polkasound said:


> Of course they brought the suit.



No, they did not bring the suit. They represented the plantiff, who brought the suit. Lawyers do not bring suits. They represent those who do.

Blaming the lawyers is like blaming your cab driver when the taxi malfunctions due to a manufacturing defect.


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## Polkasound (Mar 20, 2020)

givemenoughrope said:


> The nuns pooled their money and bought it, close to 60 of them in 1971, yet the Archdiocese owns it forever and can decide to sell it.



A quick read might suggest something unfair is going on, but there are still too many unknowns. The article is written to impress the idea that the nuns pooled together $600,000 of their personal savings, but that may not be what happened. How much of the $600,000 did Daniel O'Donohue helped the sisters pay? Was it a small amount or nearly the entire amount? Did the money pooled by the nuns come from their individual savings accounts, or did they collectively raise it through donations?



givemenoughrope said:


> yet the Archdiocese owns it forever and can decide to sell it. That's a pimp move if I ever heard one.



Pimp move or not, what does any prospective property purchaser have to do with how the archdiocese manages Church property? If the archdiocese is the legal land owner, they are the legal land owner. You can't purchase a property from anyone else but the legal land owner.

Either way, it's not like Katy's purchase was going to push nuns out onto the street. This was a mostly uninhabited facility. The priests still using it would have been relocated to a new location, and the remaining nuns would have continued to be taken care of.

The two nuns didn't like the terms of the sale. Unfortunately that is not Katy's problem. It's between them and the archdiocese.

If you think some of the money from the sale should have gone into the remaining nuns' personal bank accounts instead of to the archdiocese, that also would be an issue strictly between the nuns and the archdiocese.




RonOrchComp said:


> No, they did not bring the suit. They represented the plantiff, who brought the suit. Lawyers do not bring suits. They represent those who do.



I'm not going to get into semantics. The point I was making is that no plaintiff would bring such a civil lawsuit without representation. No representation = no lawsuit brought. A lawyer looks into a person's situation and decides whether or not to represent him by building a case. An ethical lawyer will look for the opportunity to right a wrong, whereas an unethical lawyer will consider playing the system to make money regardless of right from wrong. Do I blame those unethical lawyers for taking those cases and consequently making things worse for all of us? Absolutely.


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## givemenoughrope (Mar 20, 2020)

Dude. F&[email protected] Katy Perry. She's a pos.


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## VivianaSings (Mar 20, 2020)

givemenoughrope said:


> Dude. F&[email protected] Katy Perry. She's a pos.



This has nothing to do with the case, which I know nothing about. Just wanted to say I have worked with Katy. Can confirm.


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## RonOrchComp (Mar 21, 2020)

Polkasound said:


> I'm not going to get into semantics. The point I was making is that no plaintiff would bring such a civil lawsuit without representation. No representation = no lawsuit brought. A lawyer looks into a person's situation and decides whether or not to represent him by building a case. An ethical lawyer will look for the opportunity to right a wrong, whereas an unethical lawyer will consider playing the system to make money regardless of right from wrong. Do I blame those unethical lawyers for taking those cases and consequently making things worse for all of us? Absolutely.



Sorry, it's not semantics. The plaintiff is the one who brings the suit - not the attorney.

I am not suggesting that there are no unethical attorneys; of course there are. But if someone walks into your office and says that they were plagiarized, and presents to you some form of evidence that they may be right, you take the case. That's not unethical, even if the individual turns out to be wrong. You can't have attorneys making all of these decisions; that is what the courts are for. And _everyone_ has the right to have an attorney represent them in a court of law - and that includes civil matters. At least here in the USA.


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## Polkasound (Mar 21, 2020)

RonOrchComp said:


> Sorry, it's not semantics. The plaintiff is the one who brings the suit - not the attorney.



It doesn't matter. My point is that if Flame could not find a lawyer to represent him, the suit would never have been brought into court.



RonOrchComp said:


> But if someone walks into your office and says that they were plagiarized, and presents to you some form of evidence that they may be right, you take the case. That's not unethical, even if the individual turns out to be wrong.



Yes, but that's the simple version. The complex version is whether or not your win will depend on your wily ability to find the one musicologist willing to sell out, and to secure the most musically-ignorant jury on earth. If I were a lawyer looking to make a buck, I'd take the case. If I were a lawyer looking to do what I believed was best for the music industry, I'd decline.


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## RonOrchComp (Mar 21, 2020)

Polkasound said:


> It doesn't matter. My point is that if Flame could not find a lawyer to represent him, the suit would never have been brought into court.



So, you are suggesting that every attorney decline a civil case that is not a clear cut winner? No way.

Flame may have been off-base with the suit, but that's not the attorney's fault. Why? Because the case was not clear cut, and there was some semblance of a chance that he might have a real case. Just because YOU think there shouldn't have been a case, does not mean there shouldn't have been a case.

Now, you want to call the lawyer who represented the plaintiff in the Lady Gaga suit unethical - I would agree with you 100% on that one.


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## givemenoughrope (Mar 21, 2020)

VivianaSings said:


> This has nothing to do with the case, which I know nothing about. Just wanted to say I have worked with Katy. Can confirm.



It's not that I think all pop stars are. I've done some work for a well-known one (who was part of pretty seriously controversy in the UK, bigger than them, but they actually made it right) and they were polite, humble, not afraid to tell me when didnt like what I had handed them, etc. I just think it's not that difficult to see beyond the pr spin most times. Anyway, enough of this...apologies for derailing the copyright discussion...


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## Polkasound (Mar 21, 2020)

RonOrchComp said:


> So, you are suggesting that every attorney decline a civil case that is not a clear cut winner? No way.



No, that's not at all what I'm saying. What I'm saying is that being able to produce a win does not automatically mean a case is worth taking. Flame's win benefited himself and his attorneys, but it came at the cost of striking fear and uncertainty into the hearts of every musician in the country by corrupting the concept and purpose of copyright infringement.



RonOrchComp said:


> Just because YOU think there shouldn't have been a case, does not mean there shouldn't have been a case.



All that statement does is say everyone has a right to their own opinion. I agree with that 100%. And it's my opinion this was a ludicrous case brought into court NOT to right a wrong, but to make money by craftily playing the system. According to the most recent turn of events, I was right -- a judge ruled that no wrongs have been committed.



RonOrchComp said:


> Now, you want to call the lawyer who represented the plaintiff in the Lady Gaga suit unethical - I would agree with you 100% on that one.



This is *exactly* how I feel about Flame's lawyer.


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## purple (Mar 21, 2020)

C.R. Rivera said:


> Yes, because trial decisions by Judge Anti-aircraft Cannon fire, aka North Korea, is so much better for everything. And those of us old enough to remember, the enlightened Soviet Union used a jury-less process, often refered to as a Judge "9mm Heart Attack."


Juries that don't fully understand the case can't really be good juries though, can they?


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## RonOrchComp (Mar 22, 2020)

Polkasound said:


> This is *exactly* how I feel about Flame's lawyer.



Now you are saying that the Katy Perry case was the equivalent of the Gaga case, which is ridiculous.


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## Polkasound (Mar 22, 2020)

RonOrchComp said:


> Now you are saying that the Katy Perry case was the equivalent of the Gaga case, which is ridiculous.



If we're talking about the threat of a lawsuit by Steve Ronsen in 2019, then you are 100% correct – it is my opinion that Flame's case was on the same level of lunacy as Ronsen's. With the right lawyer, the right jury, and the perfect alignment of the planets, Ronsen could have taken his case to court and won. That may seem like an impossibility, but the reason it's not is due to frightening precedents set by cases like Flame vs. Perry.

GtrString said it best earlier in this thread when he said, "Opportunistic claims like this should not be possible at all, its ridiculous!". I agree with that 100%. But there isn't, and probably never will be, a defining line between what is a legitimate copyright claim and what is a frivolous moneygrab. So we'll all have our own opinions. If you believe Flame's claim of copyright infringement against Perry was warranted, I'll respect your opinion but wholeheartedly disagree with it.


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## RonOrchComp (Mar 22, 2020)

Polkasound said:


> If we're talking about the threat of a lawsuit by Steve Ronsen in 2019,



No. The lawsuit brought by Rebecca Francescatti. 

I don't know anything of the lawsuit brought by Steve Ronsen, but I can tell you the lawsuit brought by Flame was far from lunacy. I think the outcome was correct, but the suit was not at all lunacy.


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## JohnG (Mar 22, 2020)

RonOrchComp said:


> I can tell you the lawsuit brought by Flame was far from lunacy. I think the outcome was correct, but the suit was not at all lunacy.



it was total lunacy. I don't know how any musician can say Perry infringed, even if you believe (which I think is far-fetched) that the composer ever even heard Flame's piece, which is by no means clear.


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## Polkasound (Mar 22, 2020)

RonOrchComp said:


> No. The lawsuit brought by Rebecca Francescatti.



OK, thank you for clarifying. I'm not familiar with that case so I'll have to look into it.


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## robgb (Mar 23, 2020)

RonOrchComp said:


> Because the case was not clear cut,


It was clear cut. All these well publicized cases have been clear cut. They're bullshit. An attorney may or may not originate a case, but he or she certainly knows that the only thing protected by copyright is the melody, so going forward in hopes the jury will be stupid enough not to grasp this is a money grab, nothing more, in my opinion.


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## robgb (Mar 23, 2020)

RonOrchComp said:


> Blaming the lawyers is like blaming your cab driver when the taxi malfunctions due to a manufacturing defect.


Except the driver knows full well the car is defective but doesn't care as long as he gets paid at the end of the ride


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## Polkasound (Mar 23, 2020)

robgb said:


> he or she certainly knows that the only thing protected by copyright is the melody



Just to play the devil's advocate for a moment, I don't believe it's as clear cut as this. For example, the song Billie Jean. Before the melody comes in, the song is firmly established by a very recognizable beat, tempo, bass line, "ooh" chord progressions, mood, etc. If someone started a song with these same exact elements and only changed the melody, would it be copyright infringement?

In my book, yes, it absolutely would. This is why I don't believe there can be a defining line as to what constitutes copyright infringement, so claims of infringement still need to be tried on a case by case basis. What should rule in the end, however, is common sense based on one's knowledge of music and the music industry — knowing that it is impossible for a new song not to share similar-sounding elements with previously-recorded songs.

In Flame vs. Perry, there were some shared elements, but in my opinion, there was not nearly enough similarity between the two compositions to be considered copyright infringement.


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## RonOrchComp (Mar 23, 2020)

JohnG said:


> it was total lunacy. I don't know how any musician can say Perry infringed, even if you believe (which I think is far-fetched) that the composer ever even heard Flame's piece, which is by no means clear.



Ok, you have your opinion, and I don't find fault there. But even if you are right - we seem to have gotten away from the original premise of why I chimed in, which is _it ain't the attorney's fault._


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## Polkasound (Mar 23, 2020)

Does anyone remember hearing about the Gersh Zavodnik vs. Doug Costello case from a few years ago?

Zavodnik bought a $40 printer online from Costello. Zavodnik claimed it was missing parts, and sued Costello for $6,000 for breach of contract, fraud, conversion, deceptive advertising and emotional distress. Zavodnik lost the suit but he kept dragging it through appeals. Zavodnik also kept sending Costello letters of admissions, to which Costello had 30 days to reply to each one affirming he was not accepting guilt. Costello missed the deadline on one, which by law, constituted an admission of guilt. The judge's hands were tied. After six years of appealing, in accordance with the law, a judge reluctantly ruled in favor of Zavodnik for the amount he was seeking: $30,000.

Gersh Zavodnik is infamous in the Indiana court system for having filed dozens of frivolous lawsuits just like this one. He's obviously not trying to right any wrongs. His purpose is to get money by playing the system.

Zavodnik reminds me of Flame's lawyer. Both cases were glaring frivolous, but they knew that through the unscrupulous application of their knowledge of the law and litigation, they stood a chance of bagging a large sum of money.

(Incidentally, just like in the Flame v.s Perry case, the judgement against Costello was overturned in appeals.)


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## robgb (Mar 23, 2020)

Polkasound said:


> If someone started a song with these same exact elements and only changed the melody, would it be copyright infringement?


No. In some cases arrangements can be copyrighted, but jazz and rock are generally exempt from this and in any case the arrangement has to be wholly original. I think you could find the roots of Billie Jean in dozens of other songs. I think you could argue that the opening guitar riff is part of the melody, but it was essentially improvised. Under copyright law, a song consists of words and melody. Those are the copyrightable elements.


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## Polkasound (Mar 23, 2020)

robgb said:


> Under copyright law, a song consists of words and melody. Those are the copyrightable elements.



That's not quite right. They do cover those two elements, but they also cover more. Copyright protections cover the _composition_, of which consists of _all_ of the the elements of a song: lyrics, melody, arrangement, chord progressions, harmonies, rhythm, etc. They also cover the _sound recording_ of that song.

If a copyright only covered the melody and lyrics, then the Marvin Gaye Estate would have had no case against Robin Thicke & Pharrell Williams, since the similarities between the songs do not include either the lyrics or melody.


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## robgb (Mar 24, 2020)

Polkasound said:


> That's not quite right. They do cover those two elements, but they also cover more. Copyright protections cover the _composition_, of which consists of _all_ of the the elements of a song: lyrics, melody, arrangement, chord progressions, harmonies, rhythm, etc. They also cover the _sound recording_ of that song.
> 
> If a copyright only covered the melody and lyrics, then the Marvin Gaye Estate would have had no case against Robin Thicke & Pharrell Williams, since the similarities between the songs do not include either the lyrics or melody.


They had no case. Those cases were a joke. A jury is not bound by copyright law. And as I said, arrangements are only copyrightable if they are wholly original. A little tough to find in rock and pop music.


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## robgb (Mar 24, 2020)

Also, particularly in the Gaye case, the jury took into consideration elements that were not part of the original song. Much if the arrangement was done in the studio, after the song had been written, and the only part of the studio work that's copyrightable is the sound recording. If someone SAMPLES that recording, it's a violation. If they merely copy the instrumentation, it's not. The same would be true in the case of Billie Jean.


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## Polkasound (Mar 24, 2020)

robgb said:


> They had no case.



My specific reason for bringing up the Gaye vs. Thicke case is to point out that if copyright law applied only to melody and lyrics, there _literally_ would not have been a case. But since it does apply to more elements of a composition, the plaintiff needs to argue more points, such as how much the composition was stolen, and the probability of the defendant's prior exposure to the infringed song.



robgb said:


> the only part of the studio work that's copyrightable is the sound recording.



That's not quite true. If it were, then licensing would not be required to record and release cover songs. The composition and master sound recording are two entities protected by copyright law. If someone takes and uses samples from the recording without authorization, that's a violation. But, if someone hears a song on the recording decides to record an unauthorized cover of it, that's also also a violation. Even if they only want to cover a part of the song, they still need to license it.


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## dzilizzi (Mar 24, 2020)

If they cover it, they are not infringing on the sound recording copyright, only the songwriter's copyright.


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## robgb (Mar 24, 2020)

Polkasound said:


> That's not quite true. If it were, then licensing would not be required to record and release cover songs. The composition and master sound recording are two entities protected by copyright law. If someone takes and uses samples from the recording without authorization, that's a violation. But, if someone hears a song on the recording decides to record an unauthorized cover of it, that's also also a violation. Even if they only want to cover a part of the song, they still need to license it.


Maybe you've misunderstood me. Of course, the sound recording is protected. If someone uses that recording (or parts of it) without permission, they are guilty of infringement. That's what I said. If someone covers the actual song without permission, they are guilty of infringement against the songwriter, not the recording artist.

Unless the arrangement was conceived of at the time the song was written (by the songwriter) and is entirely unique, there's no protection if someone does something similar. What exactly are you going to say? Hey, when Michael was in the studio, he recorded a guitar and bass and percussion and some synth sounds together in a syncopated beat, so that's his and you can't copy it?

That's why these recent lawsuits are ridiculous.


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## JohnG (Mar 24, 2020)

Rob, I don't actually think the lyrics and melody are the only copyrightable elements, at least judging by court results. 

I think chord progressions figure in as well, but maybe I (and possibly others) are muddling statutory (written laws) principles with judiciary (court cases/ judgement) principles? In court outcomes, bass lines, riffs, and chord progressions have figured into arguments, but maybe those are just as muddled. Maybe in fact those are thrown in to confuse juries and make them more malleable?

Can any0one point to the actual statute? And is it only Federal or is it state-by-state?


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## Polkasound (Mar 24, 2020)

robgb said:


> That's what I said. If someone covers the actual song without permission, they are guilty of infringement against the songwriter, not the recording artist.



Aha... I think I found the misunderstanding. By "studio work" you were referring to the recording itself. That's what confused me, because I interpreted "studio work" to also include the compositional elements of the song as released, since the studio recording/mixing sessions are where the combination of those elements is permanently attributed to the song.



robgb said:


> That's why these recent lawsuits are ridiculous.



If the Gaye Estate said something like, "Robin's song infringed on Marvin's song in this spot here... which is written in the original music but was changed during the recording session..." then yeah, that would be ridiculous.

Anyway, I hope I've figured out the confusion.


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## dzilizzi (Mar 24, 2020)

Copyright is Federal Law under Title 17 of the U.S.C.

Looking through it and found this:
*102. Subject matter of copyright: In general*
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(7) sound recordings; and


(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

I need to look at the regulations because this is not very clear. You could say a chord progression falls under a procedure or process. Or really, a principle.


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## JohnG (Mar 24, 2020)

dzilizzi said:


> I need to look at the regulations because this is not very clear.



I think that's the reason that we end up looking to judicial rulings and precedents -- the statute is so vague that it's impossible to know what it means, pertaining to music. Chords? Melody? Mood???

In the judicial sphere (i.e. the outcomes of court cases), quite a range of kooky verdicts (including the "constellation of similarities" argument) have resulted from juries who, in my opinion, were duped.

I think we as musicians should breathe a sigh of relief from the 71 page decision on Stairway to Heaven if, as the NYT article says, the decision is powerful and comprehensive enough to allow judges to throw out some plaintiffs before a jury trial. The reason, of course, is that the discovery process, empaneling a jury, and the court proceeding itself is expensive, potentially ruinously so, leaving aside who prevails, with the result that defendants settle before trial to avoid that expense (plus, of course, the risk that they'll lose on some huckster's concocted pretext -- or 'constellation,' if you prefer).

Compounding the expense of defence is that you don't recover your costs, in some countries. In other words, the plaintiff risks only his own costs and time in the US (except in rare cases), whereas in others (the UK, I believe) it is common for the losing side to have to pay some or all of the prevailing side's costs.


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## dzilizzi (Mar 24, 2020)

found this in the Regs 

37 CFR *§202.1 Material not subject to copyright.*
The following are examples of works not subject to copyright and applications for registration of such works cannot be entertained:

(a) Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents;

(b) Ideas, plans, methods, systems, or devices, as distinguished from the particular manner in which they are expressed or described in a writing;

(c) Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not in themselves convey information;

(d) Works consisting entirely of information that is common property containing no original authorship, such as, for example: Standard calendars, height and weight charts, tape measures and rulers, schedules of sporting events, and lists or tables taken from public documents or other common sources.

(e) Typeface as typeface.

I'm thinking Chord Progressions fall under (d) because they have been around forever. Same with rhythms. Now a guitar riff could fall under a melody if it was significantly different, but say the beginning to Walk this Way would not be considered significantly different from the chord progression. The riff used in Stairway to Heaven probably could have been copyrighted if it weren't a Renaissance inspired piece.


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## dzilizzi (Mar 24, 2020)

I read the story about the girl - Rebecca, I think her name was - who sued Lady Gaga. Based on the story? I would have given it to her. But then I listened to the 2 pieces. Now, granted, I couldn't really understand the lyrics in either. But I totally understand why the judge threw out the case. I couldn't even hear any similarity. Even if she started from Rebecca's ProTools session? There wasn't enough similarity for me to hear it. 

And it may be similar to sampling. I don't know. I'm not sure how the copyrights work on sampling. The smart ones get permission. But it may fall under derivative works.


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## robgb (Mar 24, 2020)

dzilizzi said:


> I need to look at the regulations because this is not very clear. You could say a chord progression falls under a procedure or process. Or really, a principle.


Exactly. You can't copyright a chord progression.


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## robgb (Mar 24, 2020)

Polkasound said:


> If the Gaye Estate said something like, "Robin's song infringed on Marvin's song in this spot here... which is written in the original music but was changed during the recording session..." then yeah, that would be ridiculous.


I'm pretty sure their claim—to simplify it—was that the song used some of the same instruments Gaye used in a way that was similar to the way Gaye used them. This, of course, would be true of nearly every pop song ever recorded. The Beatles, for example, could sue everyone under the sun, and the old blues artists could sue them. It's all just ridiculous and juries are stupid.


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## Polkasound (Mar 24, 2020)

robgb said:


> I'm pretty sure their claim—to simplify it—was that the song used some of the same instruments Gaye used in a way that was similar to the way Gaye used them.



I didn't read the specifics, but just by listening to the two songs, I could hear the basis for the claim. The meter, groove, instrumentation, key, and tempo worked in conjunction to create an undeniably distinct similarity between the two songs. But Led Zeppelin's win was much needed to set a precedent that protects songwriters with the fact that similar compositional elements among songs, even multiple elements working in conjunction, are inevitable and unavoidable.

That said, I would still caution musicians not to record the first 32 bars of Billie Jean verbatim and then come in with a different melody expecting to be fully protected from a copyright lawsuit. Feel free to capture the vibe and mood of Billie Jean, but use common sense and play it safe... change the key, alter the bass pattern, tweak the rhythm, play with the arrangement, and make it your own song.


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## robgb (Mar 24, 2020)

Polkasound said:


> The meter, groove, instrumentation, key, and tempo worked in conjunction to create an undeniably distinct similarity between the two songs


A distinct similarity is not infringement. If it were, the courts would be tied up with cases involving nearly every song or book ever written and every movie ever made.


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## robgb (Mar 24, 2020)

JohnG said:


> Rob, I don't actually think the lyrics and melody are the only copyrightable elements, at least judging by court results


A jury verdict is not proof of anything re: copyright.


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## Polkasound (Mar 24, 2020)

robgb said:


> A distinct similarity is not infringement. If it were, the courts would be tied up with cases involving nearly every song or book ever written and every movie ever made.



It all depends on your definition of what a distinct similarity is. In all these threads regarding copyrights, I've been using modifiers such as _obviously_, _undeniably_, and _glaringly_ to describe similarities between songs. I do that intentionally to differentiate between songs that share a few similar elements (which includes every song on earth) to songs that share a potentially-suspicious constellation of similarities.



robgb said:


> A jury verdict is not proof of anything re: copyright.



It's not about juries and verdicts being right or wrong, but how the precedents established by those verdicts influence the way copyright infringement is defined in future cases. I believe that's what JohnG is referring to.


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## robgb (Mar 24, 2020)

Polkasound said:


> It's not about juries and verdicts being right or wrong, but how the precedents established by those verdicts influence the way copyright infringement is defined in future cases. I believe that's what JohnG is referring to.


Maybe so.




Polkasound said:


> It all depends on your definition of what a distinct similarity is. In all these threads regarding copyrights, I've been using modifiers such as _obviously_, _undeniably_, and _glaringly_ to describe similarities between songs. I do that intentionally to differentiate between songs that share a few similar elements (which includes every song on earth) to songs that share a potentially-suspicious constellation of similarities.


Maybe to keep things simple, we should say "copy" rather than similarity. That said, I don't believe even an exact copy of instrumentation is copyright infringement, unless the melody is copied along with it. If you copy, for example, the bassline for Billy Jean, you are copying a very distinct melody. Not a chord progression, but a melody. If you were to scramble the notes a little, however, even if it had the "feel" of Billy Jean, it would no longer be the same melody and therefore not infringement.

The verdicts did indeed set dangerous precedents, because they're bogus claims. And that's why every musician on the planet should be upset by them.


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## Reid Rosefelt (Mar 24, 2020)

This is maybe off topic, because it's not about music or nuns, but perhaps this story gives a little perspective from the point of view of the celebrity being sued.

Years ago I was working as production publicist on Robert Redford's film THE MILAGRO BEANFIELD WAR, while we were shooting in Truchas, on the high road to Taos. Redford got sued. Some "producer" claimed we had stolen his project. Our film was based on a book of the same name by John Nichols, which is very popular in New Mexico. If you look at the novel, you'll see it has an intro with a few pages of Nichols thanking all the real people who inspired the novel. As you could guess, the guy who was suing us was making a movie about a guy not on Nichols's list. There were many other reasons why this was a preposterous suit.

It made me super mad, but Redford took it in stride. He explained to me that he had been sued many times. He said that when he announced he was going to produce "Downhill Racer," a guy came in his trailer on another movie and handed him an envelope that had a script in it called "Downhill Racer." It had blank pages. He just saw this kind of thing as collateral damage for being Robert Redford.

I spent a lot of time with Redford long ago. He was true-blue and didn't need to rip off screenplays from anybody. In those days, at least, he could do what he wanted.

Redford told me that the way these scams work is that you have to lawyer up, but more importantly, go to court and be deposed. So a lot of rich and famous people quietly pay con men like this to go away.

While I was managing the press requests on this for the next few weeks, I did some research on this "producer." And I learned that his only producing credit was a payoff from another film he sued. They gave him money and a producing credit. And then he used this phony credit to give himself legitimacy when he sued us.

Nobody ever told me what happened, but one day the problem mysteriously went away.


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## JohnG (Mar 24, 2020)

robgb said:


> A jury verdict is not proof of anything re: copyright.



Baloney. The judicial record absolutely is part of the law, Rob. You can be as dismissive and categorical as you like, but the chord progression can be part of a jury's finding that the works are similar / the same.


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## Nick Batzdorf (Mar 24, 2020)

RonOrchComp said:


> No, they did not bring the suit. They represented the plantiff, who brought the suit. Lawyers do not bring suits. They represent those who do.
> 
> Blaming the lawyers is like blaming your cab driver when the taxi malfunctions due to a manufacturing defect.



Right, and blaming the hit man for a murder is like blaming your tailor when your penis gets stuck in the zipper. 

The point where your analogy breaks down is where the lawyer *accepts money* (either up front or contingency) for whatever you want to call it! Principled lawyers don't bring ridiculous lawsuits, and normally the judge will dismiss them.

This is just a little more complicated, because the lines aren't as clear.


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## Polkasound (Mar 24, 2020)

robgb said:


> That said, I don't believe even an exact copy of instrumentation is copyright infringement, unless the melody is copied along with it.



I agree. I don't think the same combination of instrumentation on two songs can ever constitute copyright infringement. But if there are two recorded songs that have, for example, almost identical chords progressions AND tempo AND meter AND rhythm AND syncopation AND mood, and then you add to that the same unique combination of instruments as well, that identical instrumentation could end up being the final nail in the defense's coffin.


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## Nick Batzdorf (Mar 24, 2020)

GtrString said:


> Yes, but that will happen when the cases are ruled by laymans jury, because they dont have the technical knowledge, and will then focus on small resemblances in arrangement or other parts of the work (despite this is not technically correct).



I could argue that either way.

An "expert" - a musician - is more likely to know what's unique and what isn't from a technical standpoint.

But that can lead us to see the trees rather than the forest. A layman can tell whether the effect of two pieces of music is the same without getting bogged down in technical details.


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## robgb (Mar 25, 2020)

Polkasound said:


> I agree. I don't think the same combination of instrumentation on two songs can ever constitute copyright infringement. But if there are two recorded songs that have, for example, almost identical chords progressions AND tempo AND meter AND rhythm AND syncopation AND mood, and then you add to that the same unique combination of instruments as well, that identical instrumentation could end up being the final nail in the defense's coffin.


I agree, but that rarely, if ever, happens, and certainly didn't in any of these cases.


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## robgb (Mar 25, 2020)

JohnG said:


> Baloney. The judicial record absolutely is part of the law, Rob. You can be as dismissive and categorical as you like, but the chord progression can be part of a jury's finding that the works are similar / the same.


Until an appeals court throws it out because the verdict doesn't adhere to applicable copyright law.


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## GtrString (Mar 25, 2020)

Nick Batzdorf said:


> I could argue that either way.
> 
> An "expert" - a musician - is more likely to know what's unique and what isn't from a technical standpoint.
> 
> But that can lead us to see the trees rather than the forest. A layman can tell whether the effect of two pieces of music is the same without getting bogged down in technical details.



Yes, that might be true. However, there is no applicable copyright law that only consider the effect of a music work. The same effect can be achived in numerous ways, without infringing upon other works.

I think both the experts and the layman view should be taken into account. First the technical aspect, which is what copyright law covers, and second, if the works are technically similar, if the infringing work then is a market substitute for the other. Only then there should be a ruling, imo.

It should be possible to have similar works, also in a technical matter, that dont take market shares from each other due to different genres/ uses ect., and thus there are not really any infringement.


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## JohnG (Mar 25, 2020)

robgb said:


> Until an appeals court throws it out because the verdict doesn't adhere to applicable copyright law.



I think that's an overly 'bright line' interpretation, Rob. The appeals court didn't throw it out on such a narrow basis, as if it flicked this or that 'switch' that put it over. I see it as far more nuanced, hence the 73-page opinion.

"Applicable copyright law" isn't defined as brightly as you are implying. Rather, it only gets clarified over time by court cases which, as we can see, have been moving around quite a bit. In the Perry case, the plaintiff says he's going to appeal. After "Stairway," maybe not?

Nevertheless, I hope you are right on in this case because, since the Marvin Gaye verdict, I think we've all been wondering where _any_ lines are when it comes to infringement. I am relieved in seeing the cases going in the right direction; the "Stairway" verdict seems like a giant step, although the law at the time restricted the review to a written copy, which narrows it. Hopefully, not fatally.


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## JohnG (Mar 25, 2020)

Unfortunately, as I read it, the opinion still is based on the "substantially similar" standard, which is a long way from crystal clear. One can argue all day about what that expression even means. 

Moreover, the opinion is deficient, from the perspective of we musically creative folk hoping for final, categorical rejection of 'similar' lawsuits, because the law at the time Taurus' song was registered confined the copyright claim to sheet music -- not audio. In this case, the sheet music is a one-page, hand-written version of the Taurus piece. The court forbade playing an audio recording for the jury, but I am not clear on whether that law has changed subsequently so that audio would be admissible. 

Taurus' guitar player (whose estate brought the suit) had registered a rudimentary version of his song; it's unfortunately possible that, had a jury heard Taurus' _audio_ version of the song, someone could have talked jurors into finding the two to be enough the same to support a verdict of infringement.

From the opinion:



https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/09/16-56057.pdf



"In Part II, the en banc court held that proof of copyright infringement required plaintiff to show: (1) that he owned a valid copyright in Taurus; and (2) that Led Zeppelin copied protected aspects of the work. The en banc court explained that the second prong contains two separate components: “copying” and “unlawful appropriation.” A plaintiff may prove copying circumstantially by showing access and striking similarity. The hallmark of “unlawful appropriation” is that the works share substantial similarities. Both an extrinsic and an intrinsic test must be satisfied for the works to be deemed substantially similar."

...

"The substantial similarity question pitted two expert musicologists against each other. Skidmore’s expert, Dr. Alexander Stewart, analyzed, one by one, five categories of similarities. Dr. Stewart acknowledged that a chromatic scale and arpeggios are common musical elements. But he found Taurus and Stairway to Heaven to be similar because the descending chromatic scales in the two compositions skip the note E and return to the tonic pitch, A, and the notes in the scale have the same durations. Then he pointed to three two-note sequences—AB, BC, and CF#—that appear in both compositions. In his view, the presence of successive eighth-note rhythms in both compositions also made them similar. Finally, he testified that the two compositions have the same “pitch collection,” explaining that certain notes appear in the same proportions in the beginning sequence of both works.

In sum, Dr. Stewart claimed that five musical elements in combination were copied because these elements make Taurus unique and memorable, and these elements also appear in Stairway to Heaven. Skidmore’s closing argument reinforced these points. Neither Dr. Stewart nor Skidmore’s counsel argued that the categories of similarities were selected and arranged to form protectable expression in the design, pattern, or synthesis of the copyrighted work. Nor did they make a case that a particular selection and arrangement of musical elements were copied in Stairway to
Heaven.

Led Zeppelin’s expert, Dr. Lawrence Ferrara, testified that the two compositions are completely distinct. To highlight the marked differences in the compositions, he presented the following exhibit, which juxtaposed the claimed portion of Taurus against Stairway to Heaven:3

[musical example / image]

Dr. Ferrara testified that the similarities claimed by Skidmore either involve unprotectable common musical elements or are random. For example, Dr. Ferrara explained that the similarity in the three two-note sequences is not musically significant because in each song the sequences were preceded and followed by different notes to form distinct melodies. He described the purported similarity based on these note sequences as akin to arguing that “crab” and “absent” are similar words because they both have the letter pair “ab.” He also testified that the similarity in the “pitch collection” is not musically meaningful because it is akin to arguing that the presence of the same letters in “senator” and “treason” renders the words similar in meaning.

At the close of trial, the district court discussed with counsel the intended jury instructions. The district court did not give the proposed instructions on the inverse ratio rule and the selection and arrangement of unprotectable elements. Skidmore objected to the district court’s decision to omit an inverse ratio instruction but did not do so as to the omitted selection and arrangement instruction.

The jury returned a verdict for Led Zeppelin. In special interrogatories, the jury found that Skidmore owned the copyright to Taurus and that Led Zeppelin had access to Taurus, but that the two songs were not substantially similar under the extrinsic test. Following the verdict, the district court entered a judgment and an amended judgment.4 Skidmore did not file any post-judgment motions challenging the verdict, but timely appealed from the amended judgment.

Significantly, Skidmore does not make a substantial evidence claim. Instead, he focuses on a handful of legal issues, challenging: (1) the ruling that substantial similarity must be proven using the copyright deposit copy; (2) the ruling that sound recordings could not be played to prove access; (3) various jury instructions; (4) the imposition of overall time limits for the trial; (5) the fact that the full version of Taurus was played in response to the jury’s request; and (6) the decision not to exclude or sanction Dr. Ferrara because of a claimed conflict of interest.


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## Polkasound (Mar 25, 2020)

robgb said:


> I agree, but that rarely, if ever, happens,



You're right that it rarely happens. Most of the incidents in which it happens never become known, because most songs in the world don't achieve widespread fame. The odds of two obscure songwriters from different parts of the world discovering each other's similar works has always been astronomical.



robgb said:


> and certainly didn't in any of these cases.





Assuming this video is somewhat trustworthy, I hear many shared elements: Style, key, meter, tempo, groove, mood, instrumentation, walla, etc.

Generally speaking, it's impossible for songs not to share elements, but when one song borrows and _concurrently_ applies _multiple_, similar-sounding compositional elements from another song, it could toe the line of infringement. In my personal opinion, the determining factors should be a combination of the number of shared similar elements, how similar they are, and for how long they are concurrently applied. But it's not a solid line. It's open to interpretation, which is why I'm especially glad about the Led Zeppelin outcome.


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## Nick Batzdorf (Mar 25, 2020)

GtrString said:


> there is no applicable copyright law that only consider the effect of a music work



And yet that's the core of the issue.


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## GtrString (Mar 25, 2020)

Maybe composers in other territories of the world should make sure that they get their work published in their own countries first, so they dont risk being subjected to these US lawsuits. I definitely see it as a liability that there can be rulings like these from US courts, that doesn't seem properly founded in rights principles.


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## JohnG (Mar 25, 2020)

GtrString said:


> Maybe composers in other territories of the world should make sure that they get their work published in their own countries first, so they dont risk being subjected to these US lawsuits. I definitely see it as a liability that there can be rulings like these from US courts, that doesn't seem properly founded in rights principles.



I'm not sure publishing elsewhere solves the problem; instead, I'm hoping the "Stairway" decision inhibits far-fetched plaintiffs.


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## GtrString (Mar 26, 2020)

JohnG said:


> I'm not sure publishing elsewhere solves the problem; instead, I'm hoping the "Stairway" decision inhibits far-fetched plaintiffs.



It won't solve the problem of far-fetched plaintiffs in the US, no.

But for those who can publish elsewhere, it will avoid US court practices, as there is no laymans jury ruling only in most European courts, and the experts are used differently in support of applicable copyright law. For copyrights, it is the country of first publication that matters in terms of which laws are applicable, so if you publish the works in Germany and then license to the US, German copyright law and practice will need to be applied to the process. Market substitution is not considered to the extent of the US here, so I doubt many will try pulling these stunts in the EU. It will be like throwing punches into a pillow.

The US law practice seems to be a global anomaly from here, not best practice. We've all read stories of how US presidents appoints judges who are politically inclined, so there definitely seems to be liabilities to consider when publishing in the US.

But lets hope things change, and that the appeals can reign in a proper foundation in law again. Its a matter of trust.


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## RonOrchComp (Mar 26, 2020)

Nick Batzdorf said:


> Right, and blaming the hit man for a murder is like blaming your tailor when your penis gets stuck in the zipper.
> 
> The point where your analogy breaks down is where the lawyer *accepts money* (either up front or contingency) for whatever you want to call it! Principled lawyers don't bring ridiculous lawsuits, and normally the judge will dismiss them.



So, you don't blame the hit man for a murder?

I understand what you are saying (and again, lawyers don't "bring" law suits"), but are you suggesting that all of the lawyers decide what is and is not ridiculous, or frivolous? Could you imagine how bad the justice system would be if that were to happen?


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## JohnG (Mar 26, 2020)

GtrString said:


> The US law practice seems to be a global anomaly from here, not best practice.



I can understand that point of view. Certainly, some sensationally crazy verdicts emanate from the USA at times.

But, just to be fair to the lawyers, it was not so long ago that poor people could not get justice, here or anywhere. If they could't pay large fees by the hour, they were left with injuries or injustice and could do nothing about it. The ability to get legal counsel on a contingency -- a percentage of anything you win in a court case -- does lead to some odd incentives that, in turn, lead to some odd verdicts.

Nevertheless, if you are, in fact, badly injured in the US, you have a chance at getting compensation. Without that, a lot of poor people would be helpless, as they were in former times.

Don't get me wrong -- we do have some crazy court cases. Most of the outlandish ones are corrected by a further court / judicial review later; the judgment amounts are reduced dramatically, or even reversed.

That said, it's fun to mock the wacky ones.


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## Polkasound (Mar 26, 2020)

RonOrchComp said:


> are you suggesting that all of the lawyers decide what is and is not ridiculous, or frivolous? Could you imagine how bad the justice system would be if that were to happen?



I'm sure there are plenty of virtuous lawyers out there who do already that. If I were a lawyer and Flame walked into my office, I'd listen to both pieces of music and recognize that the only shot I'd have of winning the case would be finding the most ignorant jury, spending as much time as needed to find the one "musicologist" willing to sell out his profession, and hoping Perry's defense was unprepared.

Because the case would require these tactics to have a chance of winning, and because a win would set an incredibly fearful and shocking precedent that would damage the music industry, I would have politely turned Flame away. My conscience would not allow me to use my knowledge of the law and litigation for opportunistic purposes, regardless of the odds of winning and regardless of the money I'd earn. It would be a disgrace to my profession and integrity. That's just the way I am built.




RonOrchComp said:


> (and again, lawyers don't "bring" law suits")



It doesn't matter if they're brought by the plaintiff, the lawyer, the court reporter, or the Kool-Aid guy crashing in through the wall — plaintiffs aren't going to bring lawsuits like these without representation, so if lawyers refused to take frivolous lawsuits, they would collectively prevent these cases from clogging up the court system. So lawyers do bring lawsuits, albeit connotatively speaking.


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## RonOrchComp (Mar 26, 2020)

Polkasound said:


> I'm sure there are plenty of virtuous lawyers out there who do already that. If I were a lawyer and Flame walked into my office, I'd listen to both pieces of music and recognize that the only shot I'd have of winning the case would be finding the most ignorant jury, spending as much time as needed to find the one "musicologist" willing to sell out his profession, and hoping Perry's defense was unprepared.
> 
> Because the case would require these tactics to have a chance of winning, and because a win would set an incredibly fearful and shocking precedent that would damage the music industry, I would have politely turned Flame away. My conscience would not allow me to use my knowledge of the law and litigation for opportunistic purposes, regardless of the odds of winning and regardless of the money I'd earn. It would be a disgrace to my profession and integrity. That's just the way I am built.



That's YOUR take. Not necessarily wrong, but not necessarily correct either.

_But wait - I listened to both pieces of music and and..._

Doesn't matter. That's your *opinion*. It's fine to have an opinion, and nobody says you would have to take the case, but you can't find fault with someone else for having a different opinion than you.



Polkasound said:


> So lawyers do bring lawsuits, albeit connotatively speaking.



No - lawyers do not bring lawsuits. Lawyers file. Plaintiffs bring.


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## Polkasound (Mar 26, 2020)

RonOrchComp said:


> Doesn't matter. That's your *opinion*. It's fine to have an opinion, and nobody says you would have to take the case, but you can't find fault with someone else for having a different opinion than you.



I agree with you 100%, and I don't find fault with anyone who has opposing opinions, whether they're a lawyer or a VI-Control member. It's simply my opinion that the lawyer who took Flame's case did NOT take it to right a wrong or set a worthy precedent -- he took it for the money and nothing else.




RonOrchComp said:


> No - lawyers do not bring lawsuits. Lawyers file. Plaintiffs bring.



Please look up "connotation" in the dictionary. If I said I flew to Hawaii, you wouldn't argue, "No - people don't fly. Planes fly. People travel." Again, my point is that frivolous cases wouldn't be brought/introduced/submitted/ushered/led/pushed/dragged/tossed/piloted [choose whichever words help you understand my point] into the court system if all lawyers would put their integrity and respect for the law over their bank accounts.


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## Nick Batzdorf (Mar 26, 2020)

RonOrchComp said:


> So, you don't blame the hit man for a murder?
> 
> I understand what you are saying (and again, lawyers don't "bring" law suits"), but are you suggesting that all of the lawyers decide what is and is not ridiculous, or frivolous? Could you imagine how bad the justice system would be if that were to happen?



I'm saying I do blame the hit man, just as I blame the lawyer for taking on a frivolous lawsuit.

And yes, I can imagine the justice system in which that happens very well. The one we have is exactly that. If you walk into a lawyer's office and say you want to sue the gas company because my dog pooped on your lawn and you're not happy that I cleaned it up with a newspaper instead of a plastic bag, most lawyers would probably pass.

It sounds like you're confusing everyone's Constitutional right to a defense when charged with a crime - in which case public defenders don't get to choose their clients - with ridiculous lawsuits, in which lawyers do get to choose their clients.


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