In 2018, the Ninth Circuit upheld a jury verdict against the writers of the song “Blurred Lines” for copyright infringement in a controversial decision that, while arguably based on a technicality, quickly ricocheted through the creative community, leaving many musicians feeling that they could no longer safely predict where the line would be drawn between inspiration and appropriation. In 2020, the Ninth Circuit took the opportunity to course correct in the case of Skidmore v. Led Zeppelin by clarifying that it had no intention of locking up basic musical motifs under the auspices of copyright law. Now, two years later, the Ninth Circuit has doubled down on Skidmore's direction in the case of Gray v. Hudson.
The plaintiff, a Christian rapper, had released a song called “Joyful Noise” that featured a simplistic-yet-distinctive eight-note ostinato, only for Katy Perry to release later a song called “Dark Horse” with an eerily similar ostinato. Shortly after a jury held that Perry and her “Dark Horse” co-writers had infringed upon the copyright to “Joyful Noise,” the Ninth Circuit issued its Skidmore decision, and the district court used the defendants' request for a directed verdict to reevaluate whether it should have allowed a jury to opine on the similarities between the two songs in the first place. Canvassing the available authority, the court concluded that the plaintiff's ostinato was not sufficiently original to warrant protection.
The plaintiff predictably cried foul and appealed to the Ninth Circuit, arguing that the jury's verdict should be respected. However, the Ninth Circuit upheld the district court's decision to overturn the jury, noting that jurors only get to determine whether two songs are subjectively (or “intrinsically”) similar if the judge first deems the songs sufficiently objectively (or “extrinsically”) similar, and crucially, that similarity must consist of copyrightable subject matter. The Ninth Circuit held the district court had the right to conclude that, in retrospect, the plaintiff's ostinato was categorically uncopyrightable, meaning the extrinsic test was not satisfied and the jury had no role to play in deciding the case.
The plaintiff's primary theory of protection – that his ostinato was comprised of a protectable “selection and arrangement” of admittedly uncopyrightable elements – found no purchase with the Ninth Circuit, which held that “an arrangement of individual elements lacks enough creativity to garner copyright protection […] when that arrangement is ‘practically inevitable' or in keeping with ‘an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course.'” Under this standard, the ostinato was found to “consist of a manifestly conventional arrangement of musical building blocks” that amounted to “nothing more than a two-note snippet of a descending minor scale, with some notes repeated,” such that protecting it “would essentially amount to allowing an improper monopoly over two-note pitch sequences or even the minor scale itself.”
The import of the Ninth Circuit's decision is primarily that the Court continues to be influenced by the concerns of musicologists who argue that copyright law often fails to take into account the relatively limited raw materials available to composers (as opposed to other forms of media), and that the courts are often unduly deferential to plaintiffs' expert witnesses in music cases due to unfamiliarity with music theory. The Ninth Circuit has responded to these concerns in Gray by providing detailed musicological guidance for district courts to more effectively gatekeep uncopyrightable subject matter from juries.
- SCOTUS Takes Up Its First Artistic Fair Use Case in Three Decades (Warhol v. Goldsmith)
On March 28, 2022, 17 words from the Supreme Court set the copyright world on fire: “Petition for writ of certiorari to the United States Court of Appeals for the Second Circuit granted.” This was in response to a petition by the Andy Warhol Foundation, which is facing a copyright infringement suit from photographer Lynn Goldsmith over using her photograph of music icon Prince to create a series of silkscreen prints without her knowledge. The district court had ruled the prints to be fair use of the photograph, and the Second Circuit's reversal of that decision has now afforded the Supreme Court its first opportunity to consider the concept of “transformative” fair use for expressive media since the landmark 1994 decision of Campbell v. Acuff Rose Music that first approved of the doctrine.
The Second Circuit's handling of “transformativeness” has aroused much skepticism since its 2013 decision in Cariou v. Prince, in which it found that appropriation artist Richard Prince had sufficiently “transformed” the Rastafarian photographs of Patrick Cariou by making quantitatively minimalistic changes that it believed nevertheless qualitatively altered the nature of the works from “serene and deliberately composed” portraits to “crude and jarring works[.]” The Seventh Circuit, for its part, went on record the following year as being “skeptical of Cariou's approach, because asking exclusively whether something is ‘transformative' not only replaces the list [of fair use factors to consider] in [17 U.S.C.] §107 but also could override 17 U.S.C. §106(2), which protects derivative works.”
The Second Circuit acknowledged in Warhol that Cariou has been subject to criticism and took the opportunity to provide “clarification” that not every unauthorized derivative work with a different character, expression, or aesthetic than the original will be transformative as a matter of law. Rather, the test for transformativeness is whether the derivative work can “reasonably be perceived as embodying a distinct artistic purpose, one that conveys a new meaning or message separate from its source material,” which the court noted most often occurs with “distinct works of art that draw from numerous sources, rather than works that simply alter or recast a single work with a new aesthetic.”
Here, the Second Circuit found that Warhol had essentially just created a “high-contrast screenprint” of Goldsmith's photo that, while reflecting Warhol's own signature artistic style, “retains the essential elements of its source material,” and “[w]hile the cumulative effect of Warhol's alterations may change the Goldsmith Photograph in ways that give a different impression of its subject, the Goldsmith Photograph remains the recognizable foundation upon which the Prince Series is built.” The court analogized Warhol's silkscreens to motion pictures that, while they may embody distinctive and expressive stylistic choices by their directors, are indisputably derivative of their underlying screenplays in a manner that the law would not deem “transformative” insofar as fair use is concerned.
In some ways, this showdown at the Supreme Court over the evolution of transformativeness was inevitable. Many copyright practitioners have groused for years that defendants have abused Campbell to short-circuit fair use analyses, and Warhol was the Second Circuit's attempt to assure detractors that its fair use framework was not so susceptible to abuse. The Supreme Court's decision to accept cert is thus not merely a review of the Second Circuit's current framework, but three decades' worth of decisions applying Campbell to what is now a fundamentally different media landscape. Given fair use's critical role as copyright law's built-in First Amendment “safety valve,” expect this to be one of the entertainment industry's most closely watched (and heavily amici'd) Supreme Court cases.
- Comedians Seek to Enforce Streaming Rights (In re Pandora Media, LLC Copyright Litigation)
While the case law on copyright protections for jokes is relatively sparse, little dispute exists that they qualify as literary works when sufficiently expressive. However, the public performance of jokes by those who didn't write or license them has historically been policed through social pressure rather than litigation, with one high-profile exception being the case filed against Conan O'Brien that ended in settlement. However, times are changing, and as comedians have become increasingly reliant upon streaming services for the consumption of their work (especially in the pandemic era), the lack of any compulsory or blanket licensing structure for literary works has caused some services to gamble.
Pandora, for its part, openly acknowledged to investors that while it was licensing comedy albums for its streaming service from the record labels that owned them, this only accounted for one level of copyright protection: the particular performances of the jokes embodied in the sound recordings. The record labels could not grant Pandora any rights to the underlying jokes being performed because, just as musicians do not give record labels ownership of their compositions, comedians do not give record labels ownership of their routines. Therefore, Pandora was exploiting only half-licensed content, which it justified on the basis that “industry-wide custom and practice” was to ignore the other half.
In early 2022, the other shoe finally dropped when a slew of comedians and estates filed copyright infringement claims against Pandora for its failure to secure licenses to the literary works embodied in the comedians' recorded performances. The lawsuits, which were filed separately but have since been consolidated into a single action, invoke Pandora's investor disclosures in order to demonstrate that the company is a willful infringer and unlock a higher tier of statutory damages under Section 504 of the Copyright Act, which allows the plaintiffs to be awarded up to $150,000 per work infringed.
Unless Pandora has an ace up its sleeve, the merits of the comedians' claims appear to be fairly open and shut. Unfortunately, because the litigation has been brought on behalf of the named plaintiffs only, there is no telling what downstream benefits will be felt by other comedians whose work was exploited for years without compensation. This has catalyzed a renewed push within the comedy world to more effectively bargain for and enforce their members' rights, whether as a trade organization akin to the National Music Publishers' Association (NMPA) or a collective rights organization similar to The American Society of Composers, Authors, and Publishers (ASCAP) or Broadcast Music, Inc. (BMI).
For now, it remains to be seen whether Pandora will quickly settle with the comedians, string out the litigation for purposes of damages discovery, or attempt to test any of the claims' premises through motion practice. The broader takeaway from this litigation is that historical assumptions about what is normative within the entertainment industry versus what is legal are being challenged with greater consistency as economics continue to shift in the digital age. Dare we dream of a world where radio stations actually pay royalties for playing the recordings that keep their audiences tuned in?
* Neville L. Johnson and Douglas L. Johnson are partners at Johnson & Johnson LLP, in Beverly Hills, CA, practicing entertainment, media, business, and class action litigation. Daniel B. Lifschitz is a senior associate at Johnson
 Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018).
 Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020).
 Gray v. Hudson, 28 F.4th 87 (9th Cir. 2022) (“Gray”).
 Gray v. Perry, No. 2:15-CV-05642-CAS-JCx, 2020 U.S. Dist. LEXIS 46313 (C.D. Cal. Mar. 16, 2020).
 Gray, 28 F.4th at 96–97.
 Id. at 102-03.
 Id. at 101.
 Id. at 101-02.
 Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 212 L.Ed.2d 402 (U.S. 2022).
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). The Supreme Court decided its only other significant fair use decision since Campbell, 2021's Google v. Oracle, shortly after the Second Circuit's initial reversal in Warhol, but it concerned computer code rather than expressive media, which is why the Second Circuit accounted for it as intervening authority by merely issuing an amended opinion with a handful of citations added. Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 11 F.4th 26, 32 (2d Cir. 2021) (“Warhol”).
 Cariou v. Prince, 714 F.3d 694, 706 (2d Cir. 2013).
 Kienitz v. Sconnie Nation LLC, 766 F.3d 756, 758 (7th Cir. 2014).
 Warhol, 11 F.4th at 38.
 Id. at 41.
 Id. at 43.
 Id. (“As Goldsmith notes, the fact that Martin Scorsese's recent film The Irishman is recognizably ‘a Scorsese' ‘do[es] not absolve [him] of the obligation to license the original book' on which it is based.”).
 Tenn. Fabricating Co. v. Moultrie Mfg. Co., 421 F.2d 279, 283 (5th Cir. 1970); see also S.A.R.L. Louis Feraud Int'l v. Viewfinder, Inc., 489 F.3d 474, 482 (2d Cir. 2007) (“absent extraordinary circumstances, ‘the fair use doctrine encompasses all claims of first amendment in the copyright field.'”) (quoting Twin Peaks Prods., Inc. v. Publ'ns Int'l, Ltd., 996 F.2d 1366, 1378 (2d Cir. 1993)).
 See, e.g., Foxworthy v. Custom Tees, 879 F. Supp. 1200, 1217-19 (N.D. Ga. 1995).
 See Kaseberg v. Conaco, LLC, 360 F. Supp. 3d 1026 (S.D. Cal. 2018); Conan O'Brien, “Why I Decided to Settle a Lawsuit Over Alleged Joke Stealing,” Variety (May 9. 2019), https://variety.com/2019/biz/news/conan-obrien-jokes-lawsuit-alex-kaseberg-settlement-1203210214/
 See, e.g., Pandora Media, Inc. FORM S-3 (Sep. 16, 2013), https://www.sec.gov/Archives/edgar/data/1230276/000104746913009097/a2216690zs-3asr.htm (“In May 2011, we started streaming spoken word comedy content, for which the underlying literary works are not currently entitled to eligibility for licensing by any performing rights organization in the United States. While pursuant to industry-wide custom and practice this content is performed absent a specific license from any such performing rights organization, there can be no assurance that this will not change or that we will not otherwise become subject to additional licensing costs for spoken word comedy content imposed by performing rights organizations in the future or be subject to damages for copyright infringement.”).
 In re Pandora Media, LLC Copyright Litigation, Case No. 2:22-cv-00809-MCS-MAR (C.D. Cal.), Dkt. 19 (Consolidated Complaint for Copyright Infringement) ¶¶ 113-133.
 See generally Sean M. Assad, Harmonic Progressions to a Full Public Performance Right in Sound Recordings: Examining Recent Legislative Attempts That Could Rectify United States Noncompliance with TRIPS and a Possible Modulation of the Issue to Reach a Finale, 18 Wake Forest J. Bus. & Intell. Prop. L. 109 (2017).