Thursday, January 04, 2018

Taylor Swift, Shake it Off, Learned Hand and 'Ode on a Grecian Urn'

The Daily Mail reported on 3 Jan 2018 that lawyers for Taylor Swift have moved for dismissal in the
"Shake it Off" case [see She's got a Reputation to uphold! Taylor Swift wants lawsuit involving girl group 3LW dismissed as 'no one owns' the phrases in her hit song Shake It Off has a post on some legal aspects of the case, the complaint for which goes back to September 2017.
See “Haters Gonna Hate, Hate . . . .” Can Taylor Swift “Shake it Off”? . Within the lexology post, certain text caught the eye of IPBiz:

Second, the 2015 case referenced by the plaintiffs, which is available here, does not actually say that the plaintiffs’ song was the first to use the lyrics “Playas, they gonna play / And haters, they gonna hate.” Rather, that decision just notes that the lyrics were used in the plaintiffs’ song in a listing of internet sources using similar terms. (Also, it should be noted that copyright law does not require a work to be original in the sense of being novel—or the first to create the expression. Rather copyright law only requires independent creation).

Independent creation can be a defense to a charge of copyright infringement. However, the last sentence seems to imply that one can obtain copyright protection on later, independently created, material. Text in the Supreme Court Dastar decision (near where the Stiffel case is cited) might suggest otherwise.

Nevertheless, there is some support for the proposition, arising from no less an authority than Learned Hand.
A post on 22 June 2005 on the (now-retired) patry copyright blog, titled Independent Creation: A Bulwark of Copyright states:

in Sheldon v. MGM Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936), Hand had already foreshadowed Arnstein when he famously wrote "[I]f by some magic a man who had never known it were to compose anew Keats's 'Ode on a Grecian Urn,' he would be an 'author,' and if he copyrighted it, others might not copy that poem, though they might of course copy Keats's."

Also, of note in the June 22 Patry post:

The principle being well-established now is not, unfortunately, a guarantee that it cannot be undermined. One way independent creation is threatened is procedural, the misdescription of it as an affirmative defense. It is not; it is instead a denial of copying. The difference is significant. Once plaintiff has made out a prima facie case, defendant may interpose an affirmative defense for which defendant bears the burden of production and persuasion. By contrast, where defendant denies an element of plaintiff's prima facie case, the burden of persuasion remains with plaintiff, although the burden of production may or may not shift as the case proceeds. Independent creation is a denial of a central element of plaintiff's prima facie case, copying. Plaintiff always bears the burden of persuasion on copying and initially bears the burden of production. The best discussion of these points (including copyright) is in a Third Circuit trade secrets case, Moore v. Kulicke & Soffa Industries, Inc., 318 F.3d 561, 573-574 (3d Cir. 2003).

The Patry blog had a relevant post the next day, on June 23, 2005, titled Striking Similarity and Evidentiary Problems which included the text:

In brief, we can say that the infringement elements of plaintiff's prima facie case are access plus copying plus material similarities in protectible expression. Access is a component of copying because you can't copy if you don't have access. But access isn't copying and the copying must still be material. Access is broadly defined to include not only literal access but also a reasonable opportunity to see or hear the work (the latest bubble-gum pop song you can't escape if you try, for example). Where access is established and some similarities (even in non-protectible material) are shown between the parties' works, copying can be presumed, but this is of course rebuttable.

Arnstein held that even where access is absent, one can infer both copying and the copying necessary to also prove material appropriation, if the similarities "are so striking as to preclude the possibility that plaintiff and defendant independently arrived at the same result." Striking similarity thus collapses the entire infringement analysis into itself. One can say, ah but it just permits an inference. Right, and tell that to a jury, as the BeeGees found out. (They were saved by a jnov).

Any inference must be based on an established fact (access) from which one may then infer copying from yet other evidence (e.g., common errors or some level of similarity)(The best discussion of this is Judge King's dissenting opinion in the first Bouchat v. Baltimore Ravens, Inc. opinion, 241 F.3d 350, 365 (4th Cir. 2000)). But with striking similarity there is no established fact from which an inference is made. To the contrary, plaintiff seeks to create an inference and to then use that free-floating inference to prove all elements of its prima facie case.

The plausibility of Hand's statement in Sheldon, that the later person would be an author, is questionable.

See 2005 post on IPBiz, Remembering Dastar : For the right to copy, without attribution, a previously copyrighted work, the Supreme Court cited to patent law: The right to copy, and to copy without attribution, once a copyright has expired, like "the right to make [an article whose patent has expired]including the right to make it in precisely the shape it carried when patented-passes to the public." Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225, 230 (1964); see also Kellogg Co. v. National Biscuit Co., 305 U. S. 111, 121-122 (1938).

See also IPBiz post Allison Routman, Frank Zappa, and plagiarism : Copyright law protects the originality and creativity of authors, but only for a limited time. After a copyright expires, Scalia explained, "the public may use the invention or work at will and without attribution."

See also IPBiz post Accidental plagiarism? :

The issues in copyright infringement are laid out in a recent Sixth Circuit case, Bridgeport v. UMG:

To establish that it has been copied, a plaintiff must either introduce direct evidence of the
defendant’s copying or prove it indirectly by showing that the defendant had access to
the plaintiff’s work and that there is a substantial similarity between it and the
defendant’s work, thus giving rise to an inference of copying. See Ellis v. Diffie, 177
F.3d 503, 506 (6th Cir. 1999). Even if access cannot be proven, a plaintiff may prevail
by showing a high degree of similarity between the two works. See id. at 507.

See also


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