By Nikki Bourassa J.D. Candidate L’23/WG’23
Amid the challenges and constraints of 2020, at least one thing remained consistent: copyright disputes over music. In particular, in March 2020, the Ninth Circuit issued a long-awaited decision in Skidmore v. Led Zeppelin that has already begun to reshape music copyright disputes.
Undoing the inverse ratio rule
The court in Skidmore considered whether Led Zeppelin’s “Stairway to Heaven” infringes a copyright for the song “Taurus” written by a member of the contemporaneous band Spirit. To show infringement, a plaintiff must demonstrate that a defendant had access to the allegedly infringed work and that the defendant’s work is substantially similar to its protected extrinsic and intrinsic aspects.
Until Skidmore, the Ninth Circuit used the controversial “inverse ratio” rule to determine the amount of extrinsic substantial similarity the plaintiff must prove. Under this rule, a plaintiff that could prove a defendant had a high degree of access to a protected work would face a lower standard of proof for substantial similarity between the works in question. Other circuits -- including the Second, Fifth, Seventh, and Eleventh -- have rejected the inverse ratio rule.
In its majority decision, the Ninth Circuit affirmed no substantial similarity between the two songs. But the court, sitting en banc, also took the opportunity to abrogate its inverse ratio rule, restoring preponderance of the evidence as the evidentiary burden for proving copyright infringement. The court described the rule’s history and the confusion and uncertainty around its application, among both judges and practitioners alike. It also acknowledged that the inverse ratio rule gives an advantage to owners of highly popular works whose music can be accessed more readily than that of less well-known creators.
Beyond abrogating the inverse ratio rule, the Ninth Circuit also clarified that the scope of protection for works registered under the 1909 Copyright Act is limited to the deposit copy and thus does not extend protection to any sound recording of the work. Additionally, the court rejected the appellant’s request for a selection and arrangement jury instruction, which would have informed the jury that the selection and arrangement of unprotectable musical elements are protectable. Led Zeppelin and amici sought to establish that in such cases, "virtual identity” between two works should supplant a standard of substantial similarity. The court did not render a decision on this issue, but rather used a footnote to emphasize that the standard is always substantial similarity: if two works contain unprotectable elements, the range of potentially protected expression narrows, and could possibly narrow such that the works must be virtually identical.
The Supreme Court denied Skidmore certiorari in October 2020, but the plaintiff promptly filed a motion for rehearing. Therefore, the outcome of Skidmore technically remains in limbo.
Stairway to… somewhere
Skidmore has already proved consequential in recent copyright decisions. The District Court for the Central District of California threw out $2.8 million in damages awarded to plaintiffs who sued Katy Perry for copyright infringement in her song “Dark Horse”. Citing to and discussing the decision in Skidmore, the court held that the defendants were entitled to judgment as a matter of law on the copyright infringement claim pursuant to the extrinsic test. A few months later, a copyright infringement claim against The Weeknd fizzled in the same court, ending in summary judgment in the defendant’s favor. In other circuits, the Southern District of New York found Skidmore persuasive and narrowed the scope of copyright infringement claims that can proceed against Ed Sheeran, limiting the comparison of Sheeran’s “Thinking Out Loud” to the deposit copy of Gaye’s “Let’s Get It On.”
Indeed, the decision has been considered positive for defendants, especially in the aftermath of the 2015 Williams v. Gaye verdict. In Williams, a jury found Robin Thicke’s “Blurred Lines” contained work substantially similar to that of Marvin Gaye’s “Got to Give It Up” and awarded over $7 million in damages to the plaintiff’s estate, putting the music industry on edge. The Ninth Circuit later largely upheld the verdict and reduced damages to just over $5 million. Some, wary of litigious plaintiffs empowered by the outcome, warned Williams would result in “chilling effects” on musical creativity and expression. The opinion’s proponents noted historical disparities in terms of who suffers at the hands of copyright infringement: often artists of color, and more broadly those with less power in society.
Blurred Lines: Getting Blurrier
As 2021 begins, copyright litigation appears poised for more complexity. The music industry will look to the outcome of the unresolved aforementioned cases, and examine how other circuits accept or reject the Ninth Circuit’s approach. Other developments in copyright law suggest an even more fundamental shift: with the passage of the CASE Act in the December 2020 omnibus appropriations package, a small tribunal for copyright adjudication is on the horizon. Though envisioned as a forum for small copyright claims to be adjudicated effectively and efficiently, the Act has also been met with concern and apprehension. To what extent these measures help—or harm—music creators is yet to be seen, but one thing seems certain: blurred lines in copyright law are only getting blurrier.