Tuesday, February 11, 2014

Class 10: Musical Works & Sound Recordings

Introduction

In Class 9, we discussed copyright protection of pictorial, graphic, and sculptural works. We also discussed copyright protection of useful items, or items with both functional and aesthetic elements. We noted that copyright cannot protect the functional elements of useful items, but can protect their aesthetic elements, if those elements are physically or conceptually severable from the functional elements.

In this class, we will discuss copyright protection of musical works and sound recordings. Section 102(a) of the Copyright Act provides that copyright protects "musical works, including any accompanying words," and "sound recordings." 17 U.S.C. § 102(a)(2) and (7). But what is a "musical work," and what is a "sound recording"?

Musical Works

The Copyright Act provides that copyright protects "musical works," but does not define the term, because Congress felt that it had a "fairly settled" meaning. H.R. Rep. No. 94-1476, at 53 (1976). However, the Act does provide that a musical work may consist of both musical and lyrical elements. 17 U.S.C. § 102(a)(2). A musical work may be fixed in any medium, including a written score or a sound recording.

Courts have held that copyright protects all of the original elements of a musical work, including the melody, harmony, and rhythm, alone or in combination. For example, in Tempo Music, Inc. v. Famous Music Corp., 838 F. Supp. 162 (S.D.N.Y. 1993), the Duke Ellington Estate filed an action against the Billy Strayhorn Estate, claiming ownership of particular versions of the jazz standard, Satin Doll. The court assumed that Ellington was the author of the original melody, but held that Strayhorn could own an interest in the harmony and revised melody:
The Ellington Estate has argued, in effect, that harmony can never be the subject of copyright, contending that "harmony is in the common musical vocabulary; only the melody and structure are distinctively original." Ellington Memo. at 8. Harmony, it is claimed, "results only from the formulaic application of centuries-old compositional rules" such as the use of secondary dominants. Ellington Reply Memo. at 8. The Court is not convinced that harmony is unprotectable as a matter of law. While we agree that melody generally implies a limited range of chords which can accompany it, a composer may exercise creativity in selecting among these chords. As Strayhorn's expert notes, the choice of chords influences "the mood, feel and sound of a piece." Cass Aff. at 6. Creating a harmony may, but need not, be merely a mechanical by-product of melody. A composer may chose to respond to the tension created by a dissonance by resolving it to a consonance in accordance with "preestablished rules that have been accepted since the 17th century" and that have formed "the basis of ... Western music" Finell Aff. at 5 & 7. However, in contemporary music, and particularly in the jazz music genre, musicians frequently move beyond traditional rules to create a range of dissonant and innovative sounds. Even the expert for the Ellington Estate notes that "Ellington adds a jazz flavor to his chords, and sometimes departs from classic secondary dominants." Finell Aff. at 8. 
The choice of one particular harmonic relationship, such as the selection of secondary dominants in Satin Doll, could be considered a creative choice. We reject the third-party plaintiff's argument that "the proper focus in determining originality is not whether the composer exercised `creative choices,' but on the result of those choices." Ellington Reply Memo. at 9 (emphasis in original). This emphasis on novelty and uniqueness of a resulting work is misplaced. See, e.g., Feist Publications v. Rural Telephone Service, 499 U.S. 340, 345, 111 S.Ct. 1282, 1287, 113 L.Ed.2d 358, 369 (1991) ("Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying"); Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905 (2d Cir.1980) ("Although novelty, uniqueness and ingenuity are not required, independent creation is"); Plymouth Music Co. v. Magnus Organ Corp., et al., 456 F.Supp. 676, 679 (S.D.N.Y.1978) (quoting Northern Music Corp. v. King Record Distributing Co., 105 F.Supp. 393, 399 (S.D.N.Y.1952)) ("'One requisite to copyrightability is that the work be original in the sense of being the creative product of the author's own effort. There is no requirement that it be original in the sense of being novel, that is, the first of its kind in existence.'"). Once it is understood that originality, for copyright purposes, looks to creative process rather than novel outcomes or results, it becomes clear that harmony can, as a matter of law, be the subject of copyright. 
The one case third-party plaintiff cites which seems to suggest harmony can not be the subject of copyright does so in dicta. See, e.g., Northern Music Corp. v. King Record Distributing Co., 105 F.Supp. 393, 400 (S.D.N.Y.1952) (while indicating in dicta that "neither rhythm nor harmony can in itself be the subject of copyright", the Court found sufficient originality in plaintiff's work overall to warrant copyright protection). We recognize the force of the argument that in most instances, harmony is driven by the melody. We note further that where the composition of the melody is completed by one person and the harmony is thereafter furnished by another, the harmony may be less likely to reflect originality than in those instances in which simultaneous composition of melody and harmony is utilized to create certain musical effects. But an abstract per se rule removing harmonies entirely from the scope of copyright protection would, we believe, be too broad and would perhaps deprive appropriate protection to composition which contains sufficient originality and creativity to warrant such protection.


Duke Ellington, Satin Doll (1953)

Questions:
  1. Courts have held that copyright can protect the melody, harmony, rhythm, and lyrics of a musical work. Do musical works have any other elements? If so, can those elements be protected?
  2. In Tempo, the court held that copyright can protect the harmony of a musical work. Can it protect an excerpt from that harmony? What are the protectable elements of a musical work?
  3. In Northern Music v. King Record Distribution, 105 F. Supp. 393 (S.D.N.Y. 1952), the court held that defendant copied protected elements of the melody of plaintiff's musical work, because more than half of the pitches matched, and when the judge listened to the unaccompanied melodies simultaneously, he "detected with untrained ear but three discords." Here is a transcription of the melodies. Do you agree with the court?

  4. In 1952, American composer John Cage (1912-1992) composed the musical work Water Music. A transcription of the work is below, as well as a contemporary performance of the work, and Cage's own performance of a related work. Which elements of Cage's work are protected by copyright, if any?




    John Cage, Water Music (1952)


    Luís Bittencourt performing John Cage, Water Music (1952)



    John Cage performing
    Water Walk (1960)
  5. Many popular songs have similar melodies, harmonies, rhythms, and lyrics. Consider the following video. Does it affect your assessment of what should qualify as a protected element of a musical work?:

The Axis of Awesome, 4 Chords (2011)

Sound Recordings

In addition to musical works, copyright also protects sound recordings. Section 101 of the Copyright Act explains that:
“Sound recordings” are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.
17 U.S.C. § 101.

Essentially, a sound recording is an audio recording of any event. A sound recording may serve to fix an original literary, musical, or dramatic work in a tangible medium. But the sound recording itself may also be an original work of authorship.


The Sound and the Story (1957)

Often, a sound recording is an audio recording of the performance of a musical work. In that case, the copyright in the musical work belongs to the author of the musical work, and the copyright in the sound recording belongs to the author of the sound recording. Or rather, the composer owns the song, and the performer owns the performance, and they may or may not be the same person.

A sound recording is a work of authorship, so copyright protects the original elements of a sound recording. But what are the original elements of a sound recording? And how are they distinguished from any underlying work? 

Newton v. Diamond, 204 F. Supp. 2d 1244 (C.D. Cal. 2002)
I. INTRODUCTION 
The Beastie Boys, an alternative rock and hip-hop band, and their business associates ("Defendants") sampled a six-second, three-note sequence of a flute composition composed and performed by James W. Newton, Jr. ("Plaintiff"). Plaintiff concedes that Defendants licensed the sound recording of his work, but alleges that Defendants' use of the sample infringed upon the underlying musical composition. Both parties have filed motions for summary judgment. 
II. FACTS 
This case involves sampling. "The practice of sampling portions of pre-existing recordings and compositions into new songs is apparently common among performers of the genre known as rap.... Musicians sample pre-existing works either digitally, by lifting part of a song from a pre-existing master recording and feeding it through a digital sampler, or by hiring musicians who re-play or re-sing portions of the pre-existing composition." Williams v. Broadus, No. 99 Civ. 10957 MBM, 2001 WL 984714, at *1 n. 1 (S.D.N.Y. Aug.27, 2001). 
Plaintiff, a flautist and composer, is the sole author of the musical composition Choir, which was registered with the Copyright Office in 1978. Defendants' Statement of Uncontroverted Facts ¶ 1; Plaintiff's Statement of Genuine Issues ¶ 1; Plaintiff's Statement of Uncontroverted Facts ¶ 1; Defendants' Statement of Genuine Issues ¶ 1. Defendants assert that Choir is one movement of a multi-movement musical composition titled The Change Suite, registered by Plaintiff with the U.S. Copyright Office. Defendants' Statement of Uncontroverted Facts ¶ 1. Plaintiff asserts that Choir is one of multiple songs permissibly covered by a single copyright registration. Plaintiff's Statement of Genuine Issues ¶ 1. It is undisputed that Plaintiff holds a valid copyright to the musical composition at issue in this case. Defendants' Reply Brief at 2. It is also undisputed that Plaintiff has no rights to the sound recording of his performance of Choir, having licensed it to ECM Records in 1981. First Amended Complaint ("FAC") ¶ 26, Ex. D. 
On February 26, 1992, the Beastie Boys ("Defendants"), an alternative rock and hip-hop band, obtained a license from ECM Records to sample the copyrighted sound recording of Plaintiff's performance of Choir. Defendants' Statement of Uncontroverted Facts ¶ 3; Plaintiff's Statement of Genuine Issues ¶ 3. 1 Pursuant to their license, Defendants copied a three-note sequence with one background note, approximately six seconds long, from Choir and looped the passage throughout their song, Pass the Mic. Plaintiff's Statement of Uncontroverted Facts ¶ 4; Defendants' Statement of Genuine Issues ¶ 4; Korn Decl., Ex. 1, Track # 2 ( Pass the Mic ). Choir itself runs approximately four and a half minutes. See Korn Decl., Ex. 1, Track # 1 ( Choir ). It is undisputed that Choir and Pass the Mic "are substantially dissimilar in concept and feel, that is, in there [sic] overall thrust and meaning." Id., Ex. 3. (Dobrian Report) at 16. 
Defendants represent that the sample consists of a six-second segment in which the performer fingers a "C" above middle "C" on the flute, while singing the same "C," ascending one-half step to a "D-flat," and descending again to the "C." Defendants Statement of Uncontroverted Facts ¶ 6. Plaintiff concedes that Defendants sampled "melody and harmony created by interaction of the underlying flute note of C and the simultaneous vocalization of the notes C, D-flat, and C." Korn Decl., Ex. 5, *1247 Plaintiff's Response to Defendants' Interrogatory No. 1. 2 However, Plaintiff alleges that Defendants also sampled the unique musical sound and characteristics created by his distinctive performance techniques. Id
It is undisputed that Defendants' license allowed them to sample the sound recording of Plaintiff's performance of Choir. FAC ¶ 26; Korn Decl., Ex. 15; Defendants' Statement of Uncontroverted Facts ¶¶ 3-4; Plaintiff's Statement of Genuine Issues ¶¶ 3-4; Plaintiff's Statement of Uncontroverted Facts ¶ 3; Defendants' Statement of Genuine Issues ¶ 3; Plaintiff's Motion at 3. However, Plaintiff contends that Defendants were required to obtain a separate license for derivative use of the copyrighted musical composition of Choir. Defendants' Statement of Uncontroverted Facts ¶ 3; Plaintiff's Statement of Genuine Issues ¶ 3; Plaintiff's Statement of Uncontroverted Facts ¶ 3; Defendants' Statement of Genuine Issues ¶ 3; Plaintiff's Motion at 3. 
Plaintiff filed suit May 9, 2000, asserting claims for: 1) copyright infringement in violation of the Copyright Act, 17 U.S.C. § 101 et seq.; 2) international copyright infringement in violation of the Universal Copyright Convention; 3) reverse passing-off in violation of the Lanham Act, 15 U.S.C. § 1125, et seq.; and 4) misappropriation of identity in violation of the Lanham Act. The court dismissed Plaintiff's third and fourth claims pursuant to Fed.R.Civ.P. 12(b)(6). See Court's Order Granting Defendants' Motion to Dismiss, September 12, 2000. 
Defendants filed their motion for summary judgment on Plaintiff's remaining two claims for copyright infringement February 28, 2002. Defendants argue that the portion of the musical composition Choir they sampled cannot be protected as a matter of law. In the alternative, Defendants argue that any misappropriation is de minimis, and thus not actionable as copyright infringement. Defendants also contend that Plaintiff cannot seek extraterritorial damages because he cannot establish that Defendants infringed upon his copyright. Finally, Defendants argue that any infringement claim and damages Plaintiff may have are limited by the three-year statute of limitations. 
Plaintiff filed a motion for summary judgment March 12, 2000. Plaintiff argues that the portion of Choir Defendants sampled is legally protectable, and that Defendants' alleged infringement is not de minimis. Plaintiff also argues that he is entitled to injunctive relief. 
* * * 
IV. DISCUSSION 
A. Copyright Act Claim 
1. The Difference Between the Musical Composition and the Sound Recording 
Sound recordings and their underlying musical compositions are separate works with their own distinct copyrights. See 17 U.S.C. § 102(a)(2), (7). "When a copyrighted song is recorded on a phonorecord, there are two separate copyrights: one in the musical composition and the other in the sound recording." T.B. Harms Co. v. Jem Records, Inc., 655 F.Supp. 1575, 1576 n. 1 (D.N.J.1987). See also BTE v. Bonnecaze, 43 F.Supp.2d 619, 627 (E.D.La.1999); Jarvis v. A & M Records, 827 F.Supp. 282, 292 (D.N.J.1993) ("Under the Copyright Act, there is a well-established distinction between sound recordings and musical compositions."). The rights of a copyright in a sound recording do not extend to the song itself, and vice versa. BTE, 43 F.Supp.2d at 627; T.B. Harms, 655 F.Supp. at 1576 n. 1. 
It is undisputed that Plaintiff has no rights to the sound recording of his performance of Choir, having licensed it for a fee to ECM Records, who, in turn, granted Defendants a license to sample it. FAC ¶ 26, Ex. D. Defendants' Statement of Uncontroverted Facts ¶ 3; Plaintiff's Statement of Genuine Issues ¶ 3. However, Plaintiff contends that Defendants' sampling infringed upon his underlying musical composition. Accordingly, the court must first determine what elements of Plaintiff's work are protected by his copyright in the musical composition, as opposed to those protected by the copyright in the sound recording, and "filter out" the latter. See Sony Pictures Enter., Inc. v. Fireworks Enter. Group, Inc., 156 F.Supp.2d 1148, 1157 (C.D.Cal.2001). "Because only those elements of a work that are protectable and used without the author's permission can be compared when it comes to the ultimate question of illicit copying, [courts use] analytic dissection to determine the scope of copyright protection before works are considered as a `whole.'" Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1443 (9th Cir. 1994). 
Plaintiff argues that analytic dissection is not required, because copyright law automatically protects copyrightable expression reduced to a musical score or phonorecord. Plaintiff's argument begs the question as to what is protected by his copyright over the musical composition, as opposed to ECM's copyright over the sound recording. Had Plaintiff held both copyrights, analytic dissection would be unnecessary. However, as Plaintiff cannot base his infringement action on elements unique to the sound recording, the court must first determine precisely what is protected by Plaintiff's copyright over his musical composition.
A musical composition consists of rhythm, harmony, and melody, and it is from these elements that originality is to be determined. 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.05[D]. A musical composition captures an artist's music in written form. A. Dustin Mets, Did Congress Protect the Recording Industry Into Competition? The Irony of the Digital Performance Right in Sound Recordings Act, 22 U. DAYTON L. REV. 371, 372-73 (1997). A musical composition's copyright protects the generic sound that would necessarily result from any performance of the piece. 
Sound recordings are "works that result from the fixation of a series of musical, spoken or other sounds. . . ." T.B. Harms, 655 F.Supp. at 1576 n. 1 (quoting 17 U.S.C. § 101). "The sound recording is the aggregation of sounds captured in the recording while the song or tangible medium of expression embodied in the recording is the musical composition." Id. (citing H.R.Rep. No. 94-1476, 94th Cong., 2d Sess. 56, reprinted in 1976 U.S.Code Cong. & Ad. News 5659, 5669). See also BTE, 43 F.Supp.2d at 627-28; Jarvis, 827 F.Supp. at 292. In other words, the sound recording is the sound produced by the *1250 performer's rendition of the musical work. See generally Nimmer on Copyright § 2.10.
Plaintiff's musical composition of the sample at issue consists of a "C" note played on the flute while the performer sings a "C," ascends one-half step to "D-flat," and descends again to the "C." The score is not further orchestrated and contains neither time nor key signatures. 3 The score also calls for between 90 and 180 seconds of improvisation. The C — D-flat — C sequence appears only once in the composition. 
Plaintiff's expert, Christopher Dobrian, concludes that following the "special playing technique described in the score" will necessarily create unique expression. Korn Decl., Ex. 3 (Dobrian Report) at 12. Dobrian acknowledges, however, that the technique of vocalization — simultaneously singing and playing the flute — is not unique to Plaintiff's musical composition. Id. at 14. Similarly, Plaintiff's other expert, Oliver Wilson, acknowledges that "vocalization performance techniques" have been used in Africa and were prevalent throughout the Twentieth Century, particularly in avant-garde music. Korn Decl., Ex. 3 (Wilson Report) at 20-21 ("[M]ultiphonic and particularly vocalization of performance techniques exist as part of the performance tradition of specific SubSaharan African cultures and has [sic] also been clearly established in the second half of the Twentieth century as a relatively common performance practice in the avant-garde music which grows out of the cultivated Western written music tradition."). 
Defendants' expert, Lawrence Ferrara, confirms that vocalization involving a flute may be found in numerous flute pieces that pre-date Plaintiff's 1978 musical composition. See Streisand Decl., Ex. 3 (Ferrara Report) at 7-8. For example, acclaimed composer George Crumb's 1971 composition "Voice of the Whale" contains the same technique. See id., Ex. 3 (Ferrara Report) at 7-8, Ex. C (recordings of Crumb's work). Like Plaintiff's technique in Choir, Crumb plays one note on the flute while simultaneously singing the note into the flute, ascending a half-step, and returning to the note being played. See id., Ex. 3 (Ferrara Report) at 7-8, Ex. C (recordings of Crumb's work). Numerous other composers have used vocalization to create a distinctive sound. See id., Ex. 3 (Ferrara Report) at 7-8. See also id., Ex. D, Track # 1 (Robert Dick, Afterlight ); Track # 2 (African folk song Bengsimbe of the Fula people); Track # 3 (Toru Takemitsu, Voice ); Track # 4 ( Domino, recorded by Roland Kirk); Tracks # 5 & # 6 ( My Ship, recorded by Roland Kirk); Track # 7 ( We'll Be Together Again, recorded by Roland Kirk); Track # 8 ( People, recorded by Roland Kirk); and Track # 9 ( Szerelem, Szerelem, Hungarian Folk Song). Moreover, academic literature recognized the technique of singing while playing the flute before Plaintiff wrote and performed Choir. See, e.g., id., Ex. B (DAVID COPE, NEW MUSIC NOTATION at 67 (1976); ROBERT DICK, THE OTHER FLUTE: A PERFORMANCE MANUAL OF CONTEMPORARY TECHNIQUES at 135 ("Singing and Playing Simultaneously") (1975); THOMAS HOWELL, THE AVANT-GARDE FLUTE: A HANDBOOK FOR COMPOSERS AND FLUTISTS at 30 ("Special Effects: Singing with the Flute") (1974)). 
Plaintiff largely ignores the distinction between musical compositions and sound recordings. Plaintiff argues only that his own techniques render his musical composition unique, as they contribute "something *1251 more than a merely trivial variation, something recognizably [his] own" to a prior expression. ZZ Top v. Chrysler Corp., 54 F.Supp.2d 983 (W.D.Wa.1999). See also Tempo Music v. Famous Music Corp., 838 F.Supp. 162, 168-69 (S.D.N.Y. 1993). 4 While Plaintiff concedes that he did not invent generic vocalization — simultaneously singing and playing the flute — he argues that his unique approach to vocalization, in particular using breath control to emphasize certain notes, which his expert Wilson terms "the Newton technique," renders Choir original. Plaintiff also identifies his technique of overblowing the "C" note to produce multiple pitches ("multiphonics") as the source of his work's originality. Korn Decl., Ex. 3 (Wilson Report) at 20. 
However, neither the "Newton technique" nor any mention of overblowing the "C" note appears on the musical composition. The musical composition contains only a notation that the piece is performed using generic vocalization, simultaneously singing and playing the flute. Plaintiff concedes as much, acknowledging that all elements of his performance are not reflected in the musical composition. Plaintiff's Opposition Brief at 15. Plaintiff's expert Wilson confirms that the copyrighted score of Choir does not contain notations for all of the "musical subtleties" that the performer of the work "will make in the work's performance. " Korn Decl., Ex. 3 (Wilson Report) at 20-21 (emphasis added). Moreover, Wilson acknowledges that the copyrighted score of Choir does not delineate the techniques necessary to reproduce Plaintiff's "unique sound." See id. at 21. 
Plaintiff's expert, Christopher Dobrian, opines that because every composer of a musical work assumes that the performer will add his or her individual interpretation to the notation, "[t]he contribution of the performer is often so great that s/he in fact provides just as much musical content as the composer." Korn Decl., Ex. 3 (Dobrian Report) at 15. Dobrian concludes that "[i]n Newton's own performance of his composition he uses breath control to modify the timbre of the sustained flute note rather extremely ... and he uses portamento to glide expressively from one pitch to the other in the vocal part." Id. at 15 (emphasis added). Dobrian concedes that "[n]either the timbral effect nor the portamento is notated in the score." Id. at 15. Dobrian further emphasizes that "Mr. Newton blows and sings in such a way as to emphasize the upper partials of the flute's complex harmonic tone," but acknowledges that "such a modification of tone color is not explicitly requested in the score." Id. Indeed, Dobrian concludes that Plaintiff's allegedly unique sound "is the result of Mr. Newton's refined breath control for interpretive use of tone color," which Plaintiff's expert Wilson calls "the Newton technique." Id. at 14. 
As Plaintiff's specific techniques of performing Choir, viz., "the Newton technique" — Newton's practice of overblowing the "C" note to create a multiphonic sound, and his unique ability to modify the harmonic tone color — do not appear in the musical composition, they are protected only by the copyright of the sound recording of Plaintiff's performance of Choir, which Defendants licensed. Accordingly, Plaintiff's copyright protects only the sound that would invariably result from playing the "C" note on the flute while singing into the flute a "C," ascending to a "D-flat," and descending to the "C."
*1252 At oral argument, Plaintiff's counsel suggested that any flautist performing the six-second segment would produce sounds comparable to those achieved by Plaintiff. This proposition is both unsupported by the record and contradicted by Plaintiff and his experts. Throughout this litigation, Plaintiff has insisted that the harmonic sounds and timbral effects achieved in his composition are a result of his unique performing techniques. His expert Dobrian confirms this. He cannot now claim that any flautist fingering a C and blowing C—D-flat—C would achieve the unique sound that results from his use of techniques not notated in the score. 
In sum, what makes Plaintiff's performance "unique," according to his own experts, is the combination of performance techniques Plaintiff employs in the execution of his composition, consisting largely of techniques not notated in the score. 6 It is undisputed that Plaintiff could have notated "overblowing," as he did in other compositions. See, e.g., FAC, Ex. B ( Toru ) at 17 (containing notation to "overblow harmonics"). Therefore, whether Defendants' sample sounds like Plaintiff's performance of Choir is not relevant to the court's inquiry. Rather, the court must decide whether Defendants' creation of a three-note sequence with one background note from a six-second segment of Choir constitutes copyright infringement of the underlying musical composition. 
2. The Sample of Plaintiff's Musical Composition Is Unprotectable 
At the outset, Plaintiff argues that his copyright creates a presumption of originality which Defendants must refute. However, this presumption applies only to whether the copyright itself is valid. North Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1033 (9th Cir.1992) ("Under our copyright law, the registration of the copyright certificate itself establishes a prima facie presumption of validity of the copyright in a judicial proceeding. . . ."). See also Three Boys Music Corp. v. Bolton, 212 F.3d 477, 488-89 (9th Cir.2000) ("Registration is prima facie evidence of the validity of a copyright."); Smith v. Jackson, 84 F.3d 1213, 1219 (9th Cir.1996) (holding that presumption of originality not relevant to "scenes a faire" inquiry, because "[a] Certificate of Registration only creates a rebuttable presumption of originality applicable to a defendant's attack on the originality applicable to a defendant's attack on the validity of a plaintiff's copyright.") (emphasis in original). In the instant case, Defendants do not dispute that Plaintiff's copyright over the musical composition is valid. Even were the validity of Plaintiff's copyright at issue, the presumption of originality applies only if "the judicial proceeding is commenced within five years of the copyright's first publication." North Coast Indus., 972 F.2d at 1033. Plaintiff registered his copyright August 4, 1978 and commenced *1253 this suit over 20 years later on May 9, 2000. 
The protectability of elements of a copyrighted work is a question of law for the court. See Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348-51, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). Although the musical composition of Choir is protected as a complete work, not every element of a song is per se protected. See, e.g., Rogers v. Koons, 960 F.2d 301, 307 (2d Cir.1992). Copyright protection extends only to those components of the work that are original and non-trivial. Feist, 499 U.S. at 348-51, 111 S.Ct. 1282. In assessing originality, courts must be "mindful of the limited number of notes and chords available to composers and the resulting fact that common themes frequently appear in various compositions, especially in popular music." Gaste v. Kaiserman, 863 F.2d 1061, 1068 (2d Cir.1988). See also Jarvis, 827 F.Supp. at 291 ("Easily arrived at ... chord progressions are usually not copyrightable."). 
In the instant case, Plaintiff's three-note sequence (C — D-flat — C) with one background note (C), segregated from the entire piece, cannot be protected, as it is not original as a matter of law. Many courts have found that nearly identical or more substantial samples are not susceptible to copyright protection. In Jean v. Bug Music, Inc., No. 00 Civ 4022(DC), 2002 WL 287786 (S.D.N.Y. Feb. 27, 2002), the defendant allegedly copied a three-note sequence consisting of "C," followed by a "B-flat," followed by another "C," accompanied by the lyric "clap your hands." The court held that this excerpt of the song at issue could not be protected by the plaintiff's copyright "because the sequence of the three notes and the lyrics lack the requisite originality." Id. at *5. The court recognized that the musical note sequence "C" — "B-flat" — "C" appears commonly in music, rendering the sequence not susceptible to copyright protection. Id. at *6. The court further found that the three-word lyric "clap your hands," either standing alone or in combination with the music, was too common to render the otherwise unoriginal three-note sequence original. 
The facts of Jean are strikingly similar to the instant case — a three-note sequence in which the first and third notes are identical and the second note is a half-step away. Unlike the snippet in Jean, however, Plaintiff's three-note sequence is unaccompanied by any lyrics. The vocalization notated in the score is, as Plaintiff concedes, a commonly used technique. Just as the Jean court found a commonly used word phrase insufficient to render the three-note sequence original, this court finds the widely used vocalization technique insufficiently original to render the three-note segment protectable. 
In McDonald v. Multimedia Entertainment, Inc., 20 U.S.P.Q.2d 1372, 1991 WL 311921 (S.D.N.Y.1991), the court found that the three-note sequence the defendant allegedly misappropriated from the plaintiff's jingle could not be protected by copyright. The court noted the "absurdity" of Plaintiff's claim, given that the three-note sequence is a "common and much-used tone in traditional western music." Id. at 1375, 1991 WL 311921. Similarly, in Tisi v. Patrick, 97 F.Supp.2d 539 (S.D.N.Y. 2000), the court found that the plaintiff's claim of copy-right infringement was based entirely upon non-protectable elements of his song, viz., the key of A major, the tempo, a chord structure/harmonic common to rock music, the guitar rhythm, and the fact that the chords of both songs are in "root" position. 
In Intersong-USA v. CBS, Inc., 757 F.Supp. 274, 282 (S.D.N.Y.1991), the court held that the defendants had not copied "protectable expression" contained in plaintiff's copyrighted song. The plaintiff alleged that the defendants had copied his descending scale step motive, but the court found this to be a "commonly used compositional device," citing the example of "Twinkle, Twinkle Little Star." Id. at 282. Although the defendants allegedly copied the plaintiff's structure patterns, use of a certain harmonic progression, and a recurring eighth-note rhythm, "these common elements are found in many other well-known songs." Id.
Plaintiff identifies cases in which courts have held that short sequences of notes may be protected by copyright. However, those cases involved sequences consisting of more than three notes. In Baxter v. MCA, Inc., 812 F.2d 421, 425 (9th Cir. 1987), for example, the defendant allegedly used the first six notes of Plaintiff's composition "Joy" to create the theme for the movie "E.T." and conceded that both his composition and the plaintiff's composition conveyed similar ideas. The court, rejecting the defendant's characterization of the sequence as necessarily consisting of only six notes, held that the sequence could be protected by the copyright laws. Id. See also Fisher, 794 F.2d at 434 n. 2 (defendants allegedly misappropriated first six bars of the song's 38 bars and used similar lyrics); Jarvis, 827 F.Supp. at 292 (defendants allegedly misappropriated "the last several minutes" of plaintiff's song's distinctive keyboard riff, as well as distinctive lyrics). 
Cases finding that sequences of less than six notes could be qualitatively distinctive have involved: 1) sequences with accompanying lyrics; 2) sequences at the heart of the musical compositions; 3) sequences and lyrics that were repetitive; and/or 4) sequences that were based upon analyses of both the written composition and the sound recording. See, e.g., Santrayll v. Burrell, 39 U.S.P.Q.2d 1052, 1054 (S.D.N.Y.1996) (one measure "hook" and repetition of word "uh-oh" may be distinctive); Elsmere Music, Inc. v. National Broadcasting Co., 482 F.Supp. 741, 744 (S.D.N.Y.1980) (four notes and phrase "I Love" at heart of copyrighted song may be distinctive). Plaintiff also relies upon cases holding that a few words or sounds may be distinctive. See, e.g., Tin Pan Apple, Inc. v. Miller Brewing Co., Inc., 30 U.S.P.Q.2d 1791, 1793-94 (S.D.N.Y.1994) (sounds "hugga-hugga" and "brrr" in Plaintiff's composition sufficient to warrant copyright protection). However, unusual words or sounds are necessarily more distinctive than a few generic notes of music. 
Moreover, the reports of both Defendants' and Plaintiff's experts confirm that the main three-note sequence at issue — C—D-flat—C—is not original. Defendants' expert, Lawrence Ferrara, concludes that the portion of Plaintiff's musical composition that Defendants sampled is not original or unique, as "it is merely a common, trite, and generic three-note sequence, which lacks any distinct melodic, harmonic, rhythmic or structural elements." Streisand Decl., Ex. 3, (Ferrara Report) at 1. Ferrara concludes that "these three notes of music alone do not constitute an original or distinct piece of music" because "[b]y any conventional methodological approach, these three simple notes are insignificant, and utterly insufficient to constitute original expression." Id. at 1-2. In fact, the same three-note sequence with a sustained pitch "has been used over and over again by major composers in 20th Century music, particularly the '60s and '70s, just prior to [Plaintiff's] usage." Streisand Decl., Ex. 7 *1255 (Ferrara Depo.) at 171, Exs. 9-11. Specifically, Jacob Druckman used this "basic building block tool" in his 1972 Pulitzer Prize winning composition Windows and again in his 1976 composition Other Voices, as did Gyorgy Ligeti in his 1968 String Quartet No. 2. Id. at 171, Exs. 9-11. 8 
Plaintiff's expert Dobrian acknowledges that Plaintiff's musical composition "contains a simple `neighboring tone' figure: C to D-flat and back to C." Korn Decl., Ex. C (Dobrian Report) at 11. Dobrian contends that a sequence of "simple" and "unremarkable" notes may be significant, like the sample at issue. Id. at 12. However, Dobrian's conclusion, based upon his "independent assessment" of the sample, does not benefit Plaintiff's position, as it focuses upon elements of Plaintiff's performance which are not notated in the score. Dobrian asserts that to the extent Plaintiff's performance techniques are not notated in the score they represent, "Newton's desired interpretation of the score." Id. at 16. He refers repeatedly to the "sound of Newton's playing," id. at 8, noting that the sound produced on the recording "is the result of Mr. Newton's refined breath control for interpretive use of tone color." Id. at 14. Elsewhere, he notes that "Mr. Newton blows and sings in such a way as to emphasize the upper partials of the flute's complex harmonic tone color," noting that "such a modification of tone color is not explicitly requested in the score." Id. at 15. 
Dobrian's opinion is thus based on his assessment of the sound resulting from Mr. Newton's unique interpretation — including the use of portamento/glissando, and modified tone color — of a score that contains no notation of either. While it may be expected that every performer will impart some interpretive flavor to any piece, Dobrian's focus on the sonic effects achieved by Newton's unique performance prevents his opinion from addressing the primary issue before this court — the protectability of the elements of the composition itself, not the "richness and complexity" of the "timbral result" achieved through "Mr. Newton's desired interpretation of the score." Id. at 16. Moreover, Dobrian's insistence that each performer brings his own unique interpretation to any work undercuts his argument that the uniqueness of Plaintiff's performance is inherent in the three-note musical notation. Finally, to the extent Dobrian attempts to base his conclusion on the uniqueness of the notes and notated technique alone, as discussed above, neither the three-note sequence nor the vocalization technique — or the two in combination — are sufficiently original to be protectable. 
Oliver Wilson's opinion is similarly unavailing to Plaintiff's position, as it is based upon elements of Plaintiff's performance. See Korn Decl., Ex. 3 (Wilson Report) at 20. Wilson repeatedly refers to "the Newton technique" as the "source" of the sample's originality. See id. "To be more precise, the Newton technique produces a musical event in which the component sounds resulting from the simultaneous singing of one or more pitches produced on the flute create a relatively dense cluster of pitches and ambient sounds that sometimes change over time." Id. Indeed, while Wilson acknowledges that vocalization was a common technique prior to Plaintiff's arrangement and performance of Choir, he concludes that Plaintiff's unique approach to vocalization ("the Newton technique") renders the sample original. Id. Specifically, Wilson points to Newton's technique of combining vocalization with multiphonics. Id. "Newton's technique involves the exploitation of simultaneous usage of vocalization and multiphonics. ... This technique is the source of Newton's ability to produce his unique sound and hence, in large part, constitutes his musical signature." Id. Wilson states that Plaintiff "is not simply using a technique that is common in contemporary musical practice, but rather creating a specific musical event in the composition Choir that reflects his specific artistic vision." Id. at 21. Accordingly, any originality of the sample comes from Plaintiff's particular performance techniques, which are not at issue in this litigation. 
Plaintiff attempts to create a triable issue by citing the remaining portions of Dobrian's report. However, some of Dobrian's conclusions are beyond the scope of his expertise. Dobrian concludes that because Defendants obtained a license to use the recording and acknowledged Plaintiff as the source of the sample, it must be unique. Id. at 11. However, Dobrian provides no foundation for his conclusion that a sample is original merely because its author is acknowledged in a derivative work. For example, Dobrian does not contend that such attribution occurs in the music industry only with respect to original work. Nor is Dobrian qualified to render such an expert opinion, as he is proffered as an expert in music composition, not sampling practices by popular music artists. Indeed, Dobrian was retained to analyze the music at issue, not to draw legal conclusions based upon facts falling outside his area of expertise. 
In sum, the relevant portion of Plaintiff's musical composition is not subject to copyright protection as a matter of law. While Plaintiff and his experts contend that the six-second segment — consisting of two notes in a three-note sequence with one background note — constitutes unique expression, their analyses rely upon sound elements created by Plaintiff's admittedly unique technique of performing Choir, utilizing performance elements not notated in the score. Plaintiff's performance techniques, however, are not at issue in this litigation, as Defendants obtained a license to sample the sound recording of Plaintiff's performance of Choir. After filtering out the performance elements, the court is left with a six-second snippet of Plaintiff's composition consisting of a fingered "C" note and a sung three-note sequence C —D-flat —C. Courts have held that such small and unoriginal portions of music cannot be protected by copyright. See, e.g., Jean v. Bug Music, Inc., 2002 WL 287786 (S.D.N.Y. Feb.27, 2002). Accordingly, the sample at issue—a six-second, three-note sequence with a single background note, isolated from the sounds created by Plaintiff's performance techniques — cannot be protected as a matter of law. 
* * *
V. CONCLUSION 
This case is distinct from many copyright infringement actions involving sampling. It does not involve Defendants sampling without a license both the sound recording and the musical composition of a work. Rather, Plaintiff licensed the rights to the sound recording of his performance of Choir, and Defendants obtained a license to sample from this sound recording, leaving the court to inquire only whether the three-note sequence of Plaintiff's musical composition, devoid of the distinctive sound elements created by his unique performance techniques, can be protected by copyright law. The court concludes that it cannot. Moreover, even were this six-second snippet subject to copyright protection, the court concludes that Defendants' use was de minimis, as the sample was neither quantitatively nor qualitatively significant to Choir. Accordingly, the court GRANTS Defendants' motion for summary judgment and DENIES Plaintiff's motion for summary judgment. 
IT IS SO ORDERED


Beastie Boys, Pass the Mic

Questions:
  1. The court held that the Beastie Boys did not copy a protected element of Newton's musical work. Do you agree?
  2. Which element of Newton's work did the Beastie Boys copy?
  3. Which elements of Newton's work are musical works and which are sound recordings?
  4. What evidence is relevant to that question?
  5. The court did not consider whether the Beastie Boys copied a protected element of Newton's sound recording. How would you resolve that question?
  6. On November 20, 1969, James Brown recorded "Funky Drummer" in Cincinnati, Ohio. Among other things, the song featured a drum break played by Clyde Stubblefield. Brown asks the listener to "give the drummer some," and Stubblefield plays an eight-bar unaccompanied "solo," which is a version of the riff he plays through most of the song. Funky Drummer peaked at #20 on the R&B chart and #51 on the pop chart, but the drum break became one of the most frequently sampled tracks ever, appearing in so many songs that it became a cliche. Is the drum break a protected musical work or sound recording? Should it be?

James Brown, Funky Drummer (1970)


Funky Drummer Beat Lesson

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Copyright Law Casebook by Brian L. Frye is licensed under a Creative Commons Attribution 4.0 International License.
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