NO. 20 142
`
`In the
`Supreme Court of the United States
`
`MICHAEL SKIDMORE
`TRUSTEE FOR THE RANDY CRAIG WOLFE TRUST,
`
`Petitioner,
`
`v.
`
`LED ZEPPELIN, ET AL.,
`
`Respondents.
`
`
`
`
`
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals for the Ninth Circuit
`
`MOTION FOR LEAVE TO FILE
`AND BRIEF OF AMICUS CURIAE
`CALIFORNIA SOCIETY OF ENTERTAINMENT
`LAWYERS IN SUPPORT OF PETITIONER
`
`
`
`
`
`
`
`
`
`
`
`
`
`STEVEN T. LOWE
` COUNSEL OF RECORD
`LOWE & ASSOCIATES P.C.
`8383 WILSHIRE BLVD.
`SUITE 1038
`BEVERLY HILLS, CA 90211
`(310) 477 5811
`STEVEN@LOWELAW.COM
`
`
`
`SEPTEMBER 10, 2020
`
`COUNSEL FOR AMICUS CURIAE
`
`SUPREME COURT PRESS ♦ (888) 958 5705 ♦ BOSTON, MASSACHUSETTS
`
`
`
`In the
`Supreme Court of the United States
`
`MICHAEL SKIDMORE
`TRUSTEE FOR THE RANDY CRAIG WOLFE TRUST,
`
`Petitioner,
`
`v.
`
`LED ZEPPELIN, ET AL.,
`
`Respondents.
`
`
`
`
`
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals for the Ninth Circuit
`
`MOTION FOR LEAVE TO FILE
`AND BRIEF OF AMICUS CURIAE
`CALIFORNIA SOCIETY OF ENTERTAINMENT
`LAWYERS IN SUPPORT OF PETITIONER
`
`
`
`
`
`
`
`
`
`
`
`
`
`STEVEN T. LOWE
` COUNSEL OF RECORD
`LOWE & ASSOCIATES P.C.
`8383 WILSHIRE BLVD.
`SUITE 1038
`BEVERLY HILLS, CA 90211
`(310) 477 5811
`STEVEN@LOWELAW.COM
`
`
`
`SEPTEMBER 10, 2020
`
`COUNSEL FOR AMICUS CURIAE
`
`SUPREME COURT PRESS ♦ (888) 958 5705 ♦ BOSTON, MASSACHUSETTS
`
`
`
`NO. 20 142
`
`In the
`Supreme Court of the United States
`
`MICHAEL SKIDMORE
`Trustee for the Randy Craig Wolfe Trust,
`
`Petitioner,
`
`v.
`
`LED ZEPPELIN, ET AL.,
`
`Respondents.
`
`
`
`
`
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals for the Ninth Circuit
`
`BRIEF OF CALIFORNIA SOCIETY OF
`ENTERTAINMENT LAWYERS AS AMICUS CURIAE
`IN SUPPORT OF PETITIONER
`
`
`
`i
`
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES ....................................... ii
`
`IDENTITY AND INTEREST OF
`
`AMICUS CURIAE ................................................ 1
`
`SUMMARY OF THE ARGUMENT ........................... 3
`
`ARGUMENT ............................................................... 7
`
`I. COPYRIGHT LAW EXISTS TO INCENTIVIZE
`
`ARTISTS TO CREATE IN EXCHANGE FOR
`
`CERTAIN PROTECTIONS ...................................... 7
`
`II. INFRINGEMENT REQUIRES SUBSTANTIAL
`
`SIMILARITY . . . BUT WHAT KIND OF
`
`SIMILARITY IS SUBSTANTIAL ENOUGH? ............... 8
`
`1. Feist is Binding Precedent that Should
`Have Controlled the En Banc Court’s
`Analysis ....................................................... 8
`
`2. The Lack of a Stable Rule in the Ninth
`Circuit Has Led to Inconsistent Rulings
`that Prejudice Creators ............................ 11
`
`3. This Court Should Address and Clarify
`the Current Circuit Split on the Issue
`of Substantial Similarity in Copyright
`Infringement Cases .................................. 14
`
`CONCLUSION .......................................................... 17
`
`
`
`
`
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`Page
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Apple Computer, Inc. v. Microsoft Corp.,
`35 F.3d 1435 (9th Cir. 1994) .................................. 4
`
`Atari, Inc. v. N. Am. Phillips Consumer
`Elecs. Corp., 672 F.2d 607 (7th Cir. 1982) ........... 15
`
`BUC Int’l Corp. v. Int’l Yacht Council Ltd.,
`489 F.3d 1129 (11th Cir. 2007) ......................... 15
`
`Cavalier v. Random House, Inc.,
`297 F.3d 815 (9th Cir. 2002) ................. 4, 5, 9, 11
`
`Concrete Mach. Co. v. Classic Lawn Ornaments,
`Inc., 843 F.2d. 600 (1st Cir. 1998) ........................ 15
`
`Dawson v. Hinshaw Music Inc.,
`905 F.2d 731 (4th Cir. 1990) ............................. 15
`
`F.C.C. v. Fox Television Stations, Inc.,
`567 U.S. 239 (2012) ........................................... 14
`
`Feist Publ’ns, Inc. v. Rural Rel. Serv. Co.,
`499 U.S. 340 (1991) ................................... passim
`
`Fleener v. Trinity Broad.,
`203 F.Supp.2d 1142 (C.D. Cal. 2001) ..................... 4
`
`Gates Rubber Co. v. Bando Chem. Industries,
`Ltd., 9 F.3d 823 (10th Cir. 1993) ........................ 15
`
`Gilbert v. New Line Prods., Inc.,
`490 F.App’x 34 (9th Cir. 2012) ............................ 16
`
`Gray v. Perry,
`No. 2 15 cv 05642 CAS (JCx),
`2020 WL 1275221
`(C.D. Cal. Mar. 16, 2020) .................................... 13
`
`
`
`iii
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Harper House, Inc. v. Thomas Nelson, Inc.,
`889 F.2d 194 (9th Cir. 1989) ................................ 4
`
`Hartman v. Hallmark Cards, Inc.,
`833 F.2d 117 (8th Cir. 1987) ................................ 15
`
`Knitwaves, Inc. v. Lollytags Ltd.,
`71 F.3d 996 (2d Cir. 1995) .............................. 4, 10
`
`Kohus v. Mariol,
`328 F.3d 848 (6th Cir. 2004) .............................. 15
`
`L.A. Printex Inds., Inc. v. Aeropostale, Inc.,
`676 F.3d 841 (9th Cir. 2012) ............................... 4
`
`Mazer v. Stein,
`347 U.S. 201 (1954) ............................................. 7
`
`Metcalf v. Bochco,
`294 F.3d 1069 (9th Cir. 2002) ................. 4, 11, 12
`
`Miller v. Miramax,
`No. CV 99 08526 DDP (AJWx),
`2001 U.S. Dist. LEXIS 25967
`(C.D. Cal. Sept. 26, 2001) ..................................... 4
`
`Peel & Co., Inc. v. Rug Mkt.,
`238 F.3d 391 (5th Cir. 2004) ............................. 15
`
`Peter Pan Fabrics, Inc. v. Martin Weiner
`Corp., 274 F.2d 487 (2d Cir. 1960) .................... 15
`
`Petrella v. MetroGoldwynMayer, Inc., et al.,
`572 U.S. 663 (2014) ........................................ 1, 14
`
`Sid & Marty Krofft Television
`Prods. v. McDonald’s Corp.,
`562 F.2d 1157 (9th Cir. 1977) ........................... 15
`
`
`
`iv
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Skidmore v. Led Zeppelin,
`905 F.3d 1116 (9th Cir. 2018) ............................. 5
`
`Skidmore v. Led Zeppelin,
`952 F.3d 1051 (9th Cir. 2020) (en banc ) .. passim
`
`Smith v. Weeknd,
`No. CV 19 2507 PA (MRWX),
`2020 WL 4932074
`(C.D. Cal. July 22, 2020) ............................. 12, 13
`
`Sturdza v. United Arab Emirates,
`281 F.3d 1287 (D.C. Cir. 2002) ......................... 15
`
`Swirsky v. Carey,
`376 F.3d 841 (9th Cir. 2004) ..................... 4, 9, 11
`
`Three Boys Music Corp. v. Bolton,
`212 F.3d 477 (9th Cir. 2000) ................. 4, 9, 11, 12
`
`Universal Athletic Sales Co. v. Salkeld,
`511 F.2d 904 (3d. Cir. 1975) ................................ 15
`
`Universal Pictures Co. v. Harold Lloyd Corp.,
`162 F.2d 354 (9th Cir. 1947) ................................ 12
`
`Wild v. NBC Universal,
`No. 10 cv 03615 GAF AJW,
`2011 WL 12877031 (C.D. Cal. July 18, 2011) ...... 16
`
`Williams v. Gaye,
`895 F.3d 1106 (9th Cir. 2018) ........... 9, 10, 11, 12
`
`Worth v. Selchow & Righter Co.,
`827 F.2d 569 (9th Cir. 1987) ............................... 4
`
`CONSTITUTIONAL PROVISIONS
`
`U.S. Const. Art. I, § 8, cl. 8 ......................................... 3, 7
`
`
`
`v
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`STATUTES
`
`17 U.S.C. § 106 ............................................................ 7
`
`Copyright Act of 1909 ............................................. 3, 7
`
`Copyright Act of 1976 ............................................. 3, 7
`
`JUDICIAL RULES
`
`Sup. Ct. R. 37 ............................................................... 1
`
`OTHER AUTHORITIES
`
`Benjamin Cardozo,
`The Nature of the Judicial Process (1921) ....... 13
`
`Ecclesiastes 1 9 (King James) .................................... 6
`
`Edward H. Levi,
`An Introduction to Legal Reasoning
`(1949) ................................................................. 13
`
`Jane C. Ginsburg,
`Creation and Commercial Value
`Copyright Protection of Works of
`Information, 90 Colum. L. Rev. 1865
`(1990) ................................................................... 7
`
`Jaws, Movie Soundtrack(1975) ................................ 10
`
`Lindquist & Cross,
`Stability, Predictability and the
`Rule of Law Stare Decisis as
`Reciprocity Norm (2010) ................................... 13
`
`M. Nimmer & D. Nimmer,
`Nimmer on Copyright (2019) .................... 3, 8, 10
`
`
`
`vi
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Queen and David Bowie,
`Song Under Pressure ....................................... 10
`
`Robert F. Helfing,
`Substantial Similarity in Literary
`Infringement Cases A Chart for Turbid
`Waters, UCLA Ent. L. Rev. 21 1 (2014) ........ 8, 10
`
`Steven T. Lowe,
`Death of Copyright, L.A. Lawyer,
`November 2010 .................................................... 8
`
`Steven T. Lowe,
`Death of Copyright 3 The Awakening,
`L.A. Lawyer, July 2018 ..................................... 14
`
`
`
`
`
`
`
`
`
`1
`
`
`
`IDENTITY AND INTEREST
`OF AMICUS CURIAE
`
`Pursuant to Supreme Court Rule 37, the California
`Society of Entertainment Lawyers (“CSEL”) respectfully
`submits this brief as amicus curiae in support of
`Petitioner Michael Skidmore, as Trustee for the Randy
`Craig Wolfe Trust.1 In accordance with Supreme Court
`Rule 37.2(a), CSEL has sought the consent of the
`parties to file this brief. Counsel for Petitioner has
`granted consent counsel for Respondents did not
`consent to said request.
`
`CSEL is an association of attorneys (and, to a
`certain extent, creative professionals) representing
`artists in the entertainment industry. Founded in 2013
`in response to the lack of artist friendly professional
`societies in the Los Angeles entertainment law com
`munity, CSEL seeks to balance the influence of
`powerful conglomerates which dominate the entertain
`ment industry with the rights of creative professionals.
`Since submitting its first amicus curiae brief in
`support of the Petitioner in Petrella v. MetroGoldwyn
`Mayer, Inc.,2 CSEL has endeavored to identify lines
`of reasoning that lack integrity and/or violate long
`standing precedent before those in a position to correct
`them, where those decisions erode the rights of creative
`professionals. Such an opportunity is presented here.
`
`1 Pursuant to Rule 37.6, no counsel for a party authored this brief
`in whole or in part, and no person other than Amicus Curiae
`and its counsel made a monetary contribution to its preparation
`or submission.
`
`2 572 U.S. 663 (2014).
`
`
`
`2
`
`CSEL’s fear is that Skidmore v. Led Zeppelin,
`952 F.3d 1051 (9th Cir. 2020) (en banc) (hereinafter
`referred to as the “en banc court/ decision/ majority/
`dissent”) will cause greater confusion regarding the
`substantial similarity analysis for proving plagiarism
`and further prejudice creative professionals in copy
`right infringement cases. Specifically, the en banc
`court’s tortured opinion redefines originality contrary
`to this Court’s decision in Feist Publ’ns, Inc. v. Rural
`Rel. Serv. Co., 499 U.S. 340 (1991). Recent decisions
`purporting to follow the case have interpreted it to
`impose a novelty requirement in music infringement
`cases. CSEL therefore has an interest in having this
`matter heard by this Court, so that the Court can
`clarify the substantial similarity analysis in copyright
`infringement cases in order to provide predictability
`and adequate notice of the law. In addition, as pointed
`out in Petitioner’s Brief, there is now a circuit split
`in this area of the law (Pet’r’s Br. 25) which requires
`resolution.
`
`Further, and, perhaps even more importantly, the
`en banc decision diminishes the copyright protections
`guaranteed under the Constitution for the purpose of
`incentivizing innovative and creative works. CSEL
`respectfully requests that the Court adopt the en banc
`dissent, which is a far more cogent decision, consistent
`with Supreme Court precedent (Skidmore, 952 F.3d
`at 1080 (Ikuta, J., concurring in part and dissenting
`in part, with Bea, J. joining)).
`
`
`
`3
`
`
`
`SUMMARY OF THE ARGUMENT
`
`Article I, Section 8, Clause 8 of the U.S. Constitution
`vests in Congress the power “To promote the Progress
`of Science and useful Arts, by securing for limited
`Times to Authors and Inventors the exclusive Right
`to their respective Writings and Discoveries.”3 This
`is the purpose and goal of copyright law, i.e. essentially
`to give creators the right to monetize their creative
`work and prevent/redress the misappropriation thereof.
`
`In a copyright infringement claim, a plaintiff can
`only succeed if there is copying of protected expression.
`E.g., Feist, 499 U.S. at 361 (“To establish infringement,
`two elements must be proven (1) ownership of a valid
`copyright, and (2) copying of constituent elements of
`the work that are original.”). Expression must be
`original to be protected. Id. at 345 (“The sine qua non
`of copyright is originality.”). This question—whether
`an element is “original” or not—is key in determining
`whether two works are “substantially similar” enough
`to find misappropriation, or unlawful copying, as
`required by the second prong.
`
`Today, there is a circuit split as to what the proper
`test is for determining substantial similarity.4 For
`example, the Second Circuit recognized that breaking
`
`3 This is the Patent and Copyright Clause of the Constitution
`Congress was granted the explicit authority to pass the Copyright
`Acts of 1909 and 1976 under this Clause.
`
`4 See, e.g., 4 Nimmer on Copyright § 13.03 (2019) (discussing all
`tests for determining substantial similarity established across
`all circuits).
`
`
`
`4
`
`works apart into their “protectible” elements or parts
`is not useful because its logical end results in a work
`with no originality. See, Knitwaves, Inc. v. Lollytags
`Ltd., 71 F.3d 996, 1003 (2d Cir. 1995) (“[I]f we took this
`argument to its logical conclusion, we might have to
`decide that ‘there can be no originality in a painting
`because all colors of paint have been used somewhere
`in the past.’”). In contrast, the Ninth Circuit some
`times follows the judicially created requirement first
`appearing in Cavalier v. Random House to “filter out
`and disregard non protectible elements” (hereinafter
`referred to as the “filtration rule”). Cavalier v. Random
`House, Inc., 297 F.3d 815, 822 (9th Cir. 2002). However,
`the filtration rule is incompatible with this Court’s
`decision in Feist (and numerous other decisions of
`the Ninth Circuit).5 Feist stands for the proposition
`that the selection and arrangement of non protectible
`elements can meet the minimum “quantum” of origin
`ality to be copyrightable. 499 U.S. at 358 59, 363. These
`tests are fundamentally incompatible, as the filtration
`rule excludes unprotectible elements while the selection
`and arrangement test includes them in the analysis.
`Thus, the en banc majority erred by seemingly applying
`
`5 L.A. Printex Inds., Inc. v. Aeropostale, Inc., 676 F. 3d 841, 848 52
`(9th Cir. 2012) (textile designs) Swirsky v. Carey, 376 F.3d 841,
`847 (9th Cir. 2004) (music) Metcalf v. Bochco, 294 F.3d 1069,
`1074 (9th Cir. 2002) (TV show) Fleener v. Trinity Broad., 203
`F.Supp.2d 1142, 1148 51 (C.D. Cal. 2001) (book) Miller v. Miramax,
`No. CV 99 08526 DDP (AJWx), 2001 U.S. Dist. LEXIS 25967 (C.D.
`Cal. Sept. 26, 2001) (film) Three Boys Music Corp. v. Bolton, 212
`F.3d 477, 485 (9th Cir. 2000) (music) Apple Computer, Inc. v.
`Microsoft Corp., 35 F.3d 1435, 1441 48 (9th Cir. 1994) (computer
`programs) Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d
`194, 197 (9th Cir. 1989) (organizer) Worth v. Selchow & Righter
`Co., 827 F.2d 569, 572 74 (9th Cir. 1987) (trivia fact books).
`
`
`
`5
`
`both the filtration rule from Cavalier, and the “selection
`and arrangement” rule from the foregoing cases.
`Skidmore v. Led Zeppelin, 952 F.3d 1051, 1070, 74
`75 (9th Cir. 2020). It has to be one or the other they
`cannot co exist. The original panel of the Ninth Circuit
`got it right, as did the en banc dissent. Skidmore v.
`Led Zeppelin, 905 F.3d 1116, 1137 (9th Cir. 2018)
`(“We vacate the amended judgment in part and remand
`for a new trial against Defendants because of . . . the
`district court’s failure to include a selection and
`arrangement jury instruction.”) Skidmore, 952 F.3d
`at 1080 (Ikuta, J., concurring in part and dissenting
`in part).
`
`This Court should grant the petition for writ of
`certiorari to determine whether or not the filtration
`rule should be applied at all, ever, and to resolve the
`circuit split. This case presents an ideal opportunity
`for the Court to provide some well needed predictability
`and consistency within this area of law.
`
`Pursuant to the foregoing, CSEL respectfully
`submits this brief as Amicus Curiae to advocate for
`the adoption of the dissenting en banc opinion. The
`dissenting opinion found, in pertinent part
`
`[T]he jury instructions establish a legal
`principle that is erroneous, and if allowed to
`stand, establish a mistaken view of copyright
`protection. Reversal for a new trial is required.6
`
`Finally, the aftermath of the convoluted Skidmore
`decision has been a complete perversion of copyright
`law, substantially contrary to the interests of creators.
`
`6 Skidmore, 952 F.3d at 1085 (Ikuta, J., concurring in part and
`dissenting in part).
`
`
`
`6
`
`Specifically, recent cases in the Central District of
`California have interpreted Skidmore to impose a
`novelty or uniqueness standard for copyright protection
`which is not found in copyright law and works to the
`detriment of creative professionals. See infra Section
`B.2. This newly imposed judicial requirement makes
`it virtually impossible for plaintiffs to win these cases,
`as “there is nothing new under the sun” (Ecclesiastes
`1 9). This requirement also runs afoul of Feist’s defi
`nition of originality. Feist, 499 U.S. at 345 (“Original
`. . . means only that the work was independently cre
`ated by the author (as opposed to copied from other
`works), and that it possesses at least some minimal
`degree of creativity.”).
`
`
`
`
`
`7
`
`
`
`ARGUMENT
`
`I. COPYRIGHT LAW EXISTS TO INCENTIVIZE ARTISTS TO
`CREATE IN EXCHANGE FOR CERTAIN PROTECTIONS.
`
`The purpose and goal of copyright law is “To
`promote the Progress of Science and useful Arts, by
`securing for limited Times to Authors and Inventors
`the exclusive Right to their respective Writings and
`Discoveries.” U.S. Const. art. I, § 8, cl. 8. In order to
`incentivize the creation of innovative and creative
`works, Congress passed the Copyright Acts of 1909
`and 1976 to provide certain protections to creative
`professionals such as the exclusive rights set forth in
`§ 106 of the Copyright Act. In fact
`
`Maximizing authors’ returns . . . may furnish
`the most likely route to promoting knowledge
`“The economic philosophy behind the clause
`empowering Congress to grant patents and
`copyrights is the conviction that encourage
`ment of individual effort by personal gain is
`the best way to advance public welfare. . . . ”7
`
`The en banc majority’s divergence from this Court’s
`precedent actually disincentivizes the production of
`creative works via its impossible to satisfy substantial
`similarity analysis. Recently, courts in the Central
`District of California have interpreted Skidmore to
`impose a heightened standard of originality. See infra
`Section B.2. To this author’s knowledge, plaintiffs
`
`7 Jane C. Ginsburg, Creation and Commercial Value Copyright
`Protection of Works of Information, 90 Colum. L. Rev. 1865, 1909
`(1990) (quoting Mazer v. Stein, 347 U.S. 201, 219 (1954)).
`
`
`
`8
`
`virtually never win when standards like the filtration
`rule are applied. 8
`
`II. INFRINGEMENT REQUIRES SUBSTANTIAL SIMILARITY
`. . . BUT WHAT KIND OF SIMILARITY IS SUBSTANTIAL
`ENOUGH?
`
`The district court’s jury instructions incorrectly
`defined originality and failed to adequately explain
`the protectability of the original selection and arrange
`ments of unprotectible elements the original panel of
`the Ninth Circuit (as well as the dissenting opinion)
`found as much. Skidmore v. Led Zeppelin, 905 F.3d
`1116, 1130 (9th Cir. 2018) Skidmore, 952 F.3d at 1084
`(en banc) (Ikuta, J., concurring in part and dissenting
`in part).
`
`1. Feist Is Binding Precedent That Should Have
`Controlled the En Banc Court’s Analysis.
`
`The Court in Feist clarified that a selection and
`arrangement of unprotectible elements can be suffici
`ently original as to warrant copyright protection. 499
`U.S. at 348. Furthermore, the Court narrowly defined
`originality. Id. at 345 (“To be sure, the requisite level
`of creativity is extremely low even a slight amount will
`suffice . . . ‘no matter how crude, humble or obvious’ it
`might be.”) (citing 1 M. Nimmer & D. Nimmer, Copy
`right § 1.08[C][1]).
`
`Prior music infringement cases in the Ninth
`Circuit have recognized this precedent when applying
`
`8 See Robert F. Helfing, Substantial Similarity in Literary Infringe
`ment Cases A Chart for Turbid Waters, 21 1 UCLA Ent. L. Rev.
`1, 2 (2014) Steven T. Lowe, Death of Copyright, L.A. Lawyer,
`November 2010, at 32, 34 35.
`
`
`
`9
`
`the extrinsic test.9 However, the Ninth Circuit itself
`has observed that “[t]he extrinsic test provides an
`awkward framework to apply to copyrighted works
`like music or art objects, which lack distinct elements
`of idea and expression.” Swirsky v. Carey, 376 F.3d 841,
`848 (9th Cir. 2004) (emphasis added).
`
`Here, the en banc court affirmed Jury Instruction
`Nos. 16 and 20, which state in pertinent part “Copy
`right only protects the author’s original expression in
`a work and does not protect ideas, themes or common
`musical elements, such as descending chromatic scales,
`arpeggios or short sequences of three notes,” Skidmore,
`952 F.3d at n.10, and “ . . . any elements from prior
`works or the public domain are not considered original
`parts and not protected by copyright.” Id. at 1071. No
`“selection and arrangement” jury instruction was given.
`Id. at 1072. This is obviously confusing to jurors who
`are grappling with the complexities of copyright law.
`While the en banc decision gives lip service to the
`selection and arrangement test as the proper test, the
`court also applied Cavalier’s filtration rule, which
`“[f]ilters out and [d]isregards non protectible elements,”
`by upholding these challenged jury instructions. Skid
`more, 952 F.3d at 1070, 74 75. These distinct rules
`are incompatible, as one rule excludes unprotectible
`elements in the analysis, and the other includes them.
`
`In a 2004 case of music infringement, the court
`in Swirsky held that “substantial similarity can be
`found in a combination of elements, even if those
`
`9 See Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir.
`2000) Swirsky v. Carey, 376 F.3d 841 (9th Cir. 2004) Williams v.
`Gaye, 895 F.3d 1106 (9th Cir. 2018).
`
`
`
`10
`
`elements are individually unprotected.”10 Without a
`true selection and arrangement instruction, a reason
`able jury could easily conclude that no combination of
`notes in a song can be protectible, since all notes have
`been used elsewhere in the past. See Skidmore, 952
`F.3d at 1084 (Ikuta, J., concurring in part and dissent
`ing in part). This would be an unfortunate conclusion,
`as the appropriated portion in this case is obvious to
`the untrained ear. The dissent hit the nail on the head
`by stating that “while Instruction Nos. 16, 20 and 21
`are correct statements of law, they are misleading in
`omitting the principle that a combination of unpro
`tected elements can be protected. . . . and if allowed to
`stand, establish a mistaken view of copyright protec
`tion,” thus requiring “[r]eversal for a new trial.” Id.
`at 1085.
`
`As the Second Circuit correctly noted, this sort
`of filtration rule necessarily results in rulings where
`most—if not all—works are determined to have no
`originality. See, Knitwaves, Inc. v. Lollytags Ltd., 71
`F.3d 996, 1003 (2d Cir. 1995). The two tests applied in
`the instant case are fundamentally incompatible. These
`contradicting analyses result in unpredictable results
`and contribute to the already present confusion iden
`tified by multiple scholars in this area of the law.11
`
`The reasoning of the en banc majority creates a
`world in which a commercially appealing selection
`and arrangement of notes will almost never be found
`protectible. The soundtrack from the 1975 film Jaws,
`as well as Queen and David Bowie’s Under Pressure,
`
`10 376 F.3d at 843 see also Williams, 895 F.3d at 1120.
`
`11 See, e.g., 4 Nimmer on Copyright § 13.03 (2019) Helfing, supra
`note 8, at 3 4
`
`
`
`11
`
`are among some of the most iconic and recognizable
`songs in music history. However, if a court were to
`utilize the en banc court’s logic in its analysis of either,
`it could easily find that neither of them contains a
`single separately protectible element. The filtration
`rule rewards protection based on levels of complexity
`rather than originality. By embracing the filtration
`rule, the en banc court failed to follow Supreme Court
`precedent. Skidmore, 952 F.3d at 1070 (“To conduct a
`copyright infringement analysis, the factfinders ask
`‘whether the protectible elements, standing alone, are
`substantially similar’ and ‘disregard the non protectible
`elements.’”) (citations omitted) (internal quotations
`omitted). The filtration rule must be eradicated by
`this Court.
`
`2. The Lack of a Stable Rule in the Ninth Circuit
`Has Led to Inconsistent Rulings That Prejudice
`Creators.
`
`There have been multiple cases in the Ninth
`Circuit involving musical works that are similar to
`the facts of this case and that correctly adhered to this
`Court’s precedent in determining substantial simil
`arity. See, e.g., Three Boys, 212 F.3d at 485 Swirsky,
`376 F.3d at 848 Williams, 895 F.3d at 1137.
`
`Williams v. Gaye is particularly comparable to this
`case, as the “Copyright Act of 1909 govern[ed] Gayes’
`compositional copyright.” 895 F.3d at 1121. There, the
`court found that the 2013 best selling single, Blurred
`Lines, which was written and recorded in June 2012,
`infringed upon Marvin Gaye’s 1976 recorded song,
`Got To Give It Up. The Williams court declined to
`adopt Cavalier’s filtration rule, instead opting to follow
`the reasoning from Swirsky, 376 F.3d at 848, Metcalf v.
`
`
`
`12
`
`Bocho, 294 F.3d 1069, 1074 (9th Cir. 2002), and Three
`Boys, 212 F.3d at 485. Williams, 895 F.3d at 1120 21.
`The Williams court quoted from the Metcalf decision
`that “[e]ach note in a scale, for example, is not pro
`tectable, but a pattern of notes in a tune may earn
`copyright protection.” Id. at 1119 20 (Citation omitted).
`These rules adopted by the Ninth Circuit in prior music
`copyright infringement cases were largely ignored by
`the en banc court, and have now led to confusion within
`the circuit.12
`
`The effects of the en banc decision can already
`be seen at the district court level. For example, the
`Judge in the recent Smith v. Weeknd decision tossed
`out the case after allowing “prior art” (never before used
`to defeat a copyright claim to this author’s knowledge)
`to defeat a claim of originality. See, Smith v. Weeknd,
`No. CV 19 2507 PA (MRWX), 2020 WL 4932074, at
`*6 (C.D. Cal. July 22, 2020) (relying upon Skidmore).
`If “prior art” (i.e., a concept from patent law) is now
`permitted to defeat copyright infringement claims, no
`Plaintiff will ever be able to win a copyright infringe
`ment case that is because in hundreds and hundreds
`of years of music and literature, there is truly “nothing
`new under the sun.” It has been well established for
`many years that “a new treatment of a common subject
`may be protected by copyright.” Universal Pictures
`Co. v. Harold Lloyd Corp., 162 F.2d 354, 360 (9th Cir.
`1947). The loss for the Plaintiff in Smith was backed by
`the en banc court’s reasoning that copyright protection
`cannot be extended to “just a few notes,” regardless
`
`12 The en banc decision does pay lip service to the selection and
`arrangement test but ultimately finds that the failure to provide
`said jury instructions was not reversible error. Skidmore, 952
`F.3d at 1070, 74 75.
`
`
`
`13
`
`of the importance of these notes to the overall work.
`See Smith at *6. The deconstruction of creative works
`is already being used adversely to creator plaintiffs’
`interests.
`
`An even more concerning example can be seen in
`the recent decision in Gray v. Perry, where the judge
`tossed out a $2.8 million jury verdict for the plaintiffs
`after independently determining that the element that
`Katy Perry allegedly copied was “not a particularly
`unique or rare combination.” Gray v. Perry, No. 2 15 cv
`05642 CAS (JCx), 2020 WL 1275221, at *10 (C.D. Cal.
`Mar. 16, 2020). In her decision, Judge Snyder relied on
`the en banc decision to reach this heightened novelty
`standard. Id. at *3. This new standard has never been
`the law, and further shows how plaintiffs are clearly
`disadvantaged in the Ninth Circuit, even after a
`favorable jury verdict as in Gray.
`
`The en banc decision is an unjustifiable “departure
`from precedent”
`
`[While] [o]ccasional departures from precedent
`are justified when they allow judges to alter
`unsound or unjust legal doctrines that are no
`longer consistent with prevailing social or
`economic conditions, even in the absence of
`legislative intervention. . . . frequent departures
`from the norm may have detrimental conse
`quences for the judiciary and for the public
`good.13
`
`13 Lindquist & Cross, Stability, Predictability and the Rule of Law
`Stare Decisis as Reciprocity Norm 1, 4 (2010) (citing Benjamin
`Cardozo, The Nature of the Judicial Process (1921) Edward H.
`Levi, An Introduction to Legal Reasoning (1949)).
`
`
`
`14
`
`Without any notice of what the law is or how it
`will be applied, artists will continue to be unfairly
`disadvantaged whenever bringing a case for copyright
`infringement. In fact, this result triggers a “discrete”
`due process concern in cases in which the law is
`ambiguous or unsettled because “precision and guidance
`are necessary so that those enforcing the law do not
`act in an arbitrary or discriminatory way.” F.C.C. v.
`Fox Television Stations, Inc., 567 U.S. 239, 253 (2012).
`
`As stated by Judge Fletcher, the Ninth Circuit may
`be “the most hostile to copyright owners of all the
`circuits.” Petrella v. MetroGoldwynMayer, Inc., 695
`F.3d 946, 958 (9th Cir. 2012) (J. Fletcher, concurring)
`(concurring “only because we are compelled to follow”
`Ninth Circuit precedent and noting “a severe circuit
`split on the availability of a laches defense in copyright
`cases”) rev’d 572 U.S. 663 (2014).
`
`3. This Court Should Address and Clarify the
`Current Circuit Split on the Issue of Sub
`stantial Similarity in Copyright Infringement
`Cases.
`
`The law regarding substantial similarity analysis
`in copyright cases is different in virtually every circuit
`court.14 This confusion mostly lies in how to determine
`and when to consider unprotectible elements.
`
`There are several circuits that have made use of
`the “ordinary observer” test, which (in the words of
`Judge Learned Hand) checks whether “the ordinary
`observer, unless he set out to detect the disparities,
`would be disposed to overlook them, and regard their
`
`14 See Steven T. Lowe, Death of Copyright 3 The Awakening,
`L.A. Lawyer, July 2018, at 28, 31 n.52.
`
`
`
`15
`
`aesthetic appeal as the same.” Peter Pan Fabrics, Inc. v.
`Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960).
`
`Besides the Second Circuit, this test has also been
`used in the First, Third, Fifth, and Seventh Circuits.15
`On the other hand, variations of the far tougher
`“filtration” test have been used in the Sixth, Tenth,
`and DC Circuits.16 A middle ground has been sought
`out via the use of the two pronged “intrinsic/ extrinsic”
`test in the Eighth Circuit,17 while the Fourth Circuit
`uses its own “intended audience” test.18 With the
`Eleventh Circuit unsettled on this issue,19 the overall
`lay of the land is inconsistent and unpredictable
`(putting it mildly), leaving creators and copyright
`
`15 See, Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843
`F.2d. 600, 608 (1st Cir. 1998) Universal Athletic Sales Co. v. Sal
`keld, 511 F.2d 904, 907 (3d. Cir. 1975) Peel & Co., Inc. v. Rug Mkt.,
`238 F.3d 391, 398 (5th Cir. 2004) Atari, Inc. v. N. Am. Phillips
`Consumer Elecs. Corp., 672 F.2d 607, 614 15 (7th Cir. 1982) (super
`seded on other grounds).
`
`16 See, Kohus v. Mariol, 328 F.3d 848, 854 (6th Cir. 2004) Gates
`Rubber Co. v. Bando Chem. Industries, Ltd., 9 F.3d 823, 834 (10th
`Cir. 1993) Sturdza v. United Arab Emirates, 281 F.3d 1287, 1297
`(D.C. Cir. 2002).
`
`17 See, Hartman v. Hallmark Cards, Inc., 833 F.2d 117, 120 (8th
`Cir. 1987) Sid & Marty Krofft Television Prods. v. McDonald’s
`Corp., 562 F.2d 1157, 1164 (9th Cir. 1977).
`
`18 See Dawson v. Hinshaw Music Inc., 905 F.2d 731, 733 (4th Cir.
`1990).
`
`19 See BUC Int’l Corp. v. Int’l Yacht Council Ltd., 489 F.3d 1129,
`1148 (11th Cir. 2007)
`
`
`
`16
`
`holders in a state of confusion depending on where they
`file their cases.20
`
`Following the Ninth Circuit’s confusing en banc
`decision, the Circuits are ripe for clarification from
`this Court, which will in turn foster more predictability
`and consistency. Therefore, this Court should step in
`to calm the turbid waters of this area of the law.
`
`
`
`20 This is especially troubling where unsuccessful plaintiffs can
`be liable for large attorneys’ fees awards. See Gilbert v. New Line
`Prods., Inc., 490 F.App’x 34, 37 (9th Cir. 2012) (Approving $801,130
`in attorney’s fees for California based defense counsel) Wild v.
`NBC Universal, No. 10 cv 03615 GAF AJW, 2011 WL 12877031, at
`*4 (C.D. Cal. July 18, 20
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