Case: 16-56057, 07/01/2019, ID: 11351317, DktEntry: 106-1, Page 1 of 35
`Case Nos. 16-56057 (L), 16-56287
`
`
`
`In the
`
`United States Court of Appeals
`for the
`Ninth Circuit
`
`
`MICHAEL SKIDMORE, as Trustee for the Randy Craig Wolfe Trust,
`Plaintiff-Appellant,
`
`v.
`
`LED ZEPPELIN, JAMES PATRICK PAGE, ROBERT ANTHONY PLANT,
`JOHN PAUL JONES, SUPER HYPE PUBLISHING, INC.,
`WARNER MUSIC GROUP CORPORATION, WARNER CHAPPELL MUSIC, INC.,
`ATLANTIC RECORDING CORPORATION,
`and RHINO ENTERTAINMENT COMPANY,
`Defendants-Appellees.
`_______________________________________
`Appeal from a Decision of the United States District Court for the Central District of California,
`Case No. 2:15-cv-03462-RGK-AGR ∙ Honorable R. Gary Klausner
`BRIEF AMICI CURIAE OF 19 INTELLECTUAL PROPERTY PROFESSORS
`IN SUPPORT OF PETITIONER LED ZEPPELIN
`
`
`
`PROFESSOR MARK A. LEMLEY, Counsel of Record
`STANFORD LAW SCHOOL
`Center for Internet & Society
`559 Nathan Abbott Way
`Stanford, California 94305
`(650) 723-4605 Telephone
`mlemley@law.stanford.edu
`Counsel for Amici Curiae,
`19 Intellectual Property Professors
`
`
`COUNSEL PRESS ∙ (213) 680-2300
`
`
`
`
`
`
`PRINTED ON RECYCLED PAPER
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`
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`
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`

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`
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`TABLE OF CONTENTS
`
`II.
`
`TABLE OF AUTHORITIES .................................................................................... ii
`INTEREST AND IDENTITY OF THE AMICI CURIAE ........................................ 1
`SUMMARY OF ARGUMENT ................................................................................. 1
`ARGUMENT ............................................................................................................. 2
`I.
`The Court Should Clarify the Nature of the Copying-In-Fact
`Inquiry and Abandon Its Use of the Illogical “Inverse Ratio Rule” ..... 2
`The Court Should Follow Congress’s Intent and Its Own
`Precedents to Properly Constrain the Scope of Copyright
`for Musical Compositions and Claims Based on Original
`Selection and Arrangement ................................................................. 11
`A.
`Copyright in Musical Works Extends Only to Lyrics
`and Melody ............................................................................... 12
`B. A Plaintiff Who Bases His Claim of Infringement on
`Narrow Features of the Work that Have Been Selected and
`Arranged from Unprotectable Material Must Demonstrate
`Virtual Identicality between the Defendants’ Work and
`His Own .................................................................................... 19
`CONCLUSION ........................................................................................................ 25
`CERTIFICATE OF COMPLIANCE ....................................................................... 26
`APPENDIX A: LIST OF SIGNATORIES ............................................................. 27
`CERTIFICATE OF SERVICE ................................................................................ 29
`
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`i
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`
`
`TABLE OF AUTHORITIES
`
`
`CASES
`Apple Computer, Inc. v. Microsoft Corp.,
`35 F.3d 1435 (9th Cir. 1994) ............................................................. 20, 21, 24
`Arc Music Corp. v. Lee,
`296 F.2d 186 (2d Cir. 1961) ........................................................................ 7, 8
`Arnstein v. Porter,
`154 F.2d 464 (2d Cir. 1946) ........................................................................ 3, 6
`Darrell v. Joe Morris Music Co.,
`113 F.2d 80 (2d Cir. 1940) .............................................................................. 4
`Ets-Hokin v. Skyy Spirits, Inc.,
`323 F.3d 763 (9th Cir. 2003) ................................................................... 20, 21
`Folkens v. Wyland Worldwide, Inc.,
`882 F.3d 768 (9th Cir. 2018) ................................................................... 20, 21
`Fred Fisher, Inc. v. Dillingham,
`298 F. 145 (S.D.N.Y. 1924) (Hand, J.) ......................................................... 14
`Hein v. Harris,
`175 F. 875 (C.C.S.D.N.Y.), aff’d,
`183 F. 107 (2d Cir. 1910) .............................................................................. 14
`Jacobsen v. Deseret Book Co.,
`287 F.3d 936 (10th Cir. 2002) ....................................................................... 24
`Knitwaves, Inc. v. Lollytogs Ltd.,
`71 F.3d 996 (2d Cir.1995) ............................................................................. 23
`Kustoff v. Chaplin,
`120 F.2d 551 (9th Cir. 1941) ........................................................................... 3
`LA Printex Indus. v. Aeropostale, Inc.,
`676 F.3d 841 (9th Cir. 2012) ......................................................................... 23
`Mattel, Inc. v. MGA Entertainment, Inc.,
`616 F.3d 904 (9th Cir. 2010) ................................................................... 20, 21
`N. Music Corp. v. King Record Distributing Co.,
`105 F. Supp. 393 (S.D.N.Y. 1952) .......................................................... 13, 14
`
`ii
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`
`
`Oravec v. Sunny Isles Luxury Ventures, L.C.,
`527 F.3d 1142 (11th Cir. 2008) ............................................................... 18, 19
`Peters v. West,
`692 F.3d 629 (7th Cir. 2012) ........................................................................... 6
`Petrella v. Metro Goldwyn-Mayer, Inc.,
`572 U.S. ___; 134 S. Ct. 1962; 188 L. Ed. 2d 979 (2014) ............................ 18
`Pivot Point International, Inc. v. Charlene Products, Inc.,
`372 F.3d 913 (7th Cir. 2004) ........................................................................... 5
`Rentmeester v. Nike, Inc.,
`883 F.3d 1111 (9th Cir. 2018) .............................................3, 4, 5, 7, 8, 10, 11
`Roth Greeting Cards v. United Card Co.,
`429 F.2d 1106 (9th Cir. 1970) ....................................................................... 22
`Satava v. Lowry,
`323 F.3d 805 (9th Cir. 2003) .................................... 12, 19, 20, 21, 22, 24, 25
`Selle v. Gibb,
`741 F.2d 896 (7th Cir. 1984) ....................................................................... 3, 4
`Sheldon v. Metro-Goldwyn Pictures, Corp.,
`81 F.2d 49 (2d Cir. 1936) ................................................................................ 3
`Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp,
`562 F.2d 1157 (9th Cir. 1977) ................................................................. 2, 6, 7
`Siskind v. Newton-John,
`No. 84 Civ. 2634, 1987 WL 11701 (S.D.N.Y. May 22, 1987) .................... 14
`Skidmore v. Led Zeppelin,
`905 F.3d 1116 (9th Cir. 2018) ....................................................................... 19
`Swirsky v. Carey,
`376 F.3d 841 (9th Cir. 2004) ....................................................... 13, 19, 20, 22
`Three Boys Music Corp. v. Bolton,
`212 F.3d 477 (9th Cir. 2000) ..................................................................... 9, 10
`Ty, Inc. v. GMA Accessories, Inc.,
`132 F.3d 1167 (7th Cir. 1997) ................................................................. 4, 5, 6
`White-Smith Music Publishing Co. v. Apollo Co.,
`209 U.S. 1 (1908) ........................................................................................... 14
`
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`
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`Williams v. Gaye,
`895 F.3d 1106 (2018) .............................................................................. 18, 24
`
`STATUTES AND REGULATIONS
`17 U.S.C. § 103(b) ................................................................................................... 20
`17 U.S.C. § 106 .......................................................................................................... 2
`37 C.F.R. § 202.11 ................................................................................................... 16
`
`OTHER AUTHORITIES
`3 William F. Patry, Patry on Copyright (West 2007) ............................................ 6, 8
`Alan Latman, Probative Similarity As Proof of Copying: Toward Dispelling
`Some Myths in Copyright Infringement, 90 Colum. L. Rev. 1187 (1990) .. 7, 8
`Architectural Works Copyright Protection Act, Pub. L. No 101-650,
`104 Stat. 5089, 5133 (1990) .......................................................................... 16
`Christopher Buccafusco, A Theory of Copyright Authorship,
`102 Va. L. Rev. (2016) .................................................................................. 16
`Compendium of the Copyright Office (2014) ......................................................... 22
`The Copyright Act of 1909 ...................................................................................... 15
`David Aronoff, Exploding the Inverse Ratio Rule,
`55 J. Copyright Soc’y U.S.A. 125 (2008) ................................................... 7, 8
`H.R. Rep. No. 94-1476 (1976) ................................................................................. 17
`Jessica Goudreault, Copyrighting the Quotidian: An Analysis of Copyright
`Law for Postmodern Choreographers, 39 Cardozo L. Rev. (2017) ....... 16, 17
`Joseph P. Fishman, Music as a Matter of Law,
`131 Harv. L. Rev. 1861 (2018) .......................................................... 12, 15, 18
`Mark A. Lemley, Our Bizarre System for Proving Copyright Infringement,
`57 J. Copyright Soc’y U.S.A. (2010) .......................................................... 7, 8
`Mark A. Lemley & Mark P. McKenna, Scope,
`57 Wm. & Mary L. Rev. 2197 (2016) ........................................................... 11
`Nimmer on Copyright (2011) ............................................................................... 3, 24
`Peter S. Menell, Mark A. Lemley, & Robert P. Merges, 2 Intellectual
`Property in the New Technological Age 641 (2018 edition) ........................... 9
`
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`
`
`Shyamkrishna Balganesh, The Questionable Origins of the Copyright
`Infringement Analysis, 68 Stan. L. Rev. 791 (2016) ..................................... 14
`Stenographic Report of the Proceedings of the First Session of
`the Conference on Copyright 104 (1905) ...................................................... 15
`William B. Hale, A Treatise on the Law of Copyright and Literary Property
`(1917) ............................................................................................................. 15
`
`v
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`INTEREST AND IDENTITY OF THE AMICI CURIAE
`
`
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`Amici Curiae are intellectual property law professors at schools throughout
`
`the United States. Amici have no personal interest in the outcome of this case, but
`
`have a professional interest in seeing that copyright law develops in a way that is
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`logical and clear and that achieves the Constitutional objective of promoting the
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`progress of science. No one other than amici has funded or participated in the
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`drafting of this brief. A list of signatories is attached in Appendix A.
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`
`
`SUMMARY OF ARGUMENT
`
`
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`This Court’s precedent on the relationship between access and similarity in
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`proving copying is unclear and inconsistent. This Court should clarify that while a
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`defendant’s access to the plaintiff’s work is required if there is no direct evidence
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`of copying, proof of greater access does not lessen the burden of showing enough
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`similarity that copying is probable. That burden remains on the plaintiff at all
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`times in an infringement case.
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`
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`Where, as here, the infringement claim involves a musical composition, this
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`Court should follow traditional doctrine that limited infringement claims to
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`similarity of melody and lyrics. Alternatively, should the Court permit claims
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`based on a “compilation” of unprotectable elements in a musical work, it should
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`apply the “virtual identity” test for infringement the law has developed for just
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`1
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`such situations, not the more lenient “substantial similarity” standard the plaintiff
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`advocates.
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`ARGUMENT
`
`I.
`
`
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`The Court Should Clarify the Nature of the Copying-In-Fact Inquiry
`and Abandon Its Use of the Illogical “Inverse Ratio Rule”
`
`The owner of a valid copyright bears the burden of proving a violation of
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`one of the exclusive rights enumerated in 17 U.S.C. § 106. To prove such a
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`violation, a plaintiff must show two things: (1) that the defendants actually copied
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`the plaintiff’s work rather than creating a work independently, and (2) that if such
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`copying occurred, it amounts to an unlawful appropriation of the plaintiff’s
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`copyright. Rentmeester v. Nike, Inc., 883 F3d 1111, 1117 (9th Cir. 2018).
`
`
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`In some cases, the plaintiff will have no difficulty proving actual copying.
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`There may be direct evidence of copying such as eyewitness testimony or the
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`defendant’s own admission. In Sid & Marty Krofft Television Productions, Inc. v.
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`McDonald’s Corp, for example, the defendant expressly told its designers to create
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`characters that were like H. R. Puffenstuff. 562 F.2d 1157, 1164–65 (9th Cir.
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`1977). In such cases, the court can proceed immediately to the second element and
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`begin to assess whether the defendant’s copying was wrongful.
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`
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`Very often, however, plaintiffs will not be able to demonstrate copying so
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`easily. They must rely on circumstantial evidence. And as with all circumstantial
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`evidence, the fundamental issue for the factfinder is to determine how strongly it
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`2
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`supports a particular factual inference. That determination is a question of
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`probabilities. Given the available evidence, is it more likely than not that the
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`defendant copied the plaintiff’s work rather than independently created it?
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`Rentmeester, 883 F.3d at 1117.
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`Starting in the early part of twentieth century, American courts began
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`developing the doctrine that would govern the proof that plaintiffs had to offer to
`
`establish an inference of copying. Sheldon v. Metro-Goldwyn Pictures, Corp. 81
`
`F.2d 49, 54 (2d Cir. 1936); Kustoff v. Chaplin, 120 F.2d 551, 560 (9th Cir. 1941);
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`Arnstein v. Porter, 154 F.2d 464, 486 (2d Cir. 1946). These courts recognized that
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`if plaintiffs could not plausibly establish that defendants were aware of their works,
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`then there was no way that the defendants could have copied those works. Without
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`access, copying is impossible. Selle v. Gibb, 741 F.2d 896, 901 (7th Cir. 1984).
`
`
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`But what if the plaintiff can show that the defendant may have seen, heard,
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`or otherwise experienced the work prior to creating the allegedly infringing work?
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`At this point, the plaintiff has shown that there is some possibility that the
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`defendant copied his work. Given that copying is possible, the plaintiff must now
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`show copying is actually probable. The plaintiff must show that, more likely than
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`not, the defendant used the plaintiff’s work as a model for its own. 4 Melville B.
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`Nimmer & David Nimmer, Nimmer on Copyright § 13.01[B], at 13-9 (2011). As
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`this and other courts have recognized, the actual strength of that probability now
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`3
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`becomes a matter of the nature of the similarities between the two works.
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`Rentmeester, 883 F.3d at 1117 (plaintiff must show “similarities that are probative
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`of copying”); Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1170 (7th Cir.
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`1997).
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`
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`Two works might be similar for several reasons other than copying. Both of
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`those works might be copies of a third work that precedes them both, as James
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`Joyce’s Ulysses and the Coen Brothers’ O Brother, Where Art Thou? both copy
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`Homer’s Odyssey. Ty, Inc., 132 F.3d at 1170. Or both works may share similar
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`features because those features are characteristic of the creative genre. Darrell v.
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`Joe Morris Music Co., 113 F.2d 80, 80 (2d Cir. 1940) (“[W]hile there are an
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`enormous number of possible permutations of musical notes of the scale, only a
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`few are pleasing; and much fewer still suit the infantile demands of the popular ear.
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`Recurrence is not therefore an inevitable badge of plagiarism.”); Selle, 741 F.2d at
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`901. Finally, both creators might independently converge around the same
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`expression of a given idea, and this can be so even where the second creator had
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`previously experienced the first creator’s work. Ty, Inc., 132 F.3d at 1170. The
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`prior work may have made no effect on the creator’s mind, or he could have
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`forgotten it entirely.1
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`1 One of us admits to having watched the same movie twice without remembering
`the first viewing although his wife proved that they had seen the film together two
`years earlier.
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`4
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`
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`To prove actual copying through similarities between the parties’ works,
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`those similarities should be ones that make the factfinder suspicious of copying.
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`They must be probative of copying. Ty, Inc., 132 F.3d at 1170. They may include
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`repetitions of errors in the plaintiff’s work, like the mannequin’s double hairline in
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`Pivot Point International, Inc. v. Charlene Products, Inc. 372 F.3d 913, 916 (7th
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`Cir. 2004), or the similarities found in copying “traps” like the fictitious telephone-
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`directory names in Feist Publications, Inc. v. Rural Telephone Service Company,
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`499 U.S. 340, 343 (1991). In such cases, where the likelihood of independent
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`creation is small, a single point of similarity may be enough to establish an
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`inference of copying. Moreover, that single point need not be an otherwise
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`protectable aspect of the plaintiff’s expression. Rentmeester, 883 F.3d at 1117 (“To
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`prove copying, the similarities between the two works need not be extensive, and
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`they need not involve protected elements of the plaintiff's work. They just need to
`
`be similarities one would not expect to arise if the two works had been created
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`independently.”)
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`Two works may also share enough similarities that the combined
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`probabilities of each showing up together in the same work would support an
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`inference of copying even though only one or two such similarities would not. For
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`example, two rap song creators might independently choose the same name for
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`their songs, or the same quotation from Friedrich Nietzsche, or the same simple
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`5
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`rhyme, or a similar reference to the model Kate Moss, but the probability that all
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`four of those similarities would arise in the two songs independently is
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`considerably lower. See Peters v. West, 692 F.3d 629, 634-36 (7th Cir. 2012).
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`In all these situations, the key issue is the strength of the inference that can
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`be derived from the nature of the alleged similarities. Never does the factfinder
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`need to think further about the degree of access that the defendant had to the
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`plaintiff’s work. Proof of access only gets a plaintiff over the threshold showing
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`that copying is not impossible. Ty, Inc., 132 F.3d at 1170 (“[A]ccess does not entail
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`copying”). After that, it does not influence the strength of the inference of copying
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`at all. It should drop out of the inquiry entirely.
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`This Court has not always embraced this point. Instead, this Court
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`sometimes has declared that if the defendant admits to having access to the
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`plaintiff’s work or if the amount of access is “high,” then the plaintiff need not
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`demonstrate as much similarity between the two works. This seems to stem from
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`its misreading of Arnstein v. Porter in Sid & Marty Krofft. Whereas Arnstein
`
`established the two separate elements of infringement of the reproduction right as
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`copying-in-fact and unlawful appropriation, Sid & Marty Krofft instead declared
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`the elements to be (1) access and (2) substantial similarity. 562 F.2d 1164. This
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`misreading obscured the difference between the kinds of similarities that are
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`relevant for proof of copying-in-fact and those that are relevant for unlawful
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`6
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`appropriation. Because there the defendant’s representatives met with the plaintiff
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`to discuss working together, the court determined “that this degree of access
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`justifies a lower standard of proof to show substantial similarity.” Id at 1172.
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`This so-called “inverse ratio rule” has fundamentally undermined one of
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`copyright’s bedrock principles—that independent creation is not an infringement.
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`The inverse ratio rule is widely condemned by other courts and scholars. See, e.g.,
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`Arc Music Corp. v. Lee, 296 F.2d 186, 187 (2d Cir. 1961); 3 William F. Patry,
`
`Patry on Copyright § 9:91, at 9-243 (West 2007) (concluding that “[i]t is time the
`
`inverse ratio ‘theory’ be killed off permanently”); Alan Latman, Probative
`
`Similarity As Proof of Copying: Toward Dispelling Some Myths in Copyright
`
`Infringement, 90 Colum. L. Rev. 1187 (1990); Mark A. Lemley, Our Bizarre
`
`System for Proving Copyright Infringement, 57 J. Copyright Soc’y U.S.A. 719, 721
`
`(2010); David Aronoff, Exploding the Inverse Ratio Rule, 55 J. Copyright Soc’y
`
`U.S.A. 125 (2008).
`
`Although this misreading has caused substantial mischief in this Circuit’s
`
`copyright jurisprudence, a recent panel decision by this Circuit has corrected the
`
`mistake. In Rentmeester, the court clarified the absolute separation between the
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`copying-in-fact element and the unlawful appropriation element when it refused
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`the plaintiff’s request for an “inverse ratio” instruction on the second element even
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`though the defendant’s admitted the first element. Rentmeester, 883 F.3d at 1124
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`7
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`(“The showing of substantial similarity necessary to prove unlawful appropriation
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`does not vary with the degree of access the plaintiff has shown.”). In no case,
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`Rentmeester held, will evidence of access affect the plaintiff’s burden of proof for
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`the unlawful appropriation element of copyright infringement.
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`That clarification was welcome, and this Court should reaffirm it here en
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`banc. But it should also join its sister circuits and a chorus of scholars to reject the
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`inverse ratio rule even for proof of copying-in-fact. Arc Music Corp. v. Lee,
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`296 F.2d 186, 187 (2d Cir. 1961); Patry, Patry on Copyright at 9-243; Latman,
`
`90 Colum. L. Rev. at 1187; Lemley, 57 J. Copyright Soc’y U.S.A. at 721; Aronoff,
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`55 J. Copyright Soc’y U.S.A. at 125. Although proof of access to the plaintiff’s
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`work is essential for establishing the possibility of copying, “more” access to the
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`plaintiff’s work—whatever that even means—does not logically increase the
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`probability that the defendant copied from the plaintiff. Proof of access can
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`establish that copying was not impossible, but beyond that it does not affect the
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`strength of the inference to be drawn about the probability of copying. That
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`inference is a solely a matter of the probative or suspicious similarities between the
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`two works.
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`Consider the situation in this case. When the members of Led Zeppelin
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`wrote “Stairway to Heaven” in 1970–71, they may have had some access to
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`Spirit’s song “Taurus.” But, at the same time, they had far more access to The
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`8
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`Rolling Stones’ “Honky Tonk Women,” Simon & Garfunkel’s “Mrs. Robinson,”
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`and “London Bridge Is Falling Down.” No one, however, would think that it is
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`more likely that “Stairway to Heaven” is copied from one of those works than that
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`it is copied from the plaintiff’s work, and the reason is simple: “Stairway to
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`Heaven” does not share any similarities with those works that suggest that it was
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`copied from them. More access to a work is not more probative of copying.
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`The fact that this Court is considering the rules for infringement en banc
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`provides an opportunity to clarify two other issues about the standard. The first is
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`linguistic. The Court should no longer refer to the degree of proof that the plaintiff
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`must establish to show copying as “substantial similarity.” As you know,
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`sometimes words have two meanings. That is true of “substantial similarity.” Both
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`similarity probative of copying in step one and similarity of expression that rises to
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`the level of unlawful appropriation in step two have both been referred to as
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`“substantial similarity.” E.g., Three Boys Music Corp. v. Bolton, 212 F.3d 477,
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`485 (9th Cir. 2000) (confusing the two elements of copying-in-fact and unlawful
`
`appropriation); Peter S. Menell, Mark A. Lemley, & Robert P. Merges,
`
`2 Intellectual Property in the New Technological Age 641 (2018 edition)
`
`(describing this confusion and recommending the terms “probative similarity” in
`
`step one and “unlawful appropriation” in step two). The term “substantial
`
`similarity” misrepresents the nature of the similarities that are relevant. In the
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`9
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`absence of direct evidence or an admission of copying, the copying-in-fact element
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`will be a fact-intensive, medium- and genre-specific inquiry into the strength of the
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`inference to be drawn from a particular set of similarities. To motivate an inference
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`of copying, the similarities between the plaintiff’s work and the defendant’s do not
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`need to be numerically substantial. Rather, they need to be probative of copying.
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`They need to generate the suspicion that the defendant copied instead of
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`independently created his work.
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`Second, this Court should clarify that the burden of proof for copying-in-fact
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`always rests with the plaintiff. Some decisions have stated that once the plaintiff
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`demonstrates access and substantial similarity the burden shifts to the defendant to
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`prove independent creation. See, e.g., Three Boys Music Corp., 212 F.3d at 486.
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`If this statement simply means that once the plaintiff has produced evidence
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`demonstrating that copying is more likely than not the defendant will have to
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`dispute that evidence in order to win on this element, then it is a correct, if
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`unnecessary, statement of the burden.2 We fear, however, that courts have a more
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`dramatic burden-shifting approach in mind or that jurors may interpret it as such. It
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`is not the case that where the plaintiff has shown access and some degree of
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`2 It is unnecessary because it is true of any element of any cause of action in the
`law. Once the plaintiff has adduced sufficient evidence to establish that an element
`by a preponderance of the evidence, the defendant will lose if it does not rebut the
`evidence. We believe that this is what this court meant in Rentmeester, 883 F.3d
`at 1117.
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`similarity, the defendant must prove independent creation by a preponderance of
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`the evidence. The burden of proof for each element of the prima facie case of
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`copyright infringement always rests with the plaintiff.
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`II. The Court Should Follow Congress’s Intent and Its Own Precedents to
`Properly Constrain the Scope of Copyright for Musical Compositions
`and Claims Based on Original Selection and Arrangement
`
`As Rentmeester explained, the second element of the plaintiff’s prima facie
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`
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`case for infringement of the reproduction right is unlawful appropriation. 883 F.3d
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`at 1117. Unlike the copying-in-fact inquiry, which is a purely evidentiary
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`determination, the unlawful appropriation inquiry is a more normative judgment
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`about whether the plaintiff should get to control some aspect of the defendant’s
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`expression. Here, the principal issues—and the ones at the heart of this case—
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`involve determining the scope of the plaintiff’s copyright. What aspects of the
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`plaintiff’s work receive copyright protection, and how broadly does that protection
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`stretch to cover other expression? See Mark A. Lemley & Mark P. McKenna,
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`Scope, 57 Wm. & Mary L. Rev. 2197 (2016).
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`
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`We make two points about unlawful appropriation. First, this Court should
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`follow congressional intent and longstanding judicial practice of limiting musical
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`work copyrights to the lyrics and melody of the composition, at least for works that
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`were created under the 1909 Copyright Act. The selection and arrangement of
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`elements other than lyrics and melody have not historically been protected at all,
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`and this Court should not disturb that history. Alternatively, if this Court allows
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`the plaintiff to proceed on a copyright claim based on the original selection and
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`arrangement of otherwise unprotectable elements, it should follow its precedents in
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`Satava and numerous other cases and limit the scope of infringement to “virtually
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`identical” copying. Either ruling would restore much-needed clarity to the scope of
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`musical-composition copyrights.
`
`A. Copyright in Musical Works Extends Only to Lyrics and Melody
`
`Since Congress first extended copyright protection to music in 1831, the
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`copyright in the instrumental portions of a song has almost always covered just one
`
`thing: the melody. See Joseph P. Fishman, Music as a Matter of Law, 131 Harv. L.
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`Rev. 1861, 1873–83 (2018) (reviewing the history of music infringement cases
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`before the 1976 Act’s passage).3 Courts applying the 1909 Act protected the series
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`of pitches and their corresponding durations: what we colloquially call the tune.
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`They did not, by contrast, protect what Skidmore is asking this Court to protect,
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`whether it’s “repeated eighth-note beats” or “the chords associated with a
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`chromatic bassline” or the sort of multielement selection-and-arrangement theory
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`that he has called a “central element” of his infringement claim. Plaintiff’s App.
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`Brief, at 58. Because selection-and-arrangement claims have become common in
`
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`3 Lyrics are also protected by copyright, but there is no allegation of infringement
`of Spirit’s lyrics here.
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`copyright’s other subject-matter areas, one might initially think they would be
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`equally at home in a music case. But notwithstanding this Court’s comment in
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`Swirsky v. Carey that unlawful appropriation could occur through a combination of
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`individually unprotected elements like “chord progression, key, tempo, rhythm,
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`and genre,” 376 F.3d 841, 848 (9th Cir. 2004), music cases haven’t historically
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`worked this way.4 Nor should they. Because focusing on the melody makes the
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`music infringement test far more predictable for both songwriters and lawyers, this
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`Court should resolve Skidmore’s claim by adhering to the narrow scope of melodic
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`inquiry that courts have traditionally applied.
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`To begin with, extending the scope of protection for a work created in 1967
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`to selection and arrangement would be deeply anachronistic. The author of
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`“Taurus” could not have reasonably expected his copyright to cover more than the
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`notes of the melodic line. Up until very recently, courts had operated on the
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`principle that, as one decision explained it, “neither rhythm nor harmony can in
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`itself be the subject of copyright” and “[i]t is in the melody of the composition—or
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`the arrangement of notes or tones that originality must be found.” N. Music Corp.
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`v. King Record Distributing Co., 105 F. Supp. 393, 400 (S.D.N.Y. 1952); accord
`
`
`4 Although this language is concededly broad, even in Swirsky itself the actual
`object of the Court’s analysis was a sequence of pitches. The Court included this
`observation in the midst of considering an expert opinion that certain notes from
`the work were more important than others. See 376 F.3d at 846–48.
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`Siskind v. Newton-John, No. 84 Civ. 2634, 1987 WL 11701, at *5 (S.D.N.Y. May
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`22, 1987) (citing Northern Music for the proposition that “it is the melody which is
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`the most important feature of the music” and theref