Intellectual Property

The Courts Call It Correct In 2 Massive Recent Copyright Cases

The correctness of the two decisions, of course, did not stop campaigns of frantic hand-wringing.

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A pair of blockbuster copyright decisions came flowing out of court chambers and into the library of precedent over the past month or so and both of them were for the most part thorough, well-reasoned, and spot-on in their analysis. One decision, in Goldman v. Breitbart News, emerged out of the Southern District of New York, and the other, Williams v. Gaye was issued by the Ninth Circuit Court of Appeals. Both were gleaming examples of thoughtful copyright analysis and both reached the proper conclusions.

The correctness of the two decisions, of course, did not stop campaigns of frantic hand-wringing and parades of horribles and general sky-is-falling rhetoric from those who believe that copyright must be minimized and the artist should be the last to feed at the trough of monies derived from the use of art in commerce. If you dig deep enough into the internet, you will hear that these straightforward, precedent-respecting decisions will have the effect of shaking the online publishing world to its core and precluding all future bass-players from even strumming a C-major chord without first consulting the nearest copyright attorney. Per usual, these claims are hogwash.

The first decision, Goldman, was in the realm of photography and commercial website publishing and addressed whether or not a website owner who makes money from displaying photographs is required to obtain the consent of or compensate the creator of the photographs it posts. As I mentioned in my piece on this case back in November of 2017, the defendants in the case were various for-profit websites, like Breitbart News, that displayed a photograph without the photographer’s consent. At base, it was a very straightforward and clear case of unauthorized use and copyright infringement.

But, Breitbart and the other websites, supported by the anti-artists’ rights group Electronic Frontier Foundation, made the baseless claim that the websites should be able to freely use the photographer’s work because the photograph was displayed on the website via an embedding process instead of a direct upload. I will not bore you (again) with the specifics of this process, but suffice it to say that when you or I or a Breitbart enthusiast visits a website and views a picture, it makes not a lick of difference to us — as the viewer, clicker, web traffic data point — how the photograph was displayed on the site. And it makes no difference to how much money a website collects in connection with our viewing the picture. But, the website operators, employing a technical undercarriage defense, argued to the court that their employment of a particular technical process to display the photograph should deprive photographers of their rights vis-a-vis the contested publishing.

Judge Katherine B. Forrest, seeing through the techno-babble, reached the common-sense conclusion that this display was infringement, regardless of the undercarriage. She wrote that “[t]he plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide no basis for a rule that allows the physical location or possession of an image to determine who may or may not have ‘displayed’ a work within the meaning of the Copyright Act.” In other words, the technical undercarriage that results in the display is not the focus, it is the display itself, as the exclusive right to display is the one protected under the Copyright Act. She drove the point home by referring to the very text of the Copyright Act, specifically 17 USC § 101, which notes that a display can be accomplished “by means of any device or process.” Embedding certainly qualifies as “any device or process.” The defendants, though, claiming that the internet was in danger of imploding as a result of this well-reasoned decision, petitioned for interlocutory review, and Judge Forrest credited their claim of potential imminent disaster and sent it to the Second Circuit. More to come, to be sure.

The second recent decision was in Williams v. Gaye, or the “Blurred Lines” case, which has been around since well before Trump’s presidential campaign began, which seems like forever ago. This Ninth Circuit opinion, while garnering lots of attention, is for the most part straightforward and well-hewed to binding precedent and the basic tenets of appellate review, such as the one recognizing that substantial deference is given to the findings of a jury.

In fact, the most interesting part of the appellate decision — which concluded, reasonably, that the jury’s finding that “Blurred Lines,” a song that Pharrell Williams and Robin Thicke admitted was created in no time at all, and which had obvious similarities to a Marvin Gaye work — is the interfacing between the majority and the dissenter, the Honorable Jacqueline Nguyen.

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One issue that they ventilate in the back-and-forth is the level of deference that should be accorded to the eight people who were in the jury box during the trial and heard first-hand the testimony and saw the witnesses’ faces (including Thicke’s in a videotaped deposition that has become famous amongst entertainment litigators for its wretchedness) and heard the music (albeit in limited form) and opinions from the experts. The majority found that much respect must be given to those jurors who were in the room during trial. The dissent asserts otherwise, and attempts to relitigate the heart of the matter by reference to sheet music and other technical pitch and rhythmic similarities, or lack thereof, as seen in the papers. In other words, as the majority avers, Judge Nguyen, based on the briefs, and without the advantage of any live testimony, sought to “act as judge, jury, and executioner.”

Judge Nguyen is not only an excellent appellate judge, but was also an excellent district court judge, though she only served at that position for a few years. But, in that time, she had occasion to witness the nuances of trial testimony and evidence proffers that most certainly do not show up in the appellate briefs. Those nuances are one of the primary reasons why the appellate courts accord such deference to jury findings. But, here, she found their decision to be lacking, unlike the other two judges on the panel, who affirmed the result reached by the jury.

I was actually in the room during a portion of the “Blurred Lines” trial, sitting aside music industry professionals and journalists. We sat rapt in the gallery, watching the witness testimony and expert presentation. When the court took its afternoon break and the gallery spilled out into the hallway, each and every person that had witnessed the session and to whom I spoke, many of which had seen much or all of the trial to that point, was convinced that the Gaye family would prevail. Being in the room makes all of the difference. That is why the jury trial is such a sacred thing, and that is why jury verdicts should be accorded deference, particularly in a case like this, which included important credibility questions.

After the verdict was entered, media hubbub raged and industry “experts” trotted out various hobgoblins, disparaging juries, and claiming that this verdict would bring down the music industry. But, of course, the prophesied widespread damage to the music industry never came to be. In actuality, the exact opposite has proven to be the case. Music industry revenues grew for two years in a row after the verdict, and they “grew by more than 16% last year to $8.7 billion, its highest level in a decade.” And, while I have not crunched the numbers, I can anecdotally say that there has not been a significant increase in the filing of music copyright infringement cases. Those numbers have stayed about the same, and would be even lower if Ed Sheeran wasn’t “making” music. So, the verdict did not bring down the industry and this thoughtful appellate decision will have a similar non-effect.

So, despite the complaints of the naysayers and doomsdayers, the above decisions reflect two more copyright cases that the courts called correctly. Kudos.

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Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

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