Friday, August 13, 2010

'Girl' Trouble: Examining The Merits Of Rondor Music's Complaint About The Katy Perry Hit

My Billboard column this week explores the legal issues behind the claim that the "I really wish you all could be California girls" line in Katy Perry's hit "California Gurls" infringes on "I wish they all could be California girls" in the Beach Boys' classic. Also cross-posted at THR, Esq.

I don't argue that Rondor (the publisher of the Beach Boys' song) has a particularly strong claim. But before dismissing it as frivolous, consider such cases as:
  • Heim v. Universal Pictures, 154 F.2d 480 (2d Cir. 1946) ("There may be wrongful copying, though small quantitatively; so if someone were to copy the words, "Euclid alone has looked on Beauty bare," or "Twas brillig and the slithy toves.")


  1. Ben -- you don't honestly believe there's any merit in an infringement claim, do you? Even assuming Bridgeport Music can stand up to any real scrutiny, it seems pretty clearly limited to appropriation of an actual recording. Can appropriation of a line in a manner that constitutes allusion or even homage conceivably constitute infringement? Where would we be if such allusions required licensing?

  2. Peter -- no, I don't think this is a very strong claim. But in researching this column, I was surprised to find that there are a bunch of cases out there suggesting (contrary to what the Copyright Office says) that there can be copyright in a short phrase, or even a single word, if sufficiently original or distinctive. I'm skeptical a court would find Snoop's line to infringe on "I wish they all could be California girls" (especially because it's not even an exact copy). But I don't think the claim can be dismissed with a quick reference to the Copyright Act's statement about words and short phrases.

  3. I wouldn't necessarily be so quick to dismiss the claim. Afterall, the song lyrics themselves are subject to copyright protection. And if we take guidance from the fair use provisions, particularly the amount and substantiality section, we find that even an otherwise de minimis copying can be infringing if it constitutes the heart of the work. I can envision the argument here being that the phrase "I wish they all could be California girls" is the heart of the work, therefore even though it constitutes but a single sentence out of an entire song, anything even substantially similar would be an infringement.

  4. Peter Friedman - Based on the ridiculous case law which has built up over the years to minimize fair use principles, there is INDEED merit to this claim. The lack of merit exists in the SUBSTANCE OF COPYRIGHT LAW ITSELF as it currently stands. For some reason, many in the legal community don't wish to face this truth. Its easier for them to argue "fair use" in a specific case that offends them, not realizing that there are countless numbers of such offending cases that aren't reported (or are settled before actually evolving into a formal lawsuit). Since fair use is such a flexible concept, its nearly impossible to argue that one is "wrong". Because of this, it creates a hurdle in having a real discussion of how copyright law should be reformed. At the end of the day, you can always substitute your personal "fair use" interpretation preferences for objective reform (obviating the need for the latter).

    But I will say that Bridgeport Music is valid, it makes no sense to apply its reasoning only to music recordings. Copyright principles should not favor one medium over another in terms of creative works. I'm sure the poet or song lyricist would be offended to hear someone suggest that copying snippets of their work is "fair use", while copying the creative equivalent amount of recorded music is an act which should trigger royalty payments.

    Ben - I am surprised that you are "surprised" that "there are a bunch of cases out there suggesting (contrary to what the Copyright Office says) that there can be copyright in a short phrase, or even a single word, if sufficiently original or distinctive." Are you honestly suggesting you are only now coming across this information?? Since I come at the topic from a different perspective, perhaps bad decisions like Bridgeport Music stick in my mind more vividly when they first come out compared with someone like you who might consider it "business as usual" in the content licensing world.

    If you are honestly coming across this information for the first time (despite your experience), maybe this will help convince you that copyright reformists such as myself have a stronger point than you give them credit for - but somehow I doubt it. Like most copyright attorneys (and politicians, petty dictators, etc.), you seem to relish the thought of having control over other people's lives in how they use and consume information. That prevents you from flatly condemning cases such as the one you describe above - preferring instead to subtly endorse it under the rubric of "objective" legal analysis.

  5. Justin -- Bridgeport Recording and Grand Upright Music have not been extended beyond the arena of sampled recording. I'd love to have you cite me authority for the proposition that quotation of a single line of one work in another, equivalent work (that is, for example, quotation of one line of a song in another song) constitutes copyright infringement. I haven't seen it. Which certainly doesn't mean it doesn't exist, but I'd love to know it if it does.

  6. Peter -

    There is no such authority since you know as well as I do that fair use does not lend itself to bright line rules, so neither of us can say one way or the other. Fair use rules do not allow one to categorically say under any and all circumstances that "a single line of one work in another, equivalent work" will ALWAYS constitute fair use PER SE. If they did, then the rule would have been codified by now.

    The fact that "Bridgeport Recording and Grand Upright Music have not explicitly been extended beyond the arena of sampled recording" completely misses the point I was trying to make: That there is no rational justification for limiting its reasoning to one style of work.

    The Bridgeport case states "The analysis that is appropriate for determining infringement of a musical composition copyright, is not the analysis that is to be applied to determine infringement of a sound recording." - but it gives absolutely no philosophical or ideological reason to justify this. It is merely ad hoc rationalizing which it used to get to a result it wanted.

    So let me put it to you directly: For purposes of copyright/fair use analysis: Why SHOULD a court distinguish between 2 seconds of a sound recording verses sentence from a song lyric? Surely the poet values his/her work just as much as the music recordist. Why place more value on one over the other in terms of how the law treats its?

    I can't see any intellectually honest rationale as to how one could justify such a distinction (especially when courts don't consider "sweat of the brow" arguments).

    It makes fare more sense to simply reject Bridgeport's conclusion altogether (which is my own position), rather than contort copyright principles by suggesting that minuscule portions of recordings are violations while similarly minuscule portions of written works are de minimus fair use.

    So if you accept the objective fact that Bridgeport remains validly on the books, it seems disingenuous to cavalierly suggest that the "California Gurls" issue is obviously fair use.

    The fact that the court attempted to limit Bridgeport to its facts does not allow us to conclude fair use questions outside its boundaries since it never addressed them. In a sense, EVERY fair use case is limited to its facts - which is part of the reason why it is such a nefarious concept of little value when trying to navigate the minefield of copyright that IP practitioners have erected in order to prevent the creation of derivative works.

    It seems more intellectually honest to me to suggest that it is the broad substantive law of copyright which is broken - not the single court ruling of a fair use interpretation.

  7. For the record, the Bridgeport Music, Inc. v. Dimension Films film case says absolutely nothing about fair use. The analysis was limited to whether the district court erred in concluding that the copying was de minimis (which goes to the issue of copyrightability, not fair use). The court explicitly stated, "Since the district judge found no infringement, there was no necessity to consider the affirmative defense of 'fair use.' On remand, the trial judge is free to consider this defense and we express no opinion on its applicability to these facts."

  8. Thank you, Ben. And Justin, it's far more supportive of me that you can cite no authority for the scenario you fear. I would submit there's no authority for it because the claim that the quotation of a line of one song in another would never pass judicial scrutiny.

    As to Bridgeport and Grand Upright -- the former is a 6th Circuit decision, the latter a district court decision. The fact that the industry has followed those rulings has a lot more to do, I would argue, with the fact that every recording company profits more from charging for the licensing of its own recordings than it would in engaging in the sampling practices that predated Grand Upright.

    I understand your fears, but I think it far more likely that in the long run a court will bring a fair use lens to the issue of recorded samples and that practice everyone seems to assume is law (paying for recorded samples no matter how brief and no matter how transformative their appropriation) will fall by the wayside.


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