Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

What did your look like this year? As music streaming services grow in popularity, more people have included them as part of their daily lives. On November 29th, The Competition and Markets Authority (CMA) released its of its market study into music and music streaming. According to the report, streaming services are the primary method of music distribution for labels and artists, with 39 million active users and over 138 billion streams in the UK in 2021. Moreover, competition between music streaming services and the digitization of the market improved consumer outcomes greatly, though creators still had concerns about their earnings from streaming.

Falling subscription fees, benefits for emerging artists

Music streaming services have evolved to significantly benefit consumers in today's market. These services offer consumers access to an enormous catalogue of music, better audio quality, and new features, without the price tag. In fact, the report reveals that the price of music streaming plans dropped more than 20% between 2009 and 2021 because they did not keep up with inflation.

The music streaming market is also showing some positive results for creators, especially new artists. First, virtually anyone can share their music. Although the market is highly competitive, it has never been easier to create and record music and share it on streaming services. Secondly, deal options for creators are improving. Although creators do not necessarily need a label to share their music on streaming services, many of them are finding that they have more options in what type of deal they would prefer (for example, DIY distribution, A&L services, traditional record deals). Moreover, artists find that having an existing prominent following online helps them while negotiating a record deal. Major contracts with new artists for multi-track deals revealed more favourable terms for creators — an increase in average gross royalty rates, shorter minimum commitment periods and a reduction in the proportion of recordings owned by labels.

Average UK artist yearly streaming earnings from majors and average UK royalty rates. Source: CMA analysis of data from the majors.

Challenges call for broader policy debate, not competition intervention

Digitization has also presented some challenges. Market digitization has primarily limited competition to already popular artists — although streaming services offer a wide selection of music, consumer tastes tend to favour a small number of successful artists. Moreover, streaming allows both new and old music to reach new audiences, increasing competition as new music competes with older music for a share of streaming revenue.

Ultimately, the report concludes that these outcomes are not primarily caused by market competition and therefore, a competition intervention probably would not increase revenues for artists. Rather, the report calls for a broader policy debate, encouraging the government to consider further legislative and policy reforms for creator compensation in collaboration with DCMS Select Committee recommendations.

Labels are urged to provide more transparency to their artists about how streaming service earnings are calculated and how existing deals with streaming services will impact their current and future earnings. In addition, government and policymakers should examine options available to incentivize songwriting, such as determining a fair split between publishing and recording shares and exploring the licensing rates for music streaming. Future conversations revolving around these issues are critical, as the sustainability of the music streaming market depends on consumers and creators alike.

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Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

This past summer, Amazon made headlines when it announced an update that would make Alexa capable of , just after hearing under a minute of audio. While people are still unsure as to whether this is heartwarming or just plain creepy, AI continues to evolve, with recent developments showing its ability to not only mimic human speech but also singing.

AI-based audio technologies have been making waves worldwide. Last month, Google announced “”, which proposes “a new framework for audio generation that learns to generate realistic speech and piano music by listening to audio only”. More recently, , China’s leading music entertainment platform, demonstrated the influence of AI in music. According to Music Business Worldwide, the company has released over - one of the tracks surpassing 100 M streams. TME utilized a “patented voice synthesis technology” called “Lingyin Engine”, which the company claims can “quickly and vividly replicate singers’ voices to produce original songs of any style and language.” South Korea has been a strong player, with its most prominent AI-based audio start-up, . The company claims that its voice synthesis and real-time voice enhancement technology can create a hyper-realistic voice that is indistinguishable from real humans.

So far, these AI voice technologies have largely been publicized as an innovative way of and preserving the memories of lost loved ones. Nevertheless, companies will likely aggressively pursue these technologies for profit. In fact, according to NME, (record label of globally recognized boy band, BTS), which equates to about $44.6 million Canadian Dollars. last month, HYBE’s CEO confirmed that the company plans to “unveil new content and services to [its] fans by combining our content-creation capabilities with Supertone’s AI-based speaking and singing vocal synthesis technology.”

HYBE’s huge investment in Supertone starts to make a little more sense once we discover that the company’s “” in Q3 2022 was its Artist ‘Indirect-involvement’ revenues. BTS’s success suggests how more entertainment companies will follow HYBE’s footsteps to increase profits without the headache of coordinating any physical appearances of its artists.

The development of voice AI opens a plethora of legal questions to consider. These issues were highlighted more recently by the recent - who is given permission to use it and does the artist hold any rights to license their voice to third parties for use in other films? More specifically for , how do we determine who owns the copyright to the work? Does it make sense to look at the creators of the voice AI technologies themselves or at the source of the vocal data (the artist)? These questions clarify that the development of voice AI places our artists in a very vulnerable position — suggesting a much-needed intermission for this chaotic programme.

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Alice Xie is an IPilogue Writer and a 1L JD Candidate at Western University’s Faculty of Law.

Do you remember contemplating whether you liked a trending pop song enough to spend $4.99? With the rise of online streaming services like Spotify and YouTube over the last two decades, listening to music has arguably changed for the better. However, with the convenience of streaming music through these digital platforms, the music industry has also had to deal with a wide range of copyright issues, including online copyright infringement. A look at streaming giant Spotify’s recent significant copyright battles provides some insight into the issue of on online streaming platforms.

Spotify’s Recent Significant Battles

Spotify has encountered its fair share of copyright infringement lawsuits filed by music artists, record labels, and publishers. In 2015, guitarist David Bowery filed a lawsuit against Spotify USA, a Spotify subsidiary, for streaming songs without first , which are the standard payment for reproducing or distributing a song. Spotify settled the lawsuit with . In 2017, music publishing company Wixen also filed a against Spotify USA, seeking $1.6 billion. Wixen claimed that Spotify from its represented artists, which resulted in the artists and publishers not receiving royalties when customers streamed their work. Spotify and Wixen mutually agreed to in 2018. In 2020, two entertainment companies filed against Spotify and other streaming services for not receiving royalties for their streams. The issue of inadequate artist compensation is not unique to Spotify, but applies to all streaming services.

New Copyright Law: A Solution for Spotify

The relevant US copyright law is , which states that a person or entity seeking to distribute a musical work must first obtain a compulsory license. One can obtain a compulsory license by filing a notice of intention (“NOI”).  In 2018, the US Congress passed a law called the (“MMA”), which seeks to alter the licensing system for the better and take charge of the compensation process. Title 1 of the MMA is especially relevant, as it establishes a for digital music providers. The blanket licensing system covers all musical works available for compulsory licensing, which means that streaming services will no longer need to file an NOI for each song or work. The MMA also established the Mechanical Licensing Collective (“MLC”), which administers the blanket licenses and more notably, maintains a containing information on the musical works and their copyright owners, if known. The law was set to .

Inadequate artist compensation may be partly explained by the difficulty of accurately identifying the rightsholders of each work, given the volume of music works. Digital service providers cannot locate the recipients of royalties. Lesser-known music artists are even more vulnerable to copyright infringements in this way. The MMA ideally solves this difficulty through the public database, which centralizes all information relating to musical works into one place. This provides parties like streaming services seeking compulsory licenses with a recognized source of rightsholders from which to draw. Additionally, the database validates artists’ possession over their works that will not be easily taken. If correctly implemented, the MMA can advance the collective goal of creating a digital music ecosystem where streaming services grow their platforms by legally acquiring distribution rights and artists, publishers, and record labels are rightfully compensated for their work. We may look to future copyright infringement cases to inform the �ѲѴ�’s effectiveness.

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Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

According to , tensions are rising in the Livingston family as to who earns the royalties from the Academy Award-winning composer, Jay Livingston’s hit songs.  These songs include such as Que Sera, Sera and theme songs for various television programs. Jay Livingston’s granddaughter, Tammy Livingston, launched a complaint against her mother Travilyn Livingston on July 17, 2022 and her publishing company, Jay Livingston Music Inc, for exercising copyright termination rights in several of her grandfather’s songs. , and how they may diverge what the artist originally intended. Copyright law may diverge from what the artist originally intended.

The Livingston Trust

Jay Livingston is known for co-writing several famous compositions, such as Que Sera, Sera, Bonanza and Mona Lisa. The composer died in 2001 and left a detailed estate plan to ensure that his family members get a share of royalties from his songs. The complaint states that Jay Livingston established trusts that took over 15 years to design and required the assistance of several estate planning attorneys. The complex trust relationships were outlined in the .

All these elaborate plans, however, were thrown into disarray when Jay Livingston assigned his song rights to Travilyn Livingston's music publishing company, a year before creating the estate plans. According to of the United States Copyright Law (Title 17), authors and their statutory heirs can terminate copyright assignments and licenses made after 1978 as early as 35 years after they were first created. Travilyn Livingston exercised exactly that right and terminated the assignments to Jay Livingston Music 35 years later. As a result, any further royalty income will be out of Tammy Livingston's reach if the terminations are found to be valid. 

But what about what Jay Livingston wanted? Transfers by will are not subject to copyright termination, but since Jay assigned his copyrights to Tammy’s company, the termination rights are still exercisable.

The Deal with Copyright Termination

The US Copyright Law also defines the entitled to serve a termination notice. In the Livingston situation, since the artist’s spouse is deceased, the entire termination interest will be held by the artist’s children. Consequently, Travilyn Livingston, Jay Livingston's only living child, is the entitled heir and holds all of Jay's termination rights as well as all the recaptured copyrights, despite the composer’s clear intent for Tammy to receive her share.

The clause is meant to give authors the opportunity to regain rights in works they may have signed away when they had little bargaining power”as well as give the artist’s heirs “a second chance to exploit previously-assigned copyrights”. The Canadian copyright regime (the Copyright Act) similarly has section 14, , which excludes works made in the course of employment. However, the Livingston situation shows how the copyright termination statutes can be deliberately wielded to ruin detailed estate plans left by the artist.

To avoid similar situations, estate planners should plan ahead and include any copyright interests in a will or pour-over will to ensure that their strategic plans will be carried out after their passing. But with no will to be found, Tammy Livingston will just have to take her grandfather’s advice, whatever will be, will be.

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Serena Nath is an IPilogue Writer and a 2L JD candidate at Osgoode Hall Law School.

In a recent installment in the series of intellectual property disputes in the music industry, electronic artist Four Tet, also known as Kieran Hebden, has against his independent British record label, Domino Record Label, over how much he is paid every time one of his songs is downloaded or streamed. Four Tet had ; a time where CDs were still popular and long before the invention and popularization of music streaming. In this contract, it was stipulated that for licences, he would be paid a royalty rate of but for a sale, such as the sale of a CD, he would be paid a royalty

Sales vs Licences

When Four Tet’s contract was signed in 2001, these standard licensing terms were for the music industry. For music sales, such as selling music via CDs, vinyl, and cassettes, overhead costs for record labels were much higher due to manufacturing and distribution expenses. Thus, in order to cover the overhead costs, record labels would pay their artists a lower royalty rate compared to the royalty rate for licences. For licences, it was understood that the third party licensing the music, such as for a movie, television show, or advertisement, would take on the extra costs, allowing for an artist to receive a higher royalty rate from the record label.

However, with advancements in technology for music consumption, the landscape of the music industry changed. Record labels no longer had high overhead expenses due to no longer having to manufacture and distribute CDs, vinyl or cassettes. Yet record labels continue to  argue that music downloads and streams should be considered as sales as this is a new technology format. Artists have typically disagreed with this and insist that this type of royalty model is unfair. For example, in 2011, against Eminem’s record company, Universal Music Group for unpaid royalties, due to the producers arguing that streamed and downloaded music should be considered akin to licencing of music and not sales.

The Case at Hand

In 2020, Four Tet against Domino for unpaid royalties. Similar to the Eminem case, Four Tet argued that he should be paid a royalty rate of 50% for streams and downloads of his music, not the 18% that the record label had been paying him. Four Tet reasoned that streams and downloads of music are like licences; not sales. In response to the lawsuit, Domino removed three of Four Tet’s four albums produced with the record label, without Four Tet’s consent, from all streaming services and online stores in November, 2021, which ” Four Tet. Four Tet responded by adding a claim for breach of contract, resulting in Domino threatening to take the case to the High Court.

The case, which took place in the Intellectual Property and Enterprise Court, ultimately and Domino agreed to pay the requested royalty rate of 50% on streams and downloads as they are now considered to be licences. Domino also paid Four Tet £56,921.08 to account for the difference in income owed as a result of the difference between the royalty rates of 18% and 50% and simple interest calculated at a rate of 5% per year during the accounting period commencing July 1, 2017.

Future Impacts

The settlement may significantly impact the way the music industry values streaming and downloading and thus may impact royalty rates. This is particularly important as the music industry seems to be undergoing a reform regarding royalty payments. , a committee of UK MPs published a report advocating for a 50/50 royalty split between the record label and the artist. Similarly, the US Copyright Royalty Board has to increase streaming royalty rates to 15.1% for songwriters/publishers.  These decisions, including Four Tet’s successful settlement, indicate that the music industry is changing and artists will start gaining fairer deals when it comes to royalties from streaming and downloading.

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Michelle Mao is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Big-name celebrities like and of the indie rock band have taken to TikTok to with the new marketing approach of creating .

TikTok has an established history of amplifying dance and music trends since acquiring the nearly identical app, . Its user base and viral power during the COVID-19 pandemic. Raenelle Manning, an IPilogue writer and the author of part I  of this two-part article series on TikTok Viral Marketing explains more about TikTok as a marketing strategy.

�Ჹ�������’s details how she is unable to release music until she produces a “fake viral trend” to promote the new song. To the casual viewer, this type of restriction of her actions as an artist may seem to infringe on her rights as an artist. In fact, the top comment under her TikTok video expresses that Halsey should find a new record label that lets her release her music when she wants.

This sentiment plays into inherent feelings of property ownership and control over your property —in this case, your intellectual property (“IP”. But what are the legal underpinnings that tie Halsey's (and other artists’) ownership and control of their music?

The short answer, as usual in law, is that it depends. While artists may inherently feel like they are “held hostage” by their record labels, it all comes down to the that both the artist and record label agreed upon. found in recording agreements include rights granted, producer royalties, and promotions. For artists and creators and their intellectual property, the nature of “property/product” over which they are exerting “ownership” impacts the traditionally recognized IP rights.

In a , Nimmer describes IP law as a special existence between property law and contract law, where a product of the digital world is more closely tied to a contractual relationship on contractual terms rather than subject to property law guidelines for ownership and control.

Nimmer explains that for digital property and products because digital products almost always involve a transfer of information or data, either by transferring information upon another or into the open forum of the internet. In this case, the information to be distributed is music, and the distribution methods are governed by contract because the of the song must occur to make a profit. To distribute/release music, the terms of the contract play a great deal in defining the intellectual property rights granted and restricted around the piece of music in question.

For Halsey, when responding to why she cannot release her music, despite it being “her song,” she tweets: .” This likely means that to commercialize her music and distribute it publicly, the contract between her and her record label granted IP rights like control over the r, rather than Halsey. In exchange, Halsey would gain access to distributing her music publicly, without being limited to the open-source forum route, which often removes any IP right from the creator.

Another way to think about the IP rights granted/restricted in the case of music ownership is through the (sometimes criticized) theory of IP rights as a . In exchange for a product or service, IP rights may be given or traded away to the benefit of both parties. In his article, Professor David Vaver of IP Osgoode the example of , where patent rights are granted to inventors when they invent something that could benefit the public good. The bargain is for the exchange of exclusive IP rights to the inventor, and the government that grants the patent receives a product that would benefit their citizens.

Applying this framework, one could argue that Halsey bargained away her IP rights as a singer of the song to the record label in exchange for the that the record label offers. This would include specialized marketing, business expertise, and other commercial connections that a record company may have.

Considering artists speaking up against their record labels and attempting to establish ownership over their creative works, should these frameworks of commercialization and bargaining continue to define intellectual property in the music industry? There is good reason to revisit the framework of IP law commercially as digital products/creations/property become increasingly profitable and creators become more empowered to speak out for their creative freedom.

This article has a sister article on how TikTok marketing influences branding and artistic expression of artists in the music industry.

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Raenelle Manning is a IPilogue Writer and 2L J.D. Candidate at Osgoode Hall Law School.

TikTok’s effectiveness, as a music marketing tool, became apparent during the early COVID 19 quarantine period, at which time a TikTok influencer created choreography to rapper Megan Thee Stallion’s newly released single, “Savage.” The dance quickly went viral as thousands of TikTok users, including Megan herself, uploaded videos of themselves performing the original choreography.  The virality of  “#Savagechallenge” contributed to the song’s commercial success. Besides being the in March 2020, it garnered 42.1 million US streams and peaked at No. 1 on Hot 100 and the Digital Songs chart. Other songs like Olivia Rodrigo’s “Driver’s License” and Doja Cat’s “Say So Remix” have also achieved remarkable success after being featured in viral TikTok trends.

However, not all artists are intrigued by the idea of using TikTok to promote their music despite its proven value. In a viral TikTok post, singer-songwriter , expressed that her record label would not release her new song unless they could “fake a viral TikTok moment” for promotion.  She later added, “I just want to release music, man. I deserve better tbh.” Florence Welch from voiced similar frustrations in a TikTok video of her singing acapella with the caption “[t]he [is] begging me for lo-fi TikToks so here you go. Please send help.” also released similar videos suggesting that their record labels were forcing them to utilise the platform. These recent claims have sparked discussion on whether it is fair for record labels to hold artists’ music hostage in exchange for TikTok content.

A Record Label is a Business

TikTok’s rise in popularity has undoubtably the music industry. Record labels, like several companies, have turned to TikTok and other social media platforms to market their products. As a business, their priority is to profit from their artists’ music — their products.  As mentioned, TikTok virality translates to increased streaming and sales. TikTok has become one of the most efficient platforms to promote new music, albums release dates, tours etc. It has also been used to gauge songs receptibility prior to release. In April, rapper , released a TikTok video of himself accompanied by a snippet of  his new single, “First Class.” This evolved into a viral TikTok trend of users using the song in the background of their videos. By using TikTok, the record label could guarantee that the song would be a hit before officially releasing the single. “First Class” earned a No.1 spot on , produced over 420,000 sales and achieved 54.6 million streams in its opening week. Since radio and television have mostly lost their influence among the younger generation, it is important for record labels to utilise social media platforms, like TikTok to engage their fanbase. TikTok functions like any the other promotion strategy to cultivate familiarity around newly released records.

What about the Artists’ Creative Control?

From a label’s perspective, marketing is equally as important as music production. When artist sign recording contracts to their music in exchange for the label’s professional services. Resultingly, they have limited input on marketing and distribution matters.  In the second part  of this article, Michelle Mao discusses the impact of copyright on artists’ creative control, in further detail.

The post The Tiktok Effect: Why Record Labels Are Forcing Their Artists to Make Viral TikToks appeared first on IPOsgoode.

Tanzim Rashid is an IP Innovation Clinic Fellow and a 2L JD/MBA Student at Osgoode Hall Law School & the Schulich School of Business. This article was written as a requirement for Prof. Pina D’Agostino’s Directed Reading: IP Innovation Program course.

Taylor Swift’s dispute with Big Machine Records shines a spotlight on the legal and business considerations artists should keep in mind when making decisions about how to manage their catalogue. 

Sparks Fly

In , Ithaca Holdings acquired Big Machine Records for an estimated $300 million, including the master recordings for one of the most popular and successful musicians in the world: Taylor Swift. Swift, in being denied an opportunity to bid for her masters, in late 2020 that she would re-record her entire pre-2019 catalogue in order to regain control of her music and limit the profitability of Ithaca’s asset. Over the next year, Swift released re-recorded versions of both her Fearless (2008) and Red (2012) albums, receiving widespread commercial and critical success.

Look What You Made Me Do

At the heart of Taylor’s decision was an often overlooked but significant legal distinction in the copyright law governing the music industry. All music can be subdivided into categories of copyright: lyrical, compositional, and sound. The former (‘recording rights’) are generally retained by an artist, while the (‘master rights’) – as part of a record contract signed by musicians in the formative stages of their career – is owned by the record company (including prohibitions on re-recordings for a set number of years) with certain vetoes the artist can assert with respect to how they are licensed. Swift, in deciding to re-record her albums, ensured that her new (Taylor’s) versions gave her all three types of intellectual property right over her catalogue, guaranteeing full ownership.

While many artists both past and present have record contracts that follow this same structure (and provide for a legal avenue by which to circumvent the record company’s ownership of the master recordings), it was Swift, at the height of her popularity, who decided to invest the time, energy, and cash in order to take advantage of this technicality. These circumstances are noteworthy: artists in similar positions to Swift often either lack the time, the financial resources, or the industry power to pull off a move like this. It is in Swift’s confidence in her fans adopting the newer versions of her recordings, and thus giving effect to the technicality she is leveraging, that her decision was made and her temporal and financial investment was put forward.

Everything Has Changed

Shamrock Investments, who acquired Swift’s master recordings from Ithaca in 2020, are in an increasingly tenuous position: Swift has them from licensing to ad agencies, films, and tv shows, and where they do license, Swift receives royalties in those cases. On top of all that, their investment in the original recordings depreciates in value every time Swift releases another one of her re-recordings or a company licenses them instead of the originals.

Major players in the music industry (including Swift’s own Universal Music Group) have responded in light of Taylor’s shrewd business moves, doubling or tripling the length of re-recording prohibitions in their most recently signed record . Artists are now for up to ten years after commercial release before re-recording their music, which also happens to be the period when their works are at their highest monetization potential. The music industry is now acutely aware of how digital streaming platforms provide artists with a never-before-seen ability to sidestep large traditional record companies when attempting to publish their re-recordings, creating a much-heightened potential for Swift’s precedent setting move to be seized upon by other successful artists looking to take back control of their creative output. From a legal perspective, Swift’s ability to resolve this dispute without reliance on costly, time intensive litigation or a protracted negotiations process has also put the music industry on notice, including their in-house counsel, who will be much more meticulous in drafting new agreements to best protect their company’s investment.

End Game

Looking to the future, it appears that beyond her personal dispute with the owners of her original masters, Swift is looking to inaugurate a major shift in the music industry at large, relocating bargaining power to artists from record companies. However, in capitalizing on the legal technicality available hitherto her dispute, with the unique power she wields in the industry, it may be the case that Swift’s maneuver may end up disempowering less powerful artists, who will now face stricter terms on their freshman record deals and an army of legal counsel prepared to respond to strategies similar to those deployed by Swift. As record companies fortify their defences, most upcoming artists may not be in a position to fight back against The Man.

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Raenelle Manning is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On May 3, 2022, Bishop David P. Moten, a Texas pastor, filed a copyright infringement lawsuit against rapper Kanye West for incorporating a sample recording of his religious sermon into one of his songs.

Moten sought damages from West and co-defendants, G.O.O.D Music, Def Jam Recordings and Universal Music Group. The allegedly infringing sample is used on “Come to Life”, a song featured on his 2021 album “Donda”. At the beginning of the song, Moten’s voice is heard saying “My soul cries out, ‘Hallelujah’ and I thank God for saving me”. The rest of the sampled sermon is featured in the background of the pre-chorus and chorus. Moten argues that “over the span of several years, defendants have demonstrated an alarming pattern and practice of sound recording of others without consent or permission.”  

In 2019, West was also hit with a for unauthorized use of a sound recording on his Grammy-nominated song, “Ultralight Beam.” The beginning of the song features the audio from a viral Instagram video which portrays a four-year-old girl praying. The child’s guardians sued for and a share of the record’s profits. In the same year, actor, West for sampling a recording of his performance titled “The Spirit of Marcus Garvey” on West’s song “Freee (Ghost Town pt.2).” that West “exploited the actual voice, words and performance without authorization.” Both suits were settled.

Sound recordings are subject to copyright protection under the US (“Act”),  which also provides that the owner of a sound recording has exclusive rights to reproduce, prepare derivative works from and publicly distribute the work. To incorporate a sound recording into a new musical work, artists must from the copyright holder. A grant of permission may accompany a written agreement to compensate the copyright holder through either a flat fee or  . Using the sound recording without permission constitutes copyright infringement. The states that copyright owners are entitled to “damages and profits of the infringer that are attributable to the infringement.”

Fair Use

An artist who fails to acquire permission from the copyright owner can use the ‘fair use’ defence. Under , fair use allows persons to use parts of a copyright protected work without permission for limited purposes. The court considers the following : (1) the and character of the use, including whether such is for commercial or non-profit educational purposes; (2) the nature of the of the copyright protected work (the court may consider whether the copied material has been creatively transformed by adding ); (3) the amount and substantiality of the portion used in relation to the copyright protected work as a whole (the smaller the portion of the material used, the better for this defence) and; (4) the effect of the use upon the potential market for or value of the copyrighted work (the court may consider whether the audiences of the new and original work differ enough to not cause financial harm to the original copyright owner).

The fair use defence is in music sampling cases. However, Toronto-born rapper Drake successfully used the regarding the use of thirty-five second recording of a spoken-word piece on his song “Pound Cake.” West has previously attempted to employ the fair use defence in the  so he may similarly attempt to use the fair use defence for the current case. Moten seems to have anticipated the use of the defence.  He claimed that “Come to Life” — an arguably substantial usage — a factor that likely weighs negatively under the third factor of fair use consideration.

The of copyright legislation is to encourage creativity, but also to protect the rights of copyright holders. West and the record labels named in the lawsuit undoubtably have the resources to obtain compulsory sample clearance and compensate individual copyright holders. It is hence difficult to justify their continuous and deliberate failure to do either, especially when West’s creative projects are known to reap significant popularity and financial gain. For instance, prior to the album’s release, the “Donda” listening party’s ticket sales alone produced  To allow West to succeed on a fair use defence and evade his obligation to compensate would be seemingly unjust to Moten, whose sound recording arguably contributed to the album.  

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Photo by Smorazanm ()

Meena Alnajar is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School

Dua Lipa’s 2020 pop hit “Levitating” is facing copyright infringement lawsuits as of March 2022. Two separate song-writing teams, those for and , claim the song ripped off their own and filed complaints with their state federal courts. Copyright infringement proceedings are the best course of action for instances of song stealing, but are often expensive and difficult to win, as a complainant must demonstrate than ‘alike sounds’ or ‘similar vibes’.

Claimants have the best chance of success if they can prove direct copying of their work, but considering the different lyrics and disparate sounds, these artists are unlikely to plead direct copying. Copyright infringement of a musical work in the United States typically finding two elements, access to the work and substantial similarity. For “Levitating,” the complainant filed at the end of February 2022 in a Los Angeles federal court. Members of the reggae Artikal Sound System allege that the song is substantially similar to its 2017 song “Live Your Life”.

The complaint, filed on March 4, 2022 in New York federal court is by songwriters L. Russel Brown and Sandy Linzer accusing copying of their 1979 disco “Wiggle and Giggle All Night”. These complainants have succeeded in copyright infringement claims, now holding the copyright to Miguel Bosé’s 1980 song “Don Diablo” that was found to infringe on the 1979 track.

Access

Musical such as Bright Tunes Music Corp v Harrisongs Music Ltd hold that access can be subconscious. The defendant may not have accessed the song personally through a search or download and still be liable. If the song is widely disseminated due to its popularity, then access may be found and the defendant may be liable for unconsciously plagiarizing.

The complainant’s song was not available on large platforms such as iTunes and has very limited number of plays on YouTube. Given its limited availability at the time, they may have difficulty proving their work was accessed by Dua Lipa’s team. The second complainant’s song has been accessible to the public for decades, so it may be more successful on the accessibility element for an infringement lawsuit.

Substantial Similarity

In the United States, if the song was not easily accessible, then the burden of proof for substantial similarity will likely be . Substantial similarity asks whether the average listener would think the songs are similar enough when listening to them . This analysis requires looking at the song’s composition and, possibly, expert testimony. Courts may analyze elements like melody and chord progression. For instance, the second complainant stated that Levitating uses the complainant’s “signature” melody times throughout the song. It is also important to distinguish between the similarity of the songs and their similarity in the industry. A certain theme, like the resurging ‘disco-era’ Dua Lipa was by, is persisting in the music industry so that songs may sound similar but not to a substantial degree that constitutes copying.

Next Steps

Although Dua Lipa’s team has yet to provide comment, she must still give her own defence in response to these lawsuits. The easier defence would be to show the songs are not substantially similar through her own expert analysis of each song’s composition. The team likely would not succeed in advancing a public domain , which states that the copyright protection for a work has expired or it failed to meet the protection for copyright protection. Neither complainants’ work has technically , as artists receive protection for the life of the artist plus seventy years. They may try to argue that the song borrows elements of the prior works that are not under copyright, which did not require creative input. Either way, Dua Lipa’s “Levitating” may be brought down to Earth by these lawsuits’ gravity and possible damages.

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