Closing arguments were wrapped up on May 12th. The ruling might take around a month. I have no idea how this will play out under New Zealand law.
In the US this would be a total crap shoot. Either side could win. Actually, if the Republican GOP had done this in the last election, there’s a good chance Ronna Romney would be looking at a settlement here. Contrary to the widespread misconception that something has to have lyrics and melody to be copyrighted, I’m actually gonna bank on Eminem winning this one.
I can’t see it happening. It’s a couple of strummed two-note power chords - and not even the same chords as the original.The NZ track has been produced and mixed to sound like the Eminem track, admittedly, but you can’t copyright production, so I’d say it’s going to be “tough shit Marshall”.
Thats a hard sell to a jury full of non-musicians. And jurys in the US go 50-50 in cases like this where its close enough to pass.
The production process can’t be copyrighted. But the instrumentation in the arrangement (as a whole) is indeed protected. Thats the grounds this one is filed on. If those weren’t valid grounds, it would have been dismissed several years ago. There is definitely enough similarity there to try this case.
That sounds crazy to me. You can copyright instrumentation? So every metal band there ever was is in violation of Sabbath’s copyright? What about orchestral pieces? They all use the instrumentation of an orchestra.
Seems rather ironic to me - that a Rapper whose stock-in-trade is using a collage of samples from existing music to create his own - is now suing other people for ripping him off!.. But then again, I doubt the legal community has a very highly developed a sense of irony - at least, perhaps the smell of money neutralises it.
[quote=“AJ113, post:6, topic:1544”]
That sounds crazy to me. You can copyright instrumentation? [/quote] Sure. Theres a lot of stuff out there with arrangements that would stand up as a valid copyright even apart from the melody and lyrics.
I think the NZ majority party had a good defense though asserting that a tonic minor to a neapolitan sixth is nothing unique. A (k-k-s-k-k-k-s-k) drum pattern, in and of itself, is probably one of the most generic drum beats around. Its always a combination of these things in context that create a disputable case. What I think could sink them is the combination of about seven different things. The entry point of the drums and bass, the tempo, and the keyboard riff on the 2e+a3 (even though its upside down), the synth hits on the 4th and 1st beat, and the tone of the guitar. I know you’re thinking this is crazy, but some incredibly persuasive attorneys are getting paid a lot of money to contest this.
By the way, I’m not contesting that there is a distinct obvious musical difference. I happily concede that. Weather or not there’s a legal one is a different story. A trained musician, the i-iv-vi (Cm Fm/C Ab/C) is radically different than the i-vi (Cm Ab/C). And we’re all aware of how generic quarter notes are. Sadly, a single New Zealand judge may have just been been persuaded otherwise.
Even if there was, it appears the Black Sabbath guys are too busy suing each other right now to take on a new case.
And a funny thought since you mention metal bands…I’ve always wondered if screamo metal music could be copyrighted because its incredibly hard to hear anything distinct going on. And it seems like it’d be hard to defend lyrics that nearly impossible to understand. haha…Can you imagine how punishing it would be to a judge and jury to have to sit and listen to that through a whole trial? I also imagine a courtroom stenographer attempting to dictate phrases like Rrrraawwwgggh-yah-rahhh-aaahhhfucking-blaaaahBlah!
Surely if you’re going to take a copyright case to court then the judge should be experienced in such matters? None of us here (including you) are buying it so what makes you think a judge will?
[quote=“AJ113, post:11, topic:1544”]
Surely if you’re going to take a copyright case to court then the judge should be experienced in such matters? [/quote]
Yeah, that’s what I would have thought. In the US it almost never gets decided by one person. In a rare instance it did, I think it would go before an arbiter. And the arbiter might be chosen (or appointed) based on having at least some music background. Given the sheer number of music graduates in the US who end up becoming lawyers, you would certainly be able to bring this before some kind of judicial figure that knows music.
If anything this report is true, she seemed pretty clueless!
Ha, it would be really funny if the judge and jury ruled that it did not meet the legal definition of actual music!
Haven’t you stated before that courts take “intent” into consideration when judging these cases? While it might not impact the actual ruling one way or the other, it could impact the sentencing or award of damages? In other words, did someone purposely try to ‘steal’ another person’s intellectual property, or was it accidental similarity.
Keep in mind that I can only look at this through the lens of US law, and this was dispute was taken to court in New Zealand.
I don’t really know how intent per se plays into these cases. I do know that when people thought they had legally obtained rights to something then been sued for infringement, the documentation was always permitted in trial, which to me suggests the court views it as relevant evidence. I imagine it might create juror sympathy for the defense. But so far, I’ve never seen a case dismissed merely because the defense ‘intended’ not to violate a copyright. And though the term ‘innocent infringement’ is tossed around in legal circles, I’ve never seen it actually cited in a holding and reasoning or a brief as a viable defense. If I’m incorrect on that one, feel free to cite a case to the contrary.
Intent to obtain the rights is an entirely different discussion vs intent (or non-intent) to infringe. The plaintiff does have to establish that defendant to had access to the work in dispute. And that the infringement WAS intentional (though we’re bending terminology here) and not a result of mere coincidence.
On the other side of this, when someone pushes the boundaries of infringement, the intent in and of itself is usually self evident.
Addressing the question of damages, I could maybe see it minimizing punitive damages. I believe its within the states right to waive statutory damages if they’re genuinely convinced the dispute was more of a mistake than a tortuous offense. But the compensatory damages are kind of a given.
This has been going on down here for a while, quite entertaining… they played a wide range of music in the court to illustrate their various points, even Twinkle Twinkle Little Star… I mean HUH???
All feels a bit ironic to me, the ultra derivative Eminem… we tend to laugh at ‘big stuff’ quite a bit down here and general feeling is that the court case is unlikely to go Eminem’s way but I won’t hold my breath…
She sounds quite reasonable to me. And if she is going to take three months to make a decision, I would like to think that she is going to take professional advice.
“a lot of stuff” BUT NOT ALL.
You know, if you guys used/read English (I said ENGLISH) as well as you crapped, there’d be a lot more sense written.
Jonathon. In a bland, generalised, simplistic sweeping statement (alliteration, no extra charge) you said instrumentation CAN be copyrighted.
That statement means that the first person who ever recorded one guy/gal playing a guitar and singing holds copyright on ALL subsequent such recordings.
In this great land (well, it thought it was once), you’d have to prove that your instrumentation was unique and NOT GENERIC.
I should hope that you brilliant Americans have even more brilliant lawyers who could use that argument to dstroy any idiot who said (and I quote) "Theres a lot of stuff out there with arrangements that would stand up as a valid copyright even apart from the melody and lyrics."
They would merely have to prove that “Theres a lot of stuff out there with arrangements that is generic and doesn’t stand up as a valid copyright even apart from the melody and lyrics.”
I agree that in some cases there is recognisable melody in the instrumention. In my band, we assign copyright in a three-way split: vocal melody, lyrics and “riffage”. But the case in question doesn’t qualify for this type of consideration in my opinion. It’s just some guy palm muting two power chords. There’s just no way you could make a reasonable case for it. Bearing in mind the recent Stairway ruling went Led Zep’s way (and rightly so IMO), this case must be a foregone conclusion.
