Copyright Infringement Case and the Role of Un-Protectable Elements in Music

An Illinois judge rejected an infringement claim brought by rapper Gutta, alleging that a song released by hip-hop artist Future infringed his rights. Scott Hervey and Jamie Lincenberg talk about this dispute on this episode of The Briefing.

Watch this episode on the Weintraub YouTube channel here.

Show Notes:

Jamie:
On August 25, 2023, the U.S. District Court for the Northern District of Illinois rejected an infringement claim brought by rapper Dequan Robinson, otherwise known as Gutta, alleging that a song released by hip-hop artist Future infringed his rights. We are going to talk about this case and why the court dismissed Robinson’s claim on today’s episode of The Briefing

I’m Jamie Lincenberg of Weintraub Tobin and I’m joined today by my colleague Scott Hervey.

Scott:
Hi Jamie, thanks for having me today. Looking forward to diving into this case. So first, why don’t you provide us with a quick recap on the lawsuit.

Jamie:
So, on Friday, a Chicago federal court dismissed the copyright infringement lawsuit that was brought in 2021 against popular Atlanta hip hop artist Future by Virginia rapper Dequan Robinson, who, as I said, performs as Gutta. He alleged that Future’s song, ‘When I Think About It’, released in 2018, ripped off his own 2017 song ‘When You Think About It’ to make a hit of his own and claiming that he had emailed a draft of his song to future’s producer a year before the song was released. His complaint alleged that they created the song in the image of his song, likening his case to the famous Blurred Lines lawsuit in which Pharrell Williams and Robin Thicke’s very popular track Blurred Lines was found to have infringed Marvin Gaye’s iconic ‘Got to Give It Up.’ The lawsuit raised arguments that the works were substantially similar due to the following factors one, similar thematic content of guns, money and jewelry two, that they were both in the key of e and three, that they had the same chorus and verse structure. The lawsuit also named some of future’s companies, his producer and Sony Music Entertainment as defendants. The suit sought injunctive relief damages, a running royalty and litigation costs, among other relief.

Scott:
Future’s team filed a motion to dismiss, arguing that Robinson did not adequately allege the protectable elements of ‘When You Think About It’ were copied. They argued that both the songs repeat exceedingly commonplace phrases when you think about It and when I think about it, and both include commonplace themes of guns, money and jewelry.

Jamie:
That’s right. Then Robinson’s team filed an opposition to the motion, citing that there are a lot of questionable similarities between the two works and that the lyrical theme, content, structure and rhythm are identical. But Judge Martha Picold of the District Court of the Northern District of Illinois disagreed, ruling that it didn’t matter whether Future had copied Robinson’s song because the material he allegedly borrowed, even if he did so, was not covered by copyright in the first place.

Scott:
That’s right. Citing other examples, including tracks from Biggie, Kanye West and Neil Young. That’s an interesting trio, if you think about it. She notes that thematic elements that are frequently present in certain genres of music place them outside of the protections of copyright law. This was the same argument that won the dismissal of the lawsuit against Kanye West over the lyrics what doesn’t kill you makes you stronger. In his 2017 hit track Stronger, Judge Picold writes that quote first and most critically, the phrase quote when you think about it or quote when I think about it is not entitled to copyright protection. It’s a fragmentary expression that is commonplace in everyday speech and ubiquitous in popular music. And we have previously discussed the lack of copyright protection for short phrases. According to the Copyright Office, short phrases such as slogans are uncopyrightable because they contain an insufficient amount of authorship. And even though the phrases are used in similar places and in similar ways in both songs, in the chorus of both songs, it’s still not enough to show that the two songs are substantially similar. The order states the judge also rejected Robinson’s argument that the works are substantially similar because they have similar thematic content, guns, money and jewelry, finding that those elements are frequently present in hip hop and rap music, again putting them outside of copyright protection.

The judge writes that this argument fits within the song’s affair doctrine that’s right.

Scott:
Where elements of a work are indispensable, or at least standard in the treatment of a given topic, their songs are fair and they receive no protection. In addition, the judge rejected Robinson’s argument that the songs are substantially similar because they are both in the key of E, saying that several courts have held that the keys of a song do not make the song distinct.

Jamie:
So, the motion to dismiss was granted, finding that though unprotectable elements can be protectable elements at times, in combination, the similar parts of the two songs, Robinson pointed out, were not protectable elements and were merely small cosmetic similarities, falling short of what really would be needed for valid copyright infringement. This case and the decision leads to the prevalent discussion of what’s permissible and what’s not in the music space. And how can an artist or producer really be confident that a track will not lead to a lawsuit? We’ve seen a rise in music copyright lawsuits with artists and producers suing each other over the use of samples or lyrics or musical structure, and the results of case findings really seem to be inconclusive and certainly difficult to navigate.

Scott:
It is challenging. I will agree to navigate the various music copyright infringement cases, but with regard to this case, the results in this case are not surprising. We have seen this before. The 9th Circuit has a two-part test to determine copyright infringement, and that’s known as the extrinsic and intrinsic test. The extrinsic test is objective in nature and requires the plaintiff to identify specific criteria which it believes to have been copied, which Gutta did. But this is where the court sorts out whether there’s enough similarities between the works as to the elements that are protectable, such that a reasonable jury could find that the defendant’s work is substantially similar. The extrinsic test requires that the court review the works, the allegedly infringing elements, and then filter out the unprotectable elements and then decide whether, as a matter of law, the remaining similarities are sufficient to allow the case to go forward. And that’s what the court did here. It looked at the elements that were put forth by Gutta as being similar. The court found all of those elements to be unprotectable, and as a result, the court dismissed his infringement case, finding that, as a matter of law, there were no similarities sufficient to allow the case to go forward.

Scott:
Unpredictable elements, whether they’re short words, common themes or musical building blocks or chord progressions that were, for example, the basis of the Ed Sheeran Marvin Gaye lawsuit, are and need to remain available to all creators to use as part of their creative endeavors. As important as it is to protect the protectable aspects of a creator’s work, it’s equally important to protect the status of those elements that are unprotectable as a matter of law and make sure that they are available for all creators to use.

Jamie:
I agree. Thanks, Scott.

Scott:
Thank you for listening to this episode of The Briefing. We hope you enjoyed this episode. If you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. If you have any questions about the things we covered today, please leave us a comment. We’d be glad to reply.