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Should Musical Works be Entitled to 'Broad' or 'Thin' Copyright Protection?

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Should Musical Works be Entitled to 'Broad' or 'Thin' Copyright Protection?

Postby MrFredPFL » Mon May 07, 2018 10:32 pm

Story : https://www.law.com/therecorder/2018/05/07/should-musical-works-be-entitled-to-b





A hotly disputed legal issue between the majority and dissent in the recent, highly publicized, U.S. Court of Appeals for the Ninth Circuit “Blurred Lines” decision in Williams v. Gaye, No. 15-56880, concerned whether Marvin Gaye’s 1976 hit song “Got to Give it Up” was entitled to “broad” or “thin” copyright protection. The Ninth Circuit panel, in a 2-1 decision over a vigorous dissent, upheld the jury’s determination that Pharrell Williams and Robin Thicke’s “Blurred Lines,” which was the worldwide No. 1 song in 2013, infringed Gaye’s work.

The panel’s determination that the musical compositions at issue were entitled to “broad” copyright protection was critical to the outcome of the case because if a work is determined to be entitled to “thin” copyright protection, then proving infringement requires showing the works are “virtually identical.” In contrast, establishing infringement for a work that enjoys “broad” copyright protection only requires showing that the works are of “substantial similarity,” making it much easier to prove infringement.

The distinction between “thin” and “broad” copyright protection is based on the principle that copyright protects expressions and not ideas. Determining whether a category of work can claim “broad” or “thin” copyright protection is a function of the “range of expression” available for the idea. That determination is often tedious, requiring in-depth, case by case examination and analysis. The following examples from court decisions are instructive.

With regard to depiction of animals in their natural surroundings, the Ninth Circuit in Satava v. Lowry, 323 F.3d 805, 813 (9th Cir. 2003) identified nonprotectable ideas, such as “an eagle with talons extended to snatch a mouse.” However, the court found certain expression of these same ideas dealing with “pose, attitude, gesture, muscle structure, facial expression, coat, or texture” may be protectable. Because of the relatively narrow range of expressions available, courts find that depictions of live animals in their natural surroundings have “thin” copyright protection, see Modern Dog Design v. Target, 2013 WL 12315516, at *2–3 (W.D. Wash. 2013). In contrast, courts are likely to find “broad” copyright protection for animal depictions that are not realistic or not in their natural habitats because “an illustrator can find endless ways to combine colors, textures, dimensions, poses, and postures within the confines of depicting a recognizable” animal.







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