Dr. Luke May be Forced to Pay the Price

Looks like Lukasz "Dr. Luke" Gottwald has found himself on the receiving end of a lawsuit yet again - this time for copyright infringement of a “breakbeat” used in Jessie J’s hit song “Price Tag”. A “breakbeat” is defined as those portions of a record containing a primarily percussive instrumental segment. The plaintiff, New Old Music Group (“NOMG”) is the creator of a 1975 composition, “Zimba Ku”, which was recorded by a band, namely Black Heat. The recording included a percussion portion (drums, snare, symbols) which became famous and widely used by other artists, such as Biz Markie, Special Ed, Heavy D & the Boyz, NWA and Kool G. Rap. But it wasn’t until Dr. Luke used it that NOMG decided to take action.

NOMG alleges copying of only the drum set portion of the song (the “breakbeat”) which NOMG contends is the driving force of the composition. The components at issue are all contained in the bass drum, snare drum, and hi-hat parts of both songs, specifically “(a) sixteen consecutive 16th notes on the hi-hat cymbal; (b) a bass drum pattern consisting of two eighth notes on the first beat of the measure, followed by three syncopated notes on beats 2 and 3; (c) snare drum attacks on beats 2 and 3; and (d) a ghost note or drag on the snare drum at the end of the measure”. There are no other similarities in the songs.

Dr. Luke filed a motion for summary judgment on the basis that the drum part in "Zimba Ku" is so commonplace that the percussive elements or a combination of elements alone is not proof of copying, a required element of copyright infringement. Where Dr. Luke can show that the percussive segment of “Price Tag” was independently created with a modicum of originality, no copyright infringement will be found. The motion for summary judgment was denied because the court determined Dr. Luke didn’t make a sufficient showing that the elements are so common as to deny any reasonable inference of copying. All that means is the case will push forward and a jury will be tasked with the responsibility of deciding on the issue of copyright infringement.

It seems like the judges hearing copyright cases are entertaining more and more issues involving the copying of elements that have previously been considered uncopyrightable subject matter. Is this notion of granting and expanding copyright protection overreaching on the judiciary part or have the courts had it wrong all along in applying copyright law in a more limited manner? The effect of a finding of infringement in cases such as these (remember Robin Thicke and Marvin Gaye) will certainly work to limit further independent creations if people are forced into making derivative works and gaining permission from prior copyright owners as opposed to being able to claim an original work of authorship for which no copyright permission is needed. Pretty soon every composition created will be some sort of derivative work. I don’t believe the framers meant to stifle creativity in that way. If everything is copyrightable, everything is protected and the object of copyright law is defeated. What’s the purpose of creating something new based off of something borrowed when you have to pay for it, without any indication as to whether it is going to pay off for you in the long run? I think we’ll soon find out.