Defendant’s Financial Condition – A New Element of Copyright Infringement?

So if you’ve been following my blogs, you know that Jay-Z and Timbaland are being sued by one of the heirs of Baligh Hamdi for copyright infringement of his “Khosara, Khosara” composition that was borrowed in Jay-Z’s hit song “Big Pimpin”. The case is set to go to trial in October of this year and the parties are handling preliminary issues to determine what kinds of information makes it to the ears of the jurors.

Plaintiff’s attorneys want to bring Jay-Z’s $550 million net worth into the case, reasoning that it has bearings on whether or not Jay-Z is guilty for infringement. Plaintiff contends that a poor person’s due diligence in determining whether or not a work created infringes upon another work should be subjected to less scrutiny than a person who is rich and has more resources at his disposal. Jay-Z’s attorney is fighting hard to have his net worth excluded from evidence, as it is an obvious attempt to bias the jury. I’m fairly certain that your average juror is familiar with Jay-Z and assumes he has deep pockets regardless and the posting of articles such as this one provides them with foresight into his financial situation anyway, but I see the point. Allowing Jay-Z’s net worth will persuade the jury that Jay-Z can afford and should pay Plaintiff for infringement and will effectively blur the lines between what Plaintiff’s actual losses (if any) were and what Jay-Z can afford to pay.

The most interesting thing to me about all of this is the emerging of this new standard that courts could begin to follow in deciding copyright infringement if Plaintiff’s argument wins and Jay-Z’s net worth is allowed as evidence. The notion that infringement is more likely to exist based on the fact that the alleged infringer is rich is a factor that has been absent from copyright cases I’ve read in the past. Imagine that we hold the rich liable for claims just because they are rich. That’s like saying that because people are paid, they should know better; that money equates knowledge of all things and that you are held to a higher standard than others simply because you have money. This is not a case where a defendant heard someone’s music and just borrowed it for his own thereby asserting his power as a wealthy individual taking advantage of the little people. No. Here, people were contacted, deals were struck, contracts were signed, due diligence was apparent.

There are only two elements of copyright infringement and they are (1) ownership of a valid copyright and (2) copying of the work. Copying is demonstrated by circumstantial evidence showing (1) access to the plaintiff’s work and (2) substantial similarities between the two works; and where access is proven, the standard for similarities is relaxed a bit. Plaintiff seemingly wants to add the defendant’s financial condition as a third piece of circumstantial evidence in order to prove copying to basically state that a person with a substantial amount of wealth infringes by not exerting all of its resources to ensure infringement is not remotely present. On the flip side, it creates an escape route for the less wealthy by reasoning that because they don’t have a lot of money, they shouldn’t have to be due diligent in learning whether or not infringement is possible. This would be an impossible standard to uphold. Where would we draw the line on the amount of wealth necessary to escape liability versus the amount to impose it? How would we prevent the less wealthy from not being willfully blind in their activities just to find refuge under the law? To what extent would we expect the wealthy to go to ensure that their works did not infringe? Allowing plaintiff to admit Jay-Z’s wealth as a basis to show likelihood of infringement would create a system where all cases like this are decided with no real guidelines for deciding, or at the very least it would take years and years and case behind case before the courts figured out how to apply it properly.

There’s just so much going on with copyright law these days and it’s clear that changes are being made to the law in the courthouse when they should be being made legislatively. There’s a shift in power and economics occurring right before our eyes and it doesn’t seem to be in favor of the creators who should actually be rewarded for their artistic efforts. I’d almost be willing to bet this plaintiff suing didn’t even know his uncle or wasn’t close to him in any way, shape or form, but saw an opportunity (however late) to take what someone else has worked hard to get (whether that be his uncle or Jay-Z). I hope for the sake of wealthy creators everywhere that this evidence be excluded or at the very least, admitted on other grounds.