Tag Archives: Copyright Infringement

Cirque du Soleil’s Steel Dream is a Legal Nightmare for Justin Timberlake

by Katherine Imp

Cirque du Soleil sued Justin Timberlake last week, alleging that the singer, along with his writers, producers and recording company, “sampled” a portion of Cirque’s song, “Steel Dream” without permission on his 2013 song, “Don’t Hold the Wall”.

Before reading any further, listen to the first 20 seconds of “Steel Dream.” Now listen to Timberlake’s song, beginning at 4:04.

If you were on a jury, would you say that Timberlake and his team used a portion of Cirque’s song in “Don’t Hold the Wall”?

The answer is undoubtedly yes, even if the “Justin Timberlake fan” inside of you is telling you otherwise. Those 15-second tracks are nearly identical.

So can Timberlake and his team get out of this mess?

To answer that question, you first need to understand how “sampling” fits into US copyright law.

“Sampling” occurs when one artist takes a portion of another artist’s song and reuses it in a new song. Note, however, that sampling does not necessarily require use of a pre-existing recording.

Here, Cirque du Soleil has a copyright interest in the composition (codified in 17 U.S.C. § 102(2)) of “Steel Dream” and a second copyright interest in the sound recording (codified in 17 U.S.C. § 102(7)). Thus, even if Timberlake did not use Cirque’s pre-existing recording (that you just listened to on YouTube), he could still be liable for copyright infringement for use of the underlying melody or lyrics.

In the early days of hip hop, no one bothered to get a license to “sample” another artist’s work, but once the music business tanked, publishers and recording companies needed to find more ways to make money. Thus began the trend of requiring a license to “sample” the work of another artist and slapping a copyright infringement claim on anyone who refused to obey.

Under Section 106(2) of Title 17 of the United States Code, the owner of a copyright has the exclusive rights “to prepare derivative works based upon the copyrighted work.” The argument being made by publishers and recording companies (and Cirque du Soleil) is that “sampling” is a derivative work and thus protected under copyright law.

Timberlake now has three arguments he can make:

1. No Copyright Infringement

To establish infringement, Cirque du Soleil must prove that it has a copyright interest in “Steel Dream” and that Timberlake copied elements of the work that were original. “Copying” requires Cirque to prove that Timberlake’s song is “substantially similar” to Cirque’s song and that Timberlake had access to the song.

Timberlake could argue that the similarity is not substantial and that no one from his team saw the show or heard Cirque’s song prior to creating “Don’t Hold the Wall”.

2. Fair Use

17 U.S.C. § 107 allows one artist to use the copyright of another artist without permission in certain, limited situations. In determining whether a particular use is “fair”, courts will consider: the purpose of the use; nature of the copyrighted work; the amount used; and the effect the use has on the copyrighted work’s commercial success.

Timberlake would have to admit to using “Steel Dream” without permission, but could defend himself by arguing that the use was “de minimis” and did not hurt Cirque’s ticket and record sales.

3. De Minimis

Some courts have argued that “de minimis” is available as an alternative to fair use in cases where the violation is “so trivial that the law [should] not impose legal consequences.” Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).

Timberlake could argue that the copyright infringement should be privileged because of the extremely limited use, the lack of harm on Cirque’s sales and the excessive cost of adjudication (a lawsuit like this could cost hundreds of thousands of dollars).

While these may seem like good arguments, courts have been hesitant to side with defendants. In Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), the court ruled that the defendant’s sampling of a two-second guitar chord constituted copyright infringement.

Getting back to my question above: Can Timberlake and his team get out of this mess? Unlikely.

The legal system around sampling is a complete disaster. According to Variety, Timberlake has had several copyright infringement claims filed against him just in the last year alone.

None of the courts want to be responsible for establishing a bright-line rule, and none of the publishers or recording companies want to force the courts to establish a bright-line rule (e.g., by suing the creator of Girl Talk, whose entire work is made up of sampling) for fear that the resulting rule will not be in their favor. And most artists don’t have the money to fight the legal battle so they pay the license fee or wait to get sued and then settle as quickly as possible.

All I can say is, I’m glad I’m not a musician in 2016.

Katherine Imp is a transactional entertainment attorney at Cummins & Associates, Ltd., specializing in production legal, film finance and intellectual property matters. Contact Katherine at @KatherineImp or kimp@cumminsassociates.com.

Disclaimer: The information in this column is intended for general information purposes only and should not be construed as legal advice.

To see the original post, and similar articles, check out Katherine Imp’s SCREEN Magazine column, Street Legal.

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Producer Threatens CHIRAQ: Copyright Violation or Publicity Stunt?

by Katherine Imp

Recently, with CHIRAQ gearing up for its December 4th debut, producer Roderick Powell accused Spike Lee of copyright infringement, claiming that Lee’s new film has the same “look and feel” of his 2003 feature, A MIAMI TAIL.

Let’s not beat around the bush: A MIAMI TAIL and CHIRAQ are similar. They are both contemporary versions of the Greek comedy, Lysistrata. They both have a female lead and a predominantly black cast. And most notably, they both tell the story of women withholding sex from their men to stop gun violence. But is this enough to constitute copyright infringement?

First, a lesson in copyright infringement:

To establish copyright infringement, the plaintiff must prove: (1) that he, she or it has a valid copyright; and (2) that the defendant copied original elements from the plaintiff’s copyrighted work.

Second, a lesson in Greek mythology:

In Athens, circa 411 BCE, Aristophanes wrote a story about Lysistrata, a woman who attempted to end the Peloponnesian War by persuading Greek women to withhold sex from their men until peace was negotiated.

Third, a lesson in public domain:

The public domain is a realm of material that is unprotected by intellectual property rights. In other words, you can copy the original work of another person or entity without his, her or its permission.

The realm of material in the public domain can be divided into many categories. The most pertinent categories to our fact pattern include:

  • Materials that were previously copyrighted but whose terms have since expired;
  • Materials that predated intellectual property law; and
  • Material that is not protectable under copyright law such as ideas, genres and themes.

In the United States, a copyright term is life of the author plus 70 years, or, if the author is a corporation, 95 years.

Now for an analysis of the facts:

  • Powell needs to prove that he has a valid copyright in A MIAMI TAIL.

Typically, a copyright registration certificate from the US Copyright Office will suffice. Here, a quick search on the US Copyright Office database links RAP Filmworks, LLC, Maverick Entertainment, Inc. and Lions Gate Films, Inc. to the film’s copyright, so further investigation is needed to determine whether Powell actually meets this first requirement.

  • Powell needs to prove the Lee copied elements of A MIAMI TAIL and that such copying was improper under copyright law.

This element can be proven through direct evidence, such as witness testimony, the defendant’s own admission, or photos or video catching the defendant in the act. More commonly, however, copying is demonstrated through circumstantial evidence, such as access to the plaintiff’s work and probative similarities between the works. The type of similarity that is generally regarded as the most “probative” of copying is the existence of common errors, whether factual or aesthetic in nature, between the two works.

Without having seen CHIRAQ, I cannot comment as to the probative similarities between it and A MIAMI TAIL. But if we circle back to the facts above, I’d argue that Powell’s accusations against Lee are nothing more than a publicity stunt. The crux of the story – a woman who told other women to withhold sex from their men to stop the violence surrounding their community – is, if anything, original to Aristophanes. And Aristophanes’ work is in the public domain.

The similarities in genre (comedy) and theme (urban gun violence) also fall within the public domain and are therefore not copyrightable by Powell.

As I see it, Powell saw an opportunity to get more eyeballs on his film by hinting at the overarching similarities between it and a film that is and will be receiving a lot of buzz in the upcoming months. Either that, or he really needs to read up on copyright law.

Katherine Imp is a transactional entertainment attorney at Cummins & Associates, Ltd., specializing in production legal, film finance and intellectual property matters. Contact Katherine at @KatherineImp or kimp@cumminsassociates.com.

Disclaimer: The information in this column is intended for general information purposes only and should not be construed as legal advice.

To see the original post, and similar articles, check out Katherine Imp’s SCREEN Magazine column, Street Legal.

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