Peter Hernandez (“Bruno Mars”) et al.
How many angels can dance on the head of a pin? Perhaps a version of the age-old question updated for the music business should be “How many artists can get points on a hit single?” Well, for Mark Ronson, Bruno Mars, and all the other nine (yes, nine!) writers currently getting writing credit for the huge hit single “Uptown Funk,” the answer, while not quite as unapproachable as the query by Aquinas and others, may be more than 11. That is, if the recent lawsuit by members of the band Collage over its work “Young Girls” is successful.
First, just a little background. “Uptown Funk” broke in November 2014, and soon after, the legal challenges began. The funk band The Sequence accused “Uptown Funk” of copying their 1979 tune “Funk You Up.” This purported claim justifiably died a death, no formal claim was filed, and no writers were added to “Uptown Funk.” This was unquestionably the correct result. Other than both being relatively standard braggadocio numbers, the two works are not similar from either a legal or lay perspective. Although one must give credit to “Funk You Up” for namechecking both Yogi Bear and Fred Flintstone.
The Gap Band also made a claim for its tune “Oops! Upside Your Head.” The Gap Band’s publisher, Music Minder, alleged that “Uptown Funk” infringed on The Gap Band’s 1979 hit. The matter never went to court, but the result of the negotiations was five additional writers added to the credits for “Uptown Funk.” Although the two works are generally distinct musically, there is no doubt that there is a marked similarity in one element of both works – the rhythmic treatment of the vocal refrains “(say) oops upside your head” and “uptown funk you up,” both of which are key elements in the respective works.
A comparison of the rhythm of the vocal refrain in “Uptown Funk” (from 3:54 to the end of the tune) to the hook throughout “Oops! Upside Your Head” reveals why Ronson, Mars, and crew may have been concerned. The first bars of the repeated two-bar refrains both consist of two quarter notes followed by an eighth note and two sixteenths, with the last sixteenth note of the third beat tied to the fourth beat (on the words “head” and “up” in The Gap Band and the Ronson / Mars works, respectively). The second bars of the refrains both repeat the same texts as the first bars, but rhythmically slightly modified, with two eighth notes followed by an eighth note and two sixteenth notes, with the last sixteenth note (again on “head” and “up”) tied into the third beat of the second bars. Unlike “Uptown Funk,” The Gap Band does use a rhythmic anticipation before each bar, on the word “say,” but the overall similarity between the two phrases is pronounced.
Would this rhythmic similarity by itself have led to a successful suit by The Gap Band? Hard to say. Rhythm is not often a primary focus of music copyright infringement cases, but text set to a distinctive rhythm in what could be construed as the “hook” of the musical work might well support such a suit. Further, consider that The Gap Band made its claim shortly after the “Blurred Lines” verdict was delivered, a verdict that resulted in a multi-million-dollar award to the plaintiff heirs of Marvin Gaye. The decision to add The Gap Band personnel to the writers of “Uptown Funk” may well be caution (fear) on the part of the “Uptown Funk” writers, publishers, and record companies in the wake of the “Blurred Lines” verdict.
Although there is no question that “Young Girls” was commercially released by Collage, the complaint devotes several paragraphs pleading access to “Young Girls” on the part of Ronson and Mars. Considering that “Young Girls” never charted in either the US or UK, they may be concerned about showing access to the work on the part of the defendants. “Because direct evidence of copying is not available in most cases, plaintiff may establish copying by showing that defendant has access to plaintiff’s work and that the two works are ‘substantially similar’ in idea and expression of the idea.” Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996). Where no proof of access to the copyrighted work exists, “a copyright plaintiff can still make out a case of infringement by showing that the songs were ‘strikingly similar.’” Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000). Clearly, it is in plaintiffs’ interest to establish access on the part of defendants to avoid the higher standard of showing that “Young Girls” and “Uptown Funk” are strikingly similar. While it is likely not a strong argument for defendants, there may indeed be some question as to access on the part of Ronson and Mars to “Young Girls,” but at this early stage, this remains to be seen.
Plaintiffs go on to point out that “Young Girls” is “heavy with the bass, rhythm, funky guitar riffs and synthesizer arrangements characteristic of the early 1980s Minneapolis electro-funk soul era.” Agreed. So is “Uptown Funk.” It is a little hard to create a musical work in a niche genre without using the elements that comprise and identify said niche. So, it should not be too surprising that “Uptown Funk,” a musical work in the same genre as “Young Girls,” would use similar compositional elements and techniques.
It’s a mystery as to what is meant by the linguistically awkward and musically meaningless phrase “distinct funky specifically noted and timed consistent guitar riffs[.]” Are plaintiffs referring to the generic and standard funk guitar staples in both works? Although the guitar parts in both works are not the same (e.g., dissimilar in voicings, syncopation, overall placement in the works, prominence in the mix), both contain what can only be referred to as clichéd funk guitar parts, played by thousands of guitar players, including this author, over thousands of funk tunes over the decades. A 7th scale degree pedal resolving to the root note and high register double and triple stops (two and three note chords) generally based around the 6th, 7th and 3rd scale degrees are quintessential building blocks of funk guitar playing. Plaintiffs have no exclusive right to these unprotectable elements.
As for the other compositional elements, it’s very hard to create a funk groove in the key of d without using the notes of the root chord in the bass line – both works are necessarily going to use the same notes. As such, it is not surprising that parts of two tunes in the same genre, meter, tempo and key, will overlay somewhat coherently when played together. Perhaps not the “ah ha!” revelation plaintiffs present in their complaint.
Plaintiffs also seem to miss that the bass lines in the two works do not actually follow the same rhythmic structure. Yes, both works are in the same meter, but meter is not a copyrightable element. The structure of both works is generic, and plaintiffs altogether fail to provide any analysis of how structure is infringed. The same is true for the other allegedly infringing elements listed (horn crescendos and synthesizers??) but not analyzed by plaintiffs.
The hooks in the two works, an often-critical element in analysis of music copyright infringement, are markedly dissimilar. There is simply nothing in “Uptown Funk” that resembles the chorus hook around the title phrase in “Young Girls,” an issue unaddressed in plaintiffs’ complaint. In fact, other than the main verse groove, the two works are quite dissimilar.
Simply put, there is no substantive analysis in plaintiffs’ complaint as to how the claimed infringing elements of “Uptown Funk” infringe on “Young Girls.” While Federal Rules of Civil Procedure, Rule 8, only requires plaintiffs’ complaint to provide “a short and plain statement of the claim showing that the pleader is entitled to relief[,]” Fed. Rule Civ. Pro., Rule 8(a)(2), “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Not to say that plaintiffs’ claims are without merit, but at this point, threadbare recitals and conclusory statements are the bases of plaintiffs’ complaint.
Not surprisingly, plaintiffs’ complaint suggests that they are altogether aware of the recent “Blurred Lines” lawsuit, the testimony concerning Pharrell and Robin Thicke’s desire to create an homage to Marvin Gaye’s “Got to Give It Up,” and the possible influence of Pharrell and Thicke’s testimony on the jury’s verdict. Here, plaintiffs’ complaint points out that Ronson and Mars have “openly admitted” that “Uptown Funk” is “heavily influenced” by the Minneapolis electro-funk soul of the early 1980s, likely alluding to the damaging testimony in “Blurred Lines.” It should not have to be said, but after the misguided “Blurred Lines” verdict (currently up on appeal), it must be reemphasized that “genre” is not subject to copyright protection. See 17 U.S.C. 102(b). Being influenced by a style or genre, even “heavily influenced,” does not constitute a violation of US copyright law. And, of course, pleadings are not evidence. As this lawsuit moves forward, plaintiffs will have to support their claims regarding defendants’ alleged “heavy influence” with admissible evidence.
Overall, these two works exemplify the reality that the nature of popular music and the desire for commercial success leads to a necessarily limited musical vocabulary, narrowed further by genre. Two Minneapolis electro-funk tunes in the same key and tempo are going to have elements in common, period. The result is two musical works that may sound similar in casual listening.
However, “similarity” under copyright law in the Ninth Circuit is a much more nuanced and difficult analysis. Which elements in “Young Girls” are subject to copyright protection, and has “Uptown Funk” infringed on those elements? Plaintiffs’ complaint does little to clarify these basic questions. Further, in the Ninth Circuit, even if some elements are not individually protected, they may be protected when combined, analogous to a compilation. Swirsky v. Carey, 376 F.3d 841, 848 (9th Cir. 2004). Not surprisingly, though, Swirsky and other similar cases provide no clear legal guidelines as to which combination of unprotectable elements might provide protection for a musical work, and what would constitute infringement of these unprotectable elements.
Does the combination of the staple, genre-specific elements used in “Young Girls” rise to the level of copyright protection, and does “Uptown Funk” infringe? If a trier of fact finds so, it might be a little risky for others to continue to propagate the Minneapolis electro-funk soul sound, especially as plaintiffs seem to suggest, in keys and tempos used by other earlier artists. For the good of the art, one hopes for a better result.
This is an interesting case, still in its very early phases. Who knows, depending on how this case turns out, there could be three more artists dancing on the head of the “Uptown Funk” musical pin.