Music Copyright, Trademark, First Amendment Legal Lessons Startup Labels and Musicians Can Learn from Disney, deadmau5, WuTang, and Pharrell

Music has been prominent in the legal news lately, and it's important to sift through all of the scandalous details to get to the heart of legal pillars that impact entertainment and business: music copyright law, trademark, law, freedom of speech, the utility of expert testimony.

Disney has opposed the EDM musician Deadmau5 when he applied for trademark regsitration for use of the Deadmau5 logo, which bears an uncanny similarity to Disney's signature Mickey Mouse ears.  Deadmau5 sought to use the trademark in logos, merchandise, and appearance.  Disney's response: "Applicant's Mouse Ears Mark is nearly identical in appearance, connotation, and overall commercial impression to Disney's Mouse Ears Marks... Accordingly, Applicant's Mouse Ears Mark so resembles Disney's prior used and registered Disney's Mouse Ears Marks as to be likely, when used in connection with Applicant's Products and Services, to cause confusion, or to cause mistake, or to deceive under Section 2(d) of the Lanham Act."  Deadmauf countered by pointing out that Disney was unlawfully using a deadmau5 song in one of its videos.  Deadmau5 clearly didn't recognize that trademark infringement and copyright infringement are not the same.

In another lawsuit, the family of Marvin Gaye has claimed the credited writers of "Blurred Lines" Robin Thicke, Pharrell Williams, and Clifford Harris, Jr. copied Marvin Gaye's "Got To Give It Up."  A quick reading of the actual suit reveals that the Blurred Lines writers pro-actively sought a declaratory judgment to foreclose any claims by Gaye's family to the many dollars this one song has earned.

In an appeal to the U.S. Supreme Court, the nine Justices are hearing arguments in a case about the nature of rap music and whether the content of music with violent language is protected by a traditional First Amendment standard.  The amicus brief on behalf of Anthony Elonis, purportedly a rapper wannabe, cites the Wu-Tang Clan to demonstrate that verbal threats in rap songs are canonical: "I'll hang your ass with this microphone" and "I come sharp as a blade and I cut you slow."

So, what are some legal lessons for musicians and music labels?

Copyright Law and Trademark Law are NOT the same thing.

Copyright is about copying; trademark is about confusing similarity.  The act of copying an original author's work is inherently an infringement of that author's work, but the infringer may have a defense to such an infringement, such as "Fair Use."  If a trademark or trade dress is infringed upon, it is incumbent of the claimant to protect the trademark effectively and, usually, quickly, because if the infringing mark becomes uniquely recognizable in its own right (acquiring "secondary meaning"), the infringing mark may no longer be "confusingly similar."

In the case of Disney/deadmau5, there has been a failure by Disney to bring the full power of its legal resources against deadmau5 for many years--in fact, it would appear that Disney was eager to work with deadmau5 on the resampling of the Star Wars theme (which it owns).  Deadmau5's attorney responded to Disney's trademark block through Buzzfeed: "“The deadmau5 front facing mau5head is a registered trademark in 30 countries worldwide. In June of last year, deadmau5 applied to register the front facing mau5head with the U.S. Patent and Trademark Office. Disney is now opposing the U.S. filing. Given that the mau5head and other identifying deadmau5 trademarks have been used in the U.S. and around the world for almost a decade, we wonder why Disney is only now coming after deadmau5. Our client will not be bullied by Disney and is prepared to fight to protect his rights to his property.”  It would appear that Disney was fine with deadmau5 on the periphery, but when the musician sought to infringe areas that were near and dear to Disney, Disney decided to shut him down.  It's important to recognize, when choosing a trademark to register with the USPTO, to be able to foresee a future in which a trademark in another "space" may seek to enter your "space."  Another famous example of a musical trademark battle was between Apple Records (The Beatles) and Apple, Inc.  When Apple was just a computer company, everything was hunky-dory, but when Apple decided to branch out into music, well, legal fireworks were inevitable.

On the other hand, the dustup between Marvin Gaye's family and the "Blurred Lines" folks is a classic question of copyright; practically speaking, it's also proved lucrative for the Gaye family, as they have settled with Sonyover "Blurred Lines."  Ultimately, when considering copyright claims, all parties need to to understand that our justice system is inherently compensatory, and when people bring lawsuits, they usually seek out money before recognition or specific performance.  The difference between right or wrong may be less important than the difference between annoying andexpensive.  In this case, the question remains, can a song that is inspired by another song be found to be infringing even if it's not an exact copy?

In fact, courts have found copyright infringement when a mere four notes were copied from a song that inspired a new song.  The use of  a block of elements of Gaye's work may, in fact, result in a finding against the writers of "Blurred Lines," if the case does not settle first.  Again, this is nothing new--songs sound like other songs, and lawsuits have been filed against such greats as Cole PorterLed Zepplin, and Ray Parker, Jr.; the question of whether a lawsuit ought to commence is often less about the morality of copying and more about the risk to reward ratio inherent in bringing a lawsuit.  Nobody sues over a dud.

The First Amendment has its limits.

Rap music is a form of artistic expression that has developed its own conventions.  Prominent among more of the hard-hitting rap anthems are a direct "break through the wall" challenging and often violent and threatening language that may inspire fear in those to whom such language is directed.  Rap is not alone in having violent language; opera is also known for its over-the-top violence.

And yet... is a threat of violence any less of a threat if it is embedded in rap lyrics posted on Facebook?  Elonis was arrested on December 8, 2010 and charged with transmitting in interstate commerce communications containing a threat to injure the person of another in violation of 18 U.S.C. § 875(c).   He was convicted.

The reality is this: just as you can't yell "Fire!" in a crowded movie theater, you may not be able to claim First Amendment protection on violently-worded social media posts, even if you intended to be "creative." There is a reason that narcocorridos--Mexican songs with threats and drug gang violence in the lyrics--are banned in that country; the U.S., on the other hand, has prided itself on its roots in freedoms of expression.  Still, when those freedoms are abused in ways that create an atmosphere in which a threat is credible, the courts may find "true" and "willful" threats in that expression.  A threat is made willfully when “a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm.” A songwriter and producer would be wise to know the limits of a lyricist's legal rights before publishing.

Experts may be necessary to aid in legal decisions about artistic endeavors.

Trademark disputes likely require less expert testimony, as the questions of similarity are often apparent to the lay person.  However, music has its own legal idiosyncrasies. Lay people may not be able to articulate the nuances that affect disputes over songs.  Judges all the way to the Supreme Court often need to be provided expert testimony when their knowledge of technology and learned arts such as music may be limited by their age or lack of experience.  And even after compelling expert testimony is provided, judges and juries may be only barely able to articulate the fine points of technology and music, let alone copyright law.  Musicologists can be helpful in identifying common chords, melodies, and compositions, and may be able to determine with certainty whether there was infringement.  Nonetheless, indie music labels and musicians are on notice: putting out music without understanding that there are legal precedents related to disputes over music could result in very costly consequences.