Friday, May 4, 2012

Piece of Pie

Here’s an interesting situation: song writer creates song based on a musical transcription of pi, and is then sued by another musician who had previously done the same thing. As you will recall, pi begins with 3.14159, but then goes on forever (interestingly, with no discernable pattern). As this story goes, one artist, Michael Blake, released his song through a YouTube video in 2011, only to be met later that same day by the claim from another artist, jazz musician Lars Erickson, that Blake’s work infringed Erickson’s own pi symphony. Copyright infringement, over pi? Really? Folks, just to clear up any confusion, pi is not copyrightable. To begin with, it is not itself original to either Blake or Erickson, and thus fails the initial test of copyrightability. See 17 U.S.C. Section 102 (“Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression.”); Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991) (“Original, as the term is use din copyright, means only that the work was independently created by the author as opposed to copied from other works, and that it possesses at least some minimal degree of creativity.”) It is a concept that mathematicians such as Archimedes, Leonhard Euler, Carl Friedrich Gauss, Isaac Newton, Ramanujan, and John von Neumann have been grappling with for thousands of years. Further, it is simply a fact, commonly defined as the ratio of a circle's circumference C to its diameter d. And copyright protection extends only to an author’s expression of facts, not to the facts themselves. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985) (“No author may copyright . . . the facts he narrates.”). From a policy standpoint, scientific facts has long been viewed as building blocks that are available to subsequent creators/authors/scientists. Simply put, no one owns pi. But what about the music that is derived from a transcription of pi? Certainly that is fixed in a tangible medium, but does it possess at least some minimal degree of creativity? Without more, probably not. In this case, while Erickson obtained a registration in his work, that registration could only cover the protectable elements of that work, not material that inherently nonprotectable, such as pi. See Mattel, Inc. v. MGA Entertainment, Inc., 616 F.3d 904, 913 (9th Cir. 2010) (“At the initial ‘extrinsic’ stage, we examine the similarities between the copyrighted and challenged works and then determine whether the similar elements are protectable or unprotectable.”). This step must be performed because “a finding of substantial similarity between two works can't be based on similarities in unprotectable elements.” Id. at 917; Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204, 209 (9th Cir. 1988) (clear error when district court determined substantial similarity existed based on unprotected elements). It has often been said that music typically contains a “large array of elements, some combination of which is protectable by copyright.” Swirsky v. Carey, 376 F.3d 841, 849 (9th Cir. 2004). Therefore, when analyzing the similarity of musical compositions, the court must consider a variety of compositional elements including melody, harmony, rhythm, timbre, structure, instrumentation, meter, tempo, and lyrics. Id. However, any finding of infringement may not be based on constituent elements/material that unoriginal, and thus do not merit protection. See, Shaw v. Lindheim, 919 F.2d 1353, 1363 (1990) (rejecting plaintiff’s “26 strikingly similar events” purportedly shared by his and the challenged work in part because defendants rejoined with a “list of similarities between ‘The Wizard of Oz’ and ‘Star Wars’ that [was] virtually as compelling as [plaintiff’s].”). This is apparently the result reached by the court in this case. While Erickson and Blake both assigned musical notes to correspond with the 3.14, etc. digits of pi, the court found that the works differed sufficiently in tempo, musical phrasing, and harmonies. As to the fact that both works were founded on pi, the court ruled that similarity was not protectable, and thus that the plaintiff failed to demonstrate a substantial similarity of protectable expression between the works. This case should serve as a reminder that not every similarity between two works constitutes an actionable claim for infringement, or justifies the cost of litigation. Jonathan Pink is an intellectual property attorney specializing in copyright and trademark issues. He is resident in the Los Angeles and Orange County, and heads the Internet and New Media team at Bryan Cave, LLP. He can be reached at

No comments: