Black v. Gosdin

Comment by Charles Cronin

Only the words of Defendant’s song were the basis of the Plaintiff’s allegation that the Defendant’s song infringed his country/western ballad “The Jukebox”. Nevertheless, for readers’ delectation, we’ve posted above a brief audio clip of Defendant Vern Gosdin’s performance of his “Set ‘em up Joe.” (And we will do likewise for the Plaintiff’s work if we manage to obtain an audio clip of it.)

This dispute raises the question whether, and the extent to which, the genre(s) of the disputed works should affect determinations of similarity and infringement. Country/western songs commonly deal with maudlin topics of heartbreak and loss among blue-collar protagonists, just as rap songs commonly air topics of violence and conspicuous consumption. Query whether we would be more likely to find substantial similarity if a rap song, rather than another country-western song, used the same country-music tropes found in Damon Black’s song: jukebox, a mawkish bar setting, jilted lover, etc.

Nine years after this case, in a factually similar dispute, the Sixth Circuit affirmed the Middle District of Tennessee court’s finding that Joe Diffie’s country/western number “Prop Me Up Beside the Jukebox (If I Die)” did not infringe on Everett Ellis’s “Lay Me Out by the Jukebox When I Die.” While the decision in this case turned on the court’s determination the defendant had no access to the plaintiff’s work, the fact that both works shared a musical genre may have lessened the significance of the relatively significant musical and verbal similarities between the two works.

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District Court Opinion: PDF