(C.D. Cal., filed 2017, 2:17-cv-08544)
“Let it go”
Comment by Niall Fordyce
On May 21, 2018, U.S. Judge George H. Wu of the Central District of California dealt what might appear as a blow to plaintiff Jaime Ciero’s (“Plaintiff”) lawsuit for copyright infringement against various Disney entities, Wonderland Music Company, Kristen Lopez, Robert Lopez, Idina Menzel, and Demi Lovato (collectively “Defendants”). Plaintiff sued Defendants for their alleged infringement on Plaintiff’s musical work “Volar” with their musical work “Let it Go” from the ballistically successful Disney production “Frozen.” Plaintiff’s complaint was originally filed on November 23, 2017, in the Central District of California, case 2:17-cv-08544-BW-MRW.
Defendants sought to have Plaintiff’s lawsuit dismissed on various grounds. Defendants were successful, but the court allowed Plaintiff another “bite at the apple,” or should that be snow cone, to further amend his claims against Defendants.
Judge Wu ruled that Plaintiff had not alleged that he failed to discover the alleged infringement before November 23, 2014 (three years before Plaintiff filed his complaint – the operative statute of limitations for federal copyright claims). Nor had Plaintiff alleged that it was “reasonable for [Plaintiff] to lack the knowledge of the infringement.” Not unreasonable findings by the court, concerning the total world market saturation / ubiquity of “Frozen” and “Let it Go.” It is a little hard to see how Plaintiff’s counsel would overlook such pleading basics…
By its order on this delayed “reasonable discovery of infringement,” the court has precluded any recovery for alleged infringing acts by Defendants before November 23, 2014. This ruling was certainly a victory for Defendants, but considering the overall success of Defendants’ work, limiting Plaintiff’s damages to the last three years and change should Plaintiff succeed in his claims, Defendant’s victory may not amount to much.
Plaintiff’s original complaint further alleged that “Let it Go” and “Volar” include “note combinations and structures, hooks, melodies, lyrics, themes, production, and textures that are at least substantially similar.” This type of utterly generic, conclusory pleading is common-place in these types of claims, a fact not lost on Judge Wu when he addressed Defendants’ motion to dismiss. The court here was clear that a “laundry list of hollow verbs does not save the claim … [T]he factual allegations inadequately recite conclusory statements[.]” Although it certainly not up to this court to determine why Plaintiff’s counsel drafted such an obviously insufficient pleading, one does wonder why this is such a pervasive problem in this area of the law.
Proper pleading sufficient to survive a Federal Rules of Civil Procedure, Rule 12(b)(6) motion to dismiss requires more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (citing Fed. R. Civ. P. 8). For example, no reasonable attorney would plead an intentional tort claim for battery by stating little more than defendant “intended to hit plaintiff, plaintiff fell down, and was hurt.” However, this is effectively how Plaintiff pled his claims his initial complaint. Judges and defense counsel appear to be attuned to this pervasive pleading problem in music copyright cases, but why are plaintiff’s lawyers so often apparently unaware of the basic pleading standards for asserting claims of copyright infringement in a musical composition?
Anyway, the court allowed Plaintiff leave to amend to cure the various shortcomings in his initial pleading. On June 11, 2018, Plaintiff filed his Second Amended Complaint, and shortly thereafter, dismissed defendants Menzel and Lovato. Plaintiff’s Second Amended Complaint also drops the cause of action asserted under 17 U.S.C. §1202, Integrity of copyright management information – a puzzling claim to assert in the first place.
In what is now Plaintiff’s third try (second amended complaint) at properly pleading his claims, the differences in the allegations of infringement are striking. Plaintiff actually pleads musical examples of alleged infringement! Why Plaintiff (Plaintiff’s counsel) did not do so initially is a mystery. Plaintiff’s failure to do so from the outset has cost Plaintiff and Defendants considerable time and money. Plaintiff also directly addresses the issue of the timing of the lawsuit and claimed infringement, specifically calling out Defendants’ alleged infringements “[d]uring the three years before the date of the filing of the initial complaint in this action[.]”
Plaintiff further addresses the court’s concerns with specificity regarding the types of infringement allegedly undertaken by Defendants – Plaintiff provides an extensive list outlining how “Let it Go” has been monetized by Defendants. No great mystery that Disney squeezes all the possible juice it can (and maybe some it cannot or should not) out of any commodity it controls.
As to the musical substance of Plaintiff’s claims of infringement, Plaintiff begins by pointing out that the choruses in both works have the same harmonic structure. Ok, but so what? The harmonic structure in question is altogether pedestrian, generic, standard, etc. Plaintiff certainly cannot be claiming any copyright interest in the harmonic structure itself. Maybe Plaintiff is hinting at a Swirsky analysis – an oft-misunderstood 9th Circuit case that addressed copyright protection in the combination of otherwise uncopyrightable individual musical elements. Perhaps Plaintiff is using this to demonstrate access to his work? For now, Plaintiff’s intent in raising the chorus harmony in the two works remains unclear.
The melodic hooks in the two works, now specifically addressed by Plaintiff, may be a slightly different matter. Plaintiff correctly points out that both works have chorus melodies that rise from the fifth scale degree first to the tonic, and then supertonic scale degrees (Plaintiff incorrectly labels the melody notes as scale steps one, four and five – a misunderstanding of musical lexicology, melody, harmony, and harmonic function). And there is little doubt that played back-to-back, there is some similarity between the two melodic motifs.
However, Plaintiff’s explanation as to the rising melodic gestures may not help his case. Plaintiff points out that the rising gestures in both works evoke “a sense of freedom … ‘Volar’ means ‘to fly,’ or to rise.” In such a limited harmonic and melodic framework, the possibilities as to how to achieve such “word painting” – a centuries old musical technique in its own right – are likewise limited, thus providing Plaintiff only “thin” copyright protection.
“Thin” copyright protection occurs where there exists only a narrow range of possible expression of unprotected ideas based on the medium or subject matter, and tends to protect against only virtually identical copying. See generally Stava v. Lowry, 323 F.3d 805 (9th Cir. 2003). There are surely thousands of examples of similar musical gestures surrounding flying, freedom, escaping, and the like that predate Plaintiff’s work. No doubt Defendants’ musical experts will provide myriad examples of comparable melodic word painting from and by which Plaintiff himself was surely influenced. There are only so many musical ways to express the idea of “flying” or “rising” in this musical context, and there is no doubt that Plaintiff does not have a monopoly over upward melodic leaps. The standard for originality required for copyright protection is undeniably low, but do Plaintiff’s upward melodic leaps meet the standard?
Plaintiff then focuses on short melodic fragments in the last two measures of the choruses. Once again, however, the necessarily limited musical vocabulary available in both works coupled with the clear differences in the two short fragments as presented by Plaintiff suggests that Plaintiff’s claims are ripe to be challenged. In fact, the nature of the dissonance (this author uses that term with caution!) and resolution coupled with Plaintiff’s rhythmic placement of key melody notes in this short excerpt is what actually distinguishes Plaintiff’s work from Defendants’ alleged infringing work. Perhaps the trier of fact will view it differently.
Plaintiff then moves on to other claims of similarity, including a “staccato element” to “build momentum to the reprise of each’s bridge and chorus,” and contrary motion between the vocal lines and the instrumental backing tracks. Neither element by itself is likely copyrightable – both are generic and unprotected musical techniques, perhaps musical scène-à-faire. Notwithstanding, both will be the subject of much expert witness wrangling, and much money spent.
At this point, Defendants appear to agree that at least as far as the pleadings are concerned, Plaintiff has now sufficiently stated its claims – Defendants filed their answer to Plaintiff’s Second Amended Complaint on July 23, 2018. Defendants’ next challenge to Plaintiff’s claims will likely be on summary judgment, which will require a substantive musical analysis of both Plaintiff’s work and Defendants’ allegedly infringing work.
Whether Plaintiff’s claims can survive on their merits is another question altogether. Both of these works are generic, formulaic, predictable and meant for the widest public consumption possible. As such, there WILL BE musical elements common to both works, and all works of this type. The choruses from “Volar” and “Let it Go” may each have as much in common with “Mary Had a Little Lamb” as with each other, and this should not come as a surprise. Complex, difficult, abstruse music is not suited to mass consumption. Disney knows this, and so does Jaime Ciero, and the musical works at issue here were both written accordingly. Whether Plaintiff’s claim that Defendants’ generic pop tune has infringed on his generic pop tune remains to be seen.
The goal of copyright law is to promote the progress of useful arts and science by protecting the exclusive right of authors and inventors to benefit from their works of authorship. Copyright protection can, does and should extend to certain short musical phrases in generic musical works, but one wonders whether this and the seemingly endless stream of similar music copyright claims against highly profitable works constitutes promoting the progress of useful arts. Stay tuned…
Second Amended Complaint: (PDF)