Comment by Niall A. Fordyce

Likely most remember the landmark slogan: “Porsche. There is no substitute.” A great advertisement, and perhaps for some, a cultural touchstone. However, considering the lawsuit filed on November 25, 2016, in the United States District Court, Middle District of Tennessee, by Songs Music Publishing, LLC (“Songs”) against Porsche’s parent company in Stuttgart, Germany; Porsche Cars North America, Inc.; and the Cramer-Krasselt Company, (collectively “Porsche”), the famous slogan may take on a new twist.

According to its complaint, Songs alleges that Porsche enlisted Cramer, a Chicago-based advertising company, to create an advertisement for the Porsche Cayman 718 automobile, including accompanying music. Songs claims that the music created as part of the Cayman advertising campaign infringed on Songs’ copyrighted musical work “Jungle” by use of a substitute, unlicensed version of its musical work “Jungle.” For Songs, there is no substitute for the original work, and Songs seeks redress accordingly.

As the complaint makes clear, “Jungle,” performed by Jamie N Commons and X Ambassadors, has been a successful musical work for advertising and licensing purposes, and there really is no argument as to whether Porsche and Cramer had access to “Jungle” – they did. Ellis v. Diffie, 177 F.3d 503, 506 (6th Cir. 1999) (citations omitted) (“Access occurs when the defendant either hears or has ‘a reasonable opportunity to hear the plaintiff[’s] work and thus ha[s] the opportunity to copy.’”) Songs then outlines the successful Fiat Chrysler ad campaign for the Jeep Renegade, which features X Ambassadors’ number 1 hit song, “Renegades.” “Renegades” and “Jungle” both appear on the X Ambassadors’ album VHS. The complaint alleges that Porsche “has attempted to cash in on X Ambassadors’ proven successful work in creating the 718 Advertisement.”

Songs moves on to impugn the advertising industry with its claim that the industry is “notorious for using pre-existing music to create advertisements, and attempting to get away with doing so without properly licensing or paying for the intellectual property they have used” – an odd and unnecessary assertion. It is highly unlikely that this type of charged, unsupported rhetoric will impress the court.

Otherwise, the complaint is concise and generally well-written (other than an overlooked paragraph mis-numbering at the outset), including just a single Count for copyright infringement for the alleged appropriation and unlicensed use of “Jungle.” This should come as no surprise, considering that Song’s counsel has significant experience in 6th Circuit music copyright infringement matters, having represented Bridgeport Music and Eminem’s music publisher, Eight Mile Style, amongst others, in several landmark cases. It is refreshing to see a complaint mostly devoid of the usual clutter.

In contrast with far too many complaints filed in the world of music copyright, Song’s complaint actually outlines specific musical examples of alleged infringement, including similarities in rhythm, orchestration, vocals, and melody. This is very likely to meet the pleading standards required by Federal Rules of Civil Procedure, Rule 8, requiring the 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).

However, some of Song’s allegations are more convincing than others. The drum rhythms from the two tracks are, as Songs points out, quite similar, although it remains to be seen whether a standard 4/4 beat with a fairly typical emphasis pattern will rise to the level of protectable original expression. Standard or stock expressions, or expressions that are common to a particular subject matter or medium are not protectable under copyright law. Murray Hill Publications, Inc., v. Twentieth Century Fox Film Corp, 361 F.3d 312, 319-20 (6^th Cir. 2004). (Note: the drums sheet music example in the complaint incorrectly places the 16^th note preceding the third beats in the “snare/clap” line – however, Songs correctly identifies the 16^th note as part of the kick drum line in its written analysis.)

Songs’ “organ stabs” example is decidedly weak – for a start, the voicings of the chord “stabs” on the downbeats are different in the two works, with “Jungle” using first inversion chords, and Porsche’s work using primarily second inversion chords, often with no third scale degree. The “organ stabs” are also not readily apparent aspects of the works. For example, contrast the organ in the two works at issue here with the opening of “Radio, Radio” by Elvis Costello & The Attractions, a truly prominent organ part. It is unlikely that the generic “organ stabs” compositional technique used in “Jungle” will be sufficiently original to be protectable. It may also implicate merger under copyright law. There is only one way to achieve downbeat “organ stabs,” and where there is only one way to express an idea, it will not be subject to copyright protection.

Otherwise, as Songs points out, there are similarities in backing vocals, melodic rhythm, and the melodies themselves. According to Songs, “[t]he sheer number of substantial similarities between ‘Jungle’ and the 718 Advertisement negate any suggestion of independent creation, and show Defendants intentionally copied ‘Jungle.’” Still, such similarities are not surprising when dealing with very straightforward and uncomplex musical works in the same genre.

In determining substantial similarity, the Sixth Circuit uses a two-part test, first filtering out elements of the work that are not original to the author, including scènes à faire, the indispensable or standard aspects of a work, or those that follow directly from unprotectable ideas (merger). Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 274 (6^th. Cir. 2009) (citing Murray Hill Publ’ns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 318-19 (6^th Cir. 2004) (noting that the standard for originality is quite low) and Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)). Once the unprotectable elements have been filtered out, the two works are compared to determine whether they are substantially similar, the standard being “whether a lay observer would consider the works as a whole substantially similar to one another.” Murray Hill v. Twentieth Century Fox, 361 F.3d at 320 (quoting Williams v. Crichton, 84 F.3d 581, 590 (2^nd Cir 1996)).

Likely most of “Jungle” will rise to the (low) level of originality sufficient to warrant copyright protection. Should this case get that far, will “Jungle” pass the second part of the Sixth Circuit’s test for substantial similarity? Although there are differences in the two works, the differences between the works are not the critical analysis under copyright law. Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir. 1936) (“[N]o plagiarist can excuse the wrong by showing how much of the work he did not pirate.”) The focus is on the similarities between the protected work and the alleged offending work.

In this case, even to well-seasoned and experienced ears, let alone the ears of a “lay observer,” the two works undeniably sound similar on casual listening – it is a longstanding principle of copyright law that a combination of unprotectable elements in a musical work may be protectable where the “over-all impact and effect [of the alleged infringing musical work] indicate substantial appropriation.” See, e.g., Three Boys Music Corp. v. Bolton, (2000) 212 F.3d 477, 485 (quoting Malkin v. Dubinsky, 146 F.Supp. 111, 114 (S.D.N.Y. 1956). Is this the case here?

This lawsuit is still in its incipient phase, and the Sixth Circuit “filtration test” has not yet been applied. In the meantime, many questions must be answered, including what did Songs actually register and deposit with the Copyright Office for “Jungle,” was “Jungle” composed and recorded in the studio simultaneously, thus imbedding the composition in the sound recording (Bridgeport Music, Inc., 585 F.3d at 276), which elements of “Jungle” are protectable expression and which must be filtered out under the Sixth Circuit analysis, whether a “fragmented literal similarity” analysis is appropriate (Id. at 276-77), and the like. Answering these questions and addressing the numerous additional issues that will certainly arise will no doubt be expensive and time consuming for both sides.

It remains to be seen, but perhaps Porsche should be concerned. For Porsche and the music for its Cayman advertising campaign, it may be that in this case, there really was no substitute for licensing “Jungle.”

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Complaint: PDF