Big Time Music Producer Sues Artists For Defamation For Suggesting He Copies Their Songs

from the ah,-legal-fights dept

Fri, Sep 2nd 2011 4:48am — Mike Masnick

THREsq has a story about the quick, legal trigger finger of one Lukasz "Dr. Luke" Gottwald, who apparently has produced a bunch of pop hits from the likes of Britney Spears, Katy Perry, Ke$ha, Avril Lavigne and Kelly Clarkson. It seems that lots of people online have noticed that some of the songs sound similar to other songs, and as people do these days, they've created mashups showing the similarities. Dr. Luke has decided that the best strategy to take when certain artists have spoken out publicly about their beliefs that certain songs were copied is to sue them for defamation.

Now, I actually agree with Dr. Luke that many of these accusations are crazy:

"These days, anyone can put two songs up and make a mash-up by changing the key of this one and say, 'Oh, these songs are similar.' A lot of things are similar. But you don�t get sued for being similar. It needs to be the same thing. Almost doesn�t count. Close but no cigar. People are suing for close. There are standard chord progressions that everyone uses. There are plenty of songs that are really similar and they never sued each other. We are a very litigious society today. You can fall on the sidewalk and sue the city."

He's right. And, of course, there are lots of highly viral YouTube videos about similar general chord progressions in a ton of songs, such as the one about Pachelbel's Canon: And yet... as much as I agree in general that the claims of copying (or more directly, of infringement) are overblown, the fact that he goes legal first with defamation claims really seems like a strategically questionable move. All it's doing is calling that much more attention to the allegations themselves and leading more people to wonder if there is actual copying going on. He could have easily stuck with the claim that lots of songs have the same chord progression and that's not infringement.

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Filed Under: accusations, copying, defamation, dr. luke

26 Comments

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Scooters (profile), 2 Sep 2011 @ 4:55am

There's no such thing as bad publicity.
What better way to get in the news these days: sue someone.

The suit made Techdirt, didn't it?

I sometimes forget the power of the internet and how it can be used to bring issues in the light.

Usually via the Streisand Effect, but in today's world, it's better than nothing.
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Rabbit80, 2 Sep 2011 @ 5:07am

That's an awesome video..`
Surprisingly, I saw it for the first time only a couple of weeks ago!
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keiichi969 (profile), 2 Sep 2011 @ 5:09am

http://www.youtube.com/watch?v=oOlDewpCfZQ

This would be a better example of pop songs using the same 4 chords. Axis of Awesome's "4 chords".
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Stephan Kinsella (profile), 2 Sep 2011 @ 5:11am

Defamation as a type of IP law
Mike, not only that, but defamation (libel and slander) law protect "reputation rights," which are nothing but another type of IP right. IP traditionally includes patent, copyright, trademark and trade secret, and newer legislated rights like semiconductor maskwork protection, but it also ought to include reputation rights since it is based on the same flawed reasoning as copyright and patent: a reputation right is a right to a non-material thing--your "reputation," i.e. what others think about you--becaues you used labor to "create" it and it "has value"--the same flawed reasoning behind patent and copyright.

So, this guy here is using an IP right to attack someone for saying he violated their IP rights. Odd.
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That Anonymous Coward (profile), 2 Sep 2011 @ 5:23am

An important piece from the article...

""By falsely claiming to Sony Music Label Group that �Tik Tok� infringes �My Slushy�, these Defendants caused RCA/Jive� to demand indemnification based on a breach of warranty and representation solely as a result of these Defendants� baseless claims of infringement. By these Defendants� wrongful actions, Plaintiffs� publishing income interest in �Tik Tok� has been damaged.�"

Because I am sure that Sony wants to make sure that their profits are protected and that this lawsuit be paid out of his own pocket. So he files a defamation claim, so he can argue how he was hurt by the statement and avoid trying to get a Judge to figure out if there was infringement.

Maybe he was right...
The first thing we do, let's kill all the lawyers.
Henry The Sixth, Part 2 Act 4, scene 2
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Anonymous Coward, 2 Sep 2011 @ 5:47am

Hoisted by your own petard.
This is the logical conclusion to the "copying is theft" propaganda war.

If you put out decades of propaganda equating ideas and property, and the idea that ideas are something that can be owned, people will *gasp* start believing it.

And then you get stupid crap like this.
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Anonymous Coward, 2 Sep 2011 @ 6:14am

"By falsely claiming to Sony Music Label Group that �Tik Tok� infringes �My Slushy�, these Defendants caused RCA/Jive� to demand indemnification based on a breach of warranty and representation solely as a result of these Defendants� baseless claims of infringement. By these Defendants� wrongful actions, Plaintiffs� publishing income interest in �Tik Tok� has been damaged.�

Reading that I get the feeling that this is about money directly not just reputation, it had consequences to him as it should have and he now goes after anyone who insinuates that he copied anything, and apparently he does it without asking for money just retractions.

So I'm not sure what to make it about it all just yet.
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Anonymous Coward, 2 Sep 2011 @ 6:34am

What the guy tends to miss is that it often isn't just a chord progression that is important, but how it is played, inflection, etc.

While music has a limited number of tools, it also has an incredible number of variables. Any single instrument has it's notes, plus tempo, attack, release, etc. For guitar, you can ass "picked or strummed", as an example, plus the inflection and pace of those actions as well.

Then you add a second instrument, and you have X possiblities times X possiblities.

Then you add a voice, and things get really wild, because vocal patterns, inflection, and a ton of other things come into play.

Four cords, 2 instruments, and a singer has lead to (and will continue to lead to) plenty of new songs.

The sample video only shows that, if you delete all of the inflection parts, delete all of the differences, you can find similarities. It's not like there are a million different notes to work with, right?
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Anonymous Coward, 2 Sep 2011 @ 7:10am

Re:
http://en.wikipedia.org/wiki/Bridgeport_Music_Inc._v._Dimension_Films

http://en.wikipedia.org/wik i/Sampling_(music)

Mostly things started to get out of control in the 90's.
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The eejit (profile), 2 Sep 2011 @ 7:43am

Quick question...
Can it be defamation if it's true? Because if that's the case, this moron's going to be bent over and saying "Hail Mary" by the end of the year.
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Someantimalwareguy (profile), 2 Sep 2011 @ 7:47am

Re:
Then you add a second instrument, and you have X possiblities times X possiblities.

True, but the range of sounds that are acceptable to the majority of listeners and the fact that there are a limited number of arrangements that lead to a "hit" narrows down the choices considerably.

While you COULD fire up some Klingon Opera, it is highly unlikely to be popular...
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Richard (profile), 2 Sep 2011 @ 8:02am

Re:
Yeah that's a better example - but the Pachelbel Rant is funnier - Love both!
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Anonymous Coward, 2 Sep 2011 @ 8:15am

I am a musician who has played in bands for over 3 decades.I have around 6 albums of stuff out in various old school tape/vinyl/Cd formats.I am an original punk rocker from 1976.

My art does not have this issue.No one needs to sound alike or close as this post talks of.
And this post is talking of manufactured pop garbage music.RIAA KRAP !!! All that pop krap sounds the same.That is what those bozos push is bland mainstream corporate music.
What do you expect from Artists and Producers who sign with the RIAA.
My art is original and I guarnatee you it sounds like no one else.
go to www.bigmeathammer.com and click on the Audio/video Link.All music is free and at 256 - 320k MP3 for your convenience.
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PaulT (profile), 2 Sep 2011 @ 8:57am

Re:
Meh, all punk sounds the same to me anyway...

(yep, that was sarcastic, sorry!)
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Anonymous Coward, 2 Sep 2011 @ 9:22am

"All it's doing is calling that much more attention to the allegations themselves and leading more people to wonder if there is actual copying going on.""

I don't think I agree with the presumption that the Streisand Effect really applies in a defamation case that has solid grounds.

Seems to me it's calling attention to both the allegations and his defense. Maybe I wouldn't have heard of either without the suit, but I'm not sure if that's worse for him than hearing both sides of the argument.
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Justin Levine, 2 Sep 2011 @ 10:10am

You do indeed get sued for being similar...and that's (part of) the problem.
"A lot of things are similar. But you don�t get sued for being similar. It needs to be the same thing. Almost doesn�t count."

I guess this attorney isn't very knowledgeable about the reality of today's overly restrictive copyright regime. George Harrison had to find out the hard way when we was successfully sued for copyright infringement over claims that "My Sweet Lord" was "similar" to "He's So Fine" (popularized by the Chiffons).

This is a case that is taught in many copyright classes in law school.

Details here:

http://cip.law.ucla.edu/cases/1970-1979/Pages/brightharrisongs.aspx

http://www.benedict. com/Audio/harrison/harrison.aspx
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ltlw0lf (profile), 2 Sep 2011 @ 10:22am

Re:
The sample video only shows that, if you delete all of the inflection parts, delete all of the differences, you can find similarities. It's not like there are a million different notes to work with, right?

And yet the trolls come in here and say it isn't music unless it is original. We stand on the backs of giants. There is nothing new under the sun...only modifications of existing content (or, what copyright maximalists call "derivatives".) I agree with the statement that a lot of this work is different from where it came from, but where do we draw the line. If we add two notes to a sample, it is derivative and not a good example, but if we add a couple different vocal patterns, inflection, etc., it is brand new and worth copyright protection. It is all so darn subjective.
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dwg, 2 Sep 2011 @ 10:42am

Re:
Um...I think that that might have been the underlying, subtler point of the video, and the whole point of the defamation suit.
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dwg, 2 Sep 2011 @ 10:46am

Re:
Listen, mate: I love punk rock, but you've gotta be joking. To say that The Jam and The Clash and The Fall sound like no one else and that no other punk sounds like them is just laughable. Again: I love punk--real punk music. But punk, hardcore, whatever--it really can't be said that every good one of those bands is like 100% distinct or something. Does Lee Ving sound like Rollins? No. But is FEAR 100% distinguishable from Black Flag? No.

I think maybe some recognition of the inherent samenesses is needed. I mean, you say that your music is punk tock, right? Well, if it "sounds like no one else," then how can you claim a genre at all? I guess you could do it on ethos, but then you get folks saying stuff like "Johnny Cash was a punk rocker," which, while funny and arguable in a really wonky way, just isn't quite true.

Going to your site now.
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dwg, 2 Sep 2011 @ 10:48am

Re: Re:
Ahhh! My eyes! Dude, if you want to make your site for my convenience, please make it readable by the human eye. I'd love to hear your music, but I can't find the links without breaking a cornea.
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dwg, 2 Sep 2011 @ 10:50am

Re: You do indeed get sued for being similar...and that's (part of) the problem.
Yea, man: the touchstone for one of the two prongs is actually called "substantial similarity," not "absolute sameness." Gotta know that difference before you go to court and whatnot.
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Jeffrey Nonken (profile), 2 Sep 2011 @ 11:28am

Our country is too litigious, and I'll sue anybody who disagrees with me.
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Jeffrey Nonken (profile), 2 Sep 2011 @ 11:30am

Re:
I was going to mention the Harrison/Bright case but somebody beat me to it. No surprise, really.
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Anonymous Coward, 2 Sep 2011 @ 11:30am

Re: Re:
You have to understand, there are a lot of things in play here, there is no simple answer.

As an example, you have "style". You know, blues, rock, jazz, whatever. Most musical styles have hooks, have phrasing, have beats, whatever that defines they as a style. Often when you write a new song "in a style", you limit your choices as to what to play, what chord progressions to use, etc.

However, I do think there is a big difference in "playing something in a blues style" and "sampling something in a blues style". Because even if the results are very similar, only one contains the new players inflections, tonality, and the like.

Sampling is the easy way out too often, it's more about a sound and less about pure originality. It's why in the end the line is drawn pretty simple: If you use the performance of someone else, you need permission / license. If you use the song (words and music) written by someone, you need permission / license.

You have to remember too that there are many artists is in the music business who are only performers, they don't write their own music, they merely perform the songs written by others. In the R&B world, example, there are "producers" who only make beats, or who only make melodies. There are others who only write lyrics. Often a song is made up of beats from one, melody of another, and lyrics from a third, performed by session musicians or by the producers themselves, and combined to make a new song, sung by the "performer". It is the collaborative nature of modern music that can create it's own hell.
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Gerald Robinson (profile), 3 Sep 2011 @ 9:15am

Melody
Generally the courts have taken the position that a melody is not copyrightable as there are only so many combinations of chord progressions/notes and so some will sound similar.
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bugmenot (profile), 28 Nov 2013 @ 11:21am

Not fair
True that being similar is not means to steal something. We should always remember that here are only 7 notes.
additional hints
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