Judge Tosses Out Genius' Laughable Lawsuit Against Google Over Licensed Lyric Copying
from the what-a-dumb-lawsuit dept
Last year we wrote about what we called the "dumbest gotcha story of the week," involving the music annotation site Genius claiming that Google had "stolen" its lyrics. The only interesting thing about the story is that Genius had tried to effectively watermark its version of the lyrics by using some smart apostrophes and some regular apostrophes. However, as we noted, the evidence that Google "copied" Genius just wasn't supported by the facts -- and even if they had copied Genius, it's unclear how that would violate any law. You can read that post for more details, but the simple fact is that a bunch of sites all license lyrics and have permission for them -- and many use a third party such as LyricFind to supply the lyrics. But how those lyrics are created is... however possible. Even as sites "license" lyrics from publishing companies, those companies themselves don't have their own lyrics. So basically lyric databases are created however possible -- including having people jot down what they think lyrics are... or by copying other sites that are doing the same. And there's nothing illegal about any of that.
And yet, for reasons that are beyond me, last December, Genius sued both Google and LyricFind over this. As we noted at the time, it was one of the dumbest lawsuits we'd seen in a while, and it would easily fail. And that is exactly what has happened. The lawsuit was removed from NY state court to federal court, and while Genius tried to send it back, the judge not only rejected that request, but she dismissed the entire lawsuit for failure to state a claim (that's legal talk for "wtf are you even suing over, that doesn't violate any law, go home.")
There were a bunch of issues that Genius tried to raise, but all of them were pretend issues. As we noted all along, Genius has no copyright interest in the lyrics (indeed, it has to license them too -- and, amusingly, in its early days, songwriters accused Genius of being a "pirate" site for not licensing those lyrics...). And so Genius tried to make a bunch of claims without arguing any copyright interest, but these were all really attempted copyright claims in disguise, and the court rightly pointed out that copyright pre-empts all of them.
Breach of contract? Nah, copyright pre-empt's that:
Plaintiff’s breach of contract claims are nothing more than claims seeking to enforce the copyright owners’ exclusive rights to protection from unauthorized reproduction of the lyrics and are therefore preempted. The parties agree that Plaintiff is not the owner of the copyrights to any of the lyrics it transcribes, and Plaintiff concedes that it licenses lyrics from the copyright owners.... Although Plaintiff describes the rights it seeks to enforce as “broader and different than the exclusive right existing under the Copyright Act,” based on “the substantial investment of time and labor by [Plaintiff] in a competitive market,” ... and asserts breach of contract claims based on alleged violations of Plaintiff’s Terms of Service, Plaintiff’s own ability to transcribe and display the lyrics on its website arises from the licensing rights Plaintiff has in the lyrics....
[....]
Plaintiff’s argument is, in essence, that it has created a derivative work of the original lyrics in applying its own labor and resources to transcribe the lyrics, and thus, retains some ownership over and has rights in the transcriptions distinct from the exclusive rights of the copyright owners.... This argument is consistent with the treatment of derivative works under federal copyright law....
Plaintiff likely makes this argument without explicitly referring to the lyrics transcriptions as derivative works because the case law is clear that only the original copyright owner has exclusive rights to authorize derivative works....
Even accepting the argument that Plaintiff has added a separate and distinct value to the lyrics by transcribing them such that the lyrics are essentially derivative works, because Plaintiff does not allege that it received an assignment of the copyright owners’ rights in the lyrics displayed on its website, Plaintiff’s claim is preempted by the Copyright Act because, at its core, it is a claim that Defendants created an unauthorized reproduction of Plaintiff’s derivative work, which is itself conduct that violates an exclusive right of the copyright owner under federal copyright law.
Unjust enrichment? Yup. Pre-empted by copyright law. In that case, Genius had pointed to one case that showed an unjust enrichment claim avoided pre-emption, but the court points out that that case was quite different.
While the court in CVD Equipment Corp. listed deception as an extra element sufficient to avoid preemption, the Court finds, based both on the facts in that case and the Second Circuit decisions cited in support, that the decision in CVD Equipment Corp. was based on the defendant’s alleged abuse of a fiduciary relationship, which is not present in this case. The factual allegations in CVD Equipment Corp., described above, clearly supported a claim that the defendants had unjustly enriched themselves by abusing a fiduciary relationship.... Moreover, the two Second Circuit cases the district court relied on in making its ruling further support the conclusion that the basis for the court’s holding was not that the plaintiffs had alleged “deception,” but rather, that they had alleged the abuse of fiduciary relationships. In Kregos, cited by the court in CVD Equipment Corp., in finding that the plaintiff’s unfair competition claim was preempted, the Second Circuit stated that “unfair-competition claims based upon breaches of confidential relationships, breaches of fiduciary duties and trade secrets have been held to satisfy the extra-element test and avoid § 301 preclusion.” ... Similarly, in Computer Associates International, Inc., also cited by the court in CVD Equipment Corp., the Second Circuit noted that the “state law rights that . . . satisfy the extra element test, and thus are not preempted by section 301 . . . include unfair competition claims based upon breaches of confidential relationships, breaches of fiduciary duties and trade secrets.”... In contrast, in this case, Plaintiff has not alleged that Defendants abused a confidential or fiduciary relationship.
Unfair competition? Sorry, nope. Pre-empted by copyright.
Plaintiff’s unfair competition claims are preempted by the Copyright Act. Plaintiff alleges that Defendants “misappropriated content from [Plaintiff’s] website,”... in “an unjustifiable attempt to profit from [Plaintiff’s] expenditure of time, labor and talent in maintaining its service,”... Plaintiff has not alleged that Defendants breached any fiduciary duty or confidential relationship, or that Defendants misappropriated Plaintiff’s trade secrets. Instead, Plaintiff’s claims are precisely the type of misappropriation claims that courts have consistently held are preempted by the Copyright Act....
Plaintiff’s claims are essentially “reverse passing off” claims, as Plaintiff alleges that Defendants copied Plaintiff’s work product — song lyrics displayed on its website — and attempted to pass them off as either, in LyricFind’s case, its own work product or, in Google’s case, either its own work product or work product it was licensed to display.... Unfair competition claims involving allegations of reverse passing off are preempted by the Copyright Act.
How about "bad faith" claims under NY state law? Here, we see the zombie of the never ending SCO v. IBM case, which Genius sought to use in support. But, there's a problem. That case was in the 10th Circuit. This case is in the 2nd.
The Tenth Circuit’s decision in SCO Group, Inc. is directly contradicted by caselaw in this Circuit, discussed above, finding that New York unfair competition claims alleging misappropriation of copyrightable works are preempted by the Copyright Act. Regardless of how the Tenth Circuit interpreted the “bad faith” element of New York unfair competition claims, in this Circuit, “bad faith” on its own is not sufficient to avoid preemption — if it were, unfair competition claims under New York law would never be preempted.
Unfairness under California law? Pre-empted. Easily.
The Second Circuit has held that “[n]o matter how ‘unfair’” a defendant’s alleged conduct is, “such unfairness alone is immaterial to a determination whether a cause of action has been preempted by the Copyright Act.”
Deceptive, unethical, and immoral conduct? By this point you can feel the judge getting bored of having to repeat herself.
Courts in this Circuit have found that deception is not an extra element that saves an unfair competition claim from preemption.
And thus, the case is tossed completely.
Given that the Court finds that all of Plaintiff’s state law claims are preempted by the Copyright Act, and Plaintiff has not asserted any federal law claims, the Court dismisses the Complaint for failure to state a claim.
Don't try to pretend that you have a pseudo copyright in content you have no copyright rights over.
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Filed Under: copying, copyright, licenses, lyrics, music, pre-emption
Companies: genius, google, lyricfind
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Hey judge... Is it a derivative work, though?
(my emphasis added)
But for it to be a derivative work, it must be a new work that is based on an earlier copyrighted work. Here, the earlier work is the original lyrics. The new work is the same lyrics... but with the adjustment of how certain apostrophes look to spell out "red-handed" in Morse code. Keep in mind that the rights to any derivative work don't extend to what's included in the earlier work; only what's newly created can be protected. And in order to receive copyright protection, the work must meet a minimal degree of creativity.
Here, what's new is spelling out red-handed in Morse code using apostrophes. Clever? Yes. A minimal degree of creativity? No. You can't own spelling out "red-handed" in Morse code using apostrophes. The creation of this watermark is NOT a derivative work. It's not even copyrightable to begin with! While it wouldn't change the outcome, I think the judge is mistaken claiming that Genius made a derivative work. It doesn't take a genius to figure that out!!
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Re: Hey judge... Is it a derivative work, though?
I don't believe the judge is claiming that the work is derivative here. As I read it, the judge is assuming the claim that it's a derivative work is true and pointing out why it doesn't matter.
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Re: Re: Hey judge... Is it a derivative work, though?
Yeah, the judge seems to be saying that if it was a derivative work, Genius would be guilty of copyright violations themselves, because they don't have a license to create derivative works. It's not even that it doesn't matter -- Genius themselves shouldn't want their own argument to be true, or they'd be liable to be sued by every artist or label whose lyrics they watermarked.
But when the judge starts with "Even accepting the argument..." that's a pretty good hint that they don't accept that argument...
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Re: Hey judge... Is it a derivative work, though?
But for it to be a derivative work, it must be a new work that is based on an earlier copyrighted work. Here, the earlier work is the original lyrics.
Yeah... there was a long section in the ruling describing why this is not a derivative work, but noting that Genius's argument is effectively as if it was so this is just the judge responding to that point, and NOT saying that it is a derivative work.
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One copyright, many documents
So how exactly does one copyright/license cover potentially dozens of different sets of lyrics? Wouldn't the lyrics license only cover fully accurate transcriptions? Can I just submit the text of a book, say it's the lyrics to some Beyonce track, and it's magically covered? Because apparently Google can just lift anything from Genius and THAT'S magically covered...?
I have seen a few instances where people submitted lyrics to completely different tracks on Genius, in addition to the usual arguments about the correct interpretation of a particular line...I know that wasn't part of this suit exactly but how is that handled? If it's not the correct lyrics, it can't be copyright by the musician/label because it isn't their work, so wouldn't that copyright still be held by the transcriber (who, by the ToS, licenses it to Genius alone)?
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Re: One copyright, many documents
I don't think that argument matters for Genius' case here; that would be something for the rights holders to take up with Google, and they haven't chosen to do so.
But you raise a good point: Genius could replace the lyrics of a few popular songs with "faux lyrics" that sound kind of similar, but are obviously incorrect -- and then sue Google if THOSE lyrics are copied, as Genius wrote those themselves, and own the copyright.
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Re: Re: One copyright, many documents
Yeah, I wonder why Genius didn't go that route to begin with...they do have a lot of minor labels and independent artists that they seem to work pretty closely with, and several artists who do post their own lyrics directly to Genius and seem have some kind of official partnerships (I'll occasionally see artists posting photos of themselves working at the Genius offices...or at least I did pre-COVID)...I very much doubt that these generic major lyrics licenses cover everything that Genius hosts already. But Google might be smart enough to make sure they only copy lyrics for tracks that they have a license for?
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Re: One copyright, many documents
So how exactly does one copyright/license cover potentially dozens of different sets of lyrics?
The same way that if I write a book called "Penny Hatter and the Alchemist's Rock" which consists of the contents of a certain book, but happens to includes a metric ton of errors and a lot of thesarus usage... I should probably avoid publishing it.
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Re: Re: One copyright, many documents
Well, there is a track record of parody being acceptable, and the Barry Trotter series exists...
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The afternoon pedantery
FTFY
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Plaintiff’s argument is, in essence, that it has created a derivative work of the original lyrics in applying its own labor and resources to transcribe the lyrics, and thus, retains some ownership (...)
Oh. They were suing on behalf of all the users who generated the content on their site?
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OK, let me see if I got this straight. Website copy-licenses content from one source that was created by another source, sets up a useragent file to request another entity to publicise it for download by anybody, then sues their publicity agent for ... doing too good a job?
Section 230 needs to be modified to allow full costs, not limited to attorney fees and court costs, to the defendant if the case OUGHT to have been settled by summary dismissal (even if it wasn't so settled.)
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Re:
" OK, let me see if I got this straight. Website copy-licenses content from one source that was created by another source, sets up a useragent file to request another entity to publicise it for download by anybody, then sues their publicity agent for ... doing too good a job?"
Sounds a bit like a movie studio suing Blockbuster for having a movie night where they pick a random rental off the shelf and project it on the wall in their parking lot for $5 a ticket. And they would absolutely get sued for doing that if they didn't pay for the proper license. Even though the studios did agree to let Blockbuster help them get those movies to more people, that doesn't mean they can do it any way they want. You can't just pass someone else's content off as your own, even if you HAVE been asked to help publicize it. Which is exactly what Google did here...the only reason they got away with it is because the person they lifted it from doesn't legally own it either.
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