Few responses have been generated by Bieber, Skrillex and the opposing party. The only ripple from that camp regarding the issue occurred, of course, in social media, in a tweet by Skrillex, who said point blank:
SORRY, but we didn’t steal this.
To that tweet, Skrillex attached a quickly constructed and attached the following video of how he produced that riff in Bieber’s song:
Skrillex Video on Twitter Feed
Keep in mind, of course, that this video produced by Skrillex may or may not have any legal effect, since it was produced by one of the parties after the fact. Remember that important 2nd element of access? Bieber and Skrillex claim that they never heard of the artist “White Hinderland” prior to her making these allegations, and, of course, claim that they never heard the song that they have allegedly infringed. In other words, they are claiming that they did not have access to “Ring the Bell.” If that claim is true, then Bieber should be sorry for nothing. On the other hand, if Ring the Bell indeed was the influence for Sorry, then it might be “too late to say I’m sorry” (pun, but no infringement intended) – only a number in the checkbook will do.
But there are always two sides to any legal argument, and we shouldn’t just take Bieber at his word simply because he’s the Bieb. In her complaint, Dienel alleges that she wrote the original song in 2014, and that Ring the Bell was the first song released off of her third album Baby, which achieved success on her label, Dead Oceans, a subsidiary of the group Secretly Canadian. The song has, in fact, been streamed almost a million times. In addition, the song received critical acclaim in many industry media outlets, including one mention in Rolling Stones magazine, which, in the February 13, 2014 edition, listed it as one of their “favorite” songs. It just so happens that this edition of Rolling Stones also contained a feature article about none other than Skrillex. Those facts can be easily verified. So, this little bit of chronology puts a bit of a damper on the defendants’ “never heard of her” arguments in regard to access in that a court could very easily determine that claim to be disingenuous and self-serving.
For her part, Dienel’s social media campaign is in full swing as well and is standing on her arguments that Bieber and Skrillex had plenty of access to her work. In her social media buzz, she states her desire that Bieber, as a fellow creator, should have just obtained a license to sample her riff. Dienel has been quoted numerous times stating, “Like most artists that sample music, Bieber could have easily licensed my song for use in Sorry, but he chose not to contact me.”
So, the element of “access” will turn out to be a dog fight, as it usually does, with both parties presenting their respective opinions.
The third element the court will examine is whether the parts of the song allegedly stolen are entitled to copyright protection at all, in this case the four-note riff. That’s called misappropriation. The rationale is simple: in order for someone to collect money damages for infringement of a creative work, the work has to be entitled to exclusive protection.
More specifically, in order for the riff to be entitled to copyright protection, it must possess a “modicum” of creativity, according to the Supreme Court. This is not a high standard to meet. Is four notes sufficient to meet the Supreme’s criteria for creativity? At least one court, the 6th Circuit has found that, in cases of a sound recording copyright, even three notes can be sufficient. See, Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005). That’s not the always the last word of course, but if a court determines the requisite amount of creativity is present in the four notes, then the riff most certainly could be misappropriated. One interesting factoid here is the this case is being tried in the Middle District Court of Tennessee, which is governed on appeal by the 6th Circuit, meaning that it must follow the opinions of that higher court. Incidentally, Dienel is claiming infringement of both her sound recording and her musical composition, so this decision will be extremely relevant to the outcome.
Another factor considered when looking at misappropriation is how similar the two competing works are. The courts sometimes refer to this as substantial similarity. Once access is established, substantial similarity is a threshold beyond where that copying wrongfully appropriates the plaintiff’s protected expression. Courts look at this subelement both qualitatively and quantitatively to determine if the copyright is “striking” or “substantial” – something beyond a so-called “de minimis” use – but it is important to realize that such similarity can exist where the portion of the original work copied is small, but nonetheless constitutes the “heart” of the work, as Dienel is claiming here.
So there are some important take aways for artists, songwriters, and the minions that love them: (1) NO ACCESS – NO INFRINGEMENT. What someone doesn’t know won’t hurt him, literally, because there is no access; (2) DON’T RIP SAMPLES. If Bieber’s claim is true – that did not steal the riff but rather created it on his own – then it may be time for Dienel to say Sorry. But if Dienel can prove out the claims in her complaint, she will have a pretty good defense against the Bieb’s denial; (3) IF YOU HEAR SOMETHING AND SAY “LOVE IT, GOT TO USE IT,” GET A LICENSE. Always, when in doubt, get a license if you are sampling a sound recording, particularly if you live in the jurisdictions of the 6th Circuit. If Bieber and Skrillex did sample the riff, but had obtained a license, then there would be no lawsuit. It’s that simple. Licenses are always cheaper than defending a copyright infringement action in Federal court!
Is this a case of monkey (Bieb) see, monkey (Bieb) does? (Yes, I had to do it!). Or is this more a case where the monkey (Bieb) “hears no evil, does no evil”? This lawsuit is why I love copyright law so much: it has many angles and there are several ways to look at it. Lawsuits always have a least two sides! While it may be easy to jump on the bandwagon of the underdog, it has yet to be determined whether Bieber owes Dienel an apology (and tack on a few million), or does she owe him one? What do you think? Email us at [email protected] or Tweet me @bshrum.
Written by guest bloggers, Erin Thiele and Morgan Wisted, edited by BNSesq. Erin and Morgan are students a Belmont Unversity’s Mike Curb School of Entertainment and Music Business program and intern at Shrum & Associates.