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Intellectual Property Update: Why 'No Comment' on Accusations of Copyright Infringement May Be Better Than Publicly Commenting
By Owen J. Sloane and Rachel M. Stilwell
The manager of rock band Guns N’ Roses recently made a public statement in which he said that Guns N’ Roses "vigorously contests" claims that it used portions of two songs by a German musician on the rock band’s most recent album, "Chinese Democracy." However, his statements in support of that position may do more to hurt his clients than help them.
Two record labels recently filed suit in federal court in New York, seeking $1 million in damages for copyright infringement. According to the lawsuit, members of Guns N’ Roses, their producers, and their record label copied portions of two songs by German musician Ulrich Schnauss. British label Independiente and the U.S. arm of Domino Recording Company assert that they own rights to the two sound recordings by Schnauss from which short portions (i.e., “samples”) allegedly appear on “Chinese Democracy.” The lawsuit also alleges that the defendants failed to heed a cease-and-desist letter sent earlier this year.
The Guns N’ Roses manager was quoted in Billboard and Rolling Stone magazines shortly after the suit was filed:
"The band believed when the record came out and still believes that there are no unauthorized samples on the track. The snippets of 'ambient noise' in question were provided by a member of the album's production team who has assured us that these few seconds of sound were obtained legitimately. Artists these days can't read the minds of those they collaborate with and therefore are unfortunately vulnerable to claims like this one. While the band resents the implication that they would ever use another artist's work improperly and are assessing possible counterclaims, they are confident this situation will be satisfactorily resolved."
Interestingly, the manager’s statement does not dispute the assertion that “Chinese Democracy” copied the recordings by Schnauss. Instead, he arguably makes admissions that could potentially be damaging to his clients if the case were to go to trial.
The manager does not deny that portions of the Schnauss recordings were included on his client’s album. He instead argues that Guns N’ Roses did not know that the recordings in question were unauthorized for use on their album. However, a valid claim of copyright infringement does not necessarily entail a claim that the infringer knowingly copied the work of another. In order to prevail in a claim for copyright infringement, the claimant must merely prove 1) that he or she owns the copyright of the work in question and 2) that the work in question was copied without license or permission.
Whether the infringer acts knowingly or willfully is relevant to the level of damages that the plaintiff can claim. If a court decides the issue of whether the defendants willfully infringed the copyrighted recordings, the outcome of that claim may depend on the facts surrounding the defendants’ responses to the cease-and-desist letters allegedly sent by the plaintiffs.
The manager argues that his clients reasonably relied on the assertions by their production team with respect to the samples in question, and he implies that on this basis, the band members should not be held liable for infringement. However, a valid claim of infringement need not entail that the infringer intentionally copy the work of another without permission. In a famous 1976 decision, Bright Tunes Music v. Harrisongs Music, the federal court in the Southern District of New York (the same court in which the Guns N’ Roses case is now filed), found that former Beatle George Harrison had unintentionally copied, and therefore infringed, the song “He’s So Fine,” recorded as a hit by the Chiffons. In that case, the court ruled that Harrison was guilty of copyright infringement even though Harrison did not deliberately plagiarize "He's So Fine." The court in that case ruled that solely because “My Sweet Lord” had copied “He's So Fine,” “[u]nder the law, this is infringement of copyright, and is no less so even though it may have been subconsciously accomplished.”
Guns N’ Roses’ manager refers to the samples in question as “snippets of ambient noise.” Here he implies that the samples in question 1) lack the requisite creativity in order to be copyrightable and 2) are so fleeting as to be a de minimis usage of the allegedly infringed material. These arguments are interesting, but are no means a slam dunk for those defending this suit.
Only a slight amount, or a “modicum” of creativity is required for a work to be copyrightable. Moreover, the songs from which these samples were taken were registered with the U.S. Copyright Office, which courts accept as evidence that the underlying recordings are sufficiently creative to warrant the protection of copyright laws.
Any argument that the borrowed “snippets” are so short as to be inconsequential would likely face a multi-faceted analysis of whether the use of the samples was a “fair use” of that material. Experts generally agree that fair use determinations are so usually “so clouded that one has no sure idea how they will fare until the matter is litigated.” A “fair use” analysis takes into consideration several factors, not only with respect to the length of the copied material, but also whether the use of that material is “commercial in nature.” The long-awaited album, “Chinese Democracy,” was certified platinum by the R.I.A.A., such that a court would very likely find the use “commercial.” There are more than a handful of published cases in which courts found that the unlicensed use of fleeting “samples” in commercially released sound recordings constitutes infringement.
While Guns N’ Roses manager undoubtedly was earnest in his assertions that his clients had not knowingly copied the work of another without permission, his implicit admission that his clients unintentionally allowed the copying to take place arguably puts his clients in a worse position than if he had said nothing at all to the press. This provides a reminder of the importance of consulting legal counsel before publicly remarking on disputed matters, whether litigation is ongoing or merely threatened.
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