An Analysis of the Copyright Lawsuit Against The Rolling Stones
On March 10th, 2023, Sergio Garcia Fernandez, a songwriter who goes by Angelslang, filed a copyright infringement suit against Mick Jagger and Keith Richards (collectively “The Rolling Stones”) and their record labels in the Eastern District of Louisiana.[1] Fernandez claims that the Rolling Stone’s 2020 single “Living in a Ghost Town” misappropriates Fernandez’s 2006 song, “So Sorry” and 2007 song, “Seed of God.”[2] Specifically, Fernandez alleges that “Living in a Ghost Town” borrowed vocal melodies, chord progressions, drum beats, harmonica and electric bass line parts, and tempos from “So Sorry,” and harmonic and chord progressions and melodies from “Seed of God.”[3] Fernandez claims this borrowing infringes his composition copyright in each of the songs. Fernandez is not claiming that The Rolling Stones infringed his sound recording copyrights.
Fernandez is a classic rock songwriter based in New Orleans.[4] When the complaint was filed, “So Sorry” and “Seed of God” each had less than 1,000 plays on Spotify.[5] Given their lack of exposure, one may wonder how The Rolling Stones found these songs to copy.[6] According to the complaint, in or around 2013, Fernandez provided a demo CD containing the two allegedly infringed works to one of Mick Jagger’s immediate family members via e-mail.[7] Allegedly, that family member confirmed receipt of the demo and expressed that the “musical works of the Plaintiff and its style was a sound The Rolling Stones would be interested in using.”[8]
To prevail in a copyright infringement suit, a plaintiff must (1) have valid copyright ownership in the infringed work, (2) prove copying in fact, also known as factual copying, and (3) prove copying in law, also known as substantial similarity.[9] Fernandez does own the copyright in both allegedly infringed works.[10] This blog post primarily considers hurdles Fernandez will face regarding copying in fact, given the Fifth Circuit’s jurisprudence. I also briefly discuss copying in law.
Factual Copying
To prove copying in fact, a plaintiff must demonstrate that a defendant actually copied some protected elements of a plaintiff’s works, either intentionally or subconsciously.[11] If two artists come up with the same melodies independently, this will not constitute copying in fact.[12] In music infringement cases, defendants have provided evidence regarding the creation process of allegedly infringing works that demonstrates they developed the music independently.[13]
Factual copying can be proved by direct or circumstantial evidence.[14] For a circumstantial case of factual copying, a plaintiff can establish an assumption as a matter of law that copying in fact occurred by (1) proving a defendant had access to the allegedly infringed work, and (2) demonstrating similarities between the two works.[15] The Fifth Circuit has also held that a plaintiff may establish factual copying without proof of access when the similarity between the plaintiff’s and defendant’s work is “sufficiently striking such that the trier of fact may be permitted to infer copying on that basis alone.”[16]. Once a plaintiff circumstantially establishes factual copying, a defendant may rebut the circumstantial evidence if they can prove that they independently created the work.”[17]
Let’s first consider the question of access. The Fifth Circuit has held that to establish access, a plaintiff must prove that, prior to creating the infringing work, the creator had a reasonable opportunity to view the copyrighted work.[18] A “bare possibility” of access or a “finding based on speculation or conjecture” will not suffice.[19] Further, “reasoning that amounts to nothing more than a ‘tortuous chain of hypothetical transmittals’ is insufficient to infer access.”[20] If a party properly supports a claim for summary judgment on this issue, the nonmoving party must rebut with “significant probative evidence,” which is sufficient on its own to “support a jury verdict in the nonmoving party’s favor.”[21] Thus, a plaintiff’s evidence must be significantly probative of a reasonable opportunity for access to survive summary judgment.[22] This is a difficult standard to meet.
Based on the complaint and the Fifth Circuit’s standard, Fernandez may struggle to establish a chain of possession sufficient to establish access. The complaint only posits that the recipient of the demos said the Rolling Stones would be interested in the songs.[23] A jury would have to infer that the recipient of the demo was close to Mick Jagger or another member of the band, that they communicated regularly with that connection, that they did in fact give them the demo, and that the band listened to the demo prior to recording “Living in a Ghost Town.” Given this hypothetical chain of transmission, Fernandez’s claim will likely not be significantly probative of a reasonable opportunity for access. [24] Fernandez’s other option is to prove that the songs are strikingly similar, which is also a difficult standard to meet. Essentially, the songs must be so similar that the only explanation is that one copied the other.[25]
This also requires that the “similarities . . . appear in a sufficiently unique or complex context.”[26] Only a very noticeable similarity that is unique to the songs in question or is so complex such that it does not appear in other music will meet this standard. In the Fifth Circuit, experts may be employed to explain the similarities between two pieces of music.[27] Where experts have noted differences between songs’ melodic contour, filler music, key, tempo, chord structure, and lyrics, even when songs also have similarities, the court refused to hold that the songs were strikingly similar.[28] While “Living in a Ghost Town” and Fernandez’s songs may have a similar feeling, this is likely not enough to meet the strikingly similar standard to prove copying in fact.
Substantial Similarity
If Fernandez is able to prove actual copying, the court will also consider whether Fernandez’s claim satisfies the copying in law requirement. This prong considers whether the infringed and the infringing songs are “substantially similar.”[29] The substantial similarity inquiry determines whether the factual copying is qualitatively and quantitatively sufficient to find copyright infringement.[30] For this inquiry, the court considers whether a defendant took from a plaintiff’s work enough of “what is pleasing to the ears of lay listeners” as to “wrongfully [appropriate] something which belongs to the plaintiff.”[31] This has become known as the “ordinary observer test,” and has evolved into various hybrids among the different circuits.[32] The two most popular tests are the Ninth Circuit’s “extrinsic/intrinsic” test, and the Second Circuit’s “abstraction-filtration-comparison” analysis.[33] The Fifth Circuit has not expressly adopted either of these approaches in the context of music infringement, and its jurisprudence is infused with aspects of both.[34]
According to Joe Bennett, a forensic musicologist and professor at Berklee College of Music, “Living in a Ghost Town” does not contain the elements from Fernandez’s song listed in the complaint.[35] He argues that the notes and chords are obviously different.[36] Any similarities that may appear in the three songs are because they are all “mid-tempo rock grooves in the key of A minor,” which is pervasive in the rock and blues genre.[37] Essentially, the similar elements are not protectable under copyright law and are elements that The Rolling Stones have been playing for a very long time.[38] Based on this analysis, it seems as if Fernandez faces an uphill battle.
Next Steps
The Defendants have yet to file an answer or make any public statements regarding this alleged case of infringement. The court has also not provided any scheduling orders. While Fernandez’s claim appears to be lacking sufficient evidence to show copying in fact and copying in law based on the information in the complaint, it will be interesting to see how this case progresses.
Footnotes
