Conquering Copyright: Why Copyright Needs to be Modernized Based on Practical Illustrations of Inconsistent Copyright Precedent

Akron Law Review, Jun 2023

Copyright law establishes an author’s right to secure exclusive rights in their writings. If an author finds an infringing work, the author can file a copyright infringement suit to protect their original writings and stop an infringer from misappropriating their work. In analyzing copyright infringement, however, some legal theories, such as the Inverse Ratio Rule, mischaracterize the crux of the copyright infringement inquiry and complicate the infringement inquiry for judges and juries—adversely affecting authors. Using indie musicians as an exemplary embodiment of modern copyright jurisprudence’s adverse effects, indie musicians who merely have access to a more famous musician’s music may be unfairly prejudiced under current legal theories. To eliminate unfair prejudice for indie musicians and other similar creatives, this note advocates for the modernization of copyright infringement inquiries in two contexts: (1) abrogating rules subverting intuitive concepts into mathematical formulas to ensure all copyright owners are equally afforded protections; and (2) implementing judicial tools to clarify copyright adjudication, given factfinders often misunderstand copyright precedent. This note also contains several proposals to ameliorate copyright infringement adjudication. First, an administrative copyright tribunal, analogous to the PTAB and the TTAB, should be created to opine solely on issues of access and similarity, allowing district courts the ability to stay a case pending the administrative copyright tribunal’s opinion on access and similarity. Also, although plaintiffs usually request a jury trial, having a judge (an administrative law judge from a copyright tribunal or a district court judge) opine on access and probative similarity does not implicate 7th amendment issues because juries would nevertheless retain their purpose to decide unlawful appropriation of the original work, which is the essence of the infringement analysis. Second, using special masters or technical advisors in copyright cases will increase efficiency and clarity due to their copyright expertise, achieving results similar to special masters and technical advisors in patent infringement adjudication. Finally, conferring appellate copyright infringement jurisdiction to the Federal Circuit may remove confusion for judges and juries by homogenizing copyright jurisprudence with a specialized court.

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Conquering Copyright: Why Copyright Needs to be Modernized Based on Practical Illustrations of Inconsistent Copyright Precedent

Akron Law Review Volume 56 Issue 2 Intellectual Property Issue Article 6 2023 Conquering Copyright: Why Copyright Needs to be Modernized Based on Practical Illustrations of Inconsistent Copyright Precedent SaiPranay Vellala Follow this and additional works at: https://ideaexchange.uakron.edu/akronlawreview Part of the Intellectual Property Law Commons Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Recommended Citation Vellala, SaiPranay (2023) "Conquering Copyright: Why Copyright Needs to be Modernized Based on Practical Illustrations of Inconsistent Copyright Precedent," Akron Law Review: Vol. 56: Iss. 2, Article 6. Available at: https://ideaexchange.uakron.edu/akronlawreview/vol56/iss2/6 This Article is brought to you for free and open access by Akron Law Journals at IdeaExchange@UAkron, the institutional repository of The University of Akron in Akron, Ohio, USA. It has been accepted for inclusion in Akron Law Review by an authorized administrator of IdeaExchange@UAkron. For more information, please contact , . Vellala: Why Copyright Needs to be Modernized CONQUERING COPYRIGHT: WHY COPYRIGHT NEEDS TO BE MODERNIZED BASED ON PRACTICAL ILLUSTRATIONS OF INCONSISTENT COPYRIGHT PRECEDENT SaiPranay Vellala * I. II. III. IV. Introduction ...................................................................... 410 Copyright Background ..................................................... 412 A. Copyright Law 101: A Recipe for Infringement........ 412 B. The Rise to Fame: The Inverse Ratio Rule in the Second Circuit ............................................................ 414 C. The Rise from the Grave: The Inverse Ratio Rule in the Ninth Circuit .................................................... 415 D. The Final Countdown: The Sixth Circuit Stands Alone .......................................................................... 416 Statement of the Case ....................................................... 417 Analysis ............................................................................ 418 A. Abandonment: A Tale of Two Circuits ..................... 419 B. Common Sense Disintegrates: Parsing the Inverse Ratio Rule .................................................................. 421 C. Time to Start Anew: Copyright Infringement Reinvented ................................................................. 423 1. Implementation of Administrative Copyright Judges before Commencement of Infringement Suit ........................................................................ 424 2. Problems with Implementing Administrative Copyright LawJudges—Seventh Amendment ..... 426 3. Splitting the Copyright Infringement Issues Without Dissolving the Right to a Jury ................ 430 4. Increasing Usage of Copyright Special Masters... 432 * J.D., Cert. in IP Law, University of Akron School of Law (2023); B.S. Computer Engineering, University of Akron (2020). Thank you to my family, friends, and gurus for guiding me in my academic pursuits. Thank you to Akron Law Review and my faculty advisors for editing my note. And thank you for reading my note. 409 Published by IdeaExchange@UAkron, 2023 1 Akron Law Review, Vol. 56 [2023], Iss. 2, Art. 6 410 V. AKRON LAW REVIEW [56:409 5. Incorporating Copyright Law into Federal Circuit Jurisdiction ............................................... 434 Conclusion ........................................................................ 436 I. INTRODUCTION Music influences humankind. Whether the form of music is an orchestral symphony evoking sadness when a fan-favorite movie character dies, a song chanted by hundreds of people symbolizing their longing for freedom and equality, or a tune being used for an ancient religious chant, music permeates every aspect of human life. Given the importance of music in our society, one would assume that the creators of the music would be fairly and equally treated in the legal system— unfortunately, however, they are often not. Musicians possess one of humankind’s most unique abilities: transforming noise and chaos into melodies that strike a chord with the listener’s emotions. And when a musician feels confident enough in their composition, they publish their music to the world, presuming copyright law affords protections. To their dismay, a musician’s hopes for equal protection under the law is often unsatisfied. A lesser-known musician will generally have a more difficult time proving copyright infringement with balancing tests such as the Inverse Ratio Rule. Take, for example, two musicians: an indie jazz guitarist (“Créateur”) with a studio in Nashville, Tennessee, and a major music producer (“Hans Zimmer”) with a studio in Los Angeles, California. Créateur, the indie jazz guitarist, recently released his music on Spotify. A month before releasing his music, Créateur watched a Marvel Cinematic Universe film in theatres on box office release day with a movie soundtrack composed by Hans Zimmer. Créateur realized that the soundtrack during the end credits had some similarities to his own music. Despite the similarities, Créateur was confident his ideas were going to be a big hit, so he still released his music on Spotify. Flash-forward to today, Créateur was served with a lawsuit for copyright infringement, and the complaint made sure to mention that Créateur saw the Marvel movie and heard the end credit theme. Depending on where the complaint was filed, the outcome of the case and the substantive analysis conducted may be totally different. Under one of the currently endorsed rules in the Sixth Circuit, because the complaint alleged that Créateur heard Hans Zimmer’s music, the allegedly copied https://ideaexchange.uakron.edu/akronlawreview/vol56/iss2/6 2 Vellala: Why Copyright Needs to be Modernized 2022] WHY COPYRIGHT NEEDS TO BE MODERNIZED 411 music does not actually have to be that similar. 1 Even with a select few similarities between the music pieces, Créateur might be infringing Hans Zimmer’s copyright—just because Créateur heard Hans Zimmer’s music. This seems unintuitive. The mere fact that Créateur heard Hans Zimmer’s work (establishing access in the actual copying analysis) favors a finding of copyright infringement, even though the pieces might not actually be that similar. Because Créateur is based in Nashville—a city located in the Sixth Circuit’s jurisdiction—Créateur is subjected to the Inverse Ratio Rule, which is not applied in any other circuit in modern copyright practice. 2 If Créateur was based in Los Angeles, located in the Ninth Circuit, without changing any of the facts of the complaint, the fact that Créateur listened to Hans Zimmer’s music might affect the finding of infringement, but will not affect the amount of similarity required between both pieces of music. The discrepancy between the infringement methodologies affects all creative (...truncated)


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SaiPranay Vellala. Conquering Copyright: Why Copyright Needs to be Modernized Based on Practical Illustrations of Inconsistent Copyright Precedent, Akron Law Review, 2023, pp. 6, Volume 56, Issue 2,