Battle of the Brooklyn-based indie band and diamond and platinum certified artists Kendrick Lamar and The Weeknd: Is it necessary to prove “access” under copyright law in an era of streaming?

March 02, 2020

Litigation & Copyrights Alert 

Author(s): Daniel A. Schnapp

A new lawsuit against The Weeknd and Kendrick Lamar highlights the complex issue of proving “access” in copyright infringement cases.

In the lawsuit, filed this week in the United States District Court for the Southern District of New York, the Brooklyn-based rock band known as Yeasayer sued Kendrick Lamar and The Weeknd, alleging that their Black Panther soundtrack song “Pray for Me” infringed Yeasayer’s copyright in the song “Sunrise” from their album All Hour Cymbals. “Pray for Me” peaked at No. 7 on the Billboard Hot 100 after its release in 2018, while Yeasayer disbanded on December 19, 2019.

(The band formerly known as) Yeasayer alleges that Kendrick Lamar and The Weeknd, among other things, “extracted Plaintiffs’ choral performance” from “Sunrise,” altered its pitch, and then inserted the resulting material into “Pray for Me.” Further, the lawsuit alleges that the defendants violated the Digital Millennium Copyright Act by intentionally removing the Content Management Information attached to the “Sunrise” cut to hide the infringement.

Of course, if the case proceeds, one might imagine that there will be a duel of expert musicologists on all sides regarding whether there is substantial similarity between the tracks, and readers of this article should listen to both songs carefully to play along at home. However, one of the more complex legal issues in the case is likely to be one of “access.”

Generally, in copyright infringement cases, absent evidence of direct copying, “proof of infringement” involves fact-based showings that the defendant had “access” to the plaintiff’s work and that the two works are “substantially similar.”

In order to establish “access” a plaintiff must show that the defendant had a “reasonable” opportunity to view or copy the plaintiff’s work. Access can be established by way of circumstantial evidence. A court will consider either: (1) a particular chain of events that establishes a link between the plaintiff’s work and the defendant’s access (e.g., dealings with a movie studio or record label), or (2) that the plaintiff’s work has been widely disseminated.

In the case against Lamar and The Weeknd, the plaintiffs have alleged that “access” will be established under the “widely disseminated” test because the All Hour Cymbals album and the “Sunrise” track were “widely distributed on CD and vinyl” and available for streaming. Plaintiffs do not allege anything in their complaint regarding the commercial success of either the ‘Sunrise” track or the All Hour Cymbals album.

Although the defendants have not yet responded to the complaint and no discovery appears to have been conducted in the case, one might imagine that the defendants will argue that plaintiffs cannot establish access because there was an 11-year gap between the release of the tracks, and that the “Sunrise” cut was relatively obscure and was not “widely disseminated.”

However, a jury recently determined that Katy Perry, her collaborators, and her record label must pay $2.78 million because her hit “Dark Horse” copied a Christian rap song. There, by showing Perry and her writers had ample opportunity to hear the Christian rap song, access was established.

If the court reaches the issue here, then one of the more pressing issues in copyright jurisprudence may be further developed: What does “access” truly mean where innumerable artists, whether well-known or not, stream their music? In 2019, the total number of on-demand audio and video music streams in the United States was 1.15 trillion.  Therefore, is “access” assumed as long as a track is available online?  Is “access” the same as an opportunity to hear a song?  If so, does the Court still need to even examine the issue?

It will be interesting to see what happens in this battle of the bands and whether copyright law is due for another evolution in the streaming era.

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