Are Compositional Elements of Drum Beats Subject to Copyright Protection?

When we think of musical elements that are relevant to determinations of copyright infringement, we often think of things like melodies, hooks, and guitar riffs. What garners less attention is the copyrightability of the compositional elements of drum beats. For anyone who may be wondering whether those elements are subject to copyright protection, the answer begins, of course, with the principle that, on one extreme, if you're in a band and your drummer plays the famous standard 4/4 rock beat with the kick on the 1 and 3 and the snare on the 2 and 4, you're obviously likely okay. And beyond that, much of the drumming in contemporary popular music is built upon common and widely-used combinations of elements. However, any discussion of the copyrightability of those elements (or combinations thereof) benefits from an analysis of a relatively recent federal case from New York where the court ruled that a copyright infringement claim involving a particular combination of compositional drum elements could proceed towards trial. 

As a background matter, there are generally two separate copyrights in a piece of recorded music. The first is a copyright in the sound recording itself, and the second is a copyright in the underlying musical composition. To that end, this post concerns copyright protection in the composition, and namely, the extent of copyright protection in the compositional elements of drum beats and the selection and arrangement of those elements. It does not concern the idea of sampling, which introduces a new set of potential copyright-related issues. 

In order to better understand how a court may approach the determination concerning copyright protection and infringement with regard to the compositional elements of a particular drum beat, it's worth examining the opinion in New Old Music Group, Inc. v. Gottwald, 122 F.Supp.3d 78 (S.D.N.Y. 2015), wherein the United States District Court for the Southern District of New York, using standard principles of copyright infringement law, analyzed a fact pattern requiring this exact type of determination in a ruling on a motion for summary judgment. In the case, the court's ruling concerned a drum beat in a song called "Price Tag" recorded by Jessie J., and whether it could be established that the drum beat infringed the rights of New Old Music Group, Inc., who own a copyright in the song "Zimba Ku" by the band Black Heat. The court ultimately allowed the case to proceed. 

Now, before proceeding, I want to make clear that in my personal opinion, the particular combination of compositional elements at issue in this case should not qualify for copyright protection (and frankly, this shouldn't even be a close call), and the court's ruling represents bad policy, though keep in mind that the court was not tasked with considering whether a separate copyright in the sound recording itself was infringed. Allowing for copyright infringement claims like the one allowed to proceed in the case has a chilling effect on creativity, and diminishes the creative commons from which all artists draw. But, the case does exist, and it does illuminate certain legal concepts and principles that would be relevant in making determinations such as the one that is the subject of this article. It also highlights the significant role that experts and musicologists can play in copyright infringement actions that involve music. 

At issue in the case, was whether New Old Music Group could proceed on a copyright infringement claim based on similarities between a drum beat in Price Tab and a drum beat in Zimba Ku. Specifically, the matter was focused on the similarities between the beat in a single measure of Zimba Ku and the beat in single measure of Price Tag, with each respective measure repeating throughout the respective song. The similarities at issue were the rhythmic similarities contained in the bass drum, snare drum, and hi-hat parts of the respective songs. At this point, I encourage anyone who's interested to listen to the driving beat during the beginning of Zimba Ku and compare it to the driving beat during the beginning of Price Tab, but to continue the analysis, the similarities, as characterized by the Defendants, consisted of:

(a) sixteen consecutive 16th notes on the hi-hat cymbal;

(b) a bass drum pattern consisting of two eighth notes on the first beat of the measure, followed by three syncopated notes on beats 2 and 3;

(c) snare drum attacks on beats 2 and 3; and

(d) a ghost note or drag on the snare drum at the end of the measure.

New Old Music Group asserted the following additional similarities:

(a) a hi-hat pattern consisting of alternately accented 16th notes on a closed hi-hat;

(b) the shared tempo of the songs; and

(c) the featuring of both drum parts virtually by themselves during the introductions of the songs, and the repetition of the drum parts for extended periods without fills or changes. 

To prevail on a claim for copyright infringement, New Old Group Music would need to show (a) that it owned a valid copyright in the composition (this was not challenged in the case), and (b) that unauthorized copying of that composition had taken place. In regard to the issue of copying, Defendants' main argument was that, despite the similarities between the drum parts at issue (regardless of whether those similarities related to individual elements or combinations thereof), the drum beat in Zimba Ku was so common that the presence of similarities could not be used to show that copying took place. The court, however, disagreed, noting that while the elements in question may be commonplace, the Defendants did not show, as a matter of law, that the combination of those elements precluded any inference of copying - keep in mind this was a ruling on a motion for summary judgement, so the court didn't decide whether infringement had actually taken place; the court was only tasked with deciding, under the standard for summary judgment, whether it would be possible for New Old Group Music to prevail at trial. Here the answer was yes. 

Among other things, the Defendants had pointed to three other songs, "Me and Bobby McGee," recorded by Thelma Houston, and "ABC" and "I Will Find a Way," recorded by The Jackson 5, as prior examples featuring the drum composition elements at issue. However, the court found this argument to be unconvincing. The court noted for example, that while Zimba Ku featured continuous 16th notes on a closed hi hat, in "Me and Bobby McGee," two of the continuous 16th notes were played with the hi-hat in an open position. Regarding, "ABC" and "I Will Find a Way", the court noted, for example, that the relevant hi-hat pattern consisted of continuous 8th notes (as opposed to 16th notes), and that the fact that those two songs featured continuous 16th notes played on a tambourine (as opposed to a hi-hat) was insufficient to establish that those songs were compositionally the same as Zimba Ku. 

In addition to concluding, for the reasons stated above as well as others (e.g., the relevance of the accents and similar tempos), that a reasonable juror could find that actual copying took place, the court also concluded that a juror could find that the copying amounted to improper appropriation. This is significant because not all copying constitutes actionable copyright infringement. In evaluating whether improper appropriation had occurred, the court looked at whether there was substantial similarity between the two works. To that end, the court noted that the similarity must relate to copyrightable material, and that there is no infringement where the similarity pertains solely to unprotected elements. The court also cited the well-known Feist case for the proposition that in order for elements to be copyrightable, they must be original, which, under the standard set forth in the Feist case, "means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity."

In addressing the question of whether the drum part in Zimba Ku was copyrightable, the court acknowledged that if the components of the drum part were isolated, they could be considered common and widely used. This relates to the "scenes a faire" doctrine. The scenes a faire doctrine is a doctrine under which in cases where the only way to express a given idea is by using certain elements, those elements are deemed not subject to protection. 

However, the court went on to consider the "total concept and feel" of the elements in their combined form. In doing so, the court refused foreclose on the possibility that the beat couldn't be protected based on the selection, coordination and arrangement of the elements. The court then addressed whether or not the requisite level of originality was present, noting that the threshold of creativity required is extremely low, and ultimately refusing to find that the threshold couldn't be met.  

This case illustrates an example of legal principles that would be relevant in establishing, or refuting, a claim of infringement on the basis of the copying of compositional elements of a drum part. It also, illustrates, much like the recent "Blurred Lines" infringement case (which I and many others believe went too far) that sometimes you just get a bad outcome. To the extent these cases come up in the future, the scenes a faire doctrine, and the requirement of originality (i.e., who is actually the "original" author?), will, in at least some cases, be critical lines of argument for people facing these types of claims. In the end, courts and jurors will have to be able to successfully engage in a difficult balancing act. On the one hand, copyright protection is an important concept that is grounded in the U.S. Constitution. On the other hand, nearly all artists borrow from those that came before them, and having an overly restrictive copyright regime would unquestionably dilute the creative commons from which all artists draw, and thus would significantly harm society by reducing its capacity to produce great art. 

NOTE: This article is presented for informational purposes and represents the author's personal opinion only. It does not constitute legal advice and no attorney-client relationship exists between the reader and the author. If you would like legal advice concerning this issue, you should speak with a qualified attorney who can evaluate the particulars of your matter.