No Copyright Claim in Song Based on Unfixed Phone Conversation

Sony Music has prevailed in a copyright infringement case over R. Kelly’s “Love Letter” because the plaintiff’s song was not fixed in a tangible medium of expression.

Sony Music has prevailed in a copyright infringement case over R. Kelly’s “Love Letter” because the plaintiff’s song was not fixed in a tangible medium of expression.

Earlier this week, a judge in the Northern District of Georgia dismissed a copyright infringement complaint against Sony Music and singer R. Kelly, and the case provides a good opportunity to discuss the importance of “fixation” as a requirement for copyright protection.

Ricardo Wilson v. R. Kelly and Sony Music Entertainment

The plaintiff, Ricardo Wilson, alleged that he wrote a song called “Love Letter” while he was incarcerated, and that he thereafter discussed the song over a telephone call with singer R. Kelly and Kelly’s manager. During that call, Wilson allegedly “shared the words of the song, as well as the cadence, including at least four bars, the melody and arrangement.”

Wilson claimed that Kelly expressed interest in the song and assured Wilson that he would be compensated and credited for it. Kelly then allegedly proceeded to copy various elements of the song “including but not limited to the arrangement, melody, rhythms, harmonies, drums, bass line, backing chorus, substance, tempo, syncopation and looping” without crediting Wilson. Kelly’s song, also called “Love Letter, was released in 2010 on an album of the same name.

R. Kelly’s “Love Letter”

Wilson, who represented himself in the case, asserted that he first registered his song “via poor man’s copyright in 2009” (hint: that’s not really a thing) and then with the U.S. Copyright Office in 2011. However, his registration only covered the song’s lyrics, while Wilson’s complaint alleged infringement of several other musical elements that he claims to have described or demonstrated to Kelly over the phone.

As to the song lyrics, the court dismissed the claim based on Wilson’s failure to allege any facts that would plausibly show how the lyrics of both songs were substantially similar.  For some reason, Wilson didn’t quote or attach the lyrics to his complaint, despite having several opportunities to do so. (I suspect it’s because they weren’t all that similar.)

The court further held that, to the extent Wilson was claiming copyright infringement in any aspect of the song other than the lyrics, he couldn’t state a claim for infringement. This was because the complaint didn’t (and presumably couldn’t) allege that Wilson’s song was recorded in a sufficiently permanent or stable manner to qualify for copyright protection. 

Under section 102(a) of the Copyright Act of 1976, “[c]opyright protection subsists … in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

So what does fixation mean exactly?

Well, legally speaking, a work is “fixed” in “tangible medium of expression” when “its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” (This is one of the definitions in 17 U.S.C. §101.)

Practically speaking, fixation just means that something is embodied in a concrete form so it can been seen or copied by others: a piece of paper, a video recording, a file saved on a hard drive, etc.

Notably, sounds that are transmitted live and recorded simultaneously satisfy the Copyright Act’s fixation requirement. This is why live sports broadcasts qualify for protection.  Even live phone calls are subject to copyright so long as they are recorded simultaneously. (Note—I’d have assumed that jailhouse phone calls are typically recorded, but that that didn’t come up at all in the complaint or the court’s ruling.)

Though he amended his complaint several times, the plaintiff was never able to plead that the musical elements of his song were fixed in a tangible medium of expression. The fact that Wilson may have shared certain of those song elements over the phone wasn’t sufficient without an allegation that his call with R. Kelly call was recorded, copied, or otherwise fixed.

The “banana lady” didn’t have a fixed work either.

While not cited by the court, the case reminds me a bit of another decision which involved the notorious “banana lady,” who was known for delivering singing telegrams in a banana costume and then suing her customers when they posted her performances on Facebook. In one case, the Seventh Circuit dismissed the plaintiff’s claim for copyright infringement, noting that her performance “was not copyrighted or even copyrightable, not being ‘fixed in any tangible medium for expression.’” Note that to qualify for protection, the live performance must be recorded by or under the authority of the performer. Because the banana lady didn’t authorize the recordings by her audience, she wouldn’t be able to rely upon them to satisfy the fixation requirement.

As for the “Love Letter” case (formally styled as Wilson v. Kelly), the court in Georgia dismissed the plaintiff’s complaint with prejudice. A copy of the court’s order granting Sony Music’s motion to dismiss is below, sufficiently fixed for your reading enjoyment.

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