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Post Malone’s lawyer cites ‘Malcolm X’ copyright battle in bid to dismiss lawsuit over ‘Circles’ authorship

By | Published on Tuesday 12 April 2022

Post Malone

Lawyers for Post Malone yesterday cited recent song-theft cases involving Led Zeppelin and Katy Perry – as well as the ruling in a 1990s dispute over the authorship of the film ‘Malcolm X’ – in a bid to get dismissed the lawsuit filed by a former collaborator of the rapper in relation to his 2019 hit ‘Circles’.

Tyler Armes – a songwriter, producer, multi-instrumentalist and member of Canadian rap-rock outfit Down With Webster – joined Malone and producer Frank Dukes for an all-night jamming session in August 2018. He claims that during that session he contributed to the song that become ‘Circles’.

After ‘Circles’ was released, Armes contacted Malone’s manager who allegedly conceded that the writer/ producer had indeed co-written the track, offering him 5% of the copyright.

But when Armes pushed for a better deal, his request was rejected, and he was subsequently denied both a credit on and share in the song. Having failed to negotiate a cut of the hit, Armes sued Malone, Dukes and Universal Music.

Since the whole thing went legal, Malone hasn’t denied that the 2018 jamming session happened, but has sought to play down the contribution made by Armes, insisting that it wasn’t sufficient for him to claim co-authorship of the song, and therefore co-ownership of the song copyright.

The rapper filed a motion to dismiss Armes’ lawsuit last month, and a hearing occurred before the judge yesterday to discuss that motion. The Malone side have two main arguments in favour of dismissal.

First, that Armes’ main contribution during the jamming session was a simple chord progression that is pretty commonplace in pop music. And that can’t be protected by copyright in isolation.

The copyright status of short musical segments has come up quite a lot recently in the various headline-grabbing song-theft cases that have ended up in American courts. If a new song shares a distinctive short musical segment with an older song, is there a case for saying the new song infringes the copyright in the older song, even if the bulk of the two songs are actually different?

When those big song-theft cases that have been filed in the Californian courts have ended up before the Ninth Circuit appeals court, appeal judges have generally been nervous about extending copyright protection to short musical segments in isolation.

According to Law360, the lawyer repping Malone at yesterday’s hearing, Christine Lepera, stressed that the musical segment contributed by Armes back in 2018 was an “exceedingly commonplace” chord pattern known as “one, four, five”.

And, citing the Ninth Circuit decisions in the song-theft cases, the lawyer added: “You don’t get to have copyright in a commonplace, unprotectable expression”.

But, of course, this dispute isn’t a song-theft case, so although the precedents set in things like the ‘Stairway To Heaven’ and ‘Dark Horse’ legal battles are relevant, they aren’t necessarily slam-dunk relevant.

Which brings us to the other argument in Malone’s motion for dismissal, which was also expanded on by Lepera yesterday. How do we decide who qualifies as an actual co-author of a copyright protected work when various people have been close to the creative process?

It’s regarding that question that Lepera cited the 1990s dispute over the copyright in the screenplay to ‘Malcolm X’, and another ruling in the Ninth Circuit, in 2000, in relation to that dispute.

In the Malcolm X case, plaintiff Jefri Aalmuhammed claimed to have made contributions to Spike Lee’s screenplay and argued that he should therefore be treated as a co-author in copyright terms. However, Aalmuhammed’s arguments failed because, although he may have made some creative contributions, he didn’t have ‘superintendence’ or ‘control’ over the full screenplay.

The same principle should apply her, Lepera argued yesterday. “It’s analogous”, she told the judge, insisting that a key question to consider was “whether Mr Armes had control over what the composition became and what was released on Mr Malone’s album, and what was ultimately included”. And he did not. “He had no control. He made suggestions. He made ideas”.

Whether any of this will be enough to secure dismissal of Armes’ lawsuit remains to be seen. Law360 reports that the judge didn’t seem especially convinced by the latter argument, in particular. If not, the dispute should head to trial in May. Armes is pushing for a jury trial, while the Malone side reckons the dispute should be heard by just the judge.