"Just because one song sounds like another song doesn't mean one creator has a monopoly on a particular melody."
When JAY-Z and Timbaland needed to defend their use of a sample in the 1999 smash "Big Pimpin'," Christine Lepera was at the ready. Her argument was so airtight that the suit was dismissed before it even went to a jury. Legal victories like that have made Lepera one of the most sought-after copyright litigators in the music industry.
In January, Lepera won a copyright infringement case for Drake, who was sued over the use of a spoken-word passage in his song "Pound Cake." Most recently, Lepera successfully argued that the pop singer Kesha defamed her client, superstar music producer Lukasz "Dr. Luke" Gottwald, in a text message to Lady Gaga. The ruling was a major victory for Lepera's team in a contentious legal dispute that has been going on since 2014.
Lepera co-leads the entertainment intellectual-property litigation department of New York-based firm Mitchell Silberberg & Knupp. But legal prowess is only part of what makes her so successful. She's also a musician. While Lepera spends her days at the office and in court, she often spends her evenings performing blues-rock covers at downtown clubs like The Bitter End. Growing up, Lepera studied classical and jazz piano — and the pull of the art world nearly caused her to give up on law after her first year at New York Law School. But her exceptional academic record made the decision to stay a little easier. Lepera wound up graduating second in her class, and immediately entered the high-pressure world of corporate law.
There, Lepera hit another wall. She says she found the work uninspiring and the office full of "Wall Street types making my life miserable." Lepera went for advice to her former copyright law professor, who connected her with renowned entertainment attorney Leonard Marks, whose clients at the time included Billy Joel, Elton John and The Beatles. "[Marks] was an eccentric, brilliant attorney like no other," recalls Lepera. He offered her a job at his firm, Gold Farrell & Marks, which she says made all the difference — she never questioned her passion for practicing law again.
You have a reputation for defending A-list stars — JAY-Z, Katy Perry, Drake and so on — when they face allegations of copyright infringement. How did you decide to specialize in such a thorny area of the law?
Part of my identity is that I really understand music. In music copyright litigation, you must understand the music and be conversant in that language. When I work with a musicologist or I'm examining an adversary musicologist, I know exactly what I'm talking about. You can be a really good lawyer and you can understand copyright — the elements, the precedent — but you have to be able to understand the music to converse with the client, work with a musicologist and explain it in small doses.
How important are relationships in this business?
If you lose the ability to be persuasive, you have lost everything. You are going to ruffle some feathers — people aren't always going to get along. But the worst thing that could ever happen is for someone to say that you're dishonest. So for me, it has always been important to do what I say. I think that goes a long way with just about anything in life.
In January, a court affirmed your "fair use" argument in Drake's sampling of a 1982 spoken-word passage of "Jimmy Smith Rap" in the intro of his song "Pound Cake." How were you able to convince the judge that this qualified as fair use?
Recently, a federal judge in the same district ruled that the Notorious B.I.G. estate — and subsequently Rita Ora — were within their rights to use the phrase "party and bullshit" in their songs. Leaving that aside, that is the first time the court recognized a licensed sample with underlying unlicensed material as fair use.
So [for the Drake case] we stood on pretty strong ground. First, the underlying material was not a composition — meaning, it was not a licensed work — so it had never been monetized. It was also very clear the plaintiffs transformed [Jimmy Smith's] elitist message of jazz and, I think, did so in a very poignant way — to take the voice of a jazz artist, who in the record clearly disdained hip-hop and rap, and to use his voice, take away the jazz reference, and basically make it mean that real music such as hip-hop is here to last. [The way Drake used it] was kind of the quintessential slap in the face to the original work.
In March you will argue to toss out the $2.8 million verdict in Katy Perry's "Dark Horse" case. In your most recent motion, you said there needs to be a line drawn between permissible use of music building blocks — commonplace expression — and copyright infringement. Why is that so important?
The law states that you cannot monopolize ideas or concepts in writing, but when it comes to music, courts are harder pressed to apply that doctrine. So the challenge is in having the courts, the juries and everyone involved in the business understand how we can better apply that principle to music copyright infringement cases. People should not be able to get away with coming into court claiming infringement because "the songs sound the same." Of course the songs sound the same — the underlying music is a couple of notes, a couple of beats or whatever it might be — but that's not the point. Just because one song sounds like another song doesn't mean one creator has a monopoly on a particular melody.
The courts must remove from the evaluation the unprotectable expression and [with what remains], you really have to find a virtually identical combination. And I think that kind of push to try to get courts to see that more and use that doctrine would help solve a lot of confusion when it comes to music.
Do you think the debate about what constitutes copyright infringement harms creators?
Absolutely. We have the right to create and use unprotectable expressions in a new creation. That's the copyright act. So for the most part, what we're dealing with [in the "Dark Horse" case] is a skewed effort to monopolize materials. And that's not good.
After Dr. Luke's defamation trial against Kesha, Lady Gaga said you should be "ashamed" of the questions you asked during her deposition. Is the post-#MeToo world affecting the legal profession?
What's dangerous is when people come to false conclusions. That's exactly what [Lady Gaga] did. [During her deposition, Lady Gaga told Lepera she believed Dr. Luke assaulted Kesha, because that was what Kesha told her.] To me, that's dangerous. Innocence projects have proven to us that false accusations could lead to devastating outcomes. You just can't jump to conclusions, even in an era that's filled with desires to move the ball and hold people accountable. I agree with all that. That's just going on in the [Dr. Luke] case.
I wouldn't be doing [this case] if I didn't know that the facts support what we're saying. We have a defamation case. This is not a case where someone's suing [Dr. Luke] for assault or rape or sexual harassment. None of that is going on.