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With Katy Perry and Led Zeppelin’s recent judgments reversing previous rulings, musicians don’t know which way to tread

Michael Hann @michaelahann Thu 26 Mar 2020 03.00 EDT

Have you written a song? A song so memorable that everyone who hears it starts humming it? A song so good it feels as though it has been around forever and you simply plucked it from the ether? Then a word of advice: get an expert to listen to it. Because somewhere, someone is going to be sure your song was copied from theirs.

An old music industry adage holds that “where there’s a hit, there’s a writ”. It was true in 1963, when the Beach Boys released Surfin’ USA, and Chuck Berry duly noted that the song was simply his own 1958 hit Sweet Little Sixteen with new lyrics (Berry’s publisher, Arc Music, was granted the publishing rights, and from 1966 Berry was listed alongside Brian Wilson as a writer of the song). And it’s especially true now after several recent cases.

March alone saw two important judgments about music theft in appeals courts in California. First the ninth circuit court of appeals ruled that Led Zeppelin’s Stairway to Heaven did not crib from Taurus by Spirit. Then a federal court overturned last year’s jury verdict that Katy Perry’s Dark Horse had stolen from the song Joyful Noise by the Christian rapper Flame.

Katy Perry performing Dark Horse in Los Angeles in 2014. A federal court in March overturned a 2019 verdict that the song had stolen from Flame’s Joyful Noise. Photograph: Youtube

 Katy Perry performing Dark Horse in Los Angeles in 2014. A federal court in March overturned a 2019 verdict that the song had stolen from Flame’s Joyful Noise. Photograph: Youtube

What’s important, though, is not whether anyone was plagiarised, but whether a copyright was infringed. Plagiarism and copyright infringement “are related but they are distinctly different”, says Peter Oxendale, who has been a professional forensic musicologist – someone who offers expert analysis of compositions for legal purposes – for more than 40 years.

“Copyright, for example, does not protect ‘ideas’ but rather the fixed ‘detailed expression’ of those ideas. Copyright infringement is a legal matter known as a tort,” he says. “Plagiarism, on the other hand, is an ethical matter and occurs when someone uses the ideas or works of someone else in their own work without giving the appropriate credit to the original source.” The cases that come to court are not about plagiarism; they’re about infringement of copyright.

 Members of Led Zeppelin pictured in 1970. A US appeals court has found the band’s Stairway to Heaven did not crib from Taurus by Spirit. Photograph: AP

 Members of Led Zeppelin pictured in 1970. A US appeals court has found the band’s Stairway to Heaven did not crib from Taurus by Spirit. Photograph: AP

The Zeppelin and Perry cases have been hailed as important because they appear to offer songwriters the latitude they seemed to have been denied by a crucial earlier trial. In December 2018 the long-running and highly controversial case involving the song Blurred Lines came to a close, when Robin Thicke and Pharrell Williams, two of the song’s writers, were ordered to pay just short of $5m to the estate of Marvin Gaye, for Blurred Lines’ similarity to Gaye’s 1977 song Got To Give It Up.

“Blurred Lines certainly stirred up the music community,” says Joe Bennett, a forensic musicologist based at Berklee College of Music, in Boston. “The reason it had so many musicians concerned is that the two songs are demonstrably different in their melodies, lyrics, and underlying chords. It hasn’t set a legal precedent exactly, because every plagiarism case is judged on its individual merits, and every comparison is different, but it certainly has shifted the culture among songwriters, and made many worried about unintentional similarity leading to unfair accusations of copyright infringement.”

What the Blurred Lines case did was to allow something previously unheard of: the notion that the “feel” of a record could be copyrighted. Given that the musician who didn’t want to replicate the feel of a beloved record, if not its chords and melody, has yet to be born, the verdict sent shudders through the industry.

“Much of the feel of a song is created by instrumentation, production techniques and other elements that many people consider to not be part of the ‘song’ itself,” says Peter Mason, a music law expert at the solicitors Wiggin LLP. “The difference is starkly demonstrated by comparing Blurred Lines to the Stairway to Heaven case, in which the jury was limited to considering only the notes of the composition, as registered at the US copyright office.

Robin Thicke and Pharrell Williams performing at Miami Beach, Florida, in 2013. A court in 2018 ordered them to pay $5m to the estate of Marvin Gaye. Photograph: Startraks/Rex

 Robin Thicke and Pharrell Williams performing at Miami Beach, Florida, in 2013. A court in 2018 ordered them to pay $5m to the estate of Marvin Gaye. Photograph: Startraks/Rex

“Taking away the similarities in ‘sound’, ‘feel’ or ‘playing style’ reduced the similarity between the compositions. Importantly, much of what remained was commonplace and therefore not protected by copyright.”

Nevertheless, says Oxendale, “We are aware of a number of well-known clients who have been told to never cite the source of their inspiration in public or in print. This, in my view, has resulted in the stifling of creativity to the extent that inspiration is now being confused with appropriation.

“Conversely, we are also seeing a growing number of instructions from clients who wish to pursue claims for infringement of copyright based on the use of nothing more than similar musical or lyrical ‘ideas’. I believe the Blurred Lines verdict has had a significant impact on the music industry as a whole and this is reflected in the number of cases coming into our office.”

For all the high-profile court cases, though, many music copyright infringement claims never see the light of day. One major star – who must remain nameless – employed a musicologist for the specific purpose of listening to new releases in order to note any resemblance to their own works. The writer of any offending song received a polite note expressing the desire to avoid any embarrassment, and suggesting the whole matter might be resolved by a payment, without the need to shame the writer by going public or forcing a change to the songwriting credits.

Since the Blurred Lines case, notes Mason, other songwriters have pre-empted litigation by adding writers who might conceivably have had a claim to writing credits – famously, Mark Ronson’s worldwide hit Uptown Funk ended up with 11 writers. “The average number of writers on hit songs has increased dramatically over the last five years or so,” Mason says, “and part of this is due to composers agreeing to add the authors of past songs that are somewhat similar.”

Why, though, do all the best-known copyright infringement cases come from the worlds of pop and rock? After all, one rarely hears of classical composers fighting it out in court, or jazz players arguing furiously about whether one has ripped off the other’s saxophone solo.

“I think there are two reasons,” Bennett says. “First, popular song is a constrained art form, with a palette of statistically predictable phrase lengths, song forms, scale and chord choices, lyric tropes and song durations. These norms are largely defined by market forces, through massed listener preferences over time affecting the kind of creative decisions that songwriters are likely to make.

 Beyoncé presesnting the award for record of the year, Uptown Funk, to Mark Ronson during the 2016 Grammy music awards. To avoid litigation, the song was credited with 11 writers. Photograph: Robyn Beck/AFP/Getty

 Beyoncé presesnting the award for record of the year, Uptown Funk, to Mark Ronson during the 2016 Grammy music awards. To avoid litigation, the song was credited with 11 writers. Photograph: Robyn Beck/AFP/Getty

“It’s a type of cultural Darwinism, in a sense, but that’s not to diminish the songwriter’s art – writing a world-class hit is incredibly difficult, and needs everyone in the artist’s production team to excel.

“Second, pop is where the money is. A plagiarism lawsuit is a financial matter – party A is pursuing party B for compensation, so there’s little point in going after someone whose work has not generated significant income.”

You might think, of course, that musicians and songwriters are pinching from each other all the time – we’ve all listened to songs and been reminded of something else. There are some artists, in fact, who seem to have made careers out of sounding like someone else: neither ELO nor Oasis would deny their respective debts to the Beatles.

Sometimes, though, musicians don’t even realise they are borrowing. On a recent edition of the Reply All podcast, Prince’s longtime recording engineer Susan Rogers remembered him sitting at the piano and picking out a melody. He liked it, he noted. But had it already been written?

Subconscious recollection is called cyrptomnesia, and it has been responsible for some notable copyright infringements: in the 1976 case where George Harrison was sued for the similarity of My Sweet Lord to the Chiffons’ He’s So Fine, the judge described the similarity as an example of unconscious copying. Sam Smith’s Stay With Me ended up getting Tom Petty and Jeff Lynne added to its writing credits, because of its similarity to their song Won’t Back Down, and Petty observed, without rancour: “All my years of songwriting have shown me these things can happen. Most times you catch it before it gets out the studio door but in this case it got by.”

As Bennett puts it: “Most melodic similarity is coincidental, and most accusations of melodic plagiarism are unfounded. In the rare cases when the similarity is so striking that it appears to be evidence of plagiarism, then yes – it’s usually unintentional. Songwriters have almost zero incentive to copy melodies verbatim, and enormous economic disincentives to do so.”

The miracle, perhaps, is not that there are so many accusations of musical copyright infringement, but so few. Consider that thereare just 12 semitones in an octave. Or think about how many songs that derive from the blues use the 1-4-5 chord progression (Twist and Shout; Blitzkrieg Bop; Louie Louie and Wild Thing – and thousands more). What makes a song special is not its chords, or its top-line melody, or its lyrics, or its feel. It is how it combines all those elements.

“Listeners don’t hear songs as simple linear sequences of pitches – they hear everything all at once, and it’s that combination of elements, in a recording or at a live show, that produces the powerful emotional response that we find so intoxicating,” Joe Bennett says. “If the cultural value of a song subsisted only in its melody, the world wouldn’t need performers, lyricists, producers, or artists.”

And, as everyone sitting in their living room gazing at the empty world outside knows, the word really does need all those people, for the sake of its sanity.

Original Post

https://www.theguardian.com/law/2020/mar/26/a-hit-a-writ-why-music-is-the-food-of-plagiarism-lawsuits

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