During the last century, composers, musicians and their copyright lawyers held a traditional belief and legal understanding that copyright infringement lawsuits related only to stolen lyrics and copied melodies, but not for more abstract compositional elements like rhythm, beats, vibe, sound and feel.
Song Composition Plagiarism
One of the most famous music copyright infringement cases involved The Beatles’ guitarist George Harrison in 1976. The court found that Harrison’s “My Sweet Lord” infringed the 1963 doo-wop hit “He’s So Fine” by The Chiffons. The similarities between the songs related to almost identical chord and scale descents and ascents in the chorus and verses. Ultimately, the judge found that the two songs were the same, with different words, and that Harrison had subconsciously copied the earlier tune even if he had not done so deliberately.
Since that time, music copyright infringement cases have focused on such comparable compositional elements, like song structure, chords, melodies, keys, choruses, hooks and so on.
Vibe, Sound & Feel Plagiarism
That all changed a few years ago in the infamous “Blurred Lines” case, when a US court ordered the song’s writers, Robin Thicke and Pharrell Williams, to pay $5 million to the heirs of Marvin Gaye, who sued for copyright infringement. The two songs are in different keys and have different chord progressions, but they both have a funky cowbell and electric piano as the main instrumentation. Relying on expert witness testimony, the judge agreed that the international hit was very similar to, and accordingly infringed, the “vibe” and “feel” of Gaye’s 1977 hit “Got to Give It Up”.
Katy Perry’s 2013 hit song “Dark Horse” led to a similar result. A unanimous jury ruled that her song infringed the 2009 song “Joyful Noise” by rapper Flame and awarded $2.8 million. The judge accepted expert evidence concluding the two songs had nearly identical ostinatos, in phrase length, rhythm, pitch content and timbre.
These court decisions were criticized because they effectively “privatized” basic building blocks of music composition and because the essential alphabet of music creation should be available to everyone. Copyright law tends to monopolize the expression of ideas, often to a greater extent than what is in the public interest. It can also have a chilling effect on cultural evolution.
More Lawsuits to Come
Copycat cases have been popping up across the US since that time. Recently, Ed Sheeran was sued for copyright infringement, in respect of his 2014 smash hit “Thinking Out Loud”, by the estate of Marvin Gaye alleging that Sheeran used the same melodic, harmonic and rhythmic elements as the 1973 Gaye soul music hit “Let’s Get It On”. The plaintiff is claiming damages of $100 million.
But the mother of all music copyright cases currently winding its way through the courts is the plagiarism attack on the iconic 1971 rock anthem “Stairway to Heaven” by Led Zeppelin. The claim alleges the song’s opening chord arpeggio progression is identical to the 1968 instrumental song “Taurus” by the group Spirit. The evidentiary and procedural issues are quite complex, but observers expect the case to go all the way to the US Supreme Court for final determination. If successful, the lawsuit could result in an award of $550 million. Stay tuned!
Suing from Beyond the Grave
A major factor in many of these recent music plagiarism lawsuits is the fact that the plaintiffs are not the artists themselves; they are the heirs or family members of artists who died or retired, with much to gain and nothing to lose. While a living artist might have reservations about suing another artist for copying a song, because of potential reputational harm or record label retribution, the heirs, executors and corporate receivers don’t work in the music business and do not have such reservations or concerns. They are motivated solely by the potential economic windfall.
Money and the courts are driving essential musical building blocks out of the hands of the many, into the hands of the few. This situation is another unsurprising economic outcome of a copyright ownership term surviving the death of the author. The songwriters’ and musicians’ heirs, whether intentionally or not, are causing creative havoc in the new music world with these lawsuits.
If you would like more information about copyright law, please contact our Trademark Agent, Marc Belliveau.