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Music

Here's What Makes A Song A Ripoff, According To The Law

How you think about music ≠ how the courts think about music.

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Music is art, and art is for people — not lawyers. But musicians have long relied on the law to protect their creations. For nearly two centuries, courts in the United States have heard cases from songwriters seeking to defend their compositions from thieves, cheats, and liars of all stripes. It's a tradition that continues today — with recent disputes between Tom Petty and Sam Smith (settled amicably out of court) and the Marvin Gaye family and Robin Thicke, Pharrell Williams, T.I., et al (currently at trial) — putting the modern music industry on high alert.

In those cases, and in most disputes alleging copyright infringement of a musical composition, a few perennial questions arise: When can a person be said to own something like a chord progression or melody? And in a world where everyone is inspired by someone else, where is the line between plagiarism and influence? To help us answer these questions in plain english, we spoke to Paul Fakler, a veteran copyright lawyer with a specialty in music law, of the law firm Arent Fox.

What we learned underscores the gap between how casual music fans think about music, and how it's treated as a matter of law.

"Of all the kinds of law I've practiced over the years, copyright law is by far the most metaphysical," Fakler said. "It can get pretty freaky."

Music compositions*, like other forms of creative expression, are protected by copyright under the law.

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Under the Copyright Act of 1976, which took effect in 1978, anytime a person writes or records an original piece of music, a copyright automatically exists. Registration with the U.S. Copyright Office is optional, but does come with certain benefits in the event of an infringement dispute. Copyrighted elements of a musical composition can include melody, chord progression, rhythm, and lyrics — anything that reflects a "minimal spark" of creativity and originality.

"It really doesn't have to be a whole lot," said Fakler. "If a single chord progression were elaborate enough and unconventional enough, it could be protected."

One important instance where copyright doesn't apply is public domain. If a song was published prior to 1923, it is considered to be in the public domain and is not protected. Federal law says that creative works, including music compositions, enter the public domain after the life of the creator plus 70 years.

It's important to remember that copyright doesn't protect ideas, but rather creative expressions of ideas. Copyright is designed to prevent people from copying a creative work, or specific elements thereof, without permission.

*Since the 1971 Sound Recording Amendment to the Copyright Act of 1909, there has been a second copyright protection for sound recordings — that is to say, a performer's recorded interpretation of a musical composition — which is governed by its own set of rules and standards, particularly with regard to sampling. For the purposes of this article, however, we will focus primarily on original music compositions only.

Disputes over music copyrights are very common, but often don't go to trial.

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If you've ever listened to a song and thought it sounded a lot like another, older song, you probably weren't alone. It's a truism of popular music that everyone is influenced by their predecessors (and, often, contemporaries), and perceived similarities between songs often lead to disputes.

"In songwriting, you're always building on what came before you, and the line between influence and copying can be a murky one," said Fakler.

As was the case with Tom Petty and Sam Smith, in which the latter's "Stay With Me" was alleged to infringe on the former's "I Won't Back Down," most disputes are settled privately out of court. Fakler says that's because litigation is expensive, juries are unpredictable, and there are stigmas that can stick to both sides: The accused can get labeled as unoriginal or duplicitous, and the accuser can be viewed as greedy or belligerent.

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In the event of a trial, the person claiming infringement (the plaintiff) has to prove two things: "access" and "substantial similarity."

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Copyright infringement is what's called a "strict liability tort," which means the defendant doesn't have to have intended to infringe to be found guilty. To prove guilt, the plaintiff must only demonstrate that the defendant had access to the allegedly infringed song, and that the two songs in question have substantial similarity.

Access is a question of whether the defendant ever actually heard, or could reasonably be presumed to have heard, the plaintiff's song at some point before creating the allegedly infringing song. Though not always easy to prove, courts often consider whether a relationship existed between the two parties and how well known the plaintiff's song is generally.

In the famous 1976 case Bright Tunes Music v. Harrisongs Music, the late Beatles member George Harrison was found to have infringed on The Chiffon's hit "He's So Fine" with his own solo song "My Sweet Lord" in part because The Chiffons song was so popular that there was little doubt whether Harrison had been exposed to it. The judge concluded that even though there was no evidence that "He's So Fine" had been on Harrison's radar, he had likely heard the song and internalized it "subconsciously."

In the case of Robin Thicke and "Blurred Lines," by contrast, there was never any question of access, since Thicke admitted on his own that his song was inspired by Marvin Gaye's "Got to Give It Up."

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Substantial similarity is a question of whether or not the average listener can tell that one song has been copied from the other. This is the "ordinary observer test," what Fakler calls "the hallmark of copyright infringement." The more elements two works have in common, the more likely they are to be ruled substantially similar. Proving substantial similarity in music cases is complicated by the fact that all songs carry two kinds of copyright, for composition and sound recording, that have to be evaluated independently.

"When people usually encounter a song they encounter it as a sound recording, and there are a lot of creative decisions the performer made in that recording that have added to what was on the page," Fakler said. "So a juror might hear similarities between two songs that are actually just similarities in the performances, not in the songs as written by the songwriter."

To avoid this problem, the judge on the "Blurred Lines" case ordered that only stripped-down tracks, restricted to disputed elements of the original compositions, could be played in court.

Though barred from playing "Blurred Lines," Thicke took to the witness stand with a keyboard and played other compositions, while dancing in his seat, to demonstrate how many songs, including Michael Jackson's "Man in the Mirror" and The Beatles' "Let It Be," share certain elements in common. The tactic echoed a similar move by John Fogerty in the famous case of Fogerty v. Fantasy, in which the Credence Clearwater Revival singer-songwriter was accused of plagiarizing himself. (A song that Fogerty wrote as a solo artist, "The Old Man Down the Road," was alleged by his old record label to infringe on a song he had written as a member of CCR, "Run Through the Jungle.")

Fogerty won over the jury by bringing his guitar to the witness stand and personally demonstrating why the two songs were different.

"I'm always kind of amused that judges let that sort of thing happen in court, because you can really manipulate the song when you're a performer," said Fakler. "To a certain degree, it's like O.J. Simpson with the glove."

Because most people can't read music, it's actually pretty hard for the average juror to tell whether two songs have substantial similarities or not.

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Given the unreliability of sound recordings and performances in cases where compositions are in dispute, musicologists are often called as expert witnesses to walk jurors through sheet music. A musicologist for the plaintiff will underscore the similarities between the two songs as written, while the defendant's musicologist will stress the differences. "With novels and movies, it's often easier for jurors to sort of cut to the chase and tell whether the thing has been copied or not," said Fakler. "Music cases quickly turn into a battle of the experts."

If accused of infringement, a person can use several specific defenses to try to beat the claim.

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In addition to challenging claims that a defendant had access to the plaintiff's song and that the two songs are substantially similar, there are some common defense strategies against copyright infringement.

Ownership. If the defendant can prove that the plaintiff doesn't actually own the rights to the work in question, then the infringement claim can't stand. To be the owner of a work you have to either be the author or have been granted the author's rights. Thicke's attorney successfully used the ownership defense to block the Gaye family from suing for infringement of the sound recording of "Got to Give It Up," since the recording is actually owned by Universal Music Group (which also owns "Blurred Lines").

Scènes à faire. If a musical element is very common, like certain chord progressions in blues music, for instance, it falls under what's called scènes à faire, French for "scenes that must be done," and can be used without a license. In many cases, the defendant's lawyers will try to prove that the plaintiff's work is commonplace and/or didn't originate with the plaintiff, and that restricting its use would be harmful to the artistic community. This is what Thicke was trying to prove with his witness-stand medley. In the words of his attorney: "No one owns a genre or a groove."

Fair use. A person can be allowed to exploit a song, or elements of a song, if it falls under the "fair use" exception, which protects, among other things, comment and criticism. In music, this usually applies to parody songs, which often borrow compositional or recorded elements of the originals. The raunchy rap group 2 Live Crew provide the most famous example of this. In the 1994 ruling of Campbell v. Acuff-Rose Music, the Supreme Court held that 2 Live Crew's song "Pretty Woman," which was a play on the Roy Orbison classic "Oh, Pretty Woman," could qualify as fair use, overturning lower courts' rulings that said otherwise. Some of Weird Al Yankovic's music is also believed to count as fair use, although he has managed to avoid getting sued by obtaining licenses from the artists he parodies.

Statute of limitations. The Copyright Act of 1976 says that infringement claims must be made within three years of the infringement to be valid. In music, though, infringement is usually considered to be ongoing for as long as the allegedly infringing song is being exploited. The statute means that a plaintiff can only win damages covering the past three years.

De minimis. Though less common in music cases, an argument of de minimis use can apply if the infringing element of the defendant's song is so tiny and fleeting that the average consumer wouldn't even notice it. It can also apply to song lyrics, since individual words and short phrases are not considered copyrightable.

Independent creation. Copyright protects works only from being copied. If the defendant can prove that she didn't actually copy the plaintiff's song, but came up with it on her own, then she hasn't infringed, even if the two songs are identical. This argument usually comes down to access. If the defendant heard the plaintiff's song at all, or, as in the case of George Harrison, can be presumed to have heard it, then jurors are likely to conclude that some copying, however subconscious, could have taken place. Though rarely successful, Fakler said musicians on the witness stand claim independent creation a lot in music cases. "They're gonna say, 'Look, I didn't copy this thing; I came up with this myself," he said. "And then it's gonna come down to credibility and how similar the songs are. The more similar the songs, the less likely a jury is going to believe you."

Being found guilty of copyright infringement often comes with serious damages.

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Copyright infringement in music cases can easily cost the infringer millions of dollars in damages — plus attorneys' fees in some instances — which can be calculated based on a variety of factors, including the degree of infringement and the financial losses incurred. The plaintiff may also seek what's called "injunctive relief" and block the record label from further distribution and sale of the infringing song(s).

Though most people, artists included, like to think of their favorite songs as unique, copyright forces us to ask tough questions about the true nature of creativity, community, and commerce. "Nothing is completely original," Fakler said. "We're all standing on the shoulders of giants."

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