A Bittersweet Symphony: The Intricacies of Copyright Protection and Infringement in the Music Industry

By Hoh Jerick

How similar is too similar? A question that often comes to mind in copyright infringement cases in the entertainment business, most notably in music. That sweet nectar of sound that sings to the ears but burns the deep pockets in infringement lawsuits and out of court settlements that range through the millions. Of course, not all music has been plagiarised, but in the words of the Russian composer Igor Stravinsky, “Lesser artists borrow, great artists steal.”

Firstly, it is important to note that copyright in music is extremely complicated due to the complexities in determining how substantially similar a composition is to another. No areas of law have affected music in an impactful manner besides copyright, as it protects the legal rights of an author’s expression of creative work in any tangible form. In this instance, it should be the concern of any artist in the entertainment business to consider the significance of copyright protection and infringement in a modern world encapsulated by Intellectual Property.

Generally, what’s interesting about copyright infringement in music is the amount of dissection needed to analyse the similarities between the songs contested. A musicologist would be invited to study the differences in the compositions, the harmonies, the key changes in tones, the respective tempos. Every little detail is crucial in identifying the composition to distinguish the parts that have been substantially copied or plagiarised.

To draw in a few infringement cases, anyone who has seen the sequel to Guardians of the Galaxy would recognise a song written by the late George Harrison titled “My Sweet Lord”. A renowned case as the music publishing company, Bright Tunes Music claimed that the former Beatle had plagiarised a 1963 single by The Chiffons called “He’s So Fine”, where the rights to the song was owned by Bright Tunes. Harrison was held liable for “subconscious plagiarism”, and was ordered to pay an amount of USD 587,000. The fact that the 1963 single was a No. 1 hit in the charts long before Harrison wrote “My Sweet Lord” substantiates that he would have subconsciously known that the combinations of the tune in his song would work, although Harrison may not consciously remember as such. This shows how far infringement and plagiarism can be stretched, as songwriters would be dancing in the dark on a looming thought that a song written may infringe another party’s copyright. Although it is a comfort to the infringed party as their copyrighted work would be protected.

With multitudes of creative work produced on a daily basis, it is not surprising that a variety of music compositions may sound substantially similar. Occasions occur when a miniature spider web is sprung in conflicted claims to the rights and royalties of a song. The recent case between American artist Lana Del Rey and the Oxfordshire band Radiohead had fogged the boundaries further to what amounts to inspiration, coincidence or outright plagiarism. The song “Get Free” in Del Rey’s album “Lust for Life” was claimed by the artist herself to be facing an infringement suit by Radiohead for alleging the artist to have plagiarised their song “Creep”. Del Rey tweeted that the band was asking for 100% of the publishing rights to her song and the possible removal of her song from the album. The band’s publishers however denied that a lawsuit existed and instead, they are in the midst of a discussion acknowledging the band as co-writers of Del Rey’s song.

Ironically, the rabbit hole goes deeper as Radiohead themselves were found liable for copying “Creep” from  1974 hit “The Air That I Breathe” performed by the British outfit The Hollies in a previous case. The songwriters of the 1974 hit received co-writing credits on the song “Creep” and a percentage of the royalties in addition.

[one-half-first]Certain copyright lawsuits may far exceed album sales profit, and it’s not at all appalling as entertainment industries have made millions out of copyright licensing or selling rights to copyrighted materials. In a copyright lawsuit involving Ed Sheeran, the singer-songwriter was accused of copying Marvin Gaye’s “Let’s Get It On” on his 2014 hit “Thinking Out Loud”. Reportedly, a USD 100 million lawsuit was filed by a company called Structured Asset Sales, who owns the copyright to the song “Let’s Get It On”. According to the lawsuit, Sheeran’s composition of “Thinking Out Loud” was claimed to be identical in regards to the melody, rhythm, harmony, drum progression and tempo to that of “Let’s Get It On”. However, the case is still undecided and whether infringement is involved is still debatable.[/one-half-first] [one-half][/one-half]

 

From the cases referred to above, and as far as what could be proven to be copying, plagiarising or basically just a coincidence, it is vital to understand the scope of a piece of creative work that can be protected or infringed. To all musicians and aspiring musicians pursuing a career in the music industry, an awareness of the ins and outs on the importance of copyright would be encouraged to fortify one’s stance in this arduous world.