Writing music is both rewarding and stressful. While some sources of creativity and inspiration seem to originate from an almighty creative force in which we are merely conduits, it is as if we are part of a collective consciousness that as musicians, having learned the skill of playing an instrument we can reach out and grasp onto a piece of this communal consciousness and form it into consumable sonic material. It almost feels that all music is collectively owned by humanity and we artists are merely vessels for it to be manifest.
Every musician is influenced by those who came before. To learn music, we must practice and play songs and compositions created by other musicians. When you begin composing your own music, many times you work extremely hard on a song, overcome many creative blocks and other obstacles and you are extremely excited about it, only to then be dismayed at hearing a melody, riff or rhythm from another song that sounds just like yours. There is nothing more deflating in the writing process than discovering a piece of music might consciously or unconsciously resemble another piece of music to an unacceptable degree.
These transgressions are rarely intentional but once a potential issue is flagged how does one decide where the line is? How similar is too similar? Who decides? Even Sir Paul McCartney spent a month searching for songs that resembled the Beatles “Yesterday” before it was released for fear that he may have unconsciously plagiarized the melody. Many cases have dealt with these issues, and many more are settled before trials can be conducted and judges can rule on these IP concerns.
Turning our attention to some of the prominent decisions of copyright cases in this area both clarifies and confuses the issue. These decisions demonstrate that whether copyright infringement has occurred depends on the particular facts of each case.
An early seminal case in music copyright law was Fisher v Dees in 1986 [Fisher] when DJ Rick Dees released a parody version of the Marvin Fisher song “When Sunny Gets Blue” called “When Sonny Sniff’s Glue”. In this case, the court held that the fair use doctrine protected Dees by examining five principles based on section 107 of the United States Code which deals with fair use.[1] The courts assessed; the subject of the parody, the propriety of Dees’ conduct, the purpose and character of the use, the economic effect of the use and the amount and substantiality of the taking.[2]
They found that Fisher’s song was clearly the subject of the parody and failed to find any sufficiently blameworthy conduct on Dees’ part even though permission to make the parody was refused. They also found that the purpose was a commercial one and that tends to weigh against a finding of fair use, however, the fact that it was a parody made it more in the nature of “social commentary” than “an attempt to capitalize financially on the plaintiff’s work.”[3] They then considered the economic effect, which in their minds is the single most important element of fair use. In this case, they held that infringement doesn’t come from the fact that the critique of the parody may damage the economic demand for the original but whether the parody fulfils the market demand for the original.[4] They decided that it did not since the subject matter of the songs was entirely different. The court gave great weight to the last factor; the amount and substantiality of the taking. They consider that to have an effective parody there must be near-exact copying to keep it recognizable as a parody of the original work, therefore it gives parodists some license for closer copying than in other works, albeit not a limitless one.[5]
The case of Pharrell Williams et al. v Bridgeport Music et al. [Pharrell] was a relatively recent case that shook up copyright law in songwriting. In 2013 a massive number-one hit song was released by Pharrell Williams and Robin Thicke called “Blurred Lines”. In August of that year, the estate of Marvin Gaye and Bridgeport Music claimed that the song infringed on their copyright as it was over-inspired by Marvin Gaye’s “Got to Give It Up” and “Sexy Ways”. Interestingly and non-traditionally, Pharrell, Thicke and TI initiated the legal action by filing for a declaratory judgment that the song did not infringe any copyright. In a controversial 2015 decision, a jury unanimously found copyright infringement and determined that although they did not directly copy the song, there was “substantial similarity” between “Blurred Lines” and “Got to Give It Up”.[6] The district court ordered Pharrell, Thicke and TI to pay $4 Million in damages and $3.37 in earned profits to Gaye’s heirs. This was upheld by the Ninth Circuit Court on appeal in 2017 although the damages were slightly reduced.
The reasoning for this decision was the substantial similarity in the “feel and vibe”. This was previously thought not copyrightable as it had to be some specific element that was copied.[7] It was decided by a jury of lay people who were allowed to examine the signature phrases, “hooks”, basslines, harmonic structures and keyboard chords (mostly through sheet music). The songs are in different keys; one is minor, one is major so it is particularly striking that the decision was made by the determination that the songs had a “similar feel” to the shock of many who became concerned that it would lead to “fencing off our shared heritage of sounds, grooves, vibes, tunes, and feels.”[8] It led to concern that a Pandora’s box of copyright litigation may be open and this could lead to a chilling effect of creativity in the music industry.
One year after the declaratory judgment was denied and right before the decision of the full Pharrell trial was rendered Sam Smith settled a high-profile dispute with Tom Petty over copyright infringement of his hit 1989 song “I Won’t Back Down” in his track Stay With Me. Smith gave Petty 12% writing credit, which entitled him to this percentage of royalties. This settlement was despite Smith having claimed it was all a “terrible coincidence” and that he hadn’t even ever listened to the song I Won’t Back Down.[9] Whether true or not, this illustrates the point of how real the risk is of consciously or unconsciously copying other compositions during the songwriting process and how much the Pharrell case worried artists about the ramifications of such infringement even if one without any intent.
The recent case of Chapman v Maraj 2020 was a win for these concerned artists. The US District Court for Central California found that when a song uses lyrics and vocal melodies from other artists’ work for the purpose of experimentation and to secure a license from the copyright owner, it is fair use even if it makes its way into the public. Minaj did not include the song in question on her album after Chapman repeatedly denied her requests for a license however, it managed to find its way onto the radio when a DJ obtained a copy of the song. Minaj denied sending the DJ a copy of the song and she posted a message instructing him not to play anything not on her album. The court went through the same 4 fair use factors as they did in Fisher laid out in section 107 of the US Code. They decided that it was fair use based on the fact that; the purpose was experimentation and not commercial release, the amount and substantiality of the work of the portion used favoured fair use, and the effect of the use on the potential market was negligible since there is no evidence that “the new work usurps any potential market for Chapman.”[10] This was despite factor two (the nature of the work) disfavouring fair use as it was music, which is at the core of copyright’s purpose.
These cases have demonstrated that deciding whether copyright infringement exists in songwriting is more of an art than a science. It comes down to the particular facts of the case and sometimes it will come down to the trier of fact as it did in the jury case of Pharrell. When an artist creates something too ‘substantially similar’ to another track they do open the door to litigation but where they are making a parody or experimenting, they have more license to copy.
Protection of songwriting copyright is important and egregious plagiarism should always be punished; however, we must be careful and aware of the consequences as one unforeseen decision can send shockwaves through an industry and lead to a chilling effect on the production of music that we value so much. Music will always be a collective effort, born of compositions that came previously, but there must be a level of originality that pushes these ideas forward and creates something new. Copying happens all the time in music subconsciously. Whether something is different and new enough in the eyes of copyright law… well that is for the courts to continue to decide on the minutia of each case.
[1] Title 17 U.S.C.A. 107 § 2010.
[2] Fisher v Dees, 794 F.2d 432, (9th Cir. 1986) paras 7-14.
[3] Ibid, para 10.
[4] Ibid, para 11.
[5] Ibid para 14.
[6] Williams v Gaye, 895 F.3d 1106, (9th Cir. 2018).
[7] Ed Christman, “Blurred Lines’ Verdict: How It Started, Why It Backfired on Robin Thicke and Why Songwriters Should Be Nervous”Billboard, (March 13, 2015), online: https://www.billboard.com/pro/blurred-lines-verdict-how-it-started-why-it-backfired-on-robin-thicke-and/.
[8] “Blurred Lines of Copyright” Ethics Unwrapped McCombs School of Business (September 29, 2024), online: https://ethicsunwrapped.utexas.edu/case-study/blurred-lines-copyright.
[9] Ian Hanomansing, “Sam Smith explains why he settled copyright dispute with Tom Petty”, CBC News (February 6, 2015), online: https://www.cbc.ca/news/canada/british-columbia/sam-smith-explains-why-he-settled-copyright-dispute-with-tom-petty-1.2948473.
[10] (Chapman v. Maraj (C.D.Cal. Sep. 16, 2020, No. 2:18-cv-09088-VAP-SSx) 2020 U.S.Dist.LEXIS 198684.) para 32.
Copyright & Social Media
Communications Law