Haters gonna hate and laywers gonna lawyer (Photo by Kevork Djansezian/Getty Images For dcp)
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In 1838, a young English poet named Eliza Cook published “The Old Arm Chair”, a maudlin verse about mourning her mother. A sensation on both sides of the Atlantic, it was set to music by several composers, including Henry Russell in London and Samuel Carusi in Baltimore. Seven years later, the American copyright holder of Russell’s version sued Carusi for plagiarism under the 1831 Copyright Act. Although the melodies were substantially different, a Maryland jury found in the plaintiff’s favour; one of Carusi’s attorneys described the landmark case as “entirely novel in its features” and that it “presented some very perplexing questions as to what constituted ‘originality’ in musical composition”.
Here we are 175 years later, and those questions are more contested in the courts than ever. This month alone the US Supreme Court finally dismissed a long-running claim that Led Zeppelin plagiarised the introduction of “Stairway to Heaven” (1971) from Spirit’s instrumental “Taurus” (1968) but high-stakes copyright lawsuits against Katy Perry, Ed Sheeran and Taylor Swift continue to move through the legal system. Even in the midst of a pandemic, the vital business of deciding whether some songs sound too much like other songs goes on.
There is something inherently ludicrous at the best of times about judges and juries assessing copyright infringement claims based on the testimony of rival musicologists (“proverbially discordant among themselves,” as Carusi’s attorney put it) and their own inexpert understanding of the creative process, and these are not the best of times. The business of sueing over plagiarism — and it is a business — has been in overdrive since 2015, when a jury found that Robin Thicke’s and Pharrell Williams’ hit “Blurred Lines” (2013) had stolen from Marvin Gaye’s 1977 hit “Got to Give It Up”.
Even though the two basslines used different notes, rhythms, phrasing and scales, the jury decided, to the tune of $7.4m, that having a similar vibe was enough. It was a shocking, chilling verdict, and when Thicke and Williams lost an appeal in 2018, the author of the dissenting opinion stated that the verdict “allows the Gayes to accomplish what no one has before: copyright a musical style”. The judge added that the decision “establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere”.
Musicians and legal experts agree that this lousy decision has created a climate of fear, with artists awarding credits left, right and centre in order to fend off the faintest possibility of a lawsuit. Almost as soon as some listeners noticed that the chorus of Taylor Swift’s “Look What You Made Me Do” (2017) was amusingly similar to that of Right Said Fred’s “I’m Too Sexy” (1991), Swift credited the British band, even though nobody seriously thought that she plundered 90s novelty hits for melodies. If you’ve ever wondered why modern hits seem to have so many songwriters, then this neurotic credit inflation is one reason. Credits are becoming more a legal fiction than an accurate account of a song’s creation because it is easier to settle even a frivolous claim than to risk years of costly litigation.
The “Blurred Lines” verdict was unusually hostile but it exposed the underlying weaknesses of copyright law as it relates to music. Other artforms have a much more mature relationship with the nature of influence. While a screenwriter or director can’t just plagiarise someone else’s work wholesale, the likes of Quentin Tarantino and Ryan Murphy are free to stuff their work with homages and allusions. Nobody would claim that a Mexican stand-off, or a socially awkward detective, or a pram rolling down steps, or a serial killer who makes costumes from human skin are legally-protected concepts. And every Shakespeare-lover knows that he took raw material from extant sources without being a mere copyist. Art should be a lively conversation between past and present, with the minimum of obstacles.
Not so for music, where litigation has little to do with the reality of creativity. For a start, most instances of “plagiarism” are unintentional. Songwriters are human jukeboxes whose instinct for realising when a new melody resembles an old one can never be infallible. After Sam Smith gave a cut of “Stay with Me” (2014) to Tom Petty for its inadvertent resemblance to “I Won’t Back Down” (1989), Petty was sympathetic: “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… A musical accident, no more no less.”
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SubscribeCrazy, but inevitable, I suppose.
A brilliantly laid out article with various great examples demonstrating how a self-proclaimed ‘creative’ industry is ceasing to be just that.
A business slowly but surely consuming itself and its children aided and abetted by the legal profession in pursuit of profits, the bulk of which will surely be enjoyed by the very rare few.
Basically, anyone writing a piece of music today is not only duty-bound to be aware of every other piece of music literally ever written, however seemingly completely different, particularly to the ‘untrained’ ear, but also extremely wary that the recognition that they likely crave for it might be a cruel double-edged sword should it succeed.
Very sad.
‘Plagiarism laws are killing music’
I’m still ‘young enough’ to remember when ‘Home Taping’ was in the frame.
Followed by Napster!
The slogan used by the music industry’s copyright police was:
“Home taping is killing music – and it’s illegal”.
Pop music, I have noticed, did not die. Performers of moderate talent continue to get rich. In the era of the MP3, Spotify, YouTube etc, where a vast catalogue of the world’s music is widely available, pop music is more repetitive and derivative than ever.
‘In the era of the MP3, Spotify, YouTube etc, where a vast catalogue of the world’s music is widely available, pop music is more repetitive and derivative than ever.’
Maybe a bit unfair, but I partly blame the Scandanavians, the Germans and, more specifically, the Swedes for this.
Around about the beginning of the Britney era, much sought after, highly talented producers there seemed to have pretty much nailed the formula for the perfect pop song in terms how the human brain reacted favourably to its tune, breaks, chorus, lyrics etc.
They inadvertently were responsible for turning an art into far more of a more of a science, seemingly lowering the risks of bombing involved by creating a template for what was, by definition previously, a creative, often random, largely serendipitous process with a famously costly, high failure rate.
The result, of course, was the ‘derivative and repetitive’, yet undeniably more consistently ‘good’ pop music we know today.
Your final paragraph suggests you are congratulating rather than blaming the Germans and the Swedes for their successful creation of the perfect pop song formula. In this (not very brave) new world the quality musical product can be offered to the public with minimal risk to backers’ capital.
Are you by any chance a marketing consultant?
As Branford Marsalis said when discussing improvisation in jazz: “… there’s 12 notes, what’s going to be new? You honestly think you’re going to play something that hasn’t been played already?”
I don’t think the problem really lies with plagiarism laws so much as that the use of juries and the ludicrous flexibility they have in relation to damages in the US adds a huge amount of unpredictability that creates a litigation industry.
This is a problem that ultimately has to do with much more than music. It has to do with there being too many lawyers with nothing better or more ethical to do. We in the West have tied ourselves in copyright knots in culture, tech industries and countless other arenas. What started out as a way to ensure that creators were fairly rewarded has become an appalling deterrent to innovation. China has no qualms about ignoring our copyright laws and laughing at the stupid things we do with them while they charge forward building on our innovations while we persecute each other legally instead.
I think this comes down to personal perceptions, subjective aesthetic taste etc for private individuals, juries and judges alike. Attitude to/knowledge of music are important too. I think the shared “minor line cliche” in Taurus, Stairway to Heaven, Freebird and All Along the Watchtower (plus many more) absolve Led Zep here. However i think Thicke/Williams DID rip off “Got to Give It Up” because to me the sound, rhythm and phrasing are lifted. I may be wrong as who knows if Thicke/Williams came up with it by co-incidence? I do know i have a lot of respect for Marvin Gaye’s work despite his short, chaotic life and not much for Pharrell/Williams. I expect most American jurors feel the same. The intellectual property aspect is pretty much un-navigable in most cases….some melodies/rhythms are so old as to be untraceable…apply thi slogic to 1-4-5 note blues progressions: Malian Lute player sues Ibo slaves who sue cotton pickers who sue gospel singers who sue Leadbelly who sues Eddie Cochrane who sues the Rolling Stones who sue George Thorogood etc etc You could also do the same thing from Mali Lute Man to Berber to Clesmatic to Jewish to Gypsy buskers to Rock n Roll etc. Bear in mind that until popular music went industrial-scale people often traded or gave away songs. I have always suspected Mozart Jnr got some of his material from earwigging Gypsy camp fire parties and using auto-didactic musical memory. I don’t doubt Slayer realise that Myxolidian, Dorian and Locrian scales are Indo/Jewish/Arab/Afro origin but are no more copywritable than a screwdriver or a hammer – didn’t stop them making some of the best music ever written IMO!
Quite right. Composers have been engaged in a conversation with each other, bouncing off each other’s ideas since the age of Handel and Bach. Placing this within a clunky legal framework is the enemy of creativity. As a minimum, the prosecution should have to demonstrate that harm has been caused, the original musician has suffered loss. Most of these examples would fall to the ground on this basis. The harm is being caused by the litigation of a free creative process.
All art is built upon thousands of years of art that came before it. The completely original idea is a powerful illusion because most people can barely grasp the last fifty years of artistic influences that fed into a given piece.
Funny how they barely ever go after cr@p tunes or artists no-one’s ever heard of.
‘Where there’s brass there’s muck’, to subvert a well known phrase, and in this case ‘the muck’ normally wears a sharp suit and carries a brief.
Great piece. And as the pot of money associated with making music has shrunk – first due to streaming and now the ending of live performances due to Covid – the problem will only be magnified.
I suppose it comes down to juries knowledge of music for the first court judgement, but with the ladder of appeals i imagine more judges can read music/musical theory the higher you go. With 6:3 for conservatives on the SCOTUS i expect the majority will have some sort of musical training. They could even form a band, perhaps Jazz, Chamber Music or whatever and leave the 3 liberals to form a Drill outfit: “Cholita” Sotomayor and “Skag” Kagan feat. “Bruiser” Breyer…..
No idea what that means – but it sounds hilarious.
Surely on this basis, in the World of Blues, every song that started #Woke up this mornin’..# and featured dah, dah, dah dah at some point would mean every second Blues track every written would be a breach of original copyright?
Regards
NHP
There was a time when people created music simply for the pleasure it brought others rather than for the dollars it raked in. We don’t need the music industry to create music, we have it already in ourselves,
Interesting – I knew there was a lot of this going on but I didn’t know that it was all-pervasive and extending to ‘a groove’ or a basic chord progression.
Perhaps it just adds to the entertainment – it is better than having to listen to them.
I am 100% with the author on this, but how do you decide if music has been plagiarised? The problem has been identified but I would like to have seen some thoughts on how to solve it.
As has been said many times before: all the best music has been written. Going by most of the trash released these days by so called artists does in my opinion tend to support that thesis.
I daresay if someone could copyright “the Wheel”, they would.
But must be difficult for “THE BLUES”…. as its about all i can play on guitar, and yes generally it is only 3 chords-ish, + the occaisional 6th, 7th or minor thrown in. Yes it comes as an 8bar, 12 bar or a 16bar, but I normally cant count that well, so alternate a bit.
But Hey! every blues song is Unique, but also every blues song has similar family roots, and some can be very similar. Songs are frequently reminescent of each other, that shouldnt be a crime.
Imitation was the sincerest form of flattery.
Just listened to these two afresh, and they really are very different.
Not the first time a judgement has seemed utterly bizarre.