October 27, 2020

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.”

Unfortunately, the judge who ruled in 1976 that George Harrison had plagiarised the Chiffons on “My Sweet Lord” (1971) set a precedent that did not allow for accidents: “Did Harrison deliberately use the music of ‘He’s So Fine’? I do not believe he did so deliberately. Nevertheless… this is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.”

Some elements of copyright law are hopelessly outdated. The old defence that the defendant did not have “access” to the plaintiff’s song is meaningless in an era of streaming. The song is on Spotify or YouTube? Then you have access, whether or not you know it exists. Nor has the law kept pace with songwriting norms. Most hits are now constructed by several specialists: the beatmaker, the topline melody writer, and so on. Yet when a jury ruled (dubiously) that Katy Perry’s “Dark Horse” (2014) had copied the beat from Flame’s “Joyful Noise” (2008), even the lyricists were ordered to pay damages. The ongoing suit against Taylor Swift is of a different order of stupidity: her song “Shake It Off” (2014) bears no resemblance to 3LW’s “Playas Gon’ Play” (2000) except the common phrases “Players gonna play” and “haters gonna hate.” The writers of Playas Gon’ Play are claiming ownership of figures of speech.

The history of popular music skews towards the free flow of ideas, from the melodic recycling of the folk tradition to the cheerful repurposing of old songs in sample collages and mash-ups. Yet the law keeps getting in the way. The notorious 1991 case Grand Upright Music, Ltd. v. Warner Bros. Records Inc. destroyed the tradition that gave us freewheeling, sample-happy records like the Beastie Boys’ Paul’s Boutique and De La Soul’s 3 Feet High and Rising. Even now, uncleared samples bar De La Soul’s classic work from streaming services. Samples are at least demonstrably someone else’s work but how can you own a generic beat or common chord progression? As Katy Perry’s lawyer Christine Lepera complained in court, the writers of Joyful Noise were “trying to own basic building blocks of music — the alphabet of music that should be available to everyone”.

Who benefits from strangling creativity in this way? Certainly not music fans. The most compelling case for copyright law is protection for the little guy. It feels ethically right that struggling blues musicians won songwriting credits from Led Zeppelin in the 1970s and tragic that the drummer Gregory Coleman died homeless in 2006 even as his performance on the Winstons’ “Amen, Brother” (1969) became the most sampled breakbeat of all time. The idea that songwriters shouldn’t starve while others grow fat off their work has an instinctive moral appeal.

Most plagiarism suits, however, have less uplifting consequences. Bridgeport Music, the second plaintiff in the Blurred Lines case, has made millions of dollars from hundreds of suits over unlicensed samples without any benefit to the original songwriters. The 2005 case Bridgeport Music, Inc. v Dimension Films (2005) overturned the de minimis defence of sampling, making even an unrecognisably altered two-second sample a matter for litigation, yet the composer of the sampled song, George Clinton, didn’t get a cent because, he claimed, Bridgeport “stole” his publishing rights (although the courts ruled it legal).

Copyright acquisition can lead to Kafkaesque scenarios. John Fogerty was sued by his former record label over a resemblance between his song “The Old Man Down the Road” (1985) and one of his hits for Creedence Clearwater Revival 15 years earlier. Because the label owned Creedence’s publishing rights, Fogerty became the only person ever to be sued for plagiarising himself. “It was very cruel,” he reflected.

This year’s economic turbulence has seen a boom in investors scooping up song catalogues. While this is primarily to profit from streaming revenues (“Music and booze are only two industries that flourish when people are both happy and sad,” one wealth manager told Billboard), the potential for a bonanza lawsuit will not be lost on them. One of the plaintiffs sueing Ed Sheeran is a company called Structured Asset Sale. So much for the little guy.

There needs to be some legal deterrence against bad actors flooding Spotify with note-for-note replicas of classic songs, or big stars stealing demos submitted by hopeful young songwriters, but the bar should be extremely high. Currently, the typical case is a cynical waste of time and money which gives the public the false impression that artists are amoral thieves without two original ideas to rub together. A successful song is both an artwork and a commercial asset but the plagiarism-suit racket perverts the art. Old songs become roadblocks to new ones. The natural process of being influenced, consciously or subconsciously, is recast as larceny.

This was never the intention. “The immediate effect of our copyright law is to secure a fair return for an ‘author’’s creative labour,” said Supreme Court Justice Potter Stewart in 1975. “But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” The post-“Blurred Lines” epidemic of litigation and nervous celf-censorship makes a travesty of that aim by suppressing creativity. Enough. Throw all of these cases out, reform copyright legislation, and let art do what it does. And you know what? Carusi’s version of “The Old Arm Chair” was better.