Blurred Lines
Influence or infringement? Mapping the nuances of music copyright violations
The opening hook of “Bittersweet Symphony” brings out the bathroom singer in almost anybody when played at the end of a good pub night. Except, perhaps, Richard Ashcroft, lead singer of The Verve, the English band that wrote the song. The infectious violin loop, integral to the track’s popularity, is actually a sample from the Andrew Oldham Orchestra version of “The Last Time” by the Rolling Stones. The Stones’ former manager successfully sued The Verve, resulting in the former receiving all future royalties, with Mick Jagger and Keith Richards added to the songwriting credits. The story did have a happy ending in 2019, when Jagger and Richards magnanimously relinquished their rights to Ashcroft.
Not everyone shows such grace. Cases filed for music copyright infringements have risen at an alarming rate over the last decade. Two reasons stand out for this. Earlier musicians felt aggrieved when specific notes, chord structures or lyrics were plucked from their songs without permission. Today, courts increasingly scrutinize rhythms, beats, tempo and other elements less unique. A watershed moment for the industry was the 2015 ruling against Robin Thicke’s “Blurred Lines”, which was adjudged, among other things, to have infringed upon the overall “vibe” of Marvin Gaye’s “Got to Give it Up”. The other factor for increasingly successful lawsuits is the advent of streaming platforms like Spotify and Apple Music, which make it less likely for offenders to claim they could not have reasonably heard the complainant’s tune.
While most lawsuits dealing with any intangible assets, including copyright or trademark infringement, are nuanced, cases in the music industry are especially tricky. Unlike a patent filed by a pharmaceutical company, which protects the unique research and development that goes into making a particular drug, it is entirely possible two musicians could independently create a similar tune. In fact, this particular line of argument was adopted by Coldplay, in their successful defence of a plagiarism claim lodged by legendary guitarist Joe Satriani against their hit “Viva la Vida”.
A musician’s intellectual property stems from the creativity to manipulate a finite set of musical notes into a distinct, appealing sound. While it is difficult to ascertain what constitutes copyright infringement, a majority of lawsuits fall within three broad areas:
1] Sampling Disputes: A sample is a distinct riff, melody or other part of a song that is used by a musician as part of a new composition. Using samples is completely legitimate, so long as permission (usually accompanied by payment) is sought from the original creator. Returning to the example of “Bittersweet Symphony”, The Verve actually obtained permission to use a part of the original sample but misused the terms of their agreement and elongated the portion that they could legally use. Sampling has gained traction in modern music, especially in hip-hop, where it often forms the catchy hook of several hits.
2] Intentional Infringements: Sampling is legal, stealing is not. The most well-known instance of blatant music theft took place when rapper Vanilla Ice used the famous bassline of “Under Pressure” for his breakout hit “Ice Ice Baby”. Ice’s argument that he tweaked one note of the iconic seven-note riff fell on deaf ears, and royalties and credits were transferred to Queen and David Bowie, the original writers. Not all cases are black and white, though. Some, while obviously intentional, can escape on technicalities. World Wrestling Entertainment (WWE) composer Jim Johnston’s created the song “Self High-Five” as entrance music for wrestler Diamond Dallas Page. The number is an obvious rip-off of Nirvana’s cult classic “Smells Like Teen Spirit”. But because Johnston ingeniously inverted the chord progression and riff notes, while keeping the distinct tone of the song, it went scot-free.
3] Unintentional Infringements: All too often, musicians copy an existing track, despite being completely unaware of its existence. Grammy award-winner Sam Smith explained the use of the melody from Tom Petty’s “I Won’t Back Down” in his single “Stay With Me” was purely accidental. Smith claimed that he had never even heard the original track and Tom Petty (whose name is certainly a misnomer) graciously acknowledged that this happens in the world of music composition.
These instances, among too many others, have raised a warning sign to musicians. Forensic musicologists have seen their workload double, employed both by record labels to comb through their upcoming releases to ensure no legal action will follow, and also by aggrieved parties who want to establish a connection between their original work and some superstar’s latest offering. Although originality is essential for every musician, overlaps are bound to occur. Alas, Western music has only twelve notes or semitones, for musicians to play around with. Courts should focus on both substance and form when examining musical plagiarism, to see whether there has been substantial harm or injury.
Great music endures and inspires generations. The frontmen of top bands have seldom shied away from declaring their musical influences. As a musician myself, I can pinpoint bands and songs I draw from, for some of my original works. To find the fine line (but one that must be established) between influence and infringement, look no further than British rockers Oasis. The Gallagher brothers that led the Mancunian band have been extremely vocal about their Beatlemania obsession. Their anthem “Don’t Look Back in Anger” opens with the same pair of piano chords as John Lennon’s “Imagine”, something the Gallaghers have been quick to point out as tribute to their hero. In fact, songwriter Noel Gallagher goes a step further, alluding to Lennon with the lyrical couplet: ‘So I start a revolution from my bed, ’cause you said the brains I had went to my head’ (the first line refers to John and Yoko’s anti-Vietnam War protests; the second is a direct Lennon quote). While these influences were greeted positively, Oasis learnt that too much imitation would land them in hot water. Their single “Shakermaker” was ruled to have copied “I’d Like to Teach the World to Sing (in Perfect Harmony)”, which was originally a Coca-Cola jingle and later recorded by The New Seekers. Oasis were forced to change parts of their song and pay $500,000 in damages. Unabashed, Noel Gallagher quipped, “Now we all drink Pepsi”.
