Ariel Baise June 28, 2019 MC 3080 Dr. Joshua Grimm Copyright

Ariel Baise

June 28, 2019

MC 3080

Dr. Joshua Grimm

Over the few past years, musicians, record labels and music publishers have taken a stand against the use of their music without their consent. Lawsuits are popping up in entertainment headlines involving some of the biggest names in the music industry. Artists are taking their songs off streaming services. YouTube is now known for its copyright strikes, where a five- second audio clip of a song can result in a video being taken down. This is all a result of copyright infringement claims. Copyright protects a piece of work from being used without the creator’s consent and allows an artist to monetize their work to make a living. Yet, copyright does not protect ideas, facts, methods of operation or systems, and it also does not protect musical chords or progressions, song titles, band names or slogans. Copyright defends the audio recording of a song, the music sheet, and lyrics.

Copyright provides many advantages for musicians. The immediate moment a musician writes a lyric down for a song, he or she has common law copyright, but musicians can register their work with the U.S. Copyright Office to guarantee legal protection. Copyright provides the owner the right to reproduce their music, such as making CDs, distributing their work, like using a streaming service, compose derivative songs, such as translating the lyrics of a song in another

language and perform their work, such as in concert. Registration for a copyright with the U.S.

Proving copyright infringement with musical compositions to a jury or judge is difficult, especially cases outside of the usual unauthorized use of a song. Copyright infringement is the

“exclusive rights of copyright are exploited without a copyright’s permission” (Justia, 2019).

Most copyright infringement lawsuits end with parties settling outside of court before an announced court date. For example, the lawsuit prompted by songwriter, Tom Petty’s legal team and label against Sam Smith for his Grammy-nominated single, “Stay With Me,” which shared a similar chorus with Petty’s 1989 song, “I Won’t Back Down.” Rolling Stone reported in June

2018 that Smith agreed to “give co-writing credit…to Tom Petty.” Petty gave a state to Rolling

Stone, saying, “All my years of songwriting have shown me that these things can happen...A musical accident no more no less. In these times we live in this is hardly news.” Petty understands how complicated it is to prove that another musician copied his work. There are only seven notes and 36 scales in Western music and so many ways a composer can arrange chords.

Yet, this has not stopped copyright infringement cases from happening.

Copyright infringement still applies to lyrics and distribution of the song. These two claims that will most likely result in the case going in the plaintiff’s favor, if they can prove: if he or she owns the infringed copyrighted work and that the defendant copied their work. The case of George Harrison, a former member of the Beatles at the time of the case, and The Chiffons, a popular girl group during the ‘60s involved their songs, “My Sweet Lord” v. “He’s So Fine,” respectively. The Chiffons’ songwriter, Ronald Mack, noticed similarities between the songs. In

1971, Bright Tunes sued Harrison for copyright infringement. Throughout the following years, negotiations between the plaintiff and defendant continued. Harrison’s manager offered to buy

out the whole collection of Bright Tunes Music Corporation to prevent the case and bad press.

The music publisher declined the offer. In 1976, Judge Owen ruled in favor of the plaintiff,

Bright Tunes Music Corporation, ruling that “Harrison subconsciously plagiarized” (Justia,

1991). Harrison said that he didn’t even know the song and used the melody off of “Oh Happy

Day,” a public domain gospel song. The judge still ruled that he still took foundational parts of

“He’s So Fine” and used included them in his song. In 1981, the district court decided that

Harrison’s damages would be a payment of approximately $1.5 million. The amount to pay decreased after a few years because Harrison’s former manager purchased Bright Tunes after a few decades. This case displayed that copyright infringement extends over to the melodic arrangement of songs can serve as evidence for cases.

Copyright infringement sometimes backfires when musicians leave their record labels and sign to another. Most songs are written with other songwriters aside from the performer or singer and are controlled by a music publisher or label when the songwriter or performer signs a contract. Once a musician leaves their record label, they can lose the ownership of their songs. In the case of John C. Fogerty v. Fantasy, Inc. sued their former musician, John Fogerty, for his chart-topping song, “The Old Man Down the Road” for being too similar to “Run Through the

Jungle.” Fogerty penned “Run Through the Jungle” in 1970 when he was the lead singer and guitarist of Creedence Clearwater Revival, a band on Fantasy’s Inc. He went solo after the group’s breakup in ’72. To prove his defense, Fogerty brought his guitar to district court to play the two different compositions. The judge ruled in favor and rejected the charge of copyright infringement. However, the copyright lawsuit did not cover all of his attorney fees at the time. In

1994, Fogerty sued Fantasy Inc. for his attorney fees at the Supreme Court, who ruled in favor of

Fogerty again. This case highlighted how record labels can sue an artist after departing from their

company and sue them for creating similar music to what they own and how attorney fees management in copyright cases.

When rap first emerged out of the inner cities in the late 1980s, sampling brought confusion to legal teams. MCs and rappers used selections of songs in their recordings along with a new composition without the permissions of the original songwriters. “Since the techniques created digital copies of source material, copyright holders could argue that unauthorized sampling violated their intellectual property. Those doing the sampling could argue they were repurposing fragments of recorded music to create something entirely new.” (Wang,

2013). Rappers were re-creating songs by copying and pasting portions of older songs. It wasn’t until the case of Grand Upright Music v. Warner Bros. Records that sampling became less common and more like it is today. Irish-English singer-songwriter, Gilbert O’Sullivan along with his record label, Grand Upright Music brought rapper, Biz Markie, whose birth name is Marcel

Hall, and his record label, Warner Bros. Records Inc., to court for copyright infringement. Hall used O’Sullivan’s “Alone Again” as a sample on his album, “I Need a Haircut.” To gain permission for sampling, “Warner Bros. Records, Inc. had a department set up specifically to obtain such clearance” (Grand Upright Music v. Warner Bros. Records Inc., 1991). Hall’s legal team knew that O’Sullivan declined to have his songs sampled, yet Hall resumed with using the song, ending in copyright infringement. The verdict resulted in Hall paying 250k in damages and his album being prohibited to sell. Due to this case, several record labels now hired employees to ensure that samples gain clearance, and now more than ever, more rap songs remain as unreleased because of not obtaining clearance for sampling. Sampling without the consent of the original composer, writer, and/or performer is violating the protection that copyright guarantees.

Due to this issue, sampling laws are now some of the strictest in the music industry.

Similar to sampling, gaining inspiration from another song can result in copyright infringement. One of the most infamous copyright infringement cases from the past fifty years is

Williams v. Gaye. The song, “Blurred Lines” played on every radio station during the year of

2013, becoming the best-selling single of that year. The family of the late Motown singer,

Marvin Gaye filed a lawsuit against Robin Thicke’s “Blurred Lines” for copyright infringement for the song “Got to Give It Up.” The Gaye family also took producer and writer, Pharrell

Williams, rapper, Clifford Harris Jr., professionally known as T.I. and the record label, Universal

Records to court. Williams and Thicke testified that they had inspiration from Gaye’s “Got To

Give It Up.” Both parties bought musicologists as their experts to explain why and how the two songs were different and similar in melody, harmony and rhythm. The plaintiff’s tried to use the original sheet music as evidence, but the district court ruled that the Copyright Act of 1909 did not extend to the commercial sound recording of “Got To Give It Up” and only protected the sheet music deposited with the Copyright Office” (Williams v. Gaye, 2018). The Copyright Act of 1909 protects the sheet music for 95 years after the published date. The ending verdict awarded the Gaye family $4 million for damages, $1.6 from infringement charges from Williams and $1.7 million in infringer’s profits. The jury ruled that Harris and Interscope were not liable for infringement. This case had a chilling effect through the music industry by making composers recalculate how their inspiration can turn out to infringe on the same songs they adore.

Another lawsuit from the Gaye estate is Townsend v. Sheeran. The estate of famous co- writer, Ed Townsend of “Let’s Get It On,” and partial owner of the song, Structured Asset Sales

LLC. filed a copyright infringement against British songwriter and biggest streaming artists of all time, Ed Sheeran for $100 million. The lawsuit includes detailed explanations of music theory

related to the similarities of “Let’s Get it On” and “Thinking Out Loud.” District Judge Louis

Stanton was unsure if the rhythm and melodies of “Let’s Get it On” are original enough to copyright. Since rhythm, chord progressions and melodies are broad, abstract ideas, no one can copyright them, however, the plaintiffs can prove that Sheeran copied “Let’s Get It On.” Stanton cited a video clip of Sheeran performed a melody of both songs on his Divide World Tour. For

Sheeran to win the case, he must prove that the work was independently created and innocently created without any intent to infringe.

Copyright infringement today is catching up to streaming services. Copyright protects artists’ work and gives them the right to distribute their music. Spotify gained a reputation for taking songs and placing them on their platform without the music publishers or musician’s consent. Spotify also failed to pay smaller, indie artists due to those artists not having access to a large legal team. In 2017, Wixen Music Publishing filed a lawsuit against the streaming giant for using thousands of their songs without proper licensing for $1.6 billion. The songs owned and licensed under Wixen Publishing gained over a billion streams and downloads on Spotify.

“Wixen is entitled to the maximum amount of statutory damages for copyright infringement,

$150k per composition for each 10,784 musical composition, an award of at least $1.6 billion and also Wixen’s attorney’s fees” (Wixen Music Publishing, Inc., v. Spotify USA Inc., 2017).

Spotify needed a license directly from Wixen, but instead that went with a third party, Harry Fox

Agency to obtain the license. The company failed to acquire the licenses because of wanting to be the first on the market to have those songs to stream and failed to comply with the requirements of Section 115 of the Copyright Act. Due to the irresponsibility of streaming services like Spotify, Congress has passed the Music Modernization Act. The act passed in 2018 aimed to protect copyright issues with streaming services.

Copyright infringement is a complex protection that is beneficial to all artists. It is a shield that protects musicians’ work and allows them to profit off their creativity. Outside of the unauthorized use of songs and blatant copying, copyright infringement is difficult to prove in a court case. Its complexity aids musicians to secure their work. On the other hand, it can backfire when record labels are money hungry and see the business aspect of artistry. As many musicians say, there are so many chords and notes in our musical system and some songs are bound to sound alike. However, sampling and using songs without the permission of an artist or songwriter is equivalent to stealing. What many people do not realize is that, even though music is not as tangible as a painting, it is still capable to be stolen. With the advancement of technology, record labels are cracking down on copyright claims, especially on websites like

YouTube. In the future, copyright infringement lawsuits will come because of how easy it is to find a song online and use it. This issue will affect my profession because my goal is to work within the communications or creative departments of record labels, music stream services or music publishers. Music is an important aspect of life because it allows us to express ourselves.

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