What Constitutes Music Plagiarism in 2015? What Sam Smith Got Right and Robin Thicke Got Wrong By Kurt Dahl www.lawyerdrummer.com As the old saying goes: there is no such thing as an original thought. Everyone from Shakespeare to the Beatles to Zeppelin has been accused of stealing ideas from those that came before them. We are all influenced by the world around us, and songwriters are no exception. But where is the line drawn between being influenced by something, and plagiarizing it? The law states that anything that reflects a “minimal spark” of creativity and originality can be copyrightable, including melody, chord progression, rhythm and lyrics. In the event of a trial, the person claiming infringement must prove two things: 1) Access - that the infringer had heard, or could reasonably be presumed to have heard, the original song prior to writing their song; and 2) Substantial Similarity - that the average listener can tell that one song has been copied from the other. The more elements that the two works have in common, the more likely they are substantially similar. Plagiarism lawsuits in the music industry generate a lot of press, and seem to be more common in the digital era, where sampling, snipping and outright stealing parts of songs has never been easier. Acts from Led Zeppelin to Beyoncé to Coldplay have been accused of plagiarism. Two of the most publicized cases of music plagiarism occurred in the last year, involving Robin Thicke’s ‘Blurred Lines’ and Sam Smith’s ‘Stay With Me’. Sam Smith vs. Tom Petty In October 2014, Tom Petty’s publisher contacted Sam Smith’s publisher about similarities in melody found in the choruses of Petty’s 'I Won't Back Down' and Smith’s 'Stay With Me’. Smith and his co-writers claimed that they were not previously familiar with ‘I Won’t Back Down’, but after listening to the two songs, acknowledged the similarity. Smith commented at the time: “it was a complete accident. I am 22 years old. I've never listened to that song.” (Author’s note: I don’t care if you’re 22…my 4-year-old niece has heard the song. I’m judging you Sam Smith). Petty’s response was thoughtful and intelligent: “Let me say I have never had any hard feelings toward Sam. 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. Sam’s people were very understanding of our predicament and we easily came to an agreement. The word lawsuit was never even said and was never my intention. How it 1 got out to the press is beyond Sam or myself. A musical accident, no more, no less. In these times we live in this is hardly news.” In the end, Smith and his co-writers settled the dispute, accepting the similarities and giving Petty and co-writer Jeff Lynne writing credit on ‘Stay With Me’, along with 12.5% of the royalties from the song, which was one of the biggest singles of 2014. Robin Thicke vs. Marvin Gaye In March 2015, a Los Angeles jury awarded Marvin Gaye’s children nearly $7.4 million after determining that Robin Thicke and Pharrell Williams plagiarized Gaye’s song ‘Got to Give It Up’ to create ‘Blurred Lines’, the biggest song of 2013. The Gayes’ lawyer characterized Thicke and Williams as liars who went beyond merely being influenced by Marvin Gaye, and instead crossing the line into outright plagiarism. Williams testified that he created the music for ‘Blurred Lines’ in an hour in 2012, and that Thicke added vocals afterward. Williams told jurors that Gaye’s music was part of the soundtrack of his youth, but that he didn’t use any of this music to create ‘Blurred Lines’. An expert “musicologist” for the Gaye family (where are these jobs posted??) said there were eight distinct elements from ‘Got to Give It Up’ that were used in ‘Blurred Lines’, including melody, lyrics, bass line, and rhythm. For me, while I hear the similarities between ‘Blurred Lines’ and ‘Got to Give It Up’, they have less in common to my ear than ‘Stay With Me’ and ‘Won’t Back Down’. The melodies, chords, and bass line are all different. The feel is different. By this logic, the Beatles can sue the Gallagher brothers for every Oasis hit, the Woody Guthrie estate can sue Bob Dylan for his entire catalog, and the Bob Marley estate can sue nearly every reggae artist of the last four decades. For me, ‘Blurred Lines’ is not substantially similar to ‘Got to Give It Up’. Not enough to warrant a $7.4M decision. Where Did Thicke and Williams Go Wrong? The outcomes from the two cases could not be more different. Where did the Thicke camp go wrong? 1) Admitted access and influence. What really hurt Thicke was his own press interviews before trial, in which he admitted ‘Got to Give It Up’ was a template for ‘Blurred Lines’. His attempts to backtrack from these statements at trial hurt his credibility, and I imagine turned the jury against him. Williams also admitted that he knew the song well and was attempting to emulate its “vibe”. 2 2) Putting Thicke in front of the jury. Months before the trial, revelations of Thicke’s infidelity were all over the news, complete with the infamous photo of his hand up a stranger’s skirt. His lawyers were wrong to put him in front of a jury. If anything, I would have had only Williams testify, as he is the main songwriter (and he makes everyone Happy!). 3) Less Litigious Parties. Thick and Williams were actually the first to bring this issue to trial, filing a pre-emptive lawsuit against the Gaye family after they made comments in the press about the similarities between the songs. They started the fire, and the Gaye family was game. Both sides were far more litigious than Petty/Smith…there are reports that the children are currently fighting amongst themselves over the settlement money, and might be commencing lawsuits against each other for it. Also, the day after the decision was reached, the Gaye children suggested that they might sue Williams for this song ‘Happy’, which apparently plagiarizes the Gaye song ‘Ain’t That Peculiar’. How Will This Affect the Music Industry? There are a lot of music industry commentators suggesting that the ‘Blurred Lines’ decision will have a chilling effect on creativity in the business. I disagree. While I think the jury got it wrong, I don’t think the verdict will have catastrophic effects on the industry. First, jury verdicts have very little precedential value, and findings of actual infringement in the music business tend to be rare and fact specific. This is because there must be evidence that the infringer had heard the song in question; otherwise any similarities would be coincidence. In other words, courts accept the fact that two songs can be composed in isolation of each other, and yet be substantially similar. Second, creative people will continue to create, as always. One doesn’t stop being a creative person because of a court decision. Third, the only cases that will get anywhere near a courtroom are those that have lot of money at stake. There will continue to be “musical accidents” to use Tom Petty’s words, and there will be those that intentionally lift parts from existing songs. But it will only become an issue if the song hits. ‘Blurred Lines’ and ‘Stay With Me’ are two of the biggest songs of the last five years. If they were mere album cuts that got no radio, this story would hardly be news. In the ‘Blurred Lines’ case, there was plenty of money involved. Evidence presented at trial showed that the song had generated around $17M since its release. ‘Stay With Me’ is likely in the same range. If an independent artist plagiarizes a song and sells a few hundred singles, nobody will notice. It’s only when that song becomes a worldwide hit that the original writer (or more likely, their lawyer) becomes interested. 3 As Isaac Newton famously said: “If I have seen a little further, it is by standing on the shoulder of giants”. As they have done since music was first created, musicians will keep drawing from their influences and continue standing on the shoulders of giants. Once in a while, the giants will sue. 4 .