Over the past couple of years, there has been a slew of widely publicised allegations accusing artists of plagiarising the songs of third parties. For example, singer-songwriter Olivia Rodrigo retroactively added Hayley Williams and Josh Farro to the credits of the song ‘Good 4 U’ after accusations of plagiarising Paramore’s ‘Misery Business’,[1] while the singer Dua Lipa has faced two separate lawsuits on copyright infringement for her song ‘Levitating’.’[2] In light of this spike in music plagiarism allegations and the disputes arising thereof, it is about time that we scrutinise and purport to gain a better understanding of what is ‘music plagiarism’, and whether the current law needs reforming.
Reviewing the tests
Given that the most talked-about music plagiarism cases take place in the United States and the United Kingdom, it would be useful to look at the tests employed by courts in both countries. In the United States, the case of Williams et al. v Gaye et al. (‘Williams’),[3] more commonly known as the ‘Blurred Lines’ case, summarises the test. The claimant must first show that they own the copyright of the infringed work and that the defendant copied protected elements of the copyrighted work.[4] The term ‘protected elements’ refers to elements protected by the Copyright Act of 1976.[5] For example, there are only twelve notes in a musical octave, such that an individual note, or even a chord, is not protected.[6] However, a combination of unprotected elements, if unique or original enough, could be protected under the Copyright Act.[7] For instance, the D major chord is unprotected, but the melody to ‘Mamma Mia’ by ABBA is. Accordingly, two elements would have to be proved:
1. that the defendant had access to the allegedly infringed work, and
2. that the infringing work is ‘substantially similar’ to the claimant’s work.[8]
Since music is a medium of broad expression, entire musical compositions should be afforded with broad copyright protection, while mere reproduction snippets might require the reproduction to be ‘virtually identical’.[9] Substantial similarity is then determined via a two-stage test, known as the ‘extrinsic test’ and the ‘intrinsic test’. The former requires an analytical dissection of the work, often relying on expert testimony accepted by the trial judge, while the latter requires the jury to find whether the ‘total concept and feel’ of the works are substantially similar. [10]
At first glance, the test in the UK is glaringly similar to the US test. Sheeran and others v Chokri and others (‘Sheeran’)[11] is a recent illustration of the UK test. Copyright infringement is found under the Copyright, Design and Patent Act of 1988, which requires either full or substantial reproduction of the protected work to qualify as copyright infringement.[12] UK courts require proof of the defendant’s access to the allegedly copied work and substantial objective similarity between the two works.[13] The court would undertake a visual comparison of the two works, and would also aurally examine the music as an ordinary reasonably experienced listener.[14] Sheeran reaffirmed that ‘sounds will be more important than the notes in music’.[15] This term has been coined the ‘by the ear as well as by the eye’ approach.[16]
While the tests in both the UK and the US are similar in their two-fold approach in discerning substantial similarity, they differ in application. Notably, copyright infringement cases are decided by a judge in the UK, while they are ultimately decided by a jury in the US.[17] On paper, having a jury to decide on whether infringement exists might incorporate ‘common sense’ into the decision. However, layman jury members might find it harder to compartmentalise prior knowledge of the litigated music. In high-profile cases like Williams and Gray v Perry (the ‘Dark Horse’ case involving Katy Perry) that involved widely disseminated music, it is almost certain that members of the jury would have heard of one or both songs prior to the trial.[18]
Despite possible court orders barring the broadcast of the songs in court, as in Williams, jury members might have preconceived opinions about the similarity of the songs, which could cloud their judgment in the decision process. One might thus argue that judges, who are constantly required to put their personal views aside during a trial, might be more impartial, although this is hardly guaranteed.
By considering the two tests, the US test might be relatively less effective and fair. Williams is nowadays infamous for its alleged effect of allowing the mood or groove of a song to be plagiarised. While the appeal judges have stated that this was not their intention,[19] the judgment has led to increasing confusion about what constitutes music plagiarism. A problem with the vague ‘concept and feel’ test is that songs of the same genre often have the same feel. It has been suggested that folk, blues, and jazz music often borrow or pay homage to other songs of the same genre, such that ‘notions of originality and authorship are often hard to define’.[20] The intrinsic test offers no clarification.
Since all music is ostensibly inspired by other music, where is the line drawn between inspiration and infringement? The intrinsic test in the US approach, arguably, complicates that question as it seeks to find substantial similarity by obtaining the general impression of the works rather than doing a close reading.[21] While this might be another attempt to ensure ‘common sense’ in the decision, the words ‘concept’ and ‘feel’ are ambiguous and essentially subjective elements that vary from person to person. Although the UK test requires a causal connection between the two works, its ‘by the ear and by the eye’ approach requires judges to note down the similarities and differences between the two works through both visual and aural examinations.[22] The UK test represents a compromise between expert and common-sense analysis,[23] offering a comparatively methodical approach by shying away from words like ‘concept’ and ‘feel’ in finding substantial similarity.
On that note, one may ask what is ‘substantial similarity’ anyway? Both the US and UK tests are defined by ‘substantial similarity’, but the term itself is also ambiguous. In the UK, substantiality has been characterised as qualitative instead of quantitative.[24] If there has been a reproduction of sufficient original musical/artistic skill or labour, it is classified as substantial similarity.[25] In the US, the standard is also qualitative, with independent creation and some degree of creativity negating substantial similarity.[26] The issue with the term ‘substantial similarity’, is that it is nonetheless a very difficult term to pin down. Every judge, expert, or jury member, all have different perceptions of what is meant by a ‘substantial’ reproduction, as these ingrained perceptions are, no doubt, influenced by their upbringings, education and more. Therefore, there is still great uncertainty regarding the test.
But, is it possible to have a different term in place? Creative expression in music is a subjective and personal experience. The interpretative variety of music is what draws many to enjoy and mull over it. Hence, the interpretation of substantial similarity and, by extension, music plagiarism, might be inherently subjective and uncertain. If tests become mechanical and lack room for interpretation, copyright infringement cases might be detached from the practical reality of writing and listening to music. Although it is inevitable that music plagiarism tests would retain interpretative qualities, the US and UK tests must still be as clear as possible, to ensure that possible litigants know where they stand.
Possible future development
Given the problems of both the US and UK tests, where do we go from here? The most pressing issue lies with the US test. The judgment in Williams, however well-intended, has caused a chilling effect on songwriters, and a rise in musical plagiarism allegations.[27] Terms like the ‘total concept and feel’ must be either clarified or eradicated in the interest of certainty, while the test should be as impartial as possible.
It has been suggested by the songwriter Burt Bacharach that an expert panel should be established to deal with music plagiarism.[28] This would overhaul plagiarism proceedings, but it is not a new concept, as the Music Publishers Association attempted to start a Sampling Disputes Panel,[29] but, currently, the panel seems to be either inactive or non-existent.[30]
As stated by the dissenting judge Nguyen in the Williams appeal, copyright infringement is a legal question, so a judge should be the person to decide if there is infringement.[31] By deferring judgments solely for experts, the resulting decisions might be overtly technical or difficult for laypersons to understand. Even if a panel is established, it should nonetheless be chaired by a judge and include laypersons to ensure that the decisions are common-sensical. The inclusion of legal personnel, music experts and laypersons alike marries fairness, expertise and common sense.
Concluding thoughts
Defining music plagiarism is more challenging than other art forms, as musical notes are constrained by the twelve-note octave. Thus, it is paramount that songwriters are given the utmost protection for their creative expression while safeguarding them from possible infringement. It remains to be seen how courts could strike this balance between the protection of creativity against plagiarism. The line between homage and infringement might be also difficult to draw, yet the UK and US tests do not offer any clear guidance. Although the UK test seems to be clearer, both tests have plenty of room for improvement in ensuring that songwriters feel comfortable carving out their own space in the music industry.
Endnotes
[1] Jem Aswad, ‘Olivia Rodrigo Adds Paramore to Songwriting Credits on ‘Good 4 U’’ (Variety, August 25 2021) accessed 6 November 2022.
[2] Kathryn Mannie, ‘Dua Lipa faces 2nd copyright lawsuit over song ‘Levitating’’ (Global News, March 9 2022) accessed 6 November 2022.
[3] No. 15-56880 (9th Cir. July 11th, 2018).
[4] Ibid, 17, citing Swirsky v Carey 376 F.3d 841 (9th Cir. 2004).
[5] 17 U.S. Code § 102.
[6] Williams (n3), 18, citing Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir. 2002).
[7] Williams (n3), 18-9.
[8] Ibid, 17.
[9] Gray et al. v Perry et al. (‘Gray v Perry’) 2020 WL 1275221 (C.D. Cal. March 16, 2020).
[10] Williams (n3) 17-8.
[11] [2022] EWHC 827
[12] Copyright, Design and Patent Act 1988, s 16(3)(a).
[13] Sheeran (n10) [22]-[25].
[14] Ibid [22]-[23].
[15] Ibid [23].
[16] Francis Day & Hunter Ltd and another v Bron (trading as Delmar Publishing Co.) and another [1963] 2 All E.R. 16, 18.
[17] Ben Challis, ‘More ‘Blurred Lines’ when it comes to writing songs?’ [2015] 10(8) Journal of Intellectual Property Law & Practice 586-588.
[18] James Eastman, ‘Paying the piper: the anatomy of a 9th Circuit music copyright infringement lawsuit’ [2017] 36(1) The Review of Litigation 219, 242.
[19] Williams (n3), 57.
[20] Challis (n15), 588.
[21] Iyar Stav, ‘Musical Plagiarism: A True Challenge to Copyright Law’ [2014] 25(1) DePaul Journal of Art, Technology & Intellectual Property Law 1, 17.
[22] Sheeran (n10) [22].
[23] Stav (n19), 48.
[24] Sheeran (n10) [21].
[25] Newspaper Licensing Agency Ltd v Marks & Spencer plc [2001] UHKL 38 [20].
[26] Stav (n19), 14.
[27] Randall Roberts, ‘How the ‘Blurred Lines’ case could have chilling effect on creativity’ (Los Angeles Times, March 6 2015) accessed 4 November 2022.
[28] ‘Burt Bacharach calls for change in music plagiarism law’ (BBC News, 3 August 2017) accessed 30 October 2022.
[29] Laura Trapnell & Louis Iveson ‘Whose line is it anyway?’ (New Law Journal, 15 July 2022) accessed 27 October 2022.
[30] Information about the Panel itself is scarce, suggesting that its influence on sampling disputes is limited. The Panel is also not listed on the Music Publishers Association’s Website.
[31] Williams (n3), 83.