With several high profile copyright lawsuits hitting the headlines, we examine how copyright infringement works.

Accusations of plagiarism have been around for as long as recorded music itself, but with Led Zeppelin’s ‘Stairway to Heaven’ trial recently, Robin Thicke & Pharrell Williams’ ‘Blurred Lines’ trial last year, and Justin Bieber’s ‘Sorry’ trial potentially coming up, it seems copyright lawsuits are fast becoming a staple of the music business. But how do they work, and are they effective?

What is plagiarism?

Plagiarism is when one composer steals from another without attributing them. It is normally assumed that the plagiarising musician steals knowingly, with malicious intent. They hear a song they like, they copy it, they profit. In cases when the plagiarised song becomes a hit, the plagiarised artist loses out on millions they could have made had they been properly credited.

But one of the first high profile copyright infringement cases challenged this perception. In 1971, New York publishers Bright Tunes Music filed a lawsuit against George Harrison over the similarities between his song ‘My Sweet Lord’, which was currently at the top of the charts, and the Chiffons’ 1963 number 1 ‘He’s So Fine’, for which Bright Tunes owned the copyright.

Played concurrently in the above video, the similarities between the two tracks are glaringly obvious. Nonetheless, Harrison insisted that the plagiarism was not intentional. After a lengthy trial in 1976, he was found guilty of ‘subconscious plagiarism’ and ordered to pay $1,599,987 to Bright Tunes. The judge, jury and public in general believed Harrison when he said he only accidentally plagiarised ‘He’s So Fine’, but that didn’t matter.

This makes the crime of ‘copyright infringement’ more complex. If you can plagiarise accidentally or subconsciously, the process of trial and examination in a copyright case becomes more complicated.

How do copyright infringement trials work?

As we have seen in the recent ‘Stairway to Heaven’ case, copyright trials often feature lawyers on both sides playing songs and presenting sheet music to a jury. It is also common for both sides to call a musicologist to the stand to discuss the perceived similarities between the two songs.

In the Led Zeppelin trial’s case, the defence played classic tunes like ‘Chim Chim Cher-ee’ to show that the chord sequence from ‘Stairway to Heaven’ has been around for decades, and is not unique to the Spirit song ‘Taurus’ that Zeppelin were accused of plagiarising.

Similarly, in last year’s ‘Blurred Lines’ case, Robin Thicke played a medley of several songs that share a chord sequence to demonstrate that songs can sound similar without infringing copyright.

As the differing outcomes of these trials show, this approach does not always work. But it does prove a point. Legally, (in the USA, where most of these cases take place) a song only infringes copyright if it is ‘sufficiently similar’ to the sheet music submitted to the copyright office. The sheet music for Marvin Gaye’s ‘Got To Give It Up’ and Robin Thicke’s ‘Blurred Lines’ are in fact very different. That didn’t stop a jury from finding Thicke and Pharrell guilty, or a judge from fining them $7.4 million.

Since sheet music is the only way to objectively judge the similarity of pieces of music, it stands that the legal definition of plagiarism is reasonable. But the jury in the ‘Blurred Lines’ case didn’t just ignore the facts. Anyone can tell that the song does sound very similar to ‘Got To Give It Up’, it’s just that all the similarity is in rhythm, percussion and ‘feel’. It is highly likely that Pharrell was paying tribute to Marvin Gaye when he wrote ‘Blurred Lines’, but does that mean he should have given Gaye a songwriting credit?

Do copyright suits help songwriters?

The fact that a song can count as plagiarism based on ‘feel’ is worrying. Especially considering how difficult it would be to write a song that is devoid of any obvious influences.

Soon after the ‘Blurred Lines’ trial, some artists became worried to take full credit for writing their songs. Bruno Mars and Mark Ronson’s ‘Uptown Funk’ is a loving tribute to an entire genre, but they added The Gap Band to the songwriting credits after the ‘Blurred Lines’ verdict, presumably to avoid any potential lawsuit. Beyonce’s LEMONADE credits dozens of songwriters on any track that may sound like another. She even credits all four members of Led Zeppelin on ‘Don’t Hurt Yourself’, apparently because Jack White’s drum beat sounds like the beat from ‘When the Levee Breaks’, even though the two are probably not ‘sufficiently similar’.

While no one should get away with plagiarism, even ‘subconscious plagiarism’, the system definitely needs to find a way to protect songwriters without discouraging them from displaying their influences.

Header image is ‘Sheet Music’ by Marie Janssen via Flickr under CC 2.0.