Walking the Line: Copyright Infringement in Music

By Dan Spinelli

Dan Spinelli is a freshman at the University of Pennsylvania studying Philosophy, Politics, and Economics (PPE).

In November 1970, former Beatle George Harrison released his first solo single, "My Sweet Lord" in the United States. Upon release, the song made waves on international charts and held the No. 1 spot on the U.S. Billboard Hot 100 list for four weeks. Not even John Lennon’s legendary song “Imagine” can claim that distinction. By 2010 – nine years after Harrison’s death – the song had sold over 10 million copies.

However, with incredible popularity comes enhanced scrutiny, as Harrison duly learned. On February 10, 1971, Bright Tunes Music Corp. filed a lawsuit against Harrison and his international record distributors. Bright Tunes claimed that “My Sweet Lord” plagiarized the 1962 song, “He’s So Fine” by the all-girl band the Chiffons. Bright Tunes demanded 75 percent of the royalties and wanted Harrison to surrender officially the copyright for “My Sweet Lord.” After a protracted legal battle, the judge ruled that the two songs were essentially the same, with only miniscule differences in melody. Despite the judge’s affirmation that the songs were decidedly similar, he maintained that Harrison did not intentionally pillaged the song. In stunning legalese, typical of musical plagiarism cases, the judge found Harrison guilty of “subconsciously plagiarizing” the Chiffons’ song. Harrison kept the copyright to his song, but had to cough up $1,599,987 to compensate Bright Tunes. [1]

Harrison’s legal failure brought attention to an area of law little understood in the 1970s, and that is defined even less clearly now. Copyright infringement of music essentially abides by the same standard put forth by Supreme Court Justice Potter Stewart with regards to obscenity: “I know it when I see it.” [2] While I understate the complexity of the issue, discerning between plagiarism and similarity is ultimately up to the judge’s discretion. Moreover, ill-defined exceptions, such as fair use, further complicate copyright law. Section 107 of the U.S. Copyright Act of 1976 “defines fair use as reproduction ‘for purposes such as criticism, comment, news reporting, scholarship, or research.’” [3] Common applications of the fair use exception include music journalism, where a writer can excerpt a few lyrics for analysis. Also, after the Supreme Court ruling in the 1994 case of Campbell v. Acuff-Rose Music, “parody” qualifies as fair use in some circumstances. [4] The Court additionally ruled that a work’s profit-motive does not exclude it from the fair use exception, meaning that the success of a performer’s parody does not immediately disqualify it from being fair use. The Court went to great lengths to clarify that not all unauthorized covers could claim their song as a parody to escape copyright infringement lawsuits. Parody has to use “some elements of a prior author's composition to create a new one that, at least in part, comments on that [prior] author's works.” [5]

 

Despite a wealth of legal analysis on the issue, the outcomes of copyright infringement cases have not grown more predictable. Often, the most successful records are targeted for their alleged similarities to previous, lesser-known works. Like Harrison’s hit, Coldplay’s 2008 song “Viva la Vida” reached the top spot on Billboard’s Hot 100 chart. In addition, it earned the 2009 Grammy Award for Song of the Year. In the wake of the song’s success, three different artists accused Coldplay of plagiarizing their songs. The alternative rock band Creaky Boards, guitarist Joe Satriani, and singer Yusuf Islam all claimed that “Viva la Vida” borrowed from their works. Satriani eventually pursued a lawsuit against Coldplay in a California district court, alleging that Coldplay’s distinctive melody was borrowed from his guitar riff in “If I Could Fly.” The case was settled out-of-court, with reports alleging that Coldplay paid off Satriani. [7]

 

More recently, British crooner Sam Smith was sued over his 2015 Grammy Award-winning single, “Stay With Me,” by American rocker Tom Petty. Petty alleged distinct similarities between his song, “I Won’t Back Down,” and Smith’s tune. Not only did Petty win the lawsuit, earning a settlement from Smith, but he and Jeff Lynne, the cowriter on Petty’s song, were also given songwriting credits on “Stay with me.” [8] However, Sam Smith’s admission to inadvertent plagiarism hardly dented critical appreciation of his song. As evidenced by these contemporary cases, the disparity between criticism of musical plagiarism and literary plagiarism is still stunning due mostly to the vague nature of what constitutes musical plagiarism. Clearer answers, for now, must wait.

 

[1] DeMain, Bill. "George Harrison's "My Sweet Lord" Copyright Case." Performing Songwriter Ent LLC. Performing Songwriter, 10 Feb. 2014. Web. 01 Mar. 2015. http://performingsongwriter.com/george-harrison-my-sweet-lord/.
[2] Jacobellis v. Ohio, 378 U.S. 184 (1964).
[3] Carter, Robert R., Jr. "SONGRIGHTS : Legal Aspects of Songwriting." SONGRIGHTS: Legal Aspects of Songwriting. SongRights.com, n.d. Web. 02 Mar. 2015. http://www.songrights.com/infringe.htm.
[4] Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).
[5] Ibid.
[6] Michaels, Sean. "Coldplay Plagiarism Lawsuit Dismissed by Judge." The Guardian. Guardian News and Media, 16 Sept. 2009. Web. 2 Mar. 2015. <http%3A%2F%2Fwww.theguardian.com%2Fmusic%2F2009%2Fsep%2F16%2Fcoldplay-joe-satriani-lawsuit-dismissed>.
[7] Kreps, Daniel. "Sam Smith on Tom Petty Settlement: 'Similarities' But 'Complete Coincidence'" Rolling Stone. Rolling Stone, 26 Jan. 2015. Web. 02 Mar. 2015. http://www.rollingstone.com/music/news/sam-smith--tom-petty-settlement-20150126.
Photo credit: Flickr user wfuv