Same Old Song and Dance

Photo by Nick Thompson (Flickr)

This article is the second in a three-part series on copyright infringement issues in the music industry. You can read Part One here.

Millions of songs have been written, recorded, and released to the listening public.  Of those millions of melodies, harmonies, and lyrics, some are bound to be repeated, whether intentionally or not.  At what point does that repetition become copyright infringement or plagiarism?  Courts have struggled to set a standard that determines when the line is crossed.

In Three Boys Music Corp. v. Bolton, singer/songwriter Michael Bolton was sued for copyright infringement.  The plaintiff, rhythm and blues group The Isley Brothers, alleged that Bolton’s 1991 song “Love is a Wonderful Thing” copied their song of the same title.  The Isley Brothers had copyrighted their version of the song in 1964.

The case originally went before a jury, with a verdict for the plaintiffs.  On appeal, the U.S. Court of Appeals for the Ninth Circuit noted that copyright infringement is “largely circumstantial.”  The plaintiff must prove that a copyright existed for the original work, and that the contested work copied elements of the original song.

In addition, the court discussed the concept of “subconscious copying.”  Subconscious copying implies that an artist did not intentionally copy a song, but rather did so subconsciously, much like Pharell Williams claimed to do when writing “Blurred Lines.”  Even if the artist was found to have copied the material subconsciously, the court could still find that the artist was liable for copyright infringement.

At trial the jury also looked at the “substantial similarity” test, analyzing the extrinsic and intrinsic elements of both songs.  This test often involves bringing in music experts to testify.  In Bolton’s case, an expert testified that the two songs had five different elements that were similar.  Ultimately, the appellate court affirmed the jury’s decision.  The substantial similarity test has since been used in multiple copyright infringement cases since.

If an artist does want to use a portion of a previously copyrighted song, he or she may do so through the proper legal channels by sampling.  When an artist plans on using a segment of copyrighted music in his own commercial production, he must obtain sample clearance.  Generally, the cost of this clearance can range from $250 to $10,000.  Artists who do not seek permission from the original artist or copyright holder open themselves up to the possibility of litigation.  Sample clearance does not apply to fair use.  If the artist intends to use the portion only for education purposes or in a live show, the fair use doctrine applies.

Pharell Williams and Robin Thicke may have possibly avoided a lawsuit with the Gayes had they contacted them about their intentions to create a song similar to “Got to Give It Up.”  However, the Gayes argued the “Blurred Lines” copied the whole feel of their father’s song, rather than just a sample of it.  Regardless, the entire music industry has been shaken by the verdict.  Some feel that the decision will stifle artists’ creativity and hold them back from creating new music.