At the heart of any work of art is the source of inspiration that sparked its genesis. Musical expression is particularly unique in that it cannot be linked to definitions—like words on a page—instead it is rather ambiguous and open to interpretation. Additionally, music has the ability to be expressed in a multitude of ways, such as through lyrics, melody, use of instruments, and digital enhancements. Due to the inherent subjectivity of musical expression, even when two artists are inspired by the same source, the resulting works tend to convey completely unique creations. For example, although British-model Pattie Boyd was the muse behind both George Harrison’s “I Need You” and Eric Clapton’s “Layla,” the two songs can hardly be said to have any readily cognizable similarity in sound or content. Similarities are easier identified after the inspiration is revealed.
Yet, an artist’s inspiration for his or her music is more susceptible to legal ramifications when their source is other music. This is due in part by the greater chance that an artist will appropriate or copy elements of another’s work into his or her own. The Copyright Act purports to protect expressions of ideas, but not the ideas themselves. Moreover, derivative works—that is, works based on already existing material, can be protected when they result in independent and meaningful expressions. Thus, there are certain foundational “building blocks” of genres and styles that remain uncopyrightable. Artists are free to manipulate these basic musical elements to cultivate and present their creative expression.
Despite the primary aim of the Copyright Act, which is to protect an artist’s creative expression from being stolen or plagiarized, several prominent musicians have found themselves at ends with the law. In these cases, authors have accused other musicians of borrowing too much of their material. In one sense, the defendants have moved beyond imitation, which is seen as a form of flattery, and into the realm of appropriation. Among those artists that have been accused of copyright infringement include George Harrison (for a song other than “I Need You”), Vanilla Ice, Robin Thicke, and most recently, Led Zeppelin. So the question is: when do musical similarities between two works of art become copyright infringement? According to the law, only when one musician has copied a quantitatively or qualitatively substantial amount of copyright-protected material from another.
Modern copyright law in the context of musical expression protects not only sheet music, which includes only the melody and lyrics, but the sound recordings of that music as well.
It is no secret that Robin Thicke and Pharrell Williams were inspired by Marvin Gaye’s “Got To Give It Up” when creating their controversial hit, “Blurred Lines.” In an interview with GQ, Thicke even admitted that Gaye’s 1977 hit was one of his “favorite songs of all time” and that he wanted to make “something with that groove.” Pharrell also stated that Marvin Gaye was an idol of his and that he wanted to evoke that era in his music. Indeed, the inspiration was laid on Thicke and the similarities in sound and feel between the two songs are striking to say the least. Yet, the ground for litigation was not for a stolen “groove,” but rather for the components of the actual sheet music itself.
Modern copyright law in the context of musical expression protects not only sheet music, which includes only the melody and lyrics, but the sound recordings of that music as well. This legal evolution was due to the advancement of technology and the digitalization of music. However, Section 114 of the Copyright Act has reigned in the scope of that protection by applying it only to the actual digital recording. Thus, a sound recording copyright cannot prevent another artist from recording the same music or imitating that performance. Infringement only occurs when that other artist duplicates the actual sounds fixed in the recording.
An important factual element in this case was that Gaye did not obtain a copyright for his recording of “Got To Give It Up”, which would have protected many of the sonic and performative elements that make up the “groove” and “feel” of the song. Thus, any evidence based on these similarities was inadmissible in court. Instead, Gaye only obtained a copyright of the actual sheet music, and thus any claim of infringement had to be based on either stolen lyrics or melody. As a result, the Gaye estate focused its argument around an analysis of the structural breakdown of this “groove” to its foundational elements—namely a certain sequence of notes and tunes, which were protected by Gaye’s copyright.
So if imitation and similar sound are unprotected material…how did the $7.4 million judgment in favor of the Gaye estate come about?
So if imitation and similar sound are unprotected material, and “Blurred Lines” only has the same “feel” as “Got To Give It Up,” how did the $7.4 million judgment in favor of the Gaye estate come about? One possible answer is the analysis employed by the Ninth Circuit where the case was tried. Under Ninth Circuit law, the ultimate determination is called the “intrinsic” test, where jurors are asked whether “the ordinary, reasonable listener would conclude that the total concept and feel” of the works in question is “substantially similar.” One problem with the “intrinsic” test is that it is very difficult to compare “total concept and feel” without erroneously taking into account other unprotected elements, like tempo and rhythm.
Another possible reason for the outcome of the case may be attributed to factors outside copyright law. In addition to an in depth compositional analysis of the two songs at issue, the trial also revealed an unpleasant side of Robin Thicke’s character that perhaps influenced the jury’s opinion of the case as a whole. Not only did Thicke give inconsistent testimony regarding how much involvement he had in writing the song, he also admitted to alcohol and drug abuse, stating that he was drunk and high on Vicodin throughout the recording of the song. Although the decision for copyright infringement cases should not be based on morality and character, it would be false to claim that such factors are never taken into account. Nonetheless, the Ninth Circuit’s decision marks a historical moment in the legal field of musical expression.
Where do we draw the line between inspiration and infringement?
Since the “Blurred Lines” decision and the large sum of damages it awarded, there has been a surge in the number of copyright infringement claims regarding popular songs and recordings. Sam Smith, Ed Sheeran, Justin Beiber, and Demi Lovato have all made recent headlines for claims brought against them. However, the recent verdict in favor of Led Zeppelin suggests that the floodgates of litigation in this area may soon be closed.
One year after the “Blurred Lines” verdict, Michael Skidmore—acting as trustee for the Randy Craig Wolfe Trust — filed a lawsuit alleging that Led Zeppelin stole protected material from Spirit. The entirety of the case surrounded the opening four-chord progression of “Stairway to Heaven” and whether or not it was substantially similar to that of “Taurus.”
Like the “Blurred Lines” case, the focus of the trial was confined to the compositional similarities between the two songs—Spirit never obtained a copyright for the actual sound recording of “Taurus,” an instrumental by Randy Wolfe written three years prior to the Led Zeppelin hit. Unlike that case, however, Jimmy Page, John Paul Jones, and Robert Plant (the surviving members of Led Zeppelin that testified on trial) did not openly admit to using “Taurus” as a source of inspiration for their song. Thus, to come to its conclusion, the jury had to determine (1) whether the members of Led Zeppelin had access to “Taurus” and, (2) if so, whether their intro to “Stairway to Heaven” was substantially similar to the chord usage in “Taurus.”
According to a report of the jury’s decision by the National Law Review, the eight member panel determined that indeed Led Zeppelin did have access to the Spirit song. This conclusion was based largely on the facts that Spirit opened for Led Zeppelin while on tour and Spirit members testified to several encounters with Led Zeppelin members, despite Plant’s own testimony that he does not remember most people he hung out with over the years. As for the issue of “substantial similarity” between the songs, both sides presented the jury with guitar and piano renditions of the chord progression used in “Taurus.” Like the issue in the Thicke/Gaye case, a comparison of the songs in their recorded format was off limits due to the compositional focus of the copyright claim.
Despite not being able to use the sound recordings of the two songs, the plaintiff was not put to a great disadvantage. Notably, a reporter writing for USA Today even stated that Spirit’s guitar rendition of the “Taurus” sheet music sounded more like “Stairway to Heaven” than Led Zeppelin’s piano rendition. Nonetheless, the outcome still went in favor Led Zeppelin.
It seems that the jury was swayed by the testimonies of the Led Zeppelin members that they did not recall meeting with Spirit members or hearing their song. Additionally, the defense made a strong argument that the same chord sequence allegedly stolen from “Taurus” was a part of the public domain. A comparison of the Thicke outcome to the decision made here leaves ample room for speculation on what the jury weighs most heavily and begs the question: where do we draw the line between inspiration and infringement?
The grey area that shadows the line between inspiration and infringement needs to be addressed so that more uniform decisions can be made.
In light of the outcome in favor of Led Zeppelin, “Blurred Lines” composers, Robin Thicke and Pharrell Williams, have decided to appeal the order that they pay nearly $7.4 million to Marvin Gaye’s heirs for infringing on his 1977 hit song, “Got To Give It Up.” In support of their appeal, as the Hollywood Reporter notes, nearly 200 other musicians and performers, including Tool, John Oates, and Earth, Wind, and Fire have filed an amicus brief voicing their concerns of the dangerous precedent the verdict of the lower court may establish. In particular, the contributors to the amicus brief point out that the trial court’s decision may impede or prevent musical creativity.
The Hollywood Reporter then goes on to include parts of Ed McPherson’s contribution to the brief, in which he warned the Ninth Circuit that the verdict against Thicke and Williams threatens to “punish songwriters for creating new music that is inspired by prior works.” Moreover, McPherson stated that “all music shares inspiration from prior musical works, especially within a particular musical genre” and that the law should draw a “line between permissible inspiration and unlawful copying…to provide clearer rules.”
The Led Zeppelin verdict has certainly provided some hope for discontented artists. Unlike the songs at issue in the Thicke case, which the amici deem to have “no similar melodies,” “Stairway to Heaven” and “Taurus” have similar sounds when heard in the recorded format and in their bare compositional state. Such a decision and the concerns voiced by the amici undoubtedly bolster Thicke’s defense against the infringement claim. As is the goal of the artists in the amicus brief for Thicke’s case on appeal, a decision is needed that will provide a better identification of the law in order to protect artists while also stimulating the creative process. The grey area that shadows the line between inspiration and infringement needs to be addressed so that more uniform decisions can be made.
Music is a unique form of copyrightable expression in that it allows for interpretation and speculation in determining a musician’s sources of inspiration. Often times a songwriter or performer will be inspired by other musicians and take some portions of their work to make it his or her own. As long as that new song provides an independent and meaningful expression, whether or not the inspiration is recognizable, it will be deemed a new work of art capable of having its own protection under the law. As Judge Learned Hand once stated, “It must be remembered that while there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing; and much fewer still suit the infantile demands of the popular ear. Recurrence is not therefore an inevitable badge of plagiarism.”