From a legal standpoint, the central-most topic in the music industry is arguably copyright law. I am going to examine what happens when a copyright is infringed upon by plagiarism, and thus, why copyrights are important. I have selected several lawsuits, from the past and present, that are either famous or present a landmark decision in some previously uncharted territory of copyright law. For each lawsuit, I am going to discuss the nature of the infringement, why it is or is not plagiarism, and what happened in court if it was a court case.
First, it’s necessary to understand what constitutes plagiarism in the music industry. In order to have an infringement case, the plaintiff must demonstrate that the defendant not only had access to the plaintiff’s song, but also that the two songs are substantially similar (Dudnik 77). In the specific cases I’ll be examining here, all of the songs we’re released, and it can often be assumed by the court that, as a member of the general public, the defendant had access to the plaintiff’s song. However, this is not always the case, as some lesser known artists often claim famous artists have infringed upon their work. In this case, the plaintiff would have to prove that the defendant had somehow heard their song before, and could reasonably be able to copy it (Dudnik 77). Proving that two songs are substantially similar is extremely subjective, and handled differently in each case. Generally, a musical work is considered substantially similar if the two songs are ”so similar that an ordinary listener to music would believe that there was a strong possibility that one song, or at least an important part of it, was copied from the other,” (Dudnik 77).
Just to prove that the defendant copied the plaintiff’s song is not enough to establish infringement; the plaintiff must also prove that more than a minimal amount of material was taken from the plaintiff’s song (Dudnik 79). There is no further legal definition of ”minimal,” so it must be decided on by the judge, depending on the importance the material plays in each song. The defendant in a plagiarism case can also avoid liability for infringement if their use of the plaintiff’s material could be considered fair use, as per the fair use doctrine. The fair-use doctrine means that in some cases, copyrighted material can be used without permission from the copyright holder, as long as the use is reasonable, and not harmful to the copyright owner’s rights (Victoroff 84). 2 Live Crew escaped serious legal trouble by claiming fair use on their parody of Roy Orbison’s ”Pretty Woman,” which I will examine later.
One of the most famous cases of copyright infringement in history involves George Harrison’s ”My Sweet Lord.” In 1970, Harrison released his first true solo single. ”My Sweet Lord,” charted at #1 in the United States and the United Kingdom upon its release, bringing it to the attention of Bright Tunes Music, the copyright holder of The Chiffons’ hit, ”He’s So Fine.” While Harrison’s song was still on the charts, Bright Tunes filed suit against him for copyright infringement. Over the next five years, while the case was waiting to be heard, Harrison tried to deal with Bright Tunes, initially by trying to buy their entire catalog, and later by offering a portion of the royalties (Cronin). Harrison’s made his best offer a month before the case, agreeing to hand over 40% of the royalties generated in the US to Bright Tunes. Bright Tunes rejected this offer, and would only settle for 75% of the royalties generated worldwide, and ownership of the rights to ”My Sweet Lord,” (Cronin).
The first hearing, on the subject of liability, took place on February 23-25, 1976. At that trial, it was decided that ”My Sweet Lord” did infringe ”He’s So Fine,” with the judge quoted as saying ”the two songs are virtually identical,” thus establishing that the two songs were substantially similar. As for Harrison having access to plaintiff’s song, ”He’s So Fine,” was a hit in the UK at the same time The Beatles’ ”From Me To You” was number one (Self). Even though the judge did grant that Harrison may have copied the song subconsciously, it still constituted infringement, as the Copyright Act does not require ”intent to infringe,” (Cronin).
The next hearing was conducted to decide how much money should be awarded to Bright Tunes as a result of the plagiarism. In order to decide this, four sources were considered: Mechanical royalties, performance royalties, sheet music, and the profits of Apple Records, Inc. (Cronin). The money made from the mechanical royalties, performance royalties, and sheet music were tabulated, but the profits that ”My Sweet Lord” earned for Apple Records had to be calculated. The judge decided that ”My Sweet Lord” made the album popular, and gave 70% of the single’s royalties and 50% of the album’s royalties to Bright Tunes. In the end, Bright Tunes Music was awarded a sum of $1,599,987 for the infringement against ”He’s So Fine,” (Self).
In 1989, another very important case was brewing. That year, the rap group 2 Live Crew recorded a comical version of Roy Orbinson’s ”Oh, Pretty Woman.” Even though 2 Live Crew tried to be fair by offering to pay a licensing fee and credit the original authors, Acuff-Rose, the copyright holder of the original ”Oh, Pretty Woman,” denied them their good graces, saying ”I am aware of the success enjoyed by ‘The 2 Live Crews’, but I must inform you that we cannot permit the use of a parody of ‘Oh, Pretty Woman.’” (Cronin). So, when 2 Live Crew went ahead and released the song anyway, they had a serious legal battle on their hands.
For the next few years, the case was in and out of courts. During the suit, 2 Live Crew’s stance was that they did not infringe on Roy Orbison’s song, because their version of it was a humorous parody, unlikely to affect the sales of the original, and therefore should be considered fair use. When the Sixth Circuit Appeal Court found 2 Live Crew guilty of infringement, on grounds that no commercial use should be considered fair use, they decided to take it to the Supreme Court for a final decision. In 1994 the Supreme Court, in a landmark decision, sided with 2 Live Crew, making ”Pretty Woman” the first song to successfully avoid infringement by falling under the protection of the fair use doctrine (Cronin).
Cases claiming fair use do not always turn out so well, though. In August of 1991, SST records released a song called ”U2,” by Negativland, featuring samples of U2′s ”I Still Haven’t Found What I’m Looking For.” The song was intended by Negativland to be a parody, criticizing U2, but U2′s label, Island Records, objected to it reportedly because the cover featured the letter U and the number 2, potentially confusing fans trying to buy the newest U2 album. But, instead of asking Negativland to pull the cover, or even the song, Island hit them with a 180-page lawsuit 10 days after the records release (Negativland). After some negotiation, SST records agreed to pull the record and destroy all existing copies, and left Negativland to pay Island’s $90,000 legal fees. Being a small band, Negativland had not earned $90,000 in their 12 years as a band (Negativland). Four years later, they released a book documenting the entire case, titled Fair Use: The Story of the Letter U and the Numeral 2. By the release of their book, Negativland had recovered the rights to their song, but could not release it and still had to pay back their debt (Negativland).
Probably the most widely known occurrence of copyright infringement occurred in 1990, when Vanilla Ice sampled Queen and David Bowie’s ”Under Pressure” without permission. Vanilla Ice’s ”Ice Ice Baby” became the second rap song in history to become a number one hit in the United States. Like his contemporary, MC Hammer, repackaged Rick James’ ”Superfreak” for his own megahit ”Can’t Touch This,” Ice took the most memorable riff from ”Under Pressure,” and turned it into his own song. But, unlike Hammer, Vanilla Ice did not obtain a license, or even credit Queen and David Bowie as the original authors. The bass line and piano that was sampled are part of a recurring phrase that appears all throughout ”Under Pressure,” and play an extremely important part in the song. Ice made his mistake when he assumed he could get away with altering the rhythm of the bass line slightly to avoid being required to give credit to Queen/David Bowie. Although this case was never considered in court, it was clear that Vanilla Ice was guilty of stealing the sample without permission, and he settled out of court with Queen/David Bowie for an undisclosed, presumably very high, sum. Since then, Ice has rereleased several different interpretations of ”Ice Ice Baby,” this time, making sure to follow proper legal procedures.
Soon after, in 1991, another major infringement occurred involving rap sampling. For his song, ”Alone Again,” rapper Biz Markie sampled the melody and three words of Gilbert O’Sullivan’s song of the same name, which was a hit in 1972. Like 2 Live Crew before him, Markie also asked permission to use the sample, and was denied. Again, like 2 Live Crew, he used the sample anyway, without permission, only he did not get away with it (Victoroff 87).
After the release of Biz Markie’s album, ”I Need a Haircut,” which featured the song in question, O’Sullivan filed suit against him. Judge Kevin Duffy, with no sympathy, ruled in O’Sullivan’s favor, likening Markie to a common thief by declaring ”Thou shalt not steal,” in reference to the use of the sample (Cronin). Not only did the judge demand that further distribution of this song be halted, but he also referred the case to a U.S. District attorney hoping to add criminal charges for Markie’s ”theft,” (Cronin). Although he never was accused of a criminal act, this harsh judgment led many rap artists to take sampling more seriously.
In the wake of this very anti-sampling ruling, several copyright holders came out all at once with different plagiarism suits. One of these prosecuting parties was Tuff City Records, an independent label out of New York that owns the rights to the 1973 song ”Impeach the President,” by The Honeydrippers (McCarvel). ”Impeach the President” has been used and reused for the prominent drum track in many popular rap songs. This time, they targeted L.L. Cool J for his hit ”Around the Way Girl,” and ”Six Minutes of Pleasure.” Even though several rap artists before him has used the very same sample without getting into any legal trouble, L.L. Cool J had a considerable hit with ”Around the Way Girl,” which reached #9 on the US Hot 100, and #1 on the rap charts, which put it in the spotlight.
One of my personal favorite songs ever is ”Bitter Sweet Symphony” by The Verve. Released in 1997, this song was a #2 hit for The Verve in their native UK, and #12 here in the US. The song opens with a four bar string sample of an orchestrated version of The Rolling Stones’ ”The Last Time.” After the intro, the music evolves into beautiful song of its own merit, eventually phasing the sample out. Despite 47 out of the 48 tracks used in the song being original, ABKCO, the copyright holder of ”The Last Time,” requested the rights to the new song, and for all of the royalties to go to Mick Jagger and Keith Richards (Ashcroft). During lengthy negotiations, Allan Klein, owner of ABKCO, told The Verve that they would in fact be allowed to use the sample legally, if they agreed to a 50/50 split. But once Klein saw how well the album was doing, ”they rung up and said we want 100 per cent or take it out of the shops,” (Ashcroft). The Verve even proposed that 50% of the royalties go to charity, and 50% go to the Stones, but the offer was refused (Ashcroft). With no other choice, the band surrendered their rights to the song completely, and watched as it became successful. Since then, the song has been used in several multimillion dollar commercials, against the band’s will, and no money has been made directly from the song, at least not for The Verve.
When defendants are backed into a wall by an infringement case, one of the first things they will do is try to find songs released prior to the plaintiff’s that sound like both songs (Dudnik 78). The best that one can hope to do is find that the plaintiff’s song is in fact, itself, an infringement of earlier song. If the defendant can prove that the plaintiff plagiarized an earlier song, then it would invalidate the copyright, and thus nullify the case. In the following case, the defense tried to invalidate the plaintiff’s copyright by pointing out that their song made illegal use of an uncleared sample.
In 1999, popular rap artist Calvin Broadus, also known as Snoop Dogg, was accused of infringing Marley Marl’s ”The Symphony,” by sampling it for his own ”Ghetto Symphony.” For his defense, Snoop claimed that Marley Marl’s song had no valid copyright, because it sampled Otis Redding’s ”Hard to Handle” without permission. This lawsuit made it to court in 2001 under Judge Michael B. Mukasey. It is stated in the Copyright Act that no legal protection can be afforded to ”any part of a derivative or collective work in which pre-existing material has been used unlawfully,” (Cronin) but Judge Mukasey ruled that a song is not necessarily a derivative work just because it borrows pre-existing material from another song (Cronin). In order to determine if the plaintiff’s song was derivative, the court had to call upon forensic musicologist Peter Oxendale to see if the work would be considered an infringement. Oxendale determined that the rap vocal was the defining feature of ”The Symphony,” and that the song would still be intact without the uncleared sample, so the song was not derivative, and the copyright was valid. With that, the judge declared ”These defendants cannot avoid litigating their alleged infringement of plaintiffs’ copyright in ”The Symphony” by seeking a summary judgment that plaintiffs have infringed a third party’s copyright,” (Cronin) and the infringement was later settled.
Recently, Timothy ”Timbaland” Mosley has been getting a lot of attention for allegedly infringing a lesser known artist, by sampling the melody to one of his songs, and using it in the song he produced for Nelly Furtado, ”Do It.” The artist infringed upon is Janne Suni, also known as Tempest, and the song in question is ”Acidjazzed Evening.” In 2000, Janne Suni entered a music competition for lo-fi songs made with computers. The song received first place, and became popular among people who enjoy the ”chiptune” genre that the song is classified as (Suni, sec. 1). Timbaland is admittedly a part of this community, and could’ve easily been exposed to this song considering his love for lo-fi digital sounds.
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