Copyright in the Music Industry — a new age of scrutiny
Copyright ownership has formed a basis for the means of “establishing and maintaining the monopolisation of the production, distribution and communication of cultural expression” of the music industry. It’s a way of maintaining an artist’s possession of their artistic individualism, of which Ronald V. Bettig of Pennsylvania State University coins the term ‘possessive individualism’, a “legal and socio-cultural form that unequivocally sustains capitalist economic and political formations”. Bettig’s connection to capitalism and economics is notable as the music industry is not usually associated with the late-stage capitalist mindset, but Bettig suggests that copyright exists as a necessary component to economically sustain the capitalist framework of the music industry.
Bettig’s socio-economic perspective invites us to assess not only the wider music industry, but also offers us a valuable lens into conflicts of interest between components within the music industry under copyright. If an artist is accused of copyright infringement, how is this claim verified and policed? How can the copyright market be utilised meaningfully to protect artistic and intellectual property (IP), and how can it be exploited in the interests of monetisation?
Origins of Copyright Law
Issues surrounding legal rights for musicians and composers arose as early as the 19th-century — according to music writer and correspondent David Laing — “the origin of this [Copyright] market can be traced precisely to Paris in 1848”. Sources suggest that three composers attended a cabaret show, where they heard their own works being performed without acknowledgement or permission. They refused to pay the bill and took the case to court, which the composers won. The court then extended an existing law on theatrical performances to all musical works, and the three composers formed a society with the aim to enforce the performing rights of musical works.
With the early 20th century came an era of mechanical reproduction of musical works, namely through devices such as piano rolls, pianolas and phonographs. The president of the Music Publishers Association encouraged composers and publishers to “give exclusive rights to the Aeolian pianola firm for piano-rolls of works controlled by them, in return for a 10 percent royalty” This is often cited as the inception of ‘mechanical royalties’, a concept which formed a basis of the United States copyright legislation of 1909 and the United Kingdom copyright law of 1911.
Laing continues to use a historical lens to assess “the growing internationalisation of intellectual property transactions in the twentieth century”, as a result of homogenisation of transnational laws culminating in the 1993 World Trade Organization Treaty, requiring all nations with membership to the WTO to implement “minimum standards derived from the Berne Convention for the protection of Literary and Artistic Works”. The resulting Text of the Law acts on three key elements:
- Assigns legal power to entities — the authors or performers of the musical works
- Defines the limits and extent of rights assigned to the owners of copyright — including ‘fair use’ of a work and the time frame in which the work remains in copyright before it enters the public domain
- Defines the illegal acts that breach the law of IP, and assigns relevant penalties and punishments
The Text of the Law continues to form a backbone of musical copyright and IP laws, but with the rapid development of music recording and production technology, the capabilities of copyright enforcement and infringement had to adapt into the new information age.
A new information age
The sophistication of music recording technology quickly led to an extensive and widely available catalog of recorded music. This also led to increasingly versatile methods of digital sampling and music consumption. This gave songwriters a double-edged sword — they had liberty to use extensive collections of past songs and albums for sampling or inspiration — but the latter put them at risk of being sued for copyright infringement. The dilemma between what constitutes musical plagiarism as opposed to composing in the style of a genre, which happens to share musical characteristics with another song, is an ongoing debate. The point at which authentic musical influence and inspiration amounts to valid claims of copyright infringement and plagiarism is becoming an increasingly tenuous line.
Given pop composers’ shared objective of appealing to audiences with conventional musical expectation and common sculptural grounding in previous pop hits, it is hardly surprising that they routinely write similar songs quite independently. Sociomusicologist and rock critic Simon Firth connotes that pop music composition typically uses a formulaic approach, with features that are clear-cut elements of the musical style or genre, and goes as far to say that “originality is a problem for the music business, a matter or recurring legal dispute, not simply because of the limited combinations of notes available but also because commercial music-making is not really a matter of individual creativity at all”.
Firth suggests that the core values of individualistic and original music composition is somewhat degraded — as the modern songwriter aims to appeal to the limited musical expectations of the pop music consumer — a target audience already psychologically entrenched in an expectation for what pop music should sound like. Therefore, Firth infers that because of the limited scope of creativity in most modern pop music — presumably referring to the 4-chord pop progression — it’s inevitable that similarities will surface.
A new age of scrutiny
The present-day media has no shortage of ongoing music lawsuits. Some factors which are responsible — partially or directly — for an increase in copyright infringement scrutiny are listed below:
- An increasing catalog of recorded music and means of storing and reproducing music mathematically increases the likelihood that an original composition is not ‘fully’ original — the chord progression or groove is ubiquitous and has been done before
- A limited number of ‘pleasant sounding’ combinations of notes and chord progressions according to the Western musical system and to the Western ear
- A generation that is increasingly aurally inclined to simple, catchy pop sounds, resulting in modern pop music containing less harmonic or melodic sophistication and creativity — at least from a musical perspective. This effect is exacerbated by the same generation that is using social media more and more — therefore consuming more videos featuring short snippets of ‘TikTok music’ or ‘Instagram music’
- The motivation of the estates of ‘past’ or deceased artists to take the ‘present-day’ artists which own similar sounding songs to court for the interests of protecting IP and upholding the Copyright law
- On the other hand, the motivation of estates and lawyers to file lawsuits in the interests of monetisation. This can be influenced by the psychology of late-stage capitalism or the present-day economic landscape
The process where artists are represented by brokers, their estate or other corporations — even post-mortem — forms an intricate system of the music industry.
Case studies
Vanilla Ice vs. Queen and David Bowie
In 1990, representatives for Queen and David Bowie filed a lawsuit accusing Vanilla Ice for ripping off ‘Under Pressure’ (1981) with his song ‘Ice Ice Baby’ (1990). The case was settled and Vanilla Ice gave Queen and Bowie’s representatives an undisclosed amount, and all members of Queen and Bowie received songwriting credits on the track.
The case sparked a discussion regarding effectiveness of copyright laws in protecting artistic and IP. Ice willingly used the ‘Under Pressure’ bass line without permission, and some argue that although the financial interests of Queen and Bowie’s estates were satisfied, Queen’s members and Bowie are now associated with the IP of Ice’s hit song, a collaboration they had no choice joining.
Robin Thicke and Pharrell Williams vs Marvin Gaye
In 2015, the US court found Thicke and Williams guilty of infringing Marvin Gaye’s ‘Got to Give it Up’ (1976) with their hit ‘Blurred Lines’ (2013). Thicke and Williams had to pay Gaye’s family $7.3 million USD for copyright infringement (later reduced to $5.3 million USD), one of the largest damage awards in music copyright history. The legal battle began in 2013 when Gaye’s family filed a lawsuit, and various appeals and verdicts persisted until 2018.
From a musical standpoint, the songs have distinct melodies, harmonies and lyrics — the only musical aspect that is similar is ‘the groove’ — factors such as the walking bass line, ‘party’ voices at the back of the mix, and even the cowbell percussion were taken into consideration. The Gaye family’s victory set a new precedent — “The court ruled that “Blurred Lines” aped the vibe of Gaye’s song, which is something that had previously been beyond copyright protection”. Individual musical elements that were previously essential in proving copyright infringement, such as a series of notes, melody and lyrics, were not taken into consideration — ‘Blurred Lines’ did not rip off any of these elements from the Gaye song.
The case would spark a debate of whether a musical style or ‘vibe’ should be protected by copyright, and many artists consider this a dangerous new precedent that discourages artists and songwriters to take inspiration or borrow musical aspects from a certain style of genre. In 2016 Thicke and Williams appealed the case, and they were supported by over 200 musicians, including Jennifer Hudson and Hans Zimmer who filed an amicus brief, claiming the verdict would be “very dangerous” to the music industry.
Led Zeppelin vs Spirit
Led Zeppelin were sued in 2016 for allegedly stealing the opening riff in their 1971 hit ‘Stairway to Heaven’ from Spirit’s ‘Taurus’ (1968). Led Zeppelin won the case in 2016, although the lawsuit was revived in 2018 to no avail.
Harmonically, the opening riff of ‘Stairway to Heaven’ uses a descending chromatic bass line and series of line clichés characteristic of ‘Taurus’, giving an effect of both songs using identical descending chord progressions. The added chords (Fmaj7 in ‘Stairway to Heaven’ and Fmaj7add#11 in ‘Taurus’) give a similar airy effect, and the tempo is almost identical.
However, the melodies, lyrics and structures are very distinct, with ‘Taurus’ using orchestral string sounds in the opening, whereas ‘Stairway to Heaven’ opens monophonically with a clean acoustic guitar. The similar chord progression in the opening riff of ‘Stairway to Heaven’ to ‘Taurus’ was not substantial enough to outweigh the elements that were distinct, leading to the court to dismiss the case in 2020, saying that “when it comes to works involving generic or commonplace elements, only a minimal, or ‘thin,’ level of copyright applies to them, and that to prevail a plaintiff must show that another work is ‘virtually identical’ to theirs”.
Ed Sheeran vs. the Estate of Ed Townsend (Marvin Gaye)
An example that was settled very recently is Ed Sheeran’s copyright infringement trial, accusing the songwriter of copying Marvin Gaye’s 1973 classic ‘Let’s Get it On” with his hit ‘Thinking Out Loud’ (2014).
The chord progression and harmonic rhythm is very similar, with both songs featuring the 2+4 chords syncopated ahead of the anticipated beat. Comparing both songs in the key of Eb, the second chord in ‘Thinking Out Loud’ is Eb/G as opposed to Gm in ‘Lets Get it On’, although theoretically both chords share the same bass note (G) and the minor third (Bb), hence have a similar harmonic function. This effect of aural similarity is compounded by both songs looping this 4-chord progression continuously (until the bridge section in ‘Thinking Out Loud’).
However, whereas Gaye’s laid-back soul track is articulated with richly harmonic backing vocals, sax, strings, guitar and piano, Sheeran simply uses piano, light backing vocals and guitar. The melody, structure and lyrics are distinct and the harmonic progression and syncopated harmonic rhythm, which made the basis of the Ed Townsend claim, has been recreated countlessly in the laid-back soul style genre that Sheeran was inspired by. Sheeran was cleared in May 2023, with Sheeran’s lawyer Ilene Farkas remarking “the letters of the alphabet of music … these are basic musical building blocks that songwriters now and forever must be free to use”.
Final thoughts — theft or influence?
“A good composer does not imitate, he steals” — Stravinsky supposedly said. According to music critic Mark Swed: “So-called creative thievery isn’t just the privilege of pop musicians; it is the God-given right of all musicians and [forms] the very basis of Western music”. Swed implies that since the Bach and Gregorian Chant, ‘copying’ the harmonic or structural framework of music has driven forward the development Western classical musical styles. With these lenses, the jury made the right decision to clear Sheeran and Led Zeppelin, but was perhaps unjustified in charging Thicke and Williams with copyright infringement on the basis that the ‘vibe’ of Gaye’s ‘Got to Give it Up’ was lifted.
A common case in music copyright infringement lawsuits is that even though US juries may be guided by a musicologist, it is ultimately their subjective judgment upon hearing recordings of the two tracks that influences the verdict of the lawsuit. They may not use the guidance of musicologists but are often instead “influenced by arguably non-compositional factors such as tempo, instrumentation and key”. Decisions made from the basis of the musically untrained ear have the risk of misleading arbitrary court hearings in a harmful, musically disingenuous way. On the other hand, legal defense offered from musicologists have strategic power to influence juries in the court of copyright.
On the one hand, cases such as Vanilla Ice’s blatant lifting of the bass hook for ‘Under Pressure’ shows that copyright law is vital for protecting an artist’s IP. Cases such as the ‘Blurred Lines’ lawsuit show that the line between musical theft or influence can be a slippery point of contention. On the other hand, cases such as Sheeran and Led Zeppelin show that interests of monetization on behalf of (long) deceased artists can be brought forward in the form of copyright lawsuits, despite some of these claims lacking strong and convincing musicological evidence.
Future projections
With the internet making access to music ever more widespread, the debate as to what elements of music and musical style should be protected under copyright will likely continue to surface. So long as pop artists continue to take inspiration from and reuse compositional formulas from other successful artists, there will always be the chance of a similar melodic contour, chord progression or ‘vibe’ propping up, which can be used to substantiate claims of copyright infringement. As with the examples of Sheeran and Led Zeppelin, these claims can be avaricious in nature, and if won (as in the case of ‘Blurred Lines’), it has the potential to further confuse and damage the integrity of musical IP and what constitutes theft or influence in the music industry.
The present-day is becoming dominated by social media and fast developments in AI or Meta technology. Coupled with the rise of AI-generated music, debates surrounding the ethics of music usage, both in social media or the ‘Metaverse’ will surface — the forefront of this debate being copyright. The practices and applications of future copyright laws and enforcement will fundamentally impact the lives and creative liberties of the working musician and artist. How the music industry will change alongside developments in artificial intelligence and deepfaked audio technology, alongside how components of the music industry — artists, producers, and copyright might adapt to such unprecedented changes can only be speculated.
