How you think about music ≠ how the courts think about music.
Music is art, and art is for people — not lawyers. But musicians have long relied on the law to protect their creations. For nearly two centuries, courts in the United States have heard cases from songwriters seeking to defend their compositions from thieves, cheats, and liars of all stripes. It's a tradition that continues today — with recent disputes between Tom Petty and Sam Smith (settled amicably out of court) and the Marvin Gaye family and Robin Thicke, Pharrell Williams, T.I., et al (currently at trial) — putting the modern music industry on high alert.
In those cases, and in most disputes alleging copyright infringement of a musical composition, a few perennial questions arise: When can a person be said to own something like a chord progression or melody? And in a world where everyone is inspired by someone else, where is the line between plagiarism and influence? To help us answer these questions in plain english, we spoke to Paul Fakler, a veteran copyright lawyer with a specialty in music law, of the law firm Arent Fox.
What we learned underscores the gap between how casual music fans think about music, and how it's treated as a matter of law.
"Of all the kinds of law I've practiced over the years, copyright law is by far the most metaphysical," Fakler said. "It can get pretty freaky."
Jason Merritt / Getty Images
Music compositions*, like other forms of creative expression, are protected by copyright under the law.
Under the Copyright Act of 1976, which took effect in 1978, anytime a person writes or records an original piece of music, a copyright automatically exists. Registration with the U.S. Copyright Office is optional, but does come with certain benefits in the event of an infringement dispute. Copyrighted elements of a musical composition can include melody, chord progression, rhythm, and lyrics — anything that reflects a "minimal spark" of creativity and originality.
"It really doesn't have to be a whole lot," said Fakler. "If a single chord progression were elaborate enough and unconventional enough, it could be protected."
One important instance where copyright doesn't apply is public domain. If a song was published prior to 1923, it is considered to be in the public domain and is not protected. Federal law says that creative works, including music compositions, enter the public domain after the life of the creator plus 70 years.
It's important to remember that copyright doesn't protect ideas, but rather creative expressions of ideas. Copyright is designed to prevent people from copying a creative work, or specific elements thereof, without permission.
*Since the 1971 Sound Recording Amendment to the Copyright Act of 1909, there has been a second copyright protection for sound recordings — that is to say, a performer's recorded interpretation of a musical composition — which is governed by its own set of rules and standards, particularly with regard to sampling. For the purposes of this article, however, we will focus primarily on original music compositions only.
Pictorial Parade / Getty Images
Disputes over music copyrights are very common, but often don't go to trial.
If you've ever listened to a song and thought it sounded a lot like another, older song, you probably weren't alone. It's a truism of popular music that everyone is influenced by their predecessors (and, often, contemporaries), and perceived similarities between songs often lead to disputes.
"In songwriting, you're always building on what came before you, and the line between influence and copying can be a murky one," said Fakler.
As was the case with Tom Petty and Sam Smith, in which the latter's "Stay With Me" was alleged to infringe on the former's "I Won't Back Down," most disputes are settled privately out of court. Fakler says that's because litigation is expensive, juries are unpredictable, and there are stigmas that can stick to both sides: The accused can get labeled as unoriginal or duplicitous, and the accuser can be viewed as greedy or belligerent.
In the event of a trial, the person claiming infringement (the plaintiff) has to prove two things: "access" and "substantial similarity."
Copyright infringement is what's called a "strict liability tort," which means the defendant doesn't have to have intended to infringe to be found guilty. To prove guilt, the plaintiff must only demonstrate that the defendant had access to the allegedly infringed song, and that the two songs in question have substantial similarity.
Access is a question of whether the defendant ever actually heard, or could reasonably be presumed to have heard, the plaintiff's song at some point before creating the allegedly infringing song. Though not always easy to prove, courts often consider whether a relationship existed between the two parties and how well known the plaintiff's song is generally.
In the famous 1976 case Bright Tunes Music v. Harrisongs Music , the late Beatles member George Harrison was found to have infringed on The Chiffon's hit "He's So Fine" with his own solo song "My Sweet Lord" in part because The Chiffons song was so popular that there was little doubt whether Harrison had been exposed to it. The judge concluded that even though there was no evidence that "He's So Fine" had been on Harrison's radar, he had likely heard the song and internalized it "subconsciously."
In the case of Robin Thicke and "Blurred Lines," by contrast, there was never any question of access, since Thicke admitted on his own that his song was inspired by Marvin Gaye's "Got to Give It Up."
Wolstenholme / Getty Images
What The Law Really Says About Music Plagiarism http://ift.tt/1ETy6uA
No comments:
Post a Comment