Subconscious Copyright Infringement in the Music Industry             

Introduction

Copyright law aims to protect creative works from unwanted plagiarism. The laws surrounding copyright act to protect and promote exclusive rights of owners so that they may be able to exploit their work without fear that others will copy their output.

In cases of conscious copying, the application of copyright law is straightforward as the misappropriation of the works is clear and evident. However, the appropriation application is less clear in the context of subconscious and unconscious copying; this is because proving whether someone was aware of their actions is challenging.

Thus, this reports aims to discuss subconscious and unconscious copying and its significance in the music industry.

Part II of this report discusses why and how similarities within the music industry occur.

Part III of this report discusses the purpose of copyright law and analyses the anatomy of unconscious copying. It aims to explain why unconscious copying occurs and how courts deal with such cases.

Part IV of this report examines four noteworthy cases that illustrate how courts approach unconscious copying cases in the music industry. A close examination holds unconscious copiers fully liable for their actions.

Part V of this report discusses the overview of unconscious copying, whether it is essential to protect the economic interest of copyright holders and how the protections affect the music industry.

The Music Industry

The music industry is a mecca for expression of creativity, individuality and emotions. These factors are the essence of a song and give an artist their identity.

The creation of musical pieces does have its challenges since there is a limited number of possible combinations of chords and notes combined to compose a song; especially when creating trending music or catchy tunes.

Get quality help now

Sweet V

Verified

Proficient in: Copyright

4.9 (984)

“ Ok, let me say I’m extremely satisfy with the result while it was a last minute thing. I really enjoy the effort put in. ”

+84 relevant experts are online

Hire writer

It therefore creates situations where two songs are produced and written by two different artists but feel and sound similar.

However, similarity in music occurs for three reasons:

1. Coincidence
2. Influence
3. Wrongful appropriation

Similarities Resulting from Coincidences

Coincidences are likely to happen as a result of the limitations chord combinations present when creating new music in popular genres.

In 2009 recording artist Calvin Harris released a single I’m Not Alone with similar riffs becoming a fast clich? amongst other dance producers. However, it was not until Chris Brown released Yeah 3x in 2010 that controversy occurred. However proven to be a mere coincidence, this situation demonstrates the predictability and repetitiveness of genre popularity and why the occurrence of music similarity is likely to happen. Nevertheless upon hearing of the controversy Brown added Harris to the song writing credits.

Similarities Resulting from Influences

Music is a form of artistic expression derived from emotions, feelings and events. Expression is often influenced by other compositions and music styles that have shaped an artist. Because of this, it is quite common to hear other artists “styles” in another’s artist’s song. The idea behind it is that taking fragments from different sources and composing them into one creative piece to form a new and original expression; with similarity to the sources nothing more than influence.

Influence is generally viewed as the ultimate form of flattery as it shows that one person has had a positive impact on another person’s life.

Similarities Resulting from Wrongful Appropriation

Wrongful appropriation or plagiarism is the third situation of music similarity. Unlike the two previous situations, musical similarity tends to lose its legitimacy once plagiarism has been established. Once a song has been determined that the artist has used recognisable parts from a different song, without permission from the original owner, whilst claiming credit for the whole composition; it is now a possible copyright infringement.

Infringements occur for two reasons on non-genuine grounds and genuine-grounds.

• Non Genuine Grounds

Copyright infringements brought upon non genuine grounds are those that occur mostly as a shakedown in an effort to cash in.

2019 saw the success of Lady Gaga’s hit song Shallow in her film A Star Is Born. Unknown SoundCloud artist Steve Ronsen has threatened to sue Gaga on the basis her song infringed on his song 2012 piece Almost with a three-note progression that lands on the lyrics I’m falling and longing for change; progressions like this are common and occur to pieces predating both songs. Ronsen is apparently asking for millions in damages.

• Genuine Grounds

Infringements on genuine grounds occur when there is a legitimate copyright infringement and not a mere shake down. In 2015 a US Federal Judge ruled that Robin Thicke and Pharrell Williams Blurred Lines infringed on Marvin Gaye’s Got to Give It Up music style and thus were ordered to pay $U6.8 million in damages.

Copyright Law and Unconconscious Copying

The Aims of Copyright Law

Copyright law is a form of intellectual property with the basic principle behind it that an author should have the right to exploit their work through reproduction and dissemination, without others being allowed to copy their creative output. The intangible right is governed by the Copyright Act 1968 (Cth) and apart from economic interests it emphasises the moral rights of owners by allowing the attribution and right of integrity over the works.

When work is copied without permission from the original owner of the subject matter, the infringement violates s 31 Copyright Act 1968 (Cth). Violations occur by doing any or all of the following acts:

• to reproduce the work in material form;
• to publish the work;
• to perform the work in public;
• to communicate the work to the public;

Thus, the true owner can seek remedies in the form of an injunction (to stop the infringement) and or monetary damages.

In order for a copyright infringement to substantiate two general requirements must be met:

1. There must be evidence of copying; and
2. There must be substantial reproduction of (in Australia) or substantial similarity to (in the United States).

However, without direct evidence of copying courts will consider indirect or circumstantial evidence of copyright; in essence the notion of subconscious and unconscious copyright.

The Anatomy of Unconscious Copying

Subconscious and unconscious copyright (indirect copyright) is the idea that infringements occur without intention as a result of circumstance. The idea questions an individuals level of awareness when creating the works because human drives can convince the perception that motives are pure despite considerable evidence to pointing to the contrary. As humans we are aware of what we are doing and how we are doing it, but often our perception as to how we came to do something is misconstrued.

Which is why when the courts consider indirect copyright infringements they aim to determine whether the defendant had any prior knowledge or access to the plaintiffs work. This is a question for the facts and takes into consideration the reach or dissemination of the plaintiff’s work, the defendants background and their dealing with other artists, publishers and record companies. In terms of musical works elements such as rhythm, pitch, lyrics, cadence, riffs and the verse-chorus relationship will be assessed to determine if substantial reproduction or similarity exists.

Four Cases of Unconconscious Copying

Marcus Gray et al v Katy Perry et al [2014]

Facts

In 2014 Marcus Gray et al (the plaintiffs) brought a civil suit against Katy Perry et al (the defendants) in the United States District Court Central District of California. The plaintiffs allege copyright in their Christian Gospel hip hop song entitled Joyful Noise. The plaintiffs believe that the defendant’s song, Dark Horse infringes their copyright in Joyful Noise, which was released give years before. The defendants claim that specific elements Dark Horse and Joyful Noise were nearly identical, with both songs containing a repeating 8-note ostinato (beat) that is substantially similar.

Overarching Questions

Whether Perry and her co-defendants had in fact infringed copyright on the song Joyful Noise as per the United States Copyright Act of 1976?

Judgement

On July 29, 2019 Perry and her co-defendants were found guilty of copyright infringement and ordered $2.78 million USD ($4.05 million AUD) to Marcus Gray et al. The case was heard under the Honourable Christina A. Snyder who ruled against the judgement summary arguing that defendants demonstrated a triable issue of fact as to access because Joyful Noise achieved critical success, including a Grammy nomination and was readily available and viewed millions of times on YouTube and Myspace.

Evidentially the jury sided with the plaintiffs, who claimed that the songs share “five or six points of similarity”; specifically, the ostinatos in both songs are either identical or nearly so in their phrase length, rhythm, pitch content, and timbre.

Fred Fisher, Inc v Dillingham [1924]

Facts

In 1924 Fred Fisher and Johnny Black brought a civil suit against Jerome Kern and his song Kalua. Fisher, who in 1919 published his song Dardanella with lyrics written by Johnny Black claim that Kern misappropriated the accompaniment pattern of Dardanella.

Overarching Question

Whether Kalua infringed on Dardanella?

Judgement

The court found that Kern did infringe on Fisher’s work as both pieces were exactly alike with an ostinato accompaniment. Most likely created unconsciously and with no material damage; Fisher was awarded minimum statutory damages.

In coming to their decision the court took into consideration that Dardanella was a hit song for the 1920’s and Kalua appeared shortly after Dardanella had slowed down; meaning it had to have been written by one who necessarily knew about it. The court held that even though Kern was unaware of any plagiarism, the subconscious act of copying is still enough to cause an infringement as the two pieces are just too similar.

Abkco Music Inc v Harrisongs Music Ltd [1988]

Facts

In 1971 Bright Tunes Music Corporation, the copyright holder of He’s So Fine sued ex-Beatle George Harrison and Harrisongs Music Ltd in the United States District Court for the Southern District of New York. Bright tunes claimed that Harrison’s song My Sweet Lord infringed on their copyright. Shortly after the the suit began, Klein unsuccessfully tried to settle it by having Harrison purchase Bright Tunes.

Overarching Question

Did He’s So Fine infringe on My Sweet Lord?

Judgement

Harrison was found liable for infringement and was ordered to pay damages. Upon coming to this decision the court found that My Sweet Lord was substantially similar to He’s So Fine and that Harrison had access to the song.

EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty [2011]

Facts

In 1980 Men At Work released their number one hit Down Under, a song perceived to be patriotic in Australia. However it was not until 2007 that ABC-TV show Spicks and Specks asked the question what children’s song is contained in the song Down Under. The majority agreed upon Kookaburra, as song whose rights were owned by Larrikin Music and subsequently resulted in them taking legal action against EMI Songs Australia.

Overarching Question

Whether EMI Songs Australia infringed on Larrikin Music Publishing?

Judgement

In 2010 Justice Jacobson ruled that Down Under had infringed on Larrikin’s Kookaburra as the song was reproduced using a substantial part. The court noted the degree of ambiguity of what constitutes a substantial part, however relied upon the melody, key, tempo and rhythm, harmony and context and structure. Furthermore, the court referred to a need for a casual connection, stating:

Subconscious copying may infringe copyright. Provided the test of casual connection is satisfied, an intention to take advantage of the labour of another is not required in order for an action for copyright infringement to be sustained. As a result, Larrikin was awarded damages of 5% calculated since May 2002.

Evaluating the Approcah to Unconconscious Copying

An Overview of Unconscious Copying

The approach to unconscious copying in copyright law is to treat it exactly as if it were performed consciously. Unconscious copiers can be liable for copyright infringements with the defence of self-creation unable to really provide any protection.

As a result, this approach has undercut the creative expression of artists and dismisses the influence of implicit memory on creative processes. However, the advantage of this approach is that it has created a bright-line rule that is easy to understand and administer.

The Economic Interests and Copyright Holders

Copyright laws are essential not only to protect the author and their exclusive rights but the economic interests. In the music industry, copyright is fundamental to earning income as the lyrics, sound recordings, performances, published editions together with the rights underlying the merchandising are the source of income that flows through the music industry. Thus it is essential that copyright holders understand how to really protect their work in order to maximise their income and protect the integrity of their work. The financial reward is right to be earnt by all owners.

Evaluating of How the Protection of Unconscious Copying Affects the Music Industry

Apart from economic benefits, protection of subconscious copying is both a benefit and disadvantage to the industry and public interest. Firstly, the ultimate benefit is that the owner can fully protect their work from unauthorised duplication. However, the practice of holding unconscious copiers liable for copyright infringements, especially in the music industry, creates a disincentive for authors engaging in creative expression. The law cannot deter the copying because by definition the copying is unknown to the author. Therefore, every time an author produces a creative expression, that author assumes some risk of copyright liability as the risk is beyond the authors control and they cannot know whether it was created influenced by another persons work or if in fact created by themselves.

Conclusion

This report has explored and identified that similarities between music artists occur for three reasons; coincidence, influence and wrongful appropriation. With wrongful appropriation occurring for two reasons; non genuine grounds (quick cash schemes) and genuine grounds (copyright infringements).

Copyright law aims to protect the exclusive rights of owners, giving them the opportunity to rightfully exploit their work through reproduction and dissemination. In order to substantiate a claim, there must be evidence of copying and substantial reproduction (in Australia) or similarity to (in the United States). However, this raises questions as to whether infringements can occur without a level of awareness? A close examination of the cases illustrated in this report show that artists are will be held liable to unconscious copyright infringements so long as elements of the song are similar and taking into consideration whether the artist had access or knowledge prior to writing the piece.

The protection of unconscious copying does protect economic interests but at the same time creates a disincentive for authors as they are assuming some risk when publishing pieces that is beyond their control. It weakens the creative aspect of song development and makes it redundant as it dismisses the creative process.

Bibliography

Articles/Books/Reports

1. Copyright & Music The Basics in Shane Simpson LLB (Hons) M.Jur Music Business Warner Chappell 2006
2. Andrew Stewart et al, Intellectual Property in Australia, (LexisNexis Buttersworth, 6th ed, 2017)
3. Christopher Brett Jaeger, Does That Sound Familiar? Creators Liability for Unconscious Copyright Infringement (2008) 61(6) Vanderbilt Law Review
4. Fraser McAlpine, Pure coincidence? Classic tracks that sound remarkably like older songs British Broadcasting Corporation (U.K.) 6 January, 2017
5. Iyar Stav, A True Challenge for the Copyright Law (2014) 17(2) DePaul Journal of Art, Technology & Intellectual Property Law 3
6. Jay Sanderson and Leanne Wiseman, ARE MUSICIANS FULL OF IT? THE METAPHORICAL AND FIGURATIVE POWER OF SUBCONSCIOUS COPYING IN COPYRIGHT INFRINGEMENT CASES(2015) Griffith Journal of Law & Human Dignity pg. 55
7. Phoebe Vertigan, EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] 191 FCR 444 (2016) 30 (2), University of Tasmania Law Review
8. Robin Feldman, The Role of the Subconscious in Intellectual Property Law (2010) University of California, Hastings College of the Law pg. 1

Cases

1. Abkco Music Inc v. Harrisongs Music Ltd 722 F.2d 988 3 (1983)
2. EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92
3. Fred Fisher, Inc. v. Dillingham,298 F. 145 (S.D.N.Y. 1924)
4. Marcus Gray et al v Katy Perry et al [2014]
5. Williams v. Gaye, No. 15-56880 (9th Cir. 2018)

Legislation

1. Copyright Act 1968 (Cth) s 31 (1)(a) s 31(Cth)

Other

1. Katherine Gillespie, Did Lady Gaga Steal Shallow From SoundCloud? Paper 09 August, 2019