October 12, 2016
Originally posted 2018-11-19 10:38:45
By Tikwiza Nkowane | www.amdlawgroup.com
Music and Copyright infringement
Copyright exists the moment something is put in a tangible form. It is an exclusive legal right, a form of protection provided by the laws of the United States for “original works of authorship”, including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations. The length of time that a work is protected by copyright for a work first published after January 1, 1978, is the life of the author plus 70 years.
Music is big business. In the world of copyright, there are controversies and constant battles in the court system of alleged copyright infringement for the melodies and sound. The majority of cases are settled for huge sums before they reach a jury, but some have gone further. This area of copyright law is vast and requires a detailed analysis of the musical composition of the songs.
The US Copyright Office views musical composition and sound recordings as two separate works. Registration for a musical composition includes the music and lyrics but does not cover a record. Sound recording is, for example, the sound on a CD, or the performance of a song that is recorded. All these works can be registered with the US Copyright Office, to obtain federal protection.
Melodies and sounds and copyright infringement
Lawsuits involving song theft are all too common in the music industry. So why is it that there are many cases in the music industry claiming copyright infringement in the form of plagiarism, sample lifting, and musical composition? It comes down to how similar the alleged copyrighted song is to the original version.
The vast majority of cases involve songs and musical compositions which date back from the 1960’s. This is probably because current artists to reinvent the music of the past, but fail to properly protect themselves from any lawsuits by obtaining the proper licenses, and or permission.
The chord progression and musical notation of a song is something that can establish copyright infringement. When lawsuits are filed for alleged copyright song infringement, a finding of copyright infringement stems from a finding of whether there was a direct copy of the song, or there are similarities that go beyond substantial similarities. The similarities of words, vocal style, vocal melody, melody, and rhythm are all clear indicators that a song may copy another.
What about a grove, or vibe of a song? Can one allege copyright infringement for the grove or the vibe of a song?
This is a hot topic for intellectual property lawyers. The most significant and widely publicized case surrounding this area of music and copyright infringement is that of Robin Thicke, his song Blurred Lines and Marvin Gaye’s song Got to Give It Up. The case is extremely famous for two reasons: (1) the fact that it went all the way to a jury reaching a verdict, and (2) the amount of damages that were awarded as a result of the jury finding Robin Thicke had infringed on the copyright of Marvin Gaye’s song Got to Give It Up.
This intense battle involved lawyers on both sides having to provide evidence in the form of expert testimony and providing the court with an analysis of how the fundamental chords, melodies, and lyrics of the song were substantially similar. The jury found that the song Got to Give It Up was plagiarized and the Gaye family was awarded over $7 million for the copyright infringement. The case also touched on the subject of the “vibe” and “groove” of the songs, which most commonly comes from the melodies in the song.
With a case as big as this one, the music industry is now changing how new music is made and released. Various artists are known for their ‘old skool style,’ and a lot of their music stems from artists who produced songs many years ago. Other examples of lawsuits which were brought for copyright include, “Bring It On Home” by Led Zeppelin (1969) vs. “Bring It On Home” by Sonny Boy Williamson (written by Willie Dixon) (1966). Here, the intro and outro of Sonny Boy William’s original track was borrowed, with the intent to make it a “homage” to the blues great, however, Dixon sued for copyright infringement in 1972, as no permission was obtained to use the musical compositions recorded. The matter was settled outside of court and credit on the track was given to Willie Dixon.
What is the future of music and copyright law?
Many in the music industry are concerned at the changes and the recent case judgments that have happened as a result of copyright infringement in the area of musical composition. This area of copyright law is ever-changing and will continue to grow with more and more lawsuits coming to the forefront of the industry after the highly publicized case of Robin Thicke and the Gaye family.
Most recently, hit pop-star Ed Sheeran, is facing a lawsuit for his song Photograph, for alleged musical composition copyright. This case is surely one to watch for, but as noted above, most cases settle outside of court.
It is certainly an interesting area of copyright law, that will attract more and more attention from the public and keep musicians and artist more aware of their rights when it comes to musical composition.