| | Look
at "popular" music, and you will see it is comprised, in large part, of songs
composed by the use of 3 or 4 chords. How can we be original if there are a finite
number of ways to put a song together, melodically and rhymically which will be
accepted by the masses without repeating musical phrases used before? Don't get
me wrong, I'm not suggesting you can use passages from other people's compositions,
what I am saying is how can we not? Truth is, legally you will be in the same
hot water if the use of another's musical passage is conscious or not - more on
that in a minute.
Most plagiarism cases are initiated because a copyright
owner found an obvious musical pattern in another artists' composition. Did you
get that - "obvious"? Listen to Led Zepplins song "Whole Lotta Love" and compare
it to "You Need Love" by Muddy Waters… well the rhythm is slightly different,
but the feel is the same, but what is remarkable are the lyrics. Same song topic
and one key sentence repeated to the last word. A suit was filed in this case,
but which was settled out of court. (1*) |
| | For
those of you who don't remember the case, Harrison's melody for the chorus of
"My Sweet Lord" closely resembled the Chiffons' song "He's So Fine", which was
released years before. Harrison stated it was an unconscious use of the melody
but the judge ruled, and I'm paraphrasing here, that it was of no consequence
if he knew or not, it was the same melody and constituted copyright infringement.
Incidentally the settlement took years to finalize and the plaintiff in the case
(Bright Tunes) almost went bankrupt in the process. If the laws were flexible
enough to allow an "unconscious use clause" it would become everyone's defense.
On the flip
side there is the case of rapper Biz Markie whose case leaves no doubt as to his
conscious thievery. He took a sample from the song "Alone Again, Naturally" and
applied it to his own song "Alone Again". Markie had asked for permission from
Gilbert O'Sullivan, the writer of the original song, and was denied. He used it
anyway. The judge presiding over the case was so enraged at what Markie had done;
he offered it up to the district attorney for possible criminal charges. It's
like Markie asked his neighbour "Can I borrow your mower", the neighbour said
"no" and Markie took it anyway. Yep that's stealing; especially when one literally
takes, for their own use, sections of another recording "that is someone else's
master which is copyrighted material" points out Simkin.
Sampling, ubiquitous
in rap and house music, is only legal if permission is granted by the original
copyright owner. Many people assume that because, as we say, everyone does it,
then it is allowable. It is not. I must admit, until working on this article,
I viewed sampling as unoriginal or creative but the more I heard the more I realized
I was wrong. "There is some creative sampling" suggests Jonathan "I represented
the artist Len who did that song "Steal my Sunshine" …which was, I think, the
third most played song in the world in 1999, and that song was based around a
sample of the disco hit by Andrea True Connection "More More More". I listened
to recordings, the original and the one (my client) had done and I thought it
was brilliant" states Simkin "how he ever thought to take that one bit and put
it to a completely different context, I thought it was completely creative. Not
like the one Vanilla Ice did, that one was totally not creative". Oh and in case
anyone was wondering, the Len sample was licensed!
When you read any book
on songwriting they will tell you, you can "get" your ideas from any where, a
line from a book, something you over hear in a grocery store, something you see
on TV and it will trigger in you an image or a story and you run with it. Aren't
we stealing ideas there? We are if we copy a literary phrase or melody without
permission, but what about a guitar riff? Can a guitar riff be liable? "In some
peoples mind a guitar riff doesn't constitute songwriting, but arguably, the guitar
riff from the Stones' tune " Satisfaction" is probably the most memorable part
of that song… if you took nothing but that guitar riff and built a song around
it, you would get sued for copy right infringement" states Simkin.
So that
leads me to percussion. Every time I hear the drum break in Adam Gregory's' song
"The World Could Use a Cowboy" I hear the drum break from Shania's song "If you're
not in it for love". I know they aren't exact, but I believe the judge in Harrison's
case, would, when comparing these two songs, agree they sound the same and they
have a similar application i.e. appearing as a solo drum break. To my knowledge
no one has filed suit for a drum pattern. Maybe that's a bit extreme, yet some
cases are.
Allen Klein, owner of ABKCO publishing (the Rolling Stones)
forced Janet Jackson to give up a portion of the rights to her song "What'll I
Do" because she sings "hey hey hey, that's what I say", and he also squeezed George
Michael out of some of his royalties for using "You can't always get what you
want" in the song "Waiting for the Day" - both Stones lyrics familiar to one and
all.(*2) Jonathan adds "the only hideous abuse (law suit) I can recall is the
case with the Stones and the Verve, I mean they (Verve) only sampled some strings
and my understanding of it is… is that they were forced to hand over all their
royalties from that song (to the Stones publisher)".
So, then, if you
do get permission to use a sample how much will it be worth percentage wise of
songwriting/publishing royalties in your final composition? Well Jonathan's cases,
of course, are privileged but he was able to say "speaking generally, the percentages
vary depending on all sorts of factors like: how recognizable the part is, what
part of the new song it forms, how well known the original song is, how well known
the sampler is, etc".
After speaking with Mr. Simkin, I realized there
are no precise perimeters for the plagiarism laws. When I initially contacted
him, I said I was having trouble finding clear lines, and his response was "because
there are none!" There are no measurements you can make which would define how
much of a composition can be borrowed. It seems to matter more how familiar something
is to the juried listener. "It depends how much that part plays in the original
song and if you make it obvious in another song".
So, in today's world
where we are bombarded with music in malls, from passing cars, TV and overhearing
the blaring music from someone's Ipod, it is difficult to know if your sudden
inspiration is original to you, or something you once heard. I can only suggest
you play your latest tune to a few friends. If anyone says it reminds them of
another song, rework that part, just to be on the safe side.
Article by
Jana Reid.
*1 Willie Dixon versus Led Zeppelin. Willie's
song "You Need Love" was made famous by Muddy Waters in 1962. Zepplin's song "Whole
Lotto Love" recorded years later, was recognized by Dixon's daughter as the same
song her father wrote and a suit was filed. Money won, was used to set up a Legal
fund for blues artist who had never seen a penny from their compositions.
*
2 Madeleine Baran details in her article "Copyright and Music: A History Told
in MP3's posted on
"Illegal Art"
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