Plagiarism lawsuits – a new revenue stream for the music industry?

Another day: another song goes to court. These days it seems that an artist or label is always in court – or settling out of it – over a matter of one of their songs being ‘inspired’ by someone else’s tune.

At the start of January, it was Radiohead’s turn: apparently taking Lana Del Rey to task over alleged similarities between their classic Creep and Lana’s Get Free (depending on whom you ask). Given that Creep had already been the subject of legal interest by The Hollies, the whole story gets even more interesting.

In the past few years, we’ve had numerous high-profile cases: Ed Sheeran settling out of court over The Shape of You apparently sounding a bit too much like TLC’s No Scrubs, Robin Thicke and Pharrell taken to task over their Marvin Gaye inspiration,  Zep and their mighty stairway, and Ed Sheeran again with Photograph.

Music Plagiarism

Perhaps more bizarrely, we’ve also seen Taylor Swift credit Right Said Fred as co-songwriters on her number one Look What You Made Me Do. That’s certainly not a co-writing credit I ever thought I’d read in the liner notes.

Okay, I’ve not gone through the timeline of plagiarism litigation in the music industry, but it does seem like these sorts of cases are coming up more often these days, which made me think: are publishing lawsuits becoming an important source of revenue for the music industry these days?

We constantly hear that record sales are down and how little money (relatively speaking) is made per stream and how revenue in the industry is much lower than it was back in the glory days, although figures from the ifpi do show industry revenues swinging back to growth in the last few years. Have labels decided that, if they can’t make enough from their own records, they can make a bit back by going after a share of someone else’s?

Obviously, if you’re a struggling musician – or even a comfortably well off musician – who has slaved over that song for years, from the pages of a notebook when you were 16 through years of playing it at open mic nights, tweaking it, perfecting it until you get that breakthrough and get it recorded, it can’t feel great if you end up hearing a popular soundalike a few years later that races up charts around the world.

That said though, I’d be interested to know how many cases of litigation were instigated by the artist, and how many by their record label.

I think that one of the things that annoys me slightly about the whole process is the hugely subjective nature of the whole thing. I’ve not sat in on a hearing, so obviously my opinion doesn’t carry a lot of clout, but it just seems that some people say that this song sounds like that song, and a judge decides whether it does or doesn’t.

Pop Music CopyrightIn addition to the fact that, in this age of hugely impressive digital technology, we haven’t yet come up with an objective measure of song similarity, the amount of biasing that must happen in a case like this must be of concern. It’s one thing to hear a song on the radio in the car one day, or in a club, but if you’re sitting in a courtroom and someone plays you two songs back to back and points out the similarities, of course you’re going to hear them.

If you’re an artist inspired or influenced by a certain style, then one concerning point about the Blurred Lines case is that the song is a different chord progression to Got To Give It Up, suggesting that the copyright infringement is more about the general sound, feel and production of a song, rather than the notes on the stave.

I quite regularly hear songs that sound like other songs. For example, earbuds in on the bus on the way home the other day, Taylor Swift’s Breathe popped up on the playlist and I thought “Stuck Like Glue by Sugarland (released a couple of years later) sounds like a faster version of this.” But is someone thinking that ‘x sounds like y’ sufficient for a lawsuit?

What about the bass line to the Jam’s Start? Remind you of anything? Taxman by The Beatles maybe? What about the ‘All because you thought for yourself now…’ section from Echobelly’s Go Away? That is surely as close to Radio Gaga as Look What You Made Me Do is to I’m Too Sexy. Of course, it’s not as if we’ve not had these sorts of cases before in musical history; My Sweet Lord anyone?

And what of the lyrics, surely a very objective part of a song? Even if we just think of titles at the moment, The Beach Boys, Sheryl Crow and Sugarland all have songs called All I Wanna Do. Now, let’s say there are about 150,000 words in the English language, that gives us 150,000 to the power of four combinations for a four word phrase (5 x 10^20 give or take, a hefty number). Of course, the useable number of four word phrases will be a vast amount lower than this, unless you want a song that includes memorable and catchy lyrics like ‘pheasant magnetised circumstance nucleus’.

Hank Williams copies own song?Okay, so that last paragraph may have been phrased a bit flippantly, but I think there is a good point in there: how come it is okay to write a song with the same title as another one, but you can’t decide that you’re going to use its I-III-IV-iv chord progression?

One other sticking point is the use of words like ‘theft’ and ‘plagiarism’. Plagiarism in particular sounds like an artist was aware of a song and intentionally decide to use aspects of it; like Father Ted’s My Lovely Horse. Listening to the song that Ed Sheeran co-wrote with Faith Hill and Time McGraw, you can’t deny that those two songs sound almost identical.

And that’s what gets me. If you were writing that song, and were aware of the ‘original’ surely you wouldn’t make it that similar? Would you? I mean, it’s glaringly obvious. Fundamentally though, it’s a fairly common chord progression broken down into a fairly simple, but catchy enough arpeggio. Given how many songs get written and recorded, is it that unlikely that these two songs could have arisen independently, and by chance?

Let’s not forget as well, that the late and exceptionally great Hank Williams managed to write the same song twice. Take a listen to Move It On Over and Mind Your Own Business and see what you think.

I don’t think these types of case are going to go away anytime soon, but if they’re here to stay and there are millions of dollars at stake, then surely we can come up with a fairer, more objective way of deciding if one song really does sound like another.

Right, I think I’ve got that off my chest. Let’s just finish with the Axis of Awesome going explaining to us why every third pop song is exactly the same (fair warning, you might want to stop before five minutes or so if there are children / other people about).

 

 

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Fynn Callum

producer, guitarist, engineer & dj
From indie guitarist to deep house producer via Northern Soul dj; mix engineer, producer and gear enthusiast. Jaffa Cake aficionado.

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