Have I Heard That Before? Copyright's Impact on Drawing Inspiration from Music's Past
| Author | Michael W. Harris |
| Pages | 17-67 |
Published in Landslide® magazine, Volume 12, Number 3, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2019 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Have I
Heard
That
Before?
Copyright’s Impact on
Drawing Inspiration
from Music’s Past
By Michael W. Harris
Image: GettyImages
Published in Landslide® magazine, Volume 12, Number 3, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2019 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
In 2014, British singer-songwriter Sam Smith released the
single “Stay with Me,” a ballad tune heavily inuenced by
American gospel music. It debuted at number one on the
U.K. singles chart, would eventually hit number two on
the Billboard charts, and would go on to win Record and
Song of the Year at the 57th Annual Grammy Awards.
Sam Smith, along with cowriters James Napier and William
Phillips, also have to share credit with Tom Petty and Jeff Lynne
due to similarity to the latter duo’s 1989 song “I Won’t Back
Down.” Now, the similarities between the two choruses are quite
striking to anyone who has heard both songs, but Smith has main-
tained from the beginning that he had never heard the Petty song
prior to composing his melody. Yet, in order to avoid litigation,
Smith, his cowriters, and the record label agreed to add Petty and
Lynne to the songwriter credits and give them 12.5 percent of the
royalties. However, Petty himself acknowledged that the similar-
ity was likely just one of those things that happen in songwriting.1
Despite countless possible permutations of the 12 notes in the
Western musical scale, there are only so many that both sound
pleasing and work with a given chord progression.
So, why did Smith agree to share credit when he maintains
that there was no intent of infringement? It probably comes
down to legal case law and the fact that he might lose if the
case went before a judge and jury. It would not be the rst
time such a thing has happened.
In 1976, a court ruled against George Harrison, deciding
that his 1971 track “My Sweet Lord” infringed upon the Chif-
fons’ 1963 song “He’s So Fine” and nding that Harrison had
“subconsciously copied” the tune from the Chiffons. Simi-
larly, Michael Bolton was found to have copied portions of
the Isley Brothers’ “Love Is a Wonderful Thing,” a relatively
obscure track in their catalog, when he released a song by the
same name in 1991—a track Bolton maintains that he had
never heard and which bears even less similarity to the sup-
posedly infringed track than Smith’s does to Petty.2
It is as Tom Petty wrote to Sam Smith after the two sides
reached an agreement: “All my years of songwriting have shown
me these things can happen. Most times you catch it before it gets
out the studio door, but in this case it got by.”3 It begs the ques-
tion, though, if Petty believed Smith did nothing wrong, and Smith
maintains his innocence from infringement, why the agreement?
It’s simple: the current climate around copyright law heavily
favors existing copyright holders, which—when combined with
audiences’ prejudice toward people “stealing” from older songs—
has cultivated an atmosphere of fear among composers and record
companies. However, these attitudes are very recent developments
in the history of music and, if trends continue, risk destroying one
of the essential elements of musical development and evolution:
drawing inspiration from music’s past.
Michael W. Harris is a librarian, archivist, and musicologist who
is an assistant professor, research and instruction services librarian
at the University of Memphis. He can be reached at mwhrris2@
memphis.edu or via his website michaelwharris.net. The author
acknowledges the work of Keith Aoki, James Boyle, and Jennifer
Jenkins, whose graphic novel Theft: A History of Music, published by the
Duke Center for the Study of the Public Domain, helped him wade
through a lot of the history and complexities of music copyright.
Building upon the Work of Those Who Came Before
In one of the more high-prole recent cases involving one
musician possibly being inspired by another, Led Zeppelin’s
classic “Stairway to Heaven,” one of the most played songs of
all time, was alleged to have been heavily copied from a song
recorded two years prior. According to the suit, the Ameri-
can band Spirit claims that composers Jimmy Page and Robert
Plant (Zeppelin’s guitarist and vocalist, respectively) had bor-
rowed heavily from their instrumental song “Taurus,” which
Page and Plant more than likely heard when Zeppelin per-
formed with Spirit during their rst American tour in 1968–69.
In 2016, a district court judge denied Zeppelin’s motion to
dismiss and ruled that there were enough similarities between
the two songs for the infringement claim to go to trial, which
subsequently ruled in favor of Page and Plant.4 This deci-
sion was appealed,5 and as of this writing the retrial has yet
to be heard. It should be noted that while a three-judge Ninth
Circuit panel ordered a new trial earlier this year, Zeppelin
appealed this decision and requested a rehearing before an en
banc panel of the Ninth Circuit.6 Arguments in front of this
panel were heard on September 23, 2019, and the court’s rul-
ing on whether the 2016 verdict will be upheld or remanded
for a new trial may not be issued for several months.7 How-
ever, if there is a retrial, a key point will revolve around what
is copyrightable and what is not, based on the laws that gov-
ern pre-1976 compositions, namely what is on le with the
U.S. Copyright Ofce, a.k.a. the “deposit copy.”8
These copies are usually barebones chords, melody, and
lyrics, and have none of the distinctive elements such as per-
cussion, solos, or any orchestrations for brass, choir, strings,
etc. (i.e., the elements that give many songs their distinctive
feeling and distinguish them from one another, but which also,
many times, mark songs as being within one genre or another).
These elements are what are considered the “scènes à faire,” or
stylistic hallmarks, which are standard for the genre.
Beyond the “scènes à faire” genre markers, many songs
are also built upon nearly identical chord patterns. If we con-
sider many songs by chords and genre hallmarks alone, then
a high percentage of Western music would bear some level
of similarity. Indeed, these elements are so common across
a genre (or increasingly a part of how genres blend) that it
is hard to say who might hold copyright over them if such a
thing were to apply. It is for this reason that when awarding
the Grammy to Sam Smith and his cowriters for “Stay with
Me,” Petty and Lynne were not among those awarded tro-
phies. To the Grammy Foundation, their contribution was as
source material that was (or was not) “interpolated” to cre-
ate Smith’s soaring gospel-inuenced tune, but not part of the
new song and worthy of sharing the award.9
Music has always been built upon the work of those who came
before, so much so that there is not really any truly unique element
to any song. However, interpretations of copyright ownership,
coupled with recording technology and other cultural shifts, has so
changed our perceptions that we no longer see inuence but rather
perceive theft. This, when combined with the lingering specter of
the “cult of genius”—the belief that creators are singular individu-
als who pluck ideas out of the ether—have us reacting with cries
of “Thief!” if we sense even the slightest whiff of “that sounds a
Published in Landslide® magazine, Volume 12, Number 3, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2019 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
lot like.” And families, recording labels, and lawyers are all too
happy to le on their behalf, especially if it is a song by a bestsell-
ing recording artist with possibly huge royalties.
It is ironic that so much of this can be traced to a moment
early in the 20th century when composers, spurred to action
by the threat of new recording and playback technology, and
championed by the venerable “March King” John Philip
Sousa, helped push for what would become the Copyright Act
of 1909. This was the rst major copyright law passed in the
United States since 1790 (the Copyright Act of 1831 subtly
revised the code, and numerous amendments followed), and
was passed to force the new recording industry (which also
included player-piano roll manufacturers) to pay composers
for using recordings of their music. Sousa and other composers
wanted royalties on sales of recordings of their compositions.
However, what Sousa could not have foreseen was how the
dual shifts of both recording technology and increasingly com-
plex copyright laws (and lengthening copyright terms) would
lead to a culture where a jury could nd a composer in viola-
tion of copyright for merely sounding or “feeling” like another
artist. Had today’s current copyright standards been in place
in 1909, would Sousa have sued or been sued by Henry Fill-
more for infringement of one of his many marches? If we are
to demystify and demythify our perception of creative artists,
especially musicians, we rst have to recognize the transfor-
mative effect that both recording and digital technologies have
had on our current cultural understanding of music. The phys-
ical act of taking what is a temporally locked art form and
engraving it in a way that (now thanks to digital technology
and streaming) is forever accessible in an “original” state has
fundamentally altered the way in which we relate to and access
music—and by extension changed how we think of copyright.
In an era where we have instantaneous access to over a
century’s worth of recorded music and can easily switch
between a song released this year and a song we may vaguely
recognize or remember from 30 years ago—like some half-
remembered dream—we either have to realize that artists
who borrow and build upon those who came before are and
have always been truly ingenious creators, or we need to
redene “creator” and loosen our copyright laws to allow for
what has been standard practice in art since the beginning.
The Chilling Effect of Blurred Lines
It is now time to address the most infamous of the recent
copyright cases, one whose resolution has cast doubt over the
entire copyright system: “Blurred Lines.” I will not belabor
the legal points behind the case and its appeal, but instead I
will offer a few points on why, from a musical and historical
basis, this decision was and remains a travesty.
Marvin Gaye, as an artist, was immensely talented and inno-
vative, taking the stylistic elements of R&B and Motown and
blending them in a way that positioned him at the forefront of funk
and soul music. This place also marks him as one of the artists
whose music was highly inuential on disco, the genre with which
his 1977 track “Got to Give It Up” is most associated.
However, many of the elements in this song (like the crowd
noise, falsetto vocals, and cowbell rhythm that the court case
hinged upon) can be traced to other artists that Gaye built upon,
such as Ray Charles (“What I’d Say”) and James Brown (“I Feel
Good”). As innovative and talented as Gaye was, he, much like
Pharrell Williams and Robin Thicke, was building upon compo-
sitions that came before. The idea that an artist can infringe upon
the copyright of another artist by simply invoking the feeling,
Continued on page 67
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