Rock Around the Docket
You may have read about recent music copyright infringement lawsuits against artists such as Ariana Grande, Demi Lovato and Ed Sheeran. Some are based on similarities such as a pattern of identical notes. Others point to a single phrase in common. All highlight the complexity of music royalties and copyright.
To better understand the issue, we asked entertainment attorney Tom Giannini, J.D. ’99, to share his insights.
UB: Why is there a sudden surge in music copyright cases?
Giannini: First, I think a lot of musicians are relying on sampling other people’s chord progressions and melodies instead of being more creative on their own. Some have gotten burned because they didn’t get the correct sampling license. Second, we as a society have become more prone to engage in lawsuits. Third, technology has made it easier for someone to steal from someone else’s work, and also easier to track down a theft. Those are not really nice answers, but they are the truth.
UB: What evidence is used to prove an infringement?
Giannini: A court will look at a potentially infringing artist and ask, “Did he or she have any access to the composition that potentially was plagiarized?” That came out in the recent “Stairway to Heaven” case in California, where Led Zeppelin was accused of plagiarizing a song from a band called Spirit. One of the arguments was that Led Zeppelin had toured with Spirit and therefore had the ability to hear them play their song before Jimmy Page composed “Stairway to Heaven.” (The band was cleared of plagiarism.) Both sides will also bring in music experts to compare the songs’ chord structures, melodies, lyrics, keys and scales. And, of course, they will also compare the sheet music. Then each side will say why they think the songs do or don’t match.
UB: How can artists and songwriters protect themselves?
Giannini: Listen to a lot of music in your genre and see if you find anything similar to your song. You can also play it for people you trust and ask, “Have you heard this before?” If you think a song is similar to yours, compare sheet music to ensure your sheet music is different. There’s also software such as SpotSearch or AudioTag that can help determine if your song lyrics or music match with an existing recording. And, of course, register your songs with the U.S. Copyright Office.
UB: What are some common misunderstandings about musical copyright?
Giannini: Many musicians don’t realize that when a song is composed and then recorded, two copyrights exist. Ownership of one doesn’t always constitute ownership of the other. The first is the musical composition, which, in simplest terms, is the melody, lyrics, chord progressions and key of the song. The second copyright is the sound recording. The sound recording copyright results from the fixation of the musical composition onto, for example, tape, records or CDs.