Copyright Infringement in the music industry

When told that another musician was "plagiarizing" his work, Woody Guthrie is reported to have said "He just stole from me. But I steal from everybody. Why I'm the biggest stealer there ever was."

That quote says a lot about the fok tradition, and how songs were passed from generation to generation, mostly as tunes with new lyrics that addressed the interest of each generation. The antecedents for Guthrie's tunes have largely been lost to history, though quite a few have been unearthed over the years. But it was simply common practice then, and even when Guthrie disciple Bob Dylan first emerged on the scene he wrote a number of songs with "borrowed tunes" (in addition to performing numerous "traditional songs" like "Man of Constant Sorrow," "House of the Rising Sun," and "Corinna, Corinna."

Listening to recordings of such early Dylan songs as "Girl from the North Country," "Masters of War," "Farewell," and "Bob Dylan's Dream," I was blown away by his creativity and still am. But in later becoming something of an acolyte of British folk music, I was stunned to find antecedents to all these songs in "Scarborough Fair," "Nottamun Town," "The Leaving of Liverpool," and "Lady Franklin's Lament." Not that any of this dimmed my affections for the Dylan adaptations. As poet T.S. Elliott has famously been paraphrased "Bad poets borrow, good poets steal." That was the folk tradition, and it was paralleled in other music spread in the day by "folks," including jazz and the blues.

One supergroup that took the "folk tradition" approach to creating its form of rock/blues music was Led Zeppelin in the early 70s. They were able to successfully adapt songs like "When the Levee Breaks" and "In My Time of Dying" from source material by adding their unique spin to it. They also raided relatively recent British folk in the form of Bert Jansch's "Blackwaterside," somewhat renaming it as "Black Mountain Side," without Jansch's objection. But over the years, they've had to add coauthors to numerous songs.

Most notably, blues writer and Chuck Berry bassist Willie Dixon got his name attached (and back royalties paid) for several Zeppelin songs, including “Whole Lotta Love” and “Lemon Song.” Chuck Berry himself accused both Brian Wilson and John Lennon of violating his copyrights, with a similar outcome--name attachment and back royalties. (Berry, as well as labelmate, probably could have had a case on any number of knockoff hits through the rock era, as could Keith Richards and Dave Davies for the numerous ripoffs of the intros to "Satisfaction" and "You Really Got Me."}

Clearly the days of the “folk tradition” of borrowing and building on tunes was becoming a thing of the past, with the monetization of music making it a playground not just for musicians but for those in the legal profession as well. The key is that the era of recording has meant that everything now has a copyright and a musician needs to look into that ahead of time. A minor songwriter named Eric Carmen found that out when he took not one but two radio hits from the compositions of Serge Rachmaninoff, not realizing that those compositions had not fully cleared into public domain.

Classical music by the way, having been preserved carefully, yet having largely passed into public domain, has long been a reliable source of melodies for pop hits. The world's richest musician, Andrew Lloyd Webber ha built his songwriting and Broadway fortune by quite often "quoting" the great masters. However, for his overture to the megahit Phantom of the Opera, there is a great suspicion that he borrowed more than a measure of two from the Pink Floyd track "Echoes," expressed mostly by but not acted on by Pink Floyd members themselves most notably bassist/lyricist Roger Waters.

The bottom line is that artists are now less apt to adapt from even traditional tunes, even if they borrow a riff or two. Dylan himself hasn't reworked an existing melody in years. But by now we have a decent amount of casework involving rock music and plagiarism.

Two of the most prominent cases both happened in the mid-2010s. In reaching an out of court settlement, lawyers for Tom Petty and Jeff Lynne didn’t back down, securing songwriting royalties from British artist Sam Smith’s “Stay with Me,” which to their ears sounded too much like the Petty hit “I Won’t Back Down.” Barely a month later, a jury decided to award royalties to the estate of Motown singer Marvin Gaye, finding Robin Thicke’s hit "Blurred Lines" to be too similar to Gaye’s 1977 hit “Got to Give It Up." Thicke and co-writer Pharrell Williams found they “got to give up” 7.3 million dollars in damages, which likely made Williams none too "Happy."

Long before these cases, however, came two plagiarism cases involving rock royalty and their music that are particularly important and fascinating. The first involved an ex-Beatle allegedly copying a song written by a man who died only months after the song became a number 1 US hit in 1963. The other case involved another 60s’ icon allegedly writing a song that was too close to a song written by….well, himself.

Fresh off the Beatles break-up in 1970, George Harrison scored the first number one hit by a solo Beatle with “My Sweet Lord," which hit the top spot Christmas week and went on to be the most played song of 1971. It was heard everywhere by everyone, including representatives of ”Bright Tunes,” who alleged that Harrison had plagiarized the 1963 “He’s So Fine” by the Chiffons and sued on behalf of the song’s writer, the late Ronnie Mack, who passed away the year the song charted.

A key player in the lawsuit was the notorious Allen Klein, who managed Harrison and the three other Beatles at the time. Klein’s first thought was to purchase the catalog of Bright Tunes. However, the head of Bright Tunes” Seymour Barash did not agree to a sale and insisted that Harrison surrender the copyright. Harrison did not want to do this since the song was very personal to him. Although he admitted that he had heard “He’s So Fine,” as almost anyone his age had, Harrison argued that the similarities between the two songs were superficial.

Various financial situations involving Klein, Bright Tunes and Harrison kept the suit in litigation until 1976. To keep the case out of court at that time, Harrison offered Bright Tunes nearly all the royalties “My Sweet Lord” had earned him in order to maintain his copyright on the song. But again the offer was not accepted.

In what Roger Sadler in his book “Electronic Media Law” called a “bizarre” ruling in copyright law a court ruled that Harrison had not intentionally copied “He’s So Fine” but had done so sub-consciously. Many publishers and writers consider this to have been an alarming precedent. An equally bizarre postscript to the case: Allen Klein, seeing an opportunity to capitalize on the pending damages litigation against Harrison, whom he no longer represented, finally succeeded in purchasing the rights to “He’s So Fine,” and thus was ready to cash in on Harrison’s lost case. However, Harrison’s representatives eventually won an assertion that Klein’s relationship with Harrison at the beginning of the case precluded his recovering damages in the case.

The plagiarism case of John Fogerty also was brought by a music publisher, but in this case the motive was more personal than financial. Fogerty was angry about contracts he had signed as a young man with former manager and record company head Saul Zaentz, which had prompted him to stop playing any of his numerous Creedence Clearwater Revival hits live for many years. With his career thus derailed, Fogerty acted that his anger by releasing a song on his Centerfield LP titled “Zanz Can’t Dance,” which was a song about a pickpocketing pig that was a thinly veiled attack on Zaentz. Zaentz threatened suit, and Fogerty's current label, Warner Brothers, withdrew the original album and re-released with the cut remade and retitled “Vanz Can’t Dance.”

Still angry, Zaentz decided to sue for another reason: saying that the album's Anti-Reagan track “The Old Man Down The Road” was a musical copy of the Creedence Clearwater Revival song “Run through the Jungle,” which Fogerty wrote but Zaentz owned.

At the trial, Fogerty performed the songs and explained his “Swamp Rock” style to the jury, successfully contending that a writer could not "plagiarize" himself stylistically . Zaentz claimed that Fogerty won the case because the jury was starstruck but other musicians were as comforted by the Fogerty jury decision as they were unnerved by the judge’s Harrison ruling.

These cases illustrate how charges of copyright infringement in the creative world can be met with unpredictable results. The Fogerty case is likely a bit of an odd duck, though it illustrates the consequences of entering into a bad deal in handling your copyrights and how it can hurt you for a long while. (By refusing to perform his biggest hits so as not to enrich his former manager, Fogerty took a back seat in the music industry for a considerable time).

The Harrison case, meanwhile, perfectly illustrates the three components of the copyright infringement test set forth by intellectual property lawyer Lee Wilson: 1) access to the copied work; 2) demonstrable copying and 3) substantial similarity to the copied work. A study of the Harrison case shows the presence of all components to some degree, but the final judge’s decree showed how difficult it is to demonstrate to what degree intention was present and how much it mattered. It also, left open the question of whether real differences in the "derivitaive" piece can mitigate any similarity to a point that eliminates the judgment of a substantial debt.

In short, the whole field is a mine field for songwriters and a potential gold mine for lawyers and the noncreative side of the music business.