Musical plagiarism

Music plagiarism is the use or close imitation of another author's music while representing it as one's own original work. Plagiarism in music now occurs in two contexts – with a musical idea (that is, a melody or motif) or sampling (taking a portion of one sound recording and reusing it in a different song). For a legal history of the latter see sampling.

Overview

Any music that follows rules of a musical scale is limited by the ability to use a small number of notes. The 7 note diatonic scale is the foundation of the European musical tradition.
No artist denies the existence of, and relation between, musical genres. In addition, all forms of music can be said to include patterns. Algorithms (or, at the very least, formal sets of rules) have been used to compose music for centuries; the procedures used to plot voice-leading in Western counterpoint, for example, can often be reduced to algorithmic determinacy.

For these reasons, accidental or 'unconscious' plagiarism is possible. As well, some artists abandon the stigma of plagiarism altogether. Shostakovich perhaps commented sarcastically on the issue of musical plagiarism with his use of "We Wish You a Merry Christmas," an instantly recognizable tune, in his Prelude No. 15 in D Flat, Op. 87.^[1]

According to the U.S. copyright law, in the absence of a confession, musicians who accuse others of stealing their work must prove "access" — the alleged plagiarizer must have heard the song — and "similarity" — the songs must share unique musical components.^[2] though it is difficult to come to a definition of what is "similarity".

Even if a piece of music is in the public domain and thus not protected by copyright, it may still be plagiarism to copy a portion (or all) of it without attribution. There are many changes in the creation, content, dissemination and consumption of popular music in the 21st Century.

Musical ideas

Plagiarism is relevant to different musical styles in different ways.

In classical music, software exists that automatically generates music in the style of another composer, using musical analysis of their works. Most notably, David Cope^[3] has written a software system called "Experiments in Musical Intelligence" (or "EMI") that is capable of analyzing and generalizing from existing music by a human composer to generate novel musical compositions in the same style. EMI's output is convincing enough to persuade human listeners that its music is human-generated to a high level of competence.

According to Theodor Adorno's highly controversial view, popular music in general employs extensive plagiarism: variety in the musical material occurs in details whereas genuinely original musical content tends to be sparse when compared to classical or art music.^[4]

Sampling

Main article: Sampling (music)

Sampling has been an area of contention from a legal perspective. Early sampling artists simply used portions of other artists' recordings, without permission; once rap and other music incorporating samples began to make significant money, the original artists began to take legal action, claiming copyright infringement. Some sampling artists fought back, claiming their samples were fair use (a legal doctrine in the USA that is not universal). International sampling is governed by agreements such as the Berne Convention for the Protection of Literary and Artistic Works and the WIPO Copyright and Performances and Phonograms Treaties Implementation Act.

Today, most mainstream artists obtain prior authorization to use samples, a process known as "clearing" by gaining permission to use the sample and, usually, paying an up-front fee and/or a cut of the royalties to the original artist. Unfortunately, independent bands, lacking the funds and legal assistance to clear samples, are at a disadvantage unless they seek the services of a professional sample replay company or producer.

Recently, a movement — started mainly by Lawrence Lessig of free culture – has prompted many audio works to be licensed under a Creative Commons license that allows for legal sampling of the work provided the resulting work(s) are licensed under the same terms.

Cases

Most cases of alleged plagiarism are settled out of court. Most artists try and settle for costs that will be less than defending costs. Since the 1850s federal courts have published fewer than 100 opinions dealing with this issue.^[5] The Columbia Law School Library's Music Plagiarism Project provides information on many cases over the decades, with a few dating back to the 19th century.

Successful suits

• In March 1963, The Beach Boys released "Surfin' USA". Chuck Berry's music publisher Arc Music sued over what was a note-for-note cover of Berry's "Sweet Little Sixteen", and was eventually granted co-writing credit for Berry, and royalties from the record.^[6][7]

• George Martin's score for The Beatles' "All You Need Is Love" contained melodies from several songs thought to be public domain, including "In the Mood," written by Joe Garland and Andy Razaf. While the song was in the public domain, Glenn Miller's arrangement was not and EMI made a royalty payment to KPM publishing in July 1967.^[8]

• In 1969, John Lennon was sued by Chuck Berry's publisher Big Seven Music Corp. over the lyric, "Here comes ol' flat-top. He come groovin' up slowly," in the song, "Come Together". In Chuck Berry's song, "You Can't Catch Me", the lyric is, "Here come up flat top. He was groovin' up slowly." In 1973, a settlement was reached whereby Lennon agreed to record three of Big Seven's songs on his next album. Big Seven Music Corp. again sued Lennon for breach of contract, when his next album, Walls and Bridges, contained only a brief snippet of the song "Ya Ya," with the court awarding the company US$6,795.^[9]

• George Harrison was successfully sued in a prolonged suit that began in 1971 for plagiarizing the Chiffons' "He's So Fine" for the melody of his own "My Sweet Lord." ^[10]

• On Led Zeppelin's album Led Zeppelin II, parts of the song "Bring It On Home" were copied from Sonny Boy Williamson's 1963 recording of "Bring It On Home", written by Willie Dixon. On the same album, "The Lemon Song" included an adaptation of Howlin' Wolf's "Killing Floor". In 1972, Arc Music, the publishing arm of Chess Records, brought a lawsuit against Led Zeppelin for copyright infringement over "Bring It On Home" and "The Lemon Song"; the case was settled out of court for an undisclosed sum.

• Led Zeppelin's song "Whole Lotta Love" contained lyrics that were derivative of Willie Dixon's 1962 song "You Need Love." In 1985, Dixon filed a copyright infringement suit, resulting in an out-of-court settlement. Later pressings of Led Zeppelin II credit Dixon as co-writer.^[11]

• Led Zeppelin also paid a settlement to the publisher of Ritchie Valens' song "Ooh! My Head" over "Boogie with Stu" (from their album Physical Graffiti) which borrowed heavily from Valens' song.^[12]

• In autumn 1984 and throughout 1985, Huey Lewis sued Ray Parker, Jr. for plagiarism, citing that Parker stole the melody of the song "Ghostbusters" (the theme from the movie of the same name), from Lewis's 1983 song "I Want A New Drug". Lewis dropped the lawsuit after the two parties settled out-of-court in 1995. Lewis had been approached to compose the main theme song for the Ghostbusters movie, but had declined due to his work on the soundtrack for Back to the Future. It was reported in 2001 that Lewis allegedly breached an agreement not to mention the original suit, doing so on VH1's Behind the Music.^[13]

• An Oasis B-Side "Step Out" was originally intended for the (What's the Story) Morning Glory? album but was taken off after Stevie Wonder requested 10% of the royalties as the chorus bore a similarity to his hit Uptight (Everything's Alright). Instead it was placed as a B-Side on their single Don't Look Back In Anger. Also, because of this, Wonder, Henry Cosby and Sylvia Moy received credit for writing the song, along with Noel Gallagher. Also the single "Whatever" was initially credited as being written by the band's lead guitarist Noel Gallagher. A subsequent lawsuit awarded a co-writing credit to Neil Innes. Oasis were also successfully sued for $500,000 by the New Seekers after the song Shakermaker took its melody from "I'd Like to Teach the World to Sing".

• In early 2007, Timbaland was alleged to have plagiarized several elements (both motifs and samples) in the song "Do It" on the 2006 album Loose by Nelly Furtado without giving credit or compensation.^{[citation needed]} See 2007 Timbaland plagiarism controversy.

• In early 2006, the writers of Lee Hyori's song "Get Ya" were accused of plagiarizing Britney Spears' 2005 song "Do Somethin'". This eventually led Lee Hyori to stop promoting the song and contributed to the failure of the song and its album, Dark Angel.^{[citation needed]}

• In 2005, Belgian songwriter Salvatore Acquaviva won a judgement against Madonna, claiming that her 1998 hit, "Frozen" had been lifted from his early-1980s song, "Ma Vie Fout le camp". The judge declined to award damages, but did order the withdrawal of all remaining discs for sale and barred the song from airplay on Belgian TV and radio.^[14] See Frozen (song): Plagiarism.

• American musician Les Paul was successfully sued for plagiarizing Romanian composer Richard Stein's "Sanie cu zurgălăi" (1937) as "Johnny (Is the Boy for Me)" (1953).^[15]

• Clive Edwards vs BMG/Universal/Rondor/19 Management (London County Patents Court, May 2007). Music publishers BMG and Universal settled out of court with songwriter Clive Edwards. Mr Edwards had formally charged S Club 7's songwriters (Simon Ellis and Shep Solomon - NB it is not known exactly which songwriter was charged) with plagiarising his original song in order to create "Don't Stop Movin'". The court order is that both parties uphold a confidential agreement, believed within the industry to involve very substantial sums.^{[citation needed]}

• A lawsuit filed by Tommy Dunbar and James Gangwer of the 1970s power pop band the Rubinoos alleged Avril Lavigne stole their song "I Wanna Be Your Boyfriend" and reworked it into her best-selling single "Girlfriend." The case was settled for an undisclosed sum in January 2008.^[16]

• The Black Eyed Peas were successfully sued by an Ohio disc jockey named Lynn Tolliver, claiming that his song "I Need A Freak" was sampled without his permission in The Black Eyed Peas song "My Humps". Lynn Tolliver won $1.2 million.^[17]

Unsuccessful suits

• During the mid-1930s, Ira Arnstein became convinced that major pop songwriters had been illegally copying his work. During 1936-46 he brought forth five plagiarism lawsuits though none proved successful.^[18]

• In 1994 John Fogerty was sued for self plagiarism after leaving Fantasy Records and pursuing a solo career with Warner Bros. Records. Fantasy still owned the rights to the Creedence Clearwater Revival library. Saul Zaentz, the owner of Fantasy, claimed Fogerty's song "The Old Man Down the Road" was a musical copy of the Creedence song "Run Through the Jungle". A jury found that "Old Man" was not derivative.^[19] See Fogerty v. Fantasy.

• In 1993 Killing Joke sued Nirvana alleging that the riff for the latter's song "Come as You Are" was copied from the riff for their song "Eighties". The lawsuit was dropped after the sudden death of Nirvana front-man Kurt Cobain.^[20]

• In 2003 Michael Cottrill and Lawrence E. Wnukowski claimed that Britney Spears’s "Can’t Make You Love Me" misappropriated substantial melodic material from their "What You See is What You Get". The court was skeptical on the question of defendant’s access to the plaintiff’s work.^[21]

• Ronald H. Selle sued the Bee Gees, alleging their 1977 hit, "How Deep Is Your Love", stole the melody of his own never-released 1975 song, "Let It End". The Bee Gees eventually prevailed after an appeal.^[22]

• On December 4, 2008 guitarist Joe Satriani filed a copyright infringement suit in Los Angeles federal court against Coldplay, claiming the Coldplay song "Viva la Vida" includes "substantial original portions" of the Satriani song "If I Could Fly" from his 2004 album, Is There Love in Space?. The Coldplay song in question has received two Grammy Awards for "Song of the Year".^[23] Coldplay has denied the allegation,^[24][24] which has resulted in further legal action from Satriani.^[25][26] On 14 September 2009, the case was dismissed by the California Central District Court, with both parties potentially agreeing to an out-of-court settlement.^[27]

• Baltimore songwriter Ray Repp sued composer Andrew Lloyd Webber, alleging the theme song from The Phantom of the Opera was taken from his song "Till You" . In 1998, a jury found Webber not liable for plagiarism.^[28]

Unsettled, alleged, forgiven

The following are accusations of plagiarism appearing in notable media:

• The song "Babe I'm Gonna Leave You" by Led Zeppelin was thought to be a traditional song and was credited as "Trad. arr. Page" but it was actually written by folk singer Anne Bredon. Since 1990, the Led Zeppelin version has been co-credited with Bredon, who received a substantial back-payment in royalties.^[29]

• Coldplay was also briefly accused of copying portions of the song from "The Songs I Didn't Write" by American alternative band Creaky Boards.^[30] Creaky Boards later retracted the accusations and speculated that both songs may have been inspired by the video game The Legend of Zelda.^[31]

• A portion of the Bruce Springsteen single, "Radio Nowhere." sounds similar to Tommy Tutone's 1982 hit, "867-5309/Jenny." Tommy Heath's response was "I'm really honored at a similarity, if any, I think there's too much suing in the world now"^[32]

• The New York Post reported remarkable similarities between the Red Hot Chili Peppers' "Dani California" and Tom Petty's "Mary Jane’s Last Dance" could turn into a lawsuit. Petty responded in a Rolling Stone interview:

...a lot of RocknRoll songs sound alike. Ask Chuck Berry. The Strokes took "American Girl" [for their song "Last Nite"], and I saw an interview with them where they actually admitted it. That made me laugh out loud. I was like, "OK, good for you." It doesn’t bother me.^[33]

• In the bollywood industry, accusations of plagiarism are so high that several websites [2][3] exist solely to archive public accusations, of which very few receive legal attention.^[34]

• Søren Rasted (formerly of Aqua) has been accused of copying Kate Bush' Running Up that Hill for a song composed for the winner of the X Factor (Denmark) contest.[4]

• Korean pop artist G-Dragon has been accused of plagiarism by Sony Music, as his tracks "Heartbreaker" and "Butterfly" are similar to Flo-Rida's "Right Round" and Oasis's "She's Electric", respectively. [5][6]

• iTunes has found cases of musical plagiarism using software that automatically identifies a CD's track information when it's loaded, most notably the many instances with pianist Joyce Hatto.^[35]

• Led Zeppelin's song "Dazed and Confused" was derived from a 1967 Jake Holmes song of the same name, which had been performed by Jimmy Page when he was with The Yardbirds.^[36][37] In June 2010, Holmes filed a lawsuit against the guitarist for copyright infringement in a United States District Court, claiming Page knowingly copied his work.^[38]

• The Black Eyed Peas were charged in January, 2010 by Ebony Latrice Batts (known on stage as Phoenix Phenom), claiming that "Boom Boom Pow" is just a copy of her song "Boom Dynamite", which she sent to Interscope Records (the Black Eyed Peas recording company). The suit is ongoing.^[39]

See also

• List of plagiarism controversies
• Plagiarism detection
• Appropriation (music)
• Contrafact
• Credit (creative arts)
• List of musical medleys
• Mashup (music)
• Musical quotation
• Parody music
• Potpourri (music)
• Quodlibet
• Source criticism in the arts
• Variation (music)

References

1. ^ "Wolfgang Amadeus Copycat". Slate. http://www.slate.com/id/2061711/. 
2. ^ Conner-Simons, Adam (24 July 2007). "Picking Up What They're Laying Down". Gelf magazine. http://www.gelfmagazine.com/archives/picking_up_what_theyre_laying_down.php. Retrieved 23 November 2008. 
3. ^ Cope, David (2006). Computer Models of Musical Creativity. Cambridge, MA: MIT Press 
4. ^ Adorno, Theodor W.. "On popular music". soundscapes.info. http://www.icce.rug.nl/~soundscapes/DATABASES/SWA/On_popular_music_2.shtml. 
5. ^ "UCLA Law Copyright Infringement Project". UCLA School of Law. http://cip.law.ucla.edu/caselist.html. Retrieved 23 November 2008. 
6. ^ "Sweet Little Sixteen". SongFacts. http://www.songfacts.com/detail.php?id=1771. Retrieved 25 January 2011. 
7. ^ "SURFIN USA". BMI Repertoire. Broadcast Music Incorporated. http://repertoire.bmi.com/title.asp?blnWriter=True&blnPublisher=True&blnArtist=True&keyID=1434720&ShowNbr=0&ShowSeqNbr=0&querytype=WorkID. Retrieved 25 February 2011. 
8. ^ Lewisohn, Mark. The Beatles: Recording Sessions (1988): 120
9. ^ Self, Joseph C. (1992). "Lennon vs. Levy - The 'Roots' Lawsuit". abbeyrd.net. http://www.abbeyrd.net/lenlevy.htm. Retrieved 25 February 2011. 
10. ^ Self, Joseph C. (1993). "The "My Sweet Lord"/"He's So Fine" Plagiarism Suit". The 910. http://abbeyrd.best.vwh.net/mysweet.htm. Retrieved 23 November 2008. 
11. ^ Goldstein, Patrick. "Whole Lotta Litigation". Los Angeles Times, 3 February 1985: N72
12. ^ Lehmer, Larry. The Day the Music Died: The Last Tour of Buddy Holly, the Big Bopper and Ritchie Valens (2004): 166
13. ^ [1]
14. ^ "No ray of light for Madonna in song plagiarism case". Sydney Morning Herald. 20 November 2005. http://www.smh.com.au/news/people/no-ray-of-light/2005/11/19/1132017024510.html. Retrieved 23 November 2008. 
15. ^ Nicoleanu, Anca (February 22, 2007). "Zici că n-ai plagiat şi, gata, ai scăpat". http://www.cotidianul.ro/zici_ca_n_ai_plagiat_si_gata_ai_scapat-22511.html. Retrieved June 19, 2009. 
16. ^ Luscombe, Richard (7 July 2007). "Canadian rocker stung by claims of plagiarism". The Guardian (London). http://www.guardian.co.uk/world/2007/jul/07/pop.music. Retrieved 23 November 2008. 
17. ^ http://www.cleveland.com/entertainment/index.ssf/2011/06/former_cleveland_dj_lynn_tolli.html
18. ^ http://www.musicreports.com/smart_licensing/content_article.php?article_id=76&title=The+Strange+Case(s)+of+Ira+Arnstein,+Serial+Litigator
19. ^ "Fantasy v. Fogerty". http://cip.law.ucla.edu/cases/case_fantfogerty.html. Retrieved 2010-02-03. 
20. ^ "Interview with Killing Joke's Geordie". BBC Manchester. 2003. http://www.bbc.co.uk/manchester/music/2003/07/24/killing_interview.shtml. Retrieved 2008-01-07. 
21. ^ "Cottrill v. Spears, No. 02 - 3646, 2003 U.S. Dist. LEXIS 8823". (E.D. Pa. May 22, 2003). http://cip.law.ucla.edu/cases/case_cottrillspears.html. Retrieved 23 November 2008. 
22. ^ "Selle v. Gibb". http://cip.law.ucla.edu/cases/case_sellegibb.html. Retrieved 23 November 2008. 
23. ^ http://grammy.com/grammy_awards/51st_show/list.aspx
24. ^ ^{a b} http://www.coldplay.com/newsdetail.php?id=242, retrieved 10 December 2008.
25. ^ "Guitarist Satriani sues Coldplay". BBC News. 5 December 2008. http://news.bbc.co.uk/1/hi/entertainment/7766683.stm. Retrieved 19 May 2010. 
26. ^ Coldplay Sued By Joe Satriani For Allegedly Plagiarizing 'Viva La Vida' Melody », peoplestar.co.uk, Retrieved on 2008-12-06.
27. ^ "Coldplay's Joe Satriani lawsuit dismissed from court". NME. 2009-09-15. http://www.nme.com/news/coldplay/47325. 
28. ^ "Lloyd Webber wins Phantom battle". BBC News. 16 December 1998. http://news.bbc.co.uk/2/hi/entertainment/235906.stm. 
29. ^ Dave Lewis (1994), The Complete Guide to the Music of Led Zeppelin, Omnibus Press, ISBN 0-7119-3528-9
30. ^ Adams, Guy (2008-06-19). "The song they didn't write? Coldplay are accused of plagiarism by American band". The Independent (London). http://www.independent.co.uk/arts-entertainment/music/news/the-song-they-didnt-write-coldplay-are-accused-of-plagiarism-by-american-band-849992.html. Retrieved 2008-11-11. 
31. ^ Martin, Nicole (2008-06-20). "Coldplay didn't copy us, says American band". The Telegraph (London). http://www.telegraph.co.uk/news/newstopics/celebritynews/2163625/Coldplay-didn%27t-copy-us,-says-American-band.html. Retrieved 2008-11-11. 
32. ^ Horowitz, Carl F.. "Sue Me, Sue You: Musical 'Plagiarism' in court". National Legal and Policy Center. Archived from the original on 24 May 2008. http://web.archive.org/web/20080524041323/http://www.nlpc.org/view.asp?action=viewArticle&aid=2229. Retrieved 23 November 2008. 
33. ^ Greene, Andy (28 June 2006). "Tom Petty to Chili Peppers: We’re Cool". Rolling Stone. http://www.rollingstone.com/rockdaily/index.php/2006/06/28/tom-petty-to-chili-peppers-were-cool/. Retrieved 23 November 2008. 
34. ^ Sawhney, Anubha (2 Dec 2006). "Bollywood music: If it's a hit, it's a rip-off". timesofindia. http://timesofindia.indiatimes.com/articleshow/690103.cms. Retrieved 23 November 2008. 
35. ^ Musgrove, Mike (22 February 2007). "Too Perfect Harmony". Washington Post: p. D01. http://www.washingtonpost.com/wp-dyn/content/article/2007/02/21/AR2007022102037.html. Retrieved 23 November 2008. 
36. ^ Headlam, Dave and Elizabeth West Marvin. "Does the song remain the same? Questions of authenticity and identification in the music of Led Zeppelin". Concert Music, Rock, and Jazz Since 1945: Essays and Analytical Studies, p. 330. Boydell & Brewer, 1995. ISBN 1-58046-096-8
37. ^ Matt Resnicoff, Matt. "In Through the Out Door: Jimmy Page Goes Back to Led Zeppelin" Musician November 1990: 62
38. ^ Led Zeppelin sued by folk singer for alleged plagiarism. New York Post. Retrieved 6 July 2010.
39. ^ http://www.inentertainment.co.uk/20100128/black-eyed-peas-sued-for-plagiarism-boom-boom-pow-copied-boom-dynamite/

External links

• A Mathematical Look at Musical Plagiarism by Frank Behrens, Art Times, May, 2004
• UCLA Law Copyright Infringement Project
• J. Michael Keyes, "Musical Musings: The Case for Rethinking Music Copyright Protection", 10 Mich. Telecomm. Tech. L. Rev. 407 (2004), available at [7]