Curiosity Caught the Copycats

No matter what kind you like, music is everywhere, and music copyright infringement is even more important to understand in the internet age. I have a couple of my own reasons, and they're probably a lot like yours. One, I plan on working in the recording or broadcasting industry of music, and want to be familiar with what I can and can't do. Two, I write my own songs and lyrics and want to guard myself as an artist against musical thievery. More than ever, with internet music downloading, CD burning and sound sampling, it is easy to take what isn't ours and profit from it. We all have our music, so music copyright infringement is even more important to understand in the internet age.

In order to understand musical copyright infringement law as it stands today, we need to look back at how and why it's changed over the years. These changes start with the introduction of intellectual property copyright law. The biggest part of copyright law is the fair use doctrine, which determines what can and can't be done with the intellectual works of others. This notion of authorship was what spurred the development of the fair use doctrine in the 19^th century. Back then copyright law only applied to the printing and distribution of books, maps and charts, even after changes were made to lessen the impact of the existing "printer's monopoly" (Sag 18). Infringement could only be claimed if your words were copied verbatim (Sag 19).

Supreme Court Case Gray v. Russell changed that in 1839 with a statement by Justice Story that sided with protecting the individuality of a work and its "economic value". In 1841, Story defined infringement further with the case Folsom v. Marsh and with the first description of fair use. It took in consideration "the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may... diminish the profits... of the original work" (Sag 19). The fair use doctrine was to make it abundantly clear that the Court was out to protect the creativity and originality of intellectuals over the printing monopoly.

However, copyright law at this time still only extended to books and scholarly literary works. This began to change in the 19^th century with a new, wider definition of intellectual property as "an abstract object with economic value" (Sag 19). This, along with the inherently flexible nature of the fair use doctrine, makes copyright law adaptable and practical throughout communication history and its changing technologies. This flexibility also allows judges to make subtle changes to the law with each case without the slow or nonexistent approval of Congress (Sag 20).

The most significant change in 20^th century was the Copyright Act of 1976. This act, and major revisions of it, finally addressed the problem of private, home copyright infringement. There were obvious problems with enforcement and commercial value of enforcing private copyright law. Rather than including specific guidelines for private copyright cases, the Court left its interpretation up to a case-by-case basis using the fair use doctrine (Sag 20). That means a lot more interpretation; home copyright issues are an even bigger concern today, with peer-to-peer file sharing of media over the internet.

The fact that interpretation of each case is contextual is "the only practical solution," according to Sag (20). Imagine not being able to record your favorite soap opera to watch later or convert your CD tracks into mp3s so you can put them on an iPod. Imagine being in legal trouble after singing "Auld Lang Syne" at a friend's New Year's party. These everyday uses are literally either copying or public performance of copyrighted works-- the only difference is their use, which in all the above cases is non-commercial and therefore protected fair use (Sag 21). Therefore, understanding the application of fair use in copyright law is essential to everyday life, especially in the technology age where the media lines are beginning to blur.

The best way to understand modern music copyright law, fair use included, is to also look at the changes on a case-to-case basis. Next I will look at a variety of cases concerning lyrical and musical infringement, sampling, fair use, and licensing. I will also go over the termination rights of copyrighted material and the issue of digital sampling in more detail.

As long as there have been ways to record, publish and market music, there have been copyright infringement claims. One of the first, more well-known cases happened in 1976 in The Chiffons v. George Harrison (or Bright Tunes Music Corp. v. Harrisongs Music, Ltd.) (Owen 1). This case raised an important question about a common circumstance in songwriting: Can the infringing person be held responsible for subconsciously and unknowingly copying a tune? In this case the flexible yet stern nature of the fair use doctrine is clear.

In the case, Harrison admitted he knew the song "He's So Fine" by The Chiffons at the time he wrote "My Sweet Lord" (Baran 2). According to him, the mistake occurred when practicing in a room during a break at a press conference, "vamping" on some guitar chords that just sounded good to him. He went to get the rest of his group, and proceeded to write "My Sweet Lord" with four part harmony background vocals of "Hallelujah" and "Hare Krishna" (Owen 2). Little did he know that unconsciously, he had substituted these background vocals for the exact tune and form as The Chiffons' singers, who vamped "dulang dulang" in the same places (Owen 3). The District Judge's ruling was distinctive in that it acknowledged the fluke, but ruled against Harrison, saying his mistake was "under the law, infringement of copyright, and is no less so even though subconsciously accomplished" (Benedict 2).

Some songwriters become victims to copyright infringement and neglect more than once. The second time for blues musician Willie Dixon came when his daughter Shirley recognized a Led Zeppelin song as one of her dad's. Zeppelin's song "Whole Lotta Love" sounded almost identical in note and lyric to Dixon's "You Need Love." The Dixon song was actually made famous by Muddy Waters earlier, and the fact that Dixon hadn't received money from either artist was the last straw. He filed charges of copyright infringement against Zeppelin in 1985, and the case was settled for a large sum in Dixon's favor (Baran 3).

According to music editor Andrew Gilstrap, blues musicians are notoriously cheated out of songwriting profits. In fact, an earlier dispute between Dixon and Led Zeppelin's publishing companies in the 70's settled in Dixon's favor but also left him without royalties. The blues musician ended up suing his own company to collect the money owed him. Nonetheless, Dixon managed to start an organization to keep the situation happening to anyone else with the Blues Heaven Foundation in 1982. The organization helps musicians to recover lost royalties similar to Dixon's (Gilstrap 2).

A question of fair use came up in the next major copyright dispute, Campbell v. Acuff Rose Music, Inc., an early 90's appeals case between artists 2 Live Crew and Roy Orbison. The case centered more on how much of an original work under the fair use doctrine could be used in the resulting work (Cornell 1). The song in question, Roy Orbison's classic rock ballad "Oh, Pretty Woman" was already obviously the inspiration for 2 Live Crew's song "Pretty Woman." However, 2 Live Crew's song was a parody, and forced the Court to look at this copyright case differently in terms of fair use. It was also the first case that fair use had been applied to sampling (Baran 2).

In the dispute, it was argued and determined that some degree of sampling, "the process of recycling sound fragments previously recorded by other musicians for use in new recordings", was necessary to parody a work (Bergman 3). The decision concerned parody and fair use flip-flopped many times. First the district court found the parody to be fair, next the Sixth Circuit court reversed this decision on the argument that the parody was commercial and therefore unfair. But finally, in an unanimous decision, the Supreme Court reversed that ruling (Baran 3).

The Court made several statements on fair use in their decision. One, parody, being a form of comment and criticism, is therefore fair use. Two, although excessive sampling of the original is not fair, taking the "heart" of a work is necessary to parody it (Cornell 1). Supreme Court Justice Ginsburg clarified further in a letter that "copying does not become excessive in relation to parodic purpose merely because the portion taken was the original's heart" (Band 15). Three, along with this fact, parody is determined fair use as long as the resulting work is "transformative"-- an alteration of the original with a "new expression, meaning or message" (Cornell 1). Fourth, and lastly, rules were set as to how much could be sampled in a parody without damaging the market value of the original by fair use. Supreme Court Justice Souter issued that parodies are not transformative enough to be fair use if they "act as a market substitute for the original"(Band 15). In other words, a market must remain for both versions (Cornell 2).

Whereas 2 Live Crew's sampling for their work was found to be fair use, another rapper's use of sampling in the early 90's almost got him criminally prosecuted for copyright infringement. Biz Markie sampled the tune of "Alone Again (Naturally)", written by Gilbert O'Sullivan in 1972, to write "Alone Again" in 1991 with Grand Upright Music v. Warner Brothers Records. Even then, it was a commonplace action by many rappers. However, when Markie was denied rights to use O'Sullivan's tune, he proceeded to use it anyway and got into copyright trouble (Baran 1).

According to one law school's plagiarism project, the fact that Markie's case was heard by Judge Kevin Duffy, a judge described by most lawyers as "brutal", was another blow to Markie. In the same study, Duffy's "take no prisoners tone" is coupled with what is described as "an iffy understanding" of copyright law. After all, Markie only took three words without permission from the original work (and these are included in the title) and some background accompaniment. Duffy doesn't determine if this is enough to be infringement; he merely likens the defendant to a thief with the biblical command "thou shalt not steal" (Columbia 1).

Although Markie had a historically harsh judge, however, there aren't too many reasons to feel sorry for him. Besides the fact that he used another's song even after denial of rights to it by the publisher, he made other mistakes as well (Columbia 3). For one, the title of Markie's work gave him away by "the potentially demeaning association" between it and the original. Also, according to the plagiarism project, there was "nothing original" about Markie's version of O'Sullivan's song except the fact that Markie performed it (Columbia 1).

The defense had one bad argument after another in the case that did not escape Judge Duffy, the most incriminating that "others in the rap music business also engage in illegal activity", making Markie's actions somehow justifiable (Columbia 4). Knowing this statement was made, I personally cannot disagree with the judge in finding the defendant guilty. Whether a criminal punishment for copyright is appropriate built on the premise that "thou shalt not steal" is a totally different story. Markie never served his time the supposedly violating the Seventh Amendment by sampling (Baran 1). He was only referred to a U.S. Attorney for it by Duffy (Columbia 1).

Questionable judges and punishments aside, there is more to the dark side of the copyright law that's supposed to make livelihood easier for artists. Sometimes it does so at the unfair expense of those who also need it. Such is the case in at least one musical disagreement in 2003 involving Brian Burton (aka DJ Dangermouse) and The Beatles' publishing arm of Sony/ATV and EMI. The tort started when Burton sought to create a Beatles' tribute album by integrating the music of The White Album with hip-hopper Jay-Z's The Black Album (Balch 1). Interestingly enough, Jay-Z had actually created an a cappella version of The Black Album solely for DJ sampling purposes, in hopes that the new songs created would make his album more popular (Bergman 1).

The resulting piece of work, which Burton titled "The Grey Album," is uncommonly creative, and as one law professor said, "rivals any musical concept attempted in the past 40 years". But with a frontier came consequences. Although sampling was encouraged with Jay-Z's side of the mix, Burton received cease-and-desist letters from Sony/ATV and EMI for his use of The White Album material. After all, Burton had never received permission to use The Beatles' material, even though his cause was noble (Balch 2). But could the fact that The Beatles' material was under copyright contributed, even encouraged Burton to skip asking permission?

With a project as integrated as The Grey Album, requiring the rights to sample an entire Beatles' album, the cost of royalties to the publishers would be huge, if they would allow the sampling to even happen in the first place (Balch 4). Distribution was also tricky. Burton originally intended only to give free copies away to a certain group of people with no intent to commercialize The Grey Album, only for The Beatles' publishing arm to attempt to shut the promotion down (Balch 9). In this case, maybe Burton simply saw it cheaper to steal. As Holmes Wilson, one proponent for independent artists' rights said, "artists are being forced to break the law to innovate" (Balch 10). It can be argued that, in the future, samplers will be limited to "easy", more "cost effective" material to create with in lieu of what they originally envisioned (Howell 8).

The case between Burton and The Beatles' publishers never went to court, but the public found out about it. The publishing arm of The Beatles' (and others like it) took quite a beating from Grey Tuesday, an online protest in response to "how major labels stifle creativity and try to manipulate the public's access to music". The protest was organized by the Downhill Battle organization in direct response to the cease-and-desist letters Burton received. The protesters believed Burton's use was "most respectful" of The Beatles' work, and that "nothing short of clear legal codification" of sampling would keep the big publishers from banning efforts like Burton's again (Bergman 2).

Sampling itself started in the 1960's by DJs in Jamaica with the practice of "scratching", simply replaying seconds of sound on a record to create a unique beat with the original music (Bergman 3). The Biz Markie case made sampling completely illegal by then-copyright standards under the rule that if the material copied was under copyright, it cannot be used in a new work entirely. This of course changed with the fair use decision in the 2 Live Crew case involving parody, and with the 1976 Copyright Act. All copyright cases follow the rules of the Baxter copyright ownership test, which seeks two conditions for infringement: that the plaintiff proves ownership of the copyright, and that the same copyrighted material was duplicated by the defendant (Bergman 4).

However, in the case of Burton and The Beatles, The White Album was released in 1968, 4 years before the effective date for federal protection of copyrighted works set in with the 1976 Act. Unless, The Beatles recordings were registered in Great Britain (and thus protected by foreign copyright law) then part of The White Album may not be legally protected, and infringement could be successfully refuted by Burton. In a nutshell then, according to Jarvis v. A&M Records, today it is "generally well settled that the simple act of copying is not enough" to prove illegal use of a copyright (Bergman 5). Today sampling, or as it is sometimes called, "mashing" has been done by artists from Linkin Park to Franz Ferdinand to the Black Eyed Peas (Howell 8).

Liability can still be dodged in some cases by the principle of "de minimis", a law term meaning "the law does not concern itself with trifles" (Bergman 7). Under this rule, parts of a song can be sampled if they are so small, barely recognizable as part of the original work, and trivial (Howell 3). However, even if such a small amount is sampled, the recording in question is still up to the "substantially similar test" which holds that if "reasonable minds" or the "ordinary lay hearer" could differentiate between the alleged sampled and resulting portions, that infringement could not be proved (Howell 5).

In terms of case and copyright law history, the legality of digital sampling is not the only hot topic. In 1998, the Sonny Bono Copyright Term Extension Act recently provided additional rights for copyrighted works that had expired dated before 1978 (Hull 1). The original termination rights outlined in the Copyright Act of 1976 begin 40 years after the copyright grant or 35 years after the work is first published; the earlier of these dates is used (Hull 6). The Sonny Bono Act extended the five year termination period from 56 years after the copyright was granted (or on January 1, 1978, if a later date) to 75 years after the original copyright date (Hull 7).

But the dangers of being a songwriter don't stop with musical or lyrical infringement cases. It's not uncommon for a greedy publisher or recording artist to claim co-author or even authorship to take advantage of the songwriter's proceeds once termination rights are up. Of one study of a recent Billboard Hot 100 singles chart, 85 of the songs were credited with more than one name. Thirteen of the 15 remaining single names were recording artists, the other two were remakes. Of course, this isn't to say that the authors and co-authors listed didn't actually write part of the song. But most of the time, they are given credit for recording and producing the song when the songwriter should be credited instead. By this accreditation, then, the songwriter never sees a penny of the profits associated with the song, recordings, performances and other uses (Hull 1).

In this situation, upon termination notice, recording industry Professor Hull suggests that the actual authors or songwriters remove the phony label of "(co)author" of producers and recording artists to claim "their rightful share of future proceeds from the... song" (1). Copyright share is granted for the act of recording throughout music history, all the way back to classic songs such as "California Here I Come" to Elvis Presley's "Heartbreak Hotel." Often, songwriters (such as Presley) create their own publishing companies so they can own their recording material, or at least remain co-authors of it. One account by songwriter Jimmy Webb ("The Worst That Could Happen", "Wichita Lineman") describes exactly how the phony credits start:

I...played a song for a staff producer who made a couple of different suggestions, one of which I... incorporated rather absentmindedly into the finished product. He recorded the song, sang it himself... and there under the song's title in parenthesis, his name was included with mine
Even if, like the above case, the co-author had some share in coming up with the work, all "joint works" by more than one author, split all proceeds equally. So that means even if the songwriter comes up with the heart of the song, tune and lyrics, if a producer adds his or her name to the credit, he or she receives 50% of the moneys-- most of the time, without doing 50% of the actual songwriting. And if the songwriter is even included in this joint-share at all, co-owners of a copyright are not allowed to sue each other for infringement, so rights are not easily wronged (Hull 3). However, courts have concluded more recently that co-authors must make "musical or artistic contribution" by sound engineering or directing in order to legally claim co-authorship of them (Hull 4).

On this cautionary note, I'll conclude my research and my paper on musical copyright law. As a songwriter myself, and having heard the horror stories, I had already gone through the copyright process on my own. A friend of mine who also wrote her own music told me how a recording company "stole her music" and took credit for it, much like the instances above concerning co-authorship. Upon her recommendation, then, I had recorded an albumful of my own material, and sent it to Washington, and experienced the feeling of authenticity by seeing the receipt in the mail. Now, after researching many infringement and phony authorship claims, I have even more peace of mind with my actions.

Doing the musical research for this paper and project was actually very interesting. I looked up all of the infringing songs and their originals that I could to compare. Some of the similarities between original and alleged infringing material were so obvious I shook my head in amazement at the nerve of the infringing artist. How could Vanilla Ice get away with capturing the prominent main riff from Queen's "Under Pressure" to write his song "Ice Ice Baby", a song that almost immediately conjures that famous bass line? There were other instances too, where I had only musical proof of similarity and couldn't find any literature on an infringement case or action. I decided then that the best way to illustrate my awareness of copyright infringement was to play the evidence I had-- so I burned a CD of all the other artists I read about in an article by Madeleine Baran.

In the end, I have read in very specific terms about what can happen if you sample knowingly from another artist, wait too long to receive permission to sample, subconsciously write someone else's song, or make a parody of someone's work. These are all instances that I hope to remember for my future career, most likely in music or commercial audio engineering. There are very real consequences for musical and lyrical infringement. As a songwriter, I am now also aware of what I am entitled to, when and what I can file suit for, and common pitfalls to avoid throwing away my share of the profits. I had no idea there were so many infringement cases, and was surprised as the variety of genres involved. I hope to make the class aware of how widespread this copyright problem is with my presentation.

Works Cited

Balch, Noah. "The Grey Note." Copyright 2005 The University of Texas at Austin School of Law Publication, The Review of Litigation. Summer 2005. 24 Rev. Litig. 581

Band, Jonathan and Tara Weinstein. "The Blackmun Papers: A Peek Behind the Scenes of a Quarter Century of Supreme Court Copyright Jurisprudence." Copyright 2005 The Trustees of Columbia University in the City of New York, The Columbia Journal of Law & The Arts. Spring 2005. 28 Colum. J.L. & Arts 315.

Baran, Madeleine. "Copyright and Music: A History Told in MP3's." On "Illegal Art" Audio webpage. Last accessed November 14, 2005. http://www.illegal- art.org/audio/historic.html

"Benedict" -- online Copyright Casebook: George Harrison and The Chiffons. Last accessed November 14, 2005. http://www.benedict.com/Audio/harrison/harrison.aspx

Bergman, Bryan. "Into the Grey: The Unclear Laws of Digital Sampling." Copyright 2005 Hastings College of the Law, Hastings Communications and Entertainment Law Journal (Comm/Ent). Spring 2005. 27 Hastings Comm. & Ent. L.J. 619.

"Columbia"-- Grand Upright v. Warner. 780 F. Supp. 182 (S.D.N.Y. 1991). "Columbia Law School Arthur W. Diamond Law Library Music Plagurism Project" Last accessed November 14, 2005. http://ccnmtl.columbia.edu/projects/law/library/cases/case_grandwarner.html

"Cornell"-- Legal Information Institute, Supreme Court Collection. "Campbell aka q Skyywalker,et al. v. Acuff Rose Music, Inc." Last accessed November 14, 2005. http://straylight.law.cornell.edu/supct/html/92-1292.ZS.html

Gilstrap, Andrew. "Walkin' the Blues: Willie Dixon." Online music/artist review. Last accessed November 14, 2005. http://www.popmatters.com/music/features/020628-blues4.shtml

Howell, Astride. "Sample This! A ninth circuit decision seems to be in harmony with the sixth circuit's bright-line rule on what constitutes infringement in digital sampling." Copyright 2005 Los Angeles County Bar Association, Los Angeles Lawyer. September 2005. 28 Los Angeles Lawyer 24.

Hull, Geoffrey P. "Termination Rights and the Real Songwriters." Copyright 2005

Vanderbilt Law School, Vanderbilt Journal of Entertainment Law & Practice. Spring 2005. 7 Vand. J. Ent. L. & Prac. 301.

Owen, District Judge. "Bright Tunes Music Corp. v. Harrisongs Music, Ltd. 420 F. Supp. 177. United States District Court, S.D. New York. August 31, 1976. As amended September 1, 1976.

Sag, Matthew. "God in the Machine: A new structural analysis of copyright's fair use doctrine." Copyright 2005 University of Michigan Law School, Michigan Telecommunications and Technology Law Review. Spring 2005. 11 Mich. Telecomm. Tech. L. Rev. 381.