Blurring the lines of music copyright — is the landscape changing?

It certainly has been said before but it is worth reiterating: you cannot copyright an idea. You can, however, copyright the artist expression of that idea. Whether that relates to poetry, prose, film or music, you can make sure you protect your intellectual property. When it comes to music, for example, there are two aspects to copyrighting. The first, is protecting the lyrics; and the second is protecting music. There have been a number of cases highlighted in the media recently of well-known musicians suing other well-known musicians for infringement with Robin Thicke and Pharrell Williams, Ed Sheeran and Led Zeppelin having to defend their compositions.

Why copyright music?

Strictly speaking music is automatically copyrighted the moment it is created. The caveat: it has to be written down (lyrics and sheet music) and recorded in order for the owner to claim the copyright.

In the US this is made marginally easier by being able to physically register a copyright with the United States Copyright Office, which is a department of the Library of Congress. The process is as simple as registering on the site, upload your sheet music, written lyrics and a recording of the song, pay a fee of $35 and it is done. Following the completion of the process, musicians receive a registration certificate.

It is not necessary to register a copyright with the copyright office in order to prove that it is yours. But the benefits of doing so are immeasurable — especially as the process itself is simple and cheap. Registering the copyright means holders are eligible for statutory damages and recouping attorney fees someone infringes on it and the case goes to litigation. More than that, if the copyright is registered within five years of the music being published, then it is a prima facie case — and the burden of proof is on the infringing party.

In the UK there is no formal body to register a musical copyright. However, the same logic still applies — the music is protected by copyright from the time it is written down or recorded. The tricky part here is proving that a musician or lyricist owns that copyright. There are a number of things to do to ensure this, such as posting the written lyrics and sheet music and a recording to yourself, leaving the package sealed and using its dated postmark as timeline proof. Or, copies of the relevant items could be left with a solicitor or bank, with holders obtaining a dated receipt. There are also organisations such as Songrite that provide a copyright registration service and hold copies of songs and documentation for musicians.  

 How long will it last?

Copyrights do last for quite some time before expiring and leaving intellectual property in the public domain. The copyright for music, for example, extends 70 years after the death of the author. When the song is jointly authored, the seventy years will run from death of the last living author. In most situations, the author of a song will be the individual composer or team of composer and lyricist. But situations occur where the members of the band have arranged to work as employees for the band as a corporation or limited liability company. In this case, band members would be creating the work as a work-for-hire, and the corporation/LLC would be the author. There are a few other situations where the composer will be asked to sign a work-for-hire agreement, but in all but rare cases, musicians should resist these arrangements.

The YouTube generation

The proliferation of social media and the “self-publishing” culture enjoyed by millennials puts the issue of copyrighting into sharp focus — particularly when it comes to music. Traditionally, there has been little or no value to registering a composition until it has been published. This typically means selling or distributing copies of the song to the public. However, as more musicians and creatives promote themselves and their works on social media platforms, such as YouTube, copyrighting their intellectual property in a timely fashion will become more and more important.

 Can you copyright a vibe?

Coming back to the argument that you can only copyright the creative expression of ideas, it is this aspect that makes music copyright infringement so interesting and, indeed, so complex. In what is being referred to as the Blurred Lines case, the family of legendary soul musician Marvin Gaye sued Thicke and Williams (and their record label) for copying Got to Give it up by Gaye in their Blurred Lines track. The case was initiated in 2013 and a judgement was handed down in 2015 — Gaye’s family was awarded $5.3 million, as well as half of the royalties for the song.

What made this case stand out wasn’t the fact that the amount of damages was one of the largest awards in music copyright history, but because of what the judgement was based on. Blurred Lines was not found to be infringing on the lyrics or even the melody. Instead, the jury in the case said the “vibe” was similar. Thicke and Williams have since launched an appeal, but the fact remains that this case did not follow the traditional legal understanding of music copyright infringement.

What has gone before

To put this into perspective, consider the host of previous infringement cases; George Harrison was sued successfully for damages in 1971 for infringing on The Chiffon’s song He’s So Fine. The court found that Harrison’s My Sweet Lord was plagiarised. However, it was judged to be unconscious plagiarism and not intentional.

More recently, Ed Sheeran is being sued not in one instance, but in two. In the first case, Sheeran is being sued for $20 million by songwriters Martin Harrington and Thomas Leonard. They say that the musician’s song Photograph plagiarises their song, Amazing. The second case sees the musician being sued for his song Thinking Out Loud. Kathryn Townsend Griffin, Helen McDonald and Cherrigale Townsend, the family of Ed Townsend, who co-wrote Marvin Gaye’s hit Let’s Get it On. The court papers state “The melodic, harmonic, and rhythmic compositions of Thinking are substantially and/or strikingly similar to the drum composition of Let’s.”

Ed Sheeran is not the only musician to be sued more than once; legendary band Led Zeppelin made the news this year when it was sued for its popular song Stairway to Heaven infringing on a 1967 song from the band Spirit. The case was resolved — in favour of Led Zeppelin. However, in the past there have been four other cases brought against the British band; three were settled out of court, while the fourth was dismissed.

Overall, many infringement cases are settled out of court as jury trials are lengthy, expensive and the results, as seen with Blurred Lines, can be unpredictable.

Also in 2015, producer Mark Ronson and singer Bruno Mars settled with The Gap Band by adding five names to the list of credited songwriters for the hit Uptown Funk. The band claimed that the hit was very similar to its 1979 song called Oops Up Side Your Head.

What will apply in the future 

There is little doubt as to the importance of protecting authored work. With outcomes such as those in cases like Blurred Lines musicians should continue with the basics. From the publishing of the US Copyright Act of 1976, to the landmark cases that are being decided today, the industry continues to grow and evolve. The nature of protection, however, has not changed in this time, perhaps only in becoming more critical — especially in the era of social media where creative start-ups and newcomers to the industry are striving to make their mark by using online channels to deliver their work to the public.

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