What Makes a Song a Song? — The blurred lines of copyright law.

A number of recent court cases have called into question what constitutes plagiarism in the music industry. Katy Perry recently lost a suit which asserted that her hit single Dark Horse infringed the copyright of Joyful Noise, a song penned by a relatively unknown Christian rapper called Flame.

Robin Thicke and Pharrell Williams were also in the news last year, after losing on appeal against the estate of Marvin Gaye in a suit concerning the retro-inspired party tune Blurred Lines, which was alleged to have been a copy of Gaye’s 1977 disco soul classic Got to Give It Up.

In order to successfully demonstrate copyright infringement under US law, the plaintiff needs to prove that the defendant had “access” to the original recording and that the two songs in question are “substantially similar”. But since popular music is by nature somewhat derivative, with each generation of artists building and expanding on what came before, how can access and similarity be legally defined? This is an area of the law which is fraught with complexity.

The simplest copyright cases involve instances where a portion of a song has been directly copied through sampling. In 1989, for example, hip-hop collective De La Soul sampled a section of the 1969 Turtles song You Showed Me without obtaining the appropriate license. Two former members of the Turtles sued, resulting in an out-of-court settlement rumoured to be in the region of USD 1.7m.

Unlimited access

It gets more complicated in cases where the music has not been sampled, however. Here, the plaintiff needs to prove that the defendant had access to the recording which they are alleged to have copied. In the case of Katy Perry, the writers of Dark Horse claim to have never heard Joyful Noise before the suit was announced. However, lawyers representing Flame argued that the song was a minor viral hit on YouTube, where it had racked up two million views, and that Perry’s Christian upbringing made it more likely that she had encountered the track.

While two million views sounds like a lot, it is still only .6% of the overall US population and not all of those views were domestic. On a broader level, it could be argued that digitization has made the concept of access redundant. Anybody who uses streaming services like Apple Music or Spotify theoretically has access to over 35 million songs and the volume of music on free sites like YouTube and Soundcloud is just as abundant. Thus, unless living in a cave in rural Yemen, it is very difficult for any artist to prove that they did not have access to a song in the digital age. Katy Perry could be a closet Christian rap fan, Drake may while away the hours listening to Ravi Shankar, who knows?

As a result, the first legal hurdle — access — is now very easy to pass, meaning that most of these cases now come down to whether the two songs are “substantially similar”. This typically involves two criteria or legal “tests”. The first legal test, known as the extrinsic test, is an ostensibly objective comparison of the two songs. This involves expert witnesses — typically musicologists — who point out similarities and differences in the phrasing, chord progressions, melodies, lyrics and other elements of the pieces.

Here, it is important to note that the basic building blocks of music are open to everyone and only “original, creative expression” is granted copyright protection. Nobody can claim to have exclusive rights to 12-bar blues or a descending melodic line, for example. Otherwise, they would effectively have a monopoly over an entire genre.

Finding the groove

This was a central bone of contention in the Blurred Lines case, where the lawyers for the Gaye estate made strong play of the notion that both songs had a similar “groove”, meaning that they shared similar timing and rhythmic feel. In her dissenting opinion, Judge Jacqueline Nguyen argued that by ruling against Thicke and Williams, the court had effectively enabled the Gaye estate to copyright a musical style, which set a dangerous precedent for future cases.

The Blurred Lines case underlines one of the pitfalls of settling copyright suits in jury trials: if expert witnesses (employed by the plaintiff) point out many similarities that are common to a music genre, and therefore not technically subject to copyright protection, it makes it difficult for juries to decide what information to take into account and what to disregard when forming an opinion.

The verdict of the Katy Perry case is even more odd. Joyful Noise is a rap track whereas Dark Horse is a pop song, and the lyrics, melodies and chord progressions of the two pieces have very few similarities. At the beginning of a rap segment in Dark Horse, guest rapper Juicy J intones “you all know what it is”, a lyric that also features in Joyful Noise. As this is a garden-variety rap cliché and none of the other lyrics are remotely similar, however, it is unlikely to have been a major factor in the outcome of the case. Thus, it would seem that the decision largely rests on a three-note melodic phrase played on a synthesizer in Joyful Noise and a similar four-note pattern in Dark Horse. Beyond that, the similarities are scant.

The fundamental question here is: what makes a song a song? Most laymen would understand the fundamental elements of a song to be melody and lyrics. However, years of legal precedent have led to a gradual creep of the definition so that concepts like “groove”, instrumental arrangement and many other elements now fall under the definition.

Pay to play

So what is the solution? Some experts have proposed the creation of a compulsory licencing system for musical sampling and borrowing. Similar to the system which governs music streaming, this would enable artists to pay a licencing fee in proportion to the amount of music they are borrowing. So for example, if a young artist wanted to sample a couple of seconds of a Jimi Hendrix guitar solo to create a new work, they could do so as long as they pay a fee. If another artist wished to re-record the iconic minor descending bass line from Sunny Afternoon by the Kinks in a new song, this would also be possible, but the fee would be higher given that the segment is longer.

Of course, it is very difficult to strike a balance between encouraging artistic creativity and protecting the intellectual property of songwriters and no system will be perfect. However, in the digital era, perhaps such a system of licencing portions of songs would do a better job than the current, heavily legalistic approach. At Utopia, we aim to use big data, blockchain technology and smart contracts to ensure that artists get paid faster and more efficiently. As the approach of the music industry to dealing with copyright evolves, such changes can be quickly and seamlessly incorporated into the Utopia Platform, without requiring an army of lawyers and years of litigation.

Curious to know more? Join our Telegram group — UtopiaMusic or visit utopiamusic.com