Once upon a time in music, songwriters had difficulty protecting their work from being stolen and monetized by someone else. A record industry in its infancy, plus the social dynamics of the day, meant struggling writers were often left with little to no recourse for justice. Over time, songwriters gained the ability to use copyright law to protect their work, and if necessary, to file suit in federal court to enforce their rights. Today’s headlines, however, paint a new reality for anyone whose work it is to craft music for the masses: the very laws that once protected his or her livelihood may now be its greatest threat.
Songwriters today are suing other songwriters for copyright infringement at an alarming rate. While some claims involve legitimate allegations of copying, in recent years several high-profile cases, such as the “Blurred Lines” and “Dark Horse” lawsuits, have emboldened writers to threaten litigation or file suit over copying that is less than substantial, or infringement that is nonexistent under applicable laws. Examples abound. Rock band Spirit, for example, is appealing a district court ruling, arguing that Led Zeppelin’s opening in “Stairway to Heaven” is copied from Spirit’s song “Taurus.” However, both songs fall under a 1905 copyright law that would invalidate Spirit’s cause of action, not to mention the alleged infringement is of a harmonic progression, which has never been a protectable element under any copyright law.
In a current lawsuit against Ed Sheeran for his hit “Thinking Out Loud,” the infringement claim is over a seemingly generic bass line and beat, a similar premise to the one in the now infamous “Blurred Lines” case where a jury was allowed to treat the overall “feel” of a song as a protectable element of the copyrighted work. And although Katy Perry’s “Dark Horse” is structurally, harmonically, and melodically different than Christian song “Joyful Noise,” its beat and an eight-note background melody were found to be substantially similar to the ones in “Joyful Noise,” despite these elements previously being also considered unprotectable.
Artists are also having to renegotiate songwriting credit, and thus reassign royalty payments, in order to avoid costly trials. This is why Bruno Mars added writers (twice) to “Uptown Funk,” increasing the number from four to a whopping eleven. Pop singer Mika co-wrote “Talk About You” with two writers in 2015, but allegations of similarity with a 1963 Dusty Springfield tune and a 1981 Italian pop hit moved Mika to share credit with the five writers of those songs. This was the same predicament that led Ed Sheeran to add the songwriters of the TLC hit single “No Scrubs” to his own hit “Shape of You.” And in August, a songwriter accused Lady Gaga of copying a segment of his original melody in her smash hit “Shallow.” The segment in question consists of three notes in a sequence commonly found in pop music, including Kansas’ 1978 classic “Dust in the Wind.” If the payouts on Blurred Lines ($5.3 million plus 50% of future royalties) and Dark Horse ($2.78 million) are any indication, Lady Gaga will seek to settle quickly, perhaps even adding the accuser to the list of current writers.
The success of these settlements is having an immediate effect on the livelihoods of songwriters. Most commercial music nowadays is created by a team of writers who share the royalty payments that flow from the sale, stream, or performance of the song. These songwriters work tirelessly on their craft and often struggle to continue working in an industry that is as unpredictable as it is exciting. Royalty payments from a song that finds commercial success become a much-needed financial safety net, albeit often a temporary one. Every time an artist adds more writers to a song, the original writers’ shares are reduced, and they have no say in the matter.
The current atmosphere will also have a chilling effect on a creative process that is already restrained by Western music’s limited number of musical tones, standard chords, and combinations of the two that sound good to listeners. In addition, some rhythms and progressions are so pervasive in certain genres, they become their identifying factors (think the I-IV-V chord progression in blues, or the beat in any reggaeton song). Moreover, music has always built upon prior influence. Composers take existing ideas and create new ones, often purposely leaving elements of the previous work in homage to its origins. Thus, similarities are inevitable.
The current climate has led to an unprecedented fear of unintended infringement: artists are afraid to discuss their musical influences or praise the work of other artists; songs that were understood to be tributes to a particular genre are now facing lawsuits; and some record labels are reportedly running risk analyses for future copyright lawsuits on their artists. It is easy to imagine these circumstances leading to fewer signed songwriters, as well as fewer collaborations. Fewer songwriters will get the exposure they need to both support themselves and be creative in their craft, and commercial music will suffer for it.
A Supreme Court decision may be the only way to stop music copyright litigation from being exploited in this way. The 9th Circuit is responsible for the “Blurred Lines” and “Dark Horse” decisions, and it will soon rule on the Led Zeppelin case. Meanwhile, the 2nd Circuit judge on the Ed Sheeran case has postponed the trial until the Led Zeppelin ruling. No doubt the other circuits are watching as well. While bright line rules are not always possible when it comes to assessing creative work, the Court may need to get creative and come up with guidelines so lower court rulings better reflect the purpose of copyright laws: to promote the progress of the useful arts – not stifle it.
