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TRANSCRIPT
Stop me if you think that you’ve heard this one before . . .
Simon Anderson
University of Edinburgh
26 June 2019
Introduction
About me, about Audio Network
Creating and commercializing music
Copyright infringement in music explained
‘Jury cards’ explained
Settled in court examples
Case Study: See You In Court
Blurred Lines
Settled out of court examples
Conclusion and industry resources
We learn an instrument, we study music’s theory and structure
We listen and appreciate, develop tastes, follow influence
We perform, interpret, understand
We create classical, pop, film/TV music
We create new music and we arrange/appropriate existing music
We take influence from music we like, and build something new
But what if we take too much? How do we know what we can take?
Creating Music
We partner with publishers to sell our music
We partner with record labels to record and distribute
We partner with PROs (performing rights organization)/CMOs (collective management organization) to license our music collectively
Creators warrant that their work is original and accept personal liability in the event of any infringement claim being proven
Publishers, labels and PROs issue licences to music users, but
creators are liable in the event of infringement
Commercialising Music
“The owner of the copyright in a work has . . . the exclusive right to . . . copy the work . . . or to make an adaptation of the work.”
“Copyright in a work is infringed by a person who without the licence of the copyright owner does . . . any of the acts restricted by the copyright . . . to the work as a whole or any substantial part of it.”
No definition of what constitutes “substantial”.
Influence or infringement?1988 UK Copyright Act, s. 16:
How does an infringement claim come about?
11 UK plagiarism cases since 1900, just 3 successful
None since 2006
100+ US cases since 1900
UK musicologists review 1000+ cases/year
Almost all settle out of court
Infringement Case History
Does the claimant actually own the copyright?
Is a substantial amount copied (quality v quantity)?
Does it sound similar and look similar on paper?
Could the composer have heard the original work?
Is the work intended to “pass off” the original?
Court considerations
Coincidence – works independently created
No access to original work
Similarities not sufficiently close
Original work highly derivative of earlier works
Original has insufficient originality to be copyrightable
“Musical commonplace”
Defences
UK Court Cases
Infringing
Too close to call
Safe
FDH v Bron (1963)
Mood Music v De Wolfe Music (1975)
Warner Bros Music v Dundas (1987)
EMI Music Publishing v Vangelis (1987)Jurycards
FDH owned “In A Little Spanish Town” popular song, 1926
Bron/Debmar Publishing owned “Why”, published 1959
Claims that first 8 bars of chorus reproduced in “Why”
Claims of correspondence between melodies
Claims of similarity in chord structure, though defencecountered that they were commonplace chords
1963: Francis, Day & Hunter v Bron
In A Little Spanish Town (Wayne/Lewis/Young) © MPL UK Publishing/Redwood Music Ltd/EMI United Partnership
Ltd
Why (de Angelis) © Universal/MCA Music Ltd
Francis, Day & Hunter v Bron
No infringement
• Wilberforce J, “[The song] ‘Why’ could have been developed by independent creation rather than by imitation. Claimants would have to prove that similarity arose out of an act of copying”.
• Decision appealed claiming unconscious copying – never tried before.
• Claimant brought analogy of sleepwalker and printer
• Appeal dismissed – no proof of copying – conscious or subconscious.
• There were similarities but they were commonplace in music.
Two similar production music tracks
Mood released “Sogno Nostalgico” in 1966
De Wolfe released “Girl in the dark” in 1967
Probably came to attention as theme tune to “Callan”
De Wolfe claimed coincidence
Mood alleged other De Wolfe tracks infringed
Mood commissioned a “trap order”
1975: Mood Music v De Wolfe Music
Sogno Nostalgico (Sciascia) © Peermusic (UK) Ltd
Girl In The Dark (Trombey) © Peermusic (UK) Ltd (transposed)
Mood Music v De Wolfe Music
Injunction granted
• De Wolfe assigned copyright to Mood Music
• Paid royalties earned to date to Mood Music
• Paid costs estimated at $70,000
• Did not admit liablilty
• Denning LJ, “Reproduction without the owner’s consent is enough [to infringe].
Even subconscious copying is an infringement”.
Warner published Tom Waits song “Martha”
Quoted £25k synch fee for TV Kenco coffee commercial
Ad agency wrote lyrics and gave to composer David Dundas
Mentioned “Martha” but asked for entirely original score
Tom Waits saw TV commercial in UK and contacted publisher
Warner sought injunction
1987: Warner Bros Music Ltd v Dundas
Martha (Waits) © BMG Rights Management (UK) Ltd
Kenco – Seems Like Yesterday (Dundas) © Chrysalis Music Ltd, transposed down from G major original
Warner Bros Music Ltd v Dundas
No injunction
• No injunction granted as Vinelott J felt chances of success at trial were “slim”
• He was “unable to detect any resemblance to Tom Waits’ song”
• Insufficient similarities to prove substantial copying
• Differs from Williamson case which was a clear parody
• No trial followed to determine copyright status of Dundas song
The Chariots of Fire case
EMI represented composer Stavros Logarides
Logarides wrote 1975 theme to Greek TV series City of Violets
EMI claimed Chariots of Fire (1981) copied his melody line
EMI claimed Logarides had played his tune to Vangelis in 1970s
1987: EMI Music Publishing v Vangelis
City of Violets (Logarides) © unknown
Chariots of Fire (Vangelis) © EMI Music Publishing Ltd
(transposed down from Db original)
EMI Music Publishing v Vangelis
No infringement
• Musicologists’ evidence focused on the ‘turn’ motif
• Whitford J accepted that the ‘turn’ was commonplace in music
• Defence proved Vangelis had used the same ‘turn’ in a 1969 song
• No proof that Vangelis had been played the claimant’s track in 1975
• Judge commented on “not inconsiderable benefit to the legal profession” of the case
Case study: See You In CourtFor audio examples: https://www.lostinmusic.org/YouBeTheJudge/Detail/1
Infringing
Too close to call
Safe
Case study: See You In Court
Version 1
Chord sequence, key and tempo copied
Melody, harmony, bass original
Lyrics original
Case study: See You In Court
Version 2
Bass line of commercial track added
Drum track of commercial track added
Other material remains unchanged
Case study: See You In Court
Version 3
Rhythm piano of commercial track added
Rhythm guitar of commercial track added
Other material remains unchanged
Case study: See You In Court
Version 4
Incidental synth riffs of commercial track added
Melodic piano riffs of commercial track added
Only melody and lyrics remain unchanged
Case study: See You In Court
Original track: Dancing Queen (Andersson/Ulvaeus/Anderson) © Bocu Music LtdSound recordings of the elements of Dancing Queen are produced ℗ and licensed by Tency Music, France.
Case study produced for non-commercial and educational research purposes under the Fair Dealing exception of the 1988 CDPA, s. 29
Blurred Lines case
Infringing
Too close to call
Safe
Blurred Lines: 2013
Got To Give It Up (Gaye) © EMI Music/Jobete Music
℗ 1977 Motown Records/Universal Music Group Recordings
Blurred Lines (Williams/Thicke/Harris)© EMI Music Publishing Ltd/Universal/MCA Music Ltd/Sony/ATV Music Publishing (UK) Ltd
℗ 2013, Star Trak, LLC
Pharrell Williams: "channelling . . . that late '70s feeling . . . did not copy"
Chord structures
Original tracks (excerpts)
Got To Give It Up chords:
A7 A7 A7 A7 D7/E7 A7/B7 D7/E7 A7/B7 A7
Blurred Lines chords:
G G D D G G
Got To Give It Up: influencers
Earth Wind & Fire: Sing A Song (1975) disco
Average White Band: Put It Where You Want It (1975)
Kool & The Gang: Open Sesame pt. 2 (1976) funk
Bee Gees: You Should Be Dancing (1976) disco
Disco, repeated chords, Rhodes piano, big percussion
Got To Give It Up: contemporaries
Philadelphia All Stars: Let’s Clean Up The Ghetto (1977)
Marvin Gaye: Got To Give It Up (1977)
Quincy Jones: Stuff Like That (1978)
The Jacksons: Shake Your Body (1978)
Gaye: “Let’s dance, let’s shout, gettin’ funky’s what it’s all about”
Jacksons: “Let’s dance, let’s shout, shake your body down to the ground”
Back to basics
“Stripped down” versions of each track
Drums and percussion removed
Electric piano and vocal remain
Compare just melody and lyrics
Sound recordings of the elements of Got To Give It Up and Blurred Lines are produced ℗ and licensed by Tency Music, France
Blurred Lines: musicologist Peter Oxendale
"The Blurred lines outcome was an appalling decision.
“The verdict of the jury, in my opinion, was wrong.
"The songs . . . have different structures, different underlying harmonies, different vocal melodies, they have entirely different lyrics.
"In fact, there are no two consecutive notes in the vocal melodies or even the bass lines that occur in the same place for the same duration. "They are, by definition, different songs."
Cases settled out of court
Infringing
Too close to call
Safe
Matt Cardle / Ed Sheeran (2016)
Photograph©
℗
Amazing©
℗
Conclusions
“Inspiration is freedom – we’re all inspired by styles” - Oxendale
Taking commonplace elements of a style is acceptable
Don’t copy melodies/lyrics/songs
Settlement deals can be expensive
More information/education/forums? lostinmusic.org and mcir.usc.edu
There are no definitive answers – err on the side of caution!
Contact: [email protected]
Music Industry outreach