Imitation: the most sincere form of flattery?

Although copyright is the most common; form of intellectual property, it can also be one of the hardest upon which to advise. There are two issues in any dispute: does copyright subsist in the first place? And if so, has a substantial part of the work been used in creating the alleged copy? The simplicity of these questions belies the fact that the answers to both require essentially subjective judgment calls. Copyright subsists to the extent that a work is original, so there are strong copyrights (very original works) and weak copyrights (limited protection for works which are themselves largely derivative). And what constitutes a substantial part of a work is a matter of that originality: if what has been taken is the creative core, then there will be infringement; but if the borrowing is of largely generic elements shared with many similar works, then a very large quantity of the work needs to have been copied very closely, in order to infringe.

The assessment is most difficult in the category of musical copyrights where both music and lyrics commonly draw – inspiration, themes or even excerpts – from earlier works, but the commercial impact of a piece may equally be the result of the performer’s contribution – vocal skill and expressiveness. An additional “performer’s right”, similar but not identical to a copyright, protects this aspect. We consider each of these aspects in the three comments below.

Copyright in lyrics: take it or leave it?

The Italian Supreme Court had to tackle the question of copying of lyrics recently in reaching a final conclusion over a copyright infringement action stretching back 19 years. The authors of Zingara (“Gypsy”), a hit song from 1969, sued the famous Italian singer songwriter Francesco De Gregori, author of the 1996 song Prendi questa mano, zingara (“Take this hand, gypsy”) from his album Prendere o lasciare (“To take or to leave”).

The first two lines of Zingara recur repeatedly in both works, and the court at first instance agreed that this was plagiarism, despite changes of wording in parts of De Gregori’s song, and ordered the song to be withdrawn. As a result, Prendere o lasciare had to be re-released in altered form. Ultimately, having lost at appeal the Zingara authors appealed to the Supreme Court.

In February 2015, the Supreme Court rejected the appeal. It confirmed that De Gregori’s use of a poetic fragment from Zingara does not constitute plagiarism since the fragment in context in De Gregoris’ song expresses an artistic meaning wholly different from that of Zingara. The latter is a simple love song whereas Prendi questa mano, zingara, despite using recognisable excerpts of the text, was a much more equivocal text meditating broadly on the human condition:

“Take this hand, gypsy
tell me what future I will have.
Now that the wind carries around the leaves
and the rain makes bonfires smoke
…
how many years will my life hold? … ”

with music unrelated to the melody of the earlier piece. Since the fragment has not retained the same literary significance or has clearly and distinctly acquired a semantically different meaning from the previous work, the Supreme Court held that it was a tribute to the earlier piece rather than plagiarism.

Copyright in the music itself

Clear copying cases are rare; in almost all instances, the original has been altered, either as to style, arrangement or more profoundly. But the rules of the Western musical tradition are relatively simple, with the result that arguably any modern song is in practice a re-working of tried and tested sound combinations. Further, any two compositions in the same genre are inevitably going to be highly similar, because a genre necessarily requires common components. As a result, trying to establish copying can be very difficult. A purely musicological approach is attractive in its objectivity – scores can be compared and a qualitative analysis gives an apparently clear answer. But the test of how strong the protection for any given work should be, based on the degree of originality, cannot be carried out this way because it would have to be measured against melodies, rhythms and accompaniments in their thousands stretching back over decades if not centuries. How, then, is originality assessed?

A US jury awarded Marvin Gaye’s family nearly $7.4 million in damages after finding that the song Blurred Lines song by Pharrell Williams and Robin Thicke had been copied from Marvin Gaye’s hit Got to Give it up. There are many grounds for doubting whether this was the right outcome, however. The jury found that Williams and Thicke had taken the “groove” from the earlier song, rather than any copying of specific musicological elements. Much commentary focussed on the use of a cowbell in both songs – but choosing any particular musical instrument, even an unusual one, does not amount to copyright infringement. Notably, the Gaye family’s legal claim had to rely on copyright in the sheet music (which was submitted to the US Copyright Office for registration, as US copyright rules require) since no recording of the Gaye’s version of the song had been registered. But the jurors were played recordings of the music to assist them in making the comparison – blurring the lines between the sheet music technically alleged to have been copied and the recorded performance. Nonetheless, the jury were persuaded that Williams and Thicke had “blurred the lines” too far between taking inspiration from a track and copying a protected copyright work.

Whilst this is a US case and not a UK case, it is possible that in the light of ever-increasing complexity of modern recorded music similar principles could be applied in the UK. In fact, since there is no system of registration for copyright in the UK it is possible that it might have been easier for the Gaye family to establish aural similarities between the two works, since the recorded version could have attracted a separate musical copyright from the sheet music encompassing all of the elements used in the performance.

As music has moved online, with amateurs populating sites such as YouTube with their own renditions of favourite songs or their own compositions, these issues will only become more difficult to resolve. Sampling, deliberate reference or tribute and sheer lack of original talent are likely to give rise to allegations of copying in respect of many of these offerings. Fine judgment, and commercial sense, has to be applied in deciding whether or not asserting copyright infringement is worthwhile – picking on amateurs, as in the 2010 dispute over the parody track Newport State of Mind, can have very negative PR consequences – but meanwhile, the number of variations, permutations and mash ups proliferating will make genuine originality a harder and harder quality to achieve. 

Performance counts

Meanwhile performances, and performers’ rights, proliferate. In a case before the Intellectual Property Enterprise Court, the Claimant, Jodie Henderson, alleged infringement of her performer’s rights in the recording of the track “Heartbroken” released in 2007. Performers have economic and moral rights relating to their performance. The economic rights include giving the performer the right to require her consent to the exploitation of her performances. The moral rights include a right for the performer to be identified.
Miss Henderson is a singer, songwriter and musician who composed the lyrics for a song called Heartbroken. Miss Henderson sang Heartbroken into Mr Tawonezvi’s (also known as T2) sound and recording system and a recording was made. Subsequently, she became aware that T2 had produced a re-mix of the recording and started selling “white label” vinyl copies of it. Later the same year, a record company, All around the World, released Heartbroken. It reached number 2 in the main singles chart and remained in the top 40 for 46 weeks. Miss Henderson, however, did not receive any royalties for the All Around the World release.
The Judge found that Miss Henderson’s performer’s rights had been infringed. In a subsequent damages inquiry, the Judge awarded Miss Henderson damages under the “user principle” i.e. based on the royalties which would have been agreed between her and All Around the World of 6 per cent.

Miss Henderson was also entitled to rely on Article 13(1) of the IP Enforcement Directive, since the relevant knowledge was admitted by All Around the World. The Judge held that the present case was an example of “unfair profits”. He found that Miss Henderson is likely to have wanted her name to have featured on the record, therefore in addition to losing the royalty Miss Henderson also suffered loss in the relation to the extent to which her name and reputation would have been enhanced by the release of the single. Accordingly Judge Hacon awarded Miss Henderson an additional £5,000 for unfair profits for the loss of promotion of her name.