by Dan Chisholm

Legal Bandwidth: Imitation That Avoids Litigation

by Dan Chisholm

Legal Bandwidth: Imitation That Avoids Litigation

We all know imitation is the sincerest form of flattery. Still, a mate turning up to Friday drinks in the jacket you bought a week ago is mildly annoying. If you’re a muso, however, disputes with other artists around borrowing or copying creative material can cost serious bucks.

Just ask Ed Sheeran. Despite his new album ‘Divide’ going platinum four times since it dropped in March, he’ll be feeling the sting in his back pocket after quietly adjusting the writing credits for the chart-topping hit Shape Of You to include the writers of the ‘90s TLC hit song No Scrubs.

Looks like naming his new hit album ‘Divide’ was more of a premonition than Ed was banking on.

‘But Shape of You and No Scrubs sound like completely different songs!’ I hear you say. ‘Musos have been inspiring each other since the beginning of time!’

Yep, you’re right. So what are the rules? If you’re a muso looking to release new music, it pays to understand when you need permission to be… ahem… ‘inspired’ by other artists.

Help – I’ve been robbed!

Here’s the good news. Regardless of quality, as soon as your original music is recorded you automatically get copyright protection by law. You don’t need to apply or register. So from day one, you can feel pretty confident that no other artists, individuals or businesses are legally allowed to use your music without your permission.

If they did use or borrow parts of your original work without approval, you’ll have a good case against them for copyright infringement.

Kanye West is another celeb who learned this the hard way. He reportedly settled for a hefty US$2.5 million with Hungarian rock singer Gabor Presser last year, when Presser successfully sued Mr Kim Kardashian for unauthorised sampling of his song on the 2013 track New Slaves.

Okay – so hopefully we now know that directly using parts of someone else’s music without permission is a strict no-no. But what about scenarios that are less obvious, like TLC’s objection to Shape Of You? What happens if a muso releases ‘new’ material that you swear is a cheap imitation of something you’ve done?

When is ‘near enough’, good enough?

This is where it gets a bit tricky. Does the copying need to be identical? No.

Sheeran has commented that pop hits revolve around the same four chords. Arguably, therefore, there are clear similarities that tie many chart-topping songs together. While Ed’s not wrong, generally there’s also a distinct and original quality that differentiates the work of different artists from one another.

For example, the Beatles’ Let It Be and the Spice Girls’ 2 Become 1 have the same chords, but you’re not going to get them confused, are you? That’s because the songs have different sounds, styles, character and creative elements that make them easily distinguishable.

What all this means is, if you want to successfully argue in court that your work was ripped off, you’ll need to prove that there’s something distinctly unique and creative about your music, and that the ‘essence’ of that creativity has been copied without your permission. Legally, ‘substantial similarity’ between the original work and the offending copy is enough to amount to copyright infringement.

Blurred lines and grey areas.

Unfortunately, deciding when the ‘essence’ of a song has been ripped off can be hard to prove, and tends to be decided in court on a case-by-case basis.

Most of us are familiar with the Blurred Lines case in 2015, where Robin Thicke and Pharrell were taken to the cleaners by the estate of Marvin Gaye (to the tune of US$7 mill!).

In Thicke’s case, nude ladies dancing all over the video clip weren’t enough to distract the court from noticing that Blurred Lines captured the style and ‘feel’ of Gaye’s classic Got To Give It Up.

What made the ruling controversial is that although Thicke and Pharrell agreed they were inspired by Got To Give It Up, they argued they didn’t steal its ‘essence.’ The reality is that all musicians are influenced by the work of other artists.

Understandably, the Blurred Lines court decision was alarming for the music industry, with concerns that artists could start suing each other left and right for the smallest similarity. The trouble is, it’s not always easy to prove.

In a completely opposite example, Led Zeppelin thrashed it out with rock band Spirit last year when Spirit attempted to claim the iconic guitar riff from Stairway To Heaven was copied from their track Taurus.

A US jury found that while the chord sequences of the two songs were similar, those chords had been part of musical traditions dating back to the 1600s and had been replicated by many artists prior. Spirit crashed and burned in claiming rights to the (excuse the pun) ‘spirit’ of the Led Zeppelin hit.

Hmmm… so, clear as mud?

The different outcomes of the Stairway To Heaven and Blurred Lines cases show that arguing copyright infringement for ‘substantially similar’ work can be a grey area and difficult to prove.

The main take out is you can never be 100% certain whether your work has inadvertently infringed on another artist’s copyright. However, if you know you’re directly borrowing from another musician or creating new work obviously inspired by their sound, it pays to be cautious. If the similarities between the songs are deemed ‘substantial’ in court, you can be found to have infringed copyright.

If in doubt – get permission.

If you knowingly copy or borrow from the work of another muso, the best way forward is to get their permission. From there, you can negotiate the terms of the use and the remuneration (including any royalty splits). This puts you back in the driver’s seat, covers your bases and protects you against expensive disputes occurring down the track.

On the flipside, if you think your music has been ‘ripped off’ ask yourself whether there’s a distinct, unique and creative element to your own work that has been stolen and re-created without your knowledge. If so, you may have a case.

Dan Chisholm is an Associate specialising in music and entertainment law at Trollope & Co Lawyers.Formerly a professional musician himself, Dan supported The Who, Counting Crows, The Cranberries, Ziggy Marley, G Love, Arrested Development and Eddie Grant among others. Having spent a decade in Australia he returned to NZ two years ago. His clients from across Australasia include Tash Sultana, Pierce Brothers, Dallas Frasca, Gold Class, Graeme James, Aeroplane Music Services and Kane Strang.