Authored By: Olivia Eliadou
Durham University
Introduction
At what point does musical inspiration turn into copyright infringement? The case of Williams v Gaye[1] sparked debate on this issue. According to Challis, the case highlights the problem of defining where inspiration ends and when the line of appropriation is crossed by the court. [2] As pointed out by Bosher, the ruling was controversial and records Judge Nguyen’s warning that it had “improperly allowed the Defendants to copyright a musical style”.[3] However, borrowing is common practice in music. As stated by Arewa, musical borrowing is pervasive throughout all music genres and periods and can be defined as ranging from copying to more subtle forms of influence.[4] This creates a tension between protecting original musical expression and preserving space for artistic influence.
This article will argue that courts must differentiate protectable musical expressions from common music elements, influence and homage before concluding about copyright infringement. While Williams v Gaye shows what happens if one cannot make such a distinction,[5] the Sheeran litigation[6] underlines independent creation and common music elements as an exception from copyright protection.[7] Firstly, the article will provide an overview of the copyright law, then explain how music presents unique issues in regard to copyright.
The Legal Boundary: Protected Expression and Musical Borrowing
Copyright infringement is not established by simply showing that one work resembles another or has been inspired by it. According to Bently et al,[8] infringement involves a restricted act, a causal link between the defendant’s work and the copyright work and utilising the copyright work or a substantial part of it. They expressly state that copyright does not protect against independent creation.[9] They also explain that originality concerns expression rather than underlying ideas,[10] and that copyright does not protect ideas which may have inspired a work, including its general style.[11]
The US framework presented by Parhami also distinguishes copying from inappropriate appropriation. The issue of copying deals with whether the defendant used the existing copyrighted work to derive the work while that of inappropriate appropriation deals with whether there is too much copy of protected expression by the defendant.[12] According to Parhami, in Arnstein v Porter,[13] inappropriate appropriation happens only when the issue of copying is determined to be present.[14] The court, therefore, needs to filter out non-protected expressions by means of doctrines such as idea-expression, public domain, merger and scènes à faire.[15] The main concern here is not whether influence took place but whether there was any taking of the protected expression as a result of the influence. Influence cannot be a justification automatically; otherwise, a derivative work may still infringe the earlier copyrighted work even if it is original.[16]
That distinction is particularly vital in music. According to Arewa, musical borrowing occurs universally among all types of music regardless of period. It is also argued that copyright law fails to accommodate that fact. [17] She defines musical borrowing as involving anything from copying to subtle influences.[18] Parhami further adds that the vocabulary in music is limited compared to that of literature, drama and visual arts because of twelve notes and few tempos and rhythms.[19] She goes further to conclude that those limitations make the argument of similarity insufficient as evidence of copying and reduces the number of musical phrases that qualify for protection.[20] A review of Demer’s work also highlights the challenges of distinguishing allusion from duplication and warns about the risks of mixing the two which can result in destructive litigation.[21] Musical resemblance should therefore lead courts to identify precisely what was taken, rather than to treat influence itself as infringement.
Williams v Gaye: The Risk of Treating Influence as Appropriation
The dispute regarding Blurred Lines tested this distinction. Parhami indicates that Robin Thicke and Pharrell Williams admitted being inspired by Marvin Gaye’s Got to Give It Up, while the Ninth Circuit confirmed the infringement judgment in 2018.[22] Challis quotes Williams’ statement as saying, “Feel, not infringed”.[23] Thus, the problem was whether the defendants reproduced any protected expressions or only used the feel of the earlier song.
According to Parhami, the Ninth Circuit failed to sufficiently distinguish between protectable and unprotectable musical aspects and thus endangered that the claimant can try to take control over styles and grooves.[24] She points out that the use of deposit copy posed problems. That an element existed in the deposit did not mean that the element was protectable, since the deposit could include ideas, material in public domain and scenes à faire.[25]
Scène à faire can be the remedy to the problem. This legal doctrine excludes all such elements that are common, stock or standard within the category.[26] Ninth Circuit defined musical scenes à faire in the Smith v Jackson[27] case as motives “so common or trite it is not protectable” and accepted the possibility of protection non-existence even of a short phrase of notes.[28] In her dissent, Judge Nguyen accused the majority of giving protection to musical style and warned about the precedent set for future musicians.[29] Challis also mentions criticism of the genre, feel and groove protection as well.[30] These are arguments on the potential impact of the decision, not the assertion that the majority stated the musical style copyrightability.
The Sheeran Litigation: Re-centring Protectable Expression
The Ed Sheeran case takes an opposite route. Bosher notes that copyright should strike the right balance between protecting against copying and allowing creators to create on top of and get inspiration from previous works. She captures the idea in the following terms: “Copyright is the regulation of copying of original elements, not the regulation of inspiration or copying of unoriginal elements”.[31] Moreover, she adds that any unprotectable elements need to be stripped out before assessing the issue of substantial similarity.[32]
The dispute in Griffin v Sheeran[33] arose as to whether the use of the chord progression and the rhythmic aspect of the harmony of the chords was an ordinary one. According to Bosher, the defendants acknowledged that the plaintiff’s expert found at least thirteen other songs utilizing the very progression and the same progression appeared in two guitar books.[34] The court stated to the jury that the concept of independent creation was a complete defence to copyright infringement even if there were substantial similarities between the works, and the jury determined that the song “Thinking Out Loud” was independently created.[35] In the companion case of Structured Asset Sales Ltd, Judge Stanton found the alleged copy to be an ordinary one and hence not protectable by stating that the chord progression and harmonies are the building blocks of music making.[36]
This kind of reasoning does not rule out the possibility of copyrighting a piece of homage. What it does is guarantee that derivation is proved, the unprotected aspects are filtered out, and similarity is relevant only for protected aspects of musical work.
Conclusion
In order to determine whether there has been any infringement of copyright on the basis of musical influence and homage, courts have to consider whether there has been taking of any copyrighted expression. Copyright is about expressions but not ideas and that independent creation is not an infringement of copyright.[37] Musical borrowing has been shown to be a common practice among all genres and time periods and can range from direct copying to subtle influence.[38] Because music relies on a vocabulary of twelve tones, tempos and rhythms, as explained by Parhami, similarity becomes a weak indicator of copyright infringement and fewer musical phrases qualify for copyright.[39]
Under such circumstances, Williams v Gaye was criticized because Parhami claims that the judgment had failed to properly separate protected from unprotected elements while Judge Nguyen dissented arguing that the judgment gave protection to a musical style.[40] In the Sheeran case, courts had considered independent creation to be a full defence against copyright infringement and excluded chord progressions and harmonic rhythms from protection.[41]
Courts should therefore identify the protected expression claimed, filter out ideas, public-domain material, scènes à faire and common musical building blocks, and only then assess substantial similarity.
Bibliography
Cases:
- Arnstein v Porter 154 F 2d 464 (2d Cir 1946)
- Griffin v Sheeran 351 F Supp 3d 492 (SDNY 2019)
- Smith v Jackson 84 F 3d 1213 (9th Cir 1996)
- Structured Asset Sales LLC v Sheeran, No 18 Civ 5839 (LLS), 2023 WL 3475524 (SDNY, 16 May 2023)
- Williams v Gaye 895 F 3d 1106 (9th Cir 2018)
Secondary materials:
- Arewa OB, “From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context” (2006) 84 North Carolina Law Review
- Bently L et al, Intellectual Property Law (6th edn Oxford University Press 2022)
- Challis B, “Blurred Lines: The Difference between Inspiration and Appropriation” (int2023) https://www.wipo.int/en/web/wipo-magazine/articles/blurred-lines-the-difference-between-inspiration-and-appropriation-39329
- Demers J, “Steal This Music: How Intellectual Property Law Affects Musical Creativity” (2006) 19 Syracuse Science and Technology Law Reporter
- Parhami P, “Williams v. Gaye: Blurring the Lines of Copyright Infringement in Music” (2019) 34 Berkeley Technology Law Journal
- “In the Courts: Ed Sheeran Succeeds in Music Copyright Infringement Case, but It’s Not over Yet…” (Wipo.int2023) https://www.wipo.int/en/web/wipo-magazine/articles/in-the-courts-ed-sheeran-succeeds-in-music-copyright-infringement-case-but-its-not-over-yet-56446
[1] 895 F 3d 1106 (9th Cir 2018)
[2] Ben Challis, “Blurred Lines: The Difference between Inspiration and Appropriation” (Wipo.int2023) https://www.wipo.int/en/web/wipo-magazine/articles/blurred-lines-the-difference-between-inspiration-and-appropriation-39329
[3] Hayleigh Bosher, “In the Courts: Ed Sheeran Succeeds in Music Copyright Infringement Case, but It’s Not over Yet…” (Wipo.int2023) https://www.wipo.int/en/web/wipo-magazine/articles/in-the-courts-ed-sheeran-succeeds-in-music-copyright-infringement-case-but-its-not-over-yet-56446
[4] Olufunmilayo B Arewa, “From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context” (2006) 84 North Carolina Law Review 547, 550
[5] Paymaneh Parhami, “Williams v. Gaye: Blurring the Lines of Copyright Infringement in Music” (2019) 34 Berkeley Technology Law Journal 1114
[6] Structured Asset Sales LLC v Sheeran, No 18 Civ 5839 (LLS), 2023 WL 3475524 (SDNY, 16 May 2023)
[7] Bosher (n 3)
[8] Lionel Bently et al, Intellectual Property Law (6th edn Oxford University Press 2022) 211
[9] Ibid
[10] Bently et al (n 8) 101
[11] Ibid 232
[12] Parhami (n 5) 1114-1115
[13] 154 F 2d 464 (2d Cir 1946)
[14] Ibid 1115
[15] Ibid 1116-1118)
[16] Bently et al (n 8) 101
[17] Arewa (n 4) 547
[18] Ibid 550
[19] Parhami (n 5) 1118
[20] Ibid
[21] Joanna Demers, “Steal This Music: How Intellectual Property Law Affects Musical Creativity” (2006) 19 Syracuse Science and Technology Law Reporter 80, 86
[22] Parhami (n 5) 1113-1114
[23] Challis (n 2)
[24] Parhami (n 5) 1114
[25] Ibid 1130
[26] Ibid 1117-1118
[27] 84 F 3d 1213 (9th Cir 1996)
[28] Ibid 1133
[29] Ibid 1127-1128
[30] Challis (n 2)
[31] Bosher (n 3)
[32] Ibid
[33] 351 F Supp 3d 492 (SDNY 2019)
[34] Ibid
[35] Ibid
[36] Ibid
[37] Bently et al (n 8) 101, 211
[38] Arewa (n 4) 547, 550
[39] Parhami (n 5) 1118-1119
[40] Ibid 1114, 1127-1128
[41] Bosher (n 3)
