Seven years ago, Marvin Gaye's estate sued Pharrell Williams and Robin Thicke, claiming that they had infringed on copyright when they released the song "Blurred Lines," because it was too similar to Gaye's 1977 hit "Got To Give It Up." Due (I thought) to some questionable music theory, the pair were found guilty of infringement. You can read my blog post about that first ruling here. Williams and Thicke appealed the verdict, and you can read about the appeal here. Music theorists and musicians alike seemed to agree: "groove" is not a copyrightable aspect of music. But two years ago, the original verdict was upheld. You can read more about that verdict here.
After this appeals case, the future seemed quite bleak for songwriters. It seemed that there was no legal way to write a song that had any influences at all - and writing a song with no influences is, of course, impossible. However, a friend sent me this article yesterday, which seems to imply that the tide may be turning.
In 2016, a jury ruled that Led Zeppelin's "Stairway to Heaven" did NOT infringe upon the work of the contemporaneous band Spirit's song "Taurus."Check out the videos to assess the similarity for yourself. In my opinion, a harmonized descending chromatic bassline is just too commonplace to be copyrightable. Everyone from Henry Purcell to Dolly Parton has used this technique. A trustee for one of the (deceased) original band members of Spirit initially filed the suit, and appealed after the first verdict. The appeals case was decided earlier this month, and upheld the original verdict - Led Zeppelin did NOT plagiarize "Stairway to Heaven." (Although, I would like to acknowledge that there is a bigger issue of potential plagiarism by Led Zeppelin of black American blues artists that this case does not address.)
Another important legal decision was made just one week after the Led Zeppelin victory. Last summer, Katy Perry's song "Dark Horse" had been accused of being too closely modeled on "Joyful Noise" by Christian rapper Flame. The original verdict was that Perry had, indeed, infringed upon Flame's song, and he was awarded $2.8 million in damages. The decision was appealed, and in a shocking turn of events, it was reversed in appeals court.
This was honestly pretty surprising to me. One of the factors to consider when assessing whether a copyright has been infringed on is how essential the portion in question is to the work as a whole. The eight-note motive in question is very essential to both tracks. It's present during the entirety of "Joyful Noise" (4:26, although it is relegated to the background for some part of the song), and a remarkably similar motive accompanies all of Katy Perry's verses, including the rap verse (1:35 out of a 3:36 song). I have no idea if Katy Perry modeled her motive after Flame's; it could very well be a coincidence. Listen to both tracks for yourself and let me know what you think!
People tend to bring artistic preferences and even morals into discussions about copyright in music (the world "steal" is often used), but I want to encourage songwriters, judges, juries, and even casual conversationalists to leave all of that out, and consider the way the law is written. The fact that Robin Thicke is a misogynist doesn't mean that he deserves to get sued. The fact that "Stairway to Heaven" is one of the most popular songs in the world doesn't mean that it's necessarily 100% original. And the fact that Katy Perry didn't "need to steal" from a Christian rapper doesn't mean that the similarities between those two songs are negligible.
In general, I'm very happy about the outcomes of these two appeals cases, especially so close on the heels of the "Blurred Lines" case, because I think that it means that songwriters aren't quite as doomed as I predicted they would be. Time will tell, but I sincerely hope that creativity will win out in the end!
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