(Image: (C) Peter Boettcher, courtesy of Warner Music Benelux)
Through the media we all know some examples of it: plagiarism cases. Especially when sounding names from the music industry are involved. But when is plagiarism actually taking place? Is it by definition intentional, or can it be coincidental (i.e. the case of a so-called “independent creation”)? Is this a purely subjective assessment or are there objective parameters, such as a minimum number of bars or seconds? Is the creation of ‘uncontaminated’ musical works at all possible given the global cultural and digital interconnectedness? Moreover, our music is based on a scale of 12 tones and formed by currents, musical genres, schemes (e.g. 1-4-5) and fashionable gimmicks. An example of such a gimmick is the so-called millennial whoop: if there is a feeling that many pop songs nowadays sound the same, then this may be one of the responsible factors. This figure is essentially a sequence of notes that alternately uses the fifth and third note of a major scale and lends itself very well to singing along. After musician Patrick Metzger explicitly mentioned the phenomenon by name (See his TedX talk: https://youtu.be/fTvwM6S9vxI), numerous videos have started to circulate to show the resulting kinship of contemporary pop songs (for example: https://youtu.be/MN23lFKfpck). The big question is: how much margin does the context outlined above leave for compositional freedom?
“Originality” is not “novelty”
The line between reproducing an existing musical work and responding to the same musical trend is not always clear-cut. Unauthorized reproduction of a work constitutes copyright infringement, while copying a style, trend or fashion phenomenon doesn’t. Bearing in mind the existing framework, it is clear why copyright law does not talk about “novelty” as a protection requirement, but about an “original character” or originality. This presupposes that the work is the author’s intellectual creation; i.e. a product of the creative efforts of the creator. Consequently, novelty cannot be an accurate copyright criterion: we do not live in a sterile laboratorial environment shielded from external influences. We listen to what we like, and we also create what we like. Reproducing something slavishly from another author, on the other hand, does not meet this criterion of originality: it does not come from a creative effort by the creator and therefore is plagiarism or a copyright infringement.
When bringing legal action?
When does it make sense to consider a plagiarism claim? Unpremeditated action can have tangible financial consequences. Blocking copyrights, taking the targeted tracks offline and taking legal action may have a major economic impact. If these actions subsequently turn out to be unfounded, this can be severely hurt the initiator. It’s not unthinkable that the great success of a song will inspire someone with bad intentions to parasitize and thus invoke plagiarism. If, as a result, he gets a share in the rights, he will be entitled to a portion of the proceeds. Some whisper that the whole plagiarism case on Madonna’s song “Frozen”, introduced by Salvatore Acquaviva, a local Belgian folk singer, was inspired by such a motive. The court had proved the man right in 2005, which meant that the sale and distribution of Madonna’s hit on Belgian territory had to be stopped. It was not until 2014 that the Court of Appeal ruled otherwise, as a result of which the song had eventually lost 9 years of possible exploitation income on Belgian territory. Years ago, Clouseau also had to deal with someone who wrongly thought he had a “case”. Kris Wauters testifies: “One day I received a letter from Sabam (i.e. the Belgian author’s rights collection society) in my letterbox, informing me that the rights of our song “En Dans” were blocked. “En Dans” is a song I wrote with Marc Vanhie. Apparently, a complaint for plagiarism had come in, causing the rights to be blocked by Sabam. More specifically, the person in question focused on the first 5 notes of the synths on the intro, the characteristic string theme. So I thought they wanted to claim arrangement rights, but no: the claim encompassed the entire composition! On those 5 notes we would have picked the song “En Dans”, notes that can’t be heard in a hundred years in the top line. Some Walloon songwriter had put a similar melody on a slow bossa nova rhythm, which he thought “En Dans” had plagiarized . His “suspicion” was motivated by the fact that both songs were recorded with the same software (ProTools) in the same studio (by producer Yannick Fonderie). Not that I had to use it in this case, but coincidentally we had filmed a lot of the recording process with our camera. During the recording of “En Dans” we had filmed how everyone was fooling around on the keyboards in the studio to come up with a melody for the intro. At a certain point Hans (Francken, ed.) plays in those notes, to the delight of the band members. In the end those notes were a bit polished up, but the video showed that it was indeed an own, independent creation. Even if you’re 100% right, such claim is really annoying. The rights are blocked, then another half year goes by, etcetera. In the end we received a letter which – justly – proved us right on all fronts”.
In other words: be cautious when considering a plagiarism claim. When in doubt, it’s best to seek advice in order to assess the case.
In some cases, it’s obvious that you have been “ripped”. For example, I once had a case for a client, an international composer and performer, in which a fragment of his composition was literally copied in the leader of a closely watched foreign TV programme. The creator of the generic firmly denied. After all, as in-house composer of the TV station, he had a lot to lose: if his plagiarism were to be established, it would undoubtedly have consequences for future commissions. Because the infringer did not confess spontaneously, we had an expert’s report drawn up by the then director of the Royal Brussels Conservatory. The findings were clear: not only the melody, but even the tempo and the notes were exactly the same as those of the original. In the end we were able to avoid a court case by agreeing that we would submit the case to the plagiarism commission of the local copyright society and that we would accept the result as binding for the parties. The hearing was an experience in itself: my client, his manager and I on one side, the infringer and his lawyer on the other, and right in front of us, at a long table, a 7-headed college asking very specific questions. As expected, the committee judged in our favour, which ultimately resulted in a correct payment of the rights.
But how substantial does the resemblance have to be in order to talk about plagiarism? There are different ‘urban legends’ about a certain number of measures or seconds, but we can hereby formally disprove this. The criterion is simply that it is an identical or quasi-identical reproduction of a pre-existing work. But a reproduction of what exactly: the lyrics, the melody, the structure, the rhythm? Well, if the melody line or words are copied to a recognizable degree, then it’s very likely that the judge will decide in favour of plagiarism. But when it comes to a “groove”, for example, things are – at least in practice – more difficult. Witness the case of the Marvin Gaye Estate against Robin Thicke and Pharrell Williams regarding the song “Blurred Lines”. The title cannot be a coincidence, because with this case the lines between work (expression) and inspiration (concept, idea) are blurred: to what extent can a certain groove, a drumbeat as such be an original work? After a legal battle of more than five years, a federal judge in California ruled that “Blurred Lines” (2013) by Robin Thicke and Pharrell Williams resembles “Got To Give It Up” (1977) by Marvin Gaye in such a way that one can speak of plagiarism. An appeal and a new decision of the federal judge also ruled in the same sense, albeit with a slightly reduced compensation as a sanction. The judge did acknowledge that they had “not consciously copied” Gaye, but that the song was “heavily influenced” by that of Gaye. (Compare yourself: https://youtu.be/ziz9HW2ZmmY) A lot of well-known musicians were supportive of Thicke and Pharrell: in a written statement they expressed their concern about the fact that the judge wants to punish “the creation of new work inspired by older work”. This would endanger the “creative process”. This is, in my opinion, a justified and highly relevant concern. As someone summarised on YouTube: “There is a fine line between plagiarism and inspiration… you could almost say it is blurred”.
Another context in which plagiarism can occur is sampling. If you use a sample without permission (“sample clearance”), it is equivalent to plagiarism.
As recently as last summer (29 July 2019), the European Court of Justice (ECJ) issued a highly discussed judgment (C-476/17) on copyright and music sampling in the “Metall auf Metall” case. Some group members of Kraftwerk claimed that the song “Nur Mir” (1999) by Moses Pelham and Martin Haas had copied 2 seconds of their song “Metall auf Metall” (1977) by using a sample, thus infringing their copyright. The ruling confirms that phonogram producers have the exclusive right to authorise or prohibit, in whole or in part, the reproduction of their phonograms. Consequently, the reproduction by a user of a sound sample from a phonogram, however brief, should in principle be regarded as a (partial) reproduction of that phonogram. Such a reproduction falls under the exclusive right of the producer (master owner). No surprise there. But what is new is the following: the ECJ held that a user doesn’t have to ask permission for the use of a sample in an adapted form, in the sense that the musical fragment is not recognizable to the human ear. Such use of a sample is not regarded as a “reproduction” in the sense of copyright law. The Court of Appeal refers to the artistic freedom to justify its reasoning: if an unrecognizable use also requires permission, there would not be a good balance between the artistic rights of new users and the copyright protection of existing works.
It is striking that the ECJ uses the criterion of unrecognizability “to the ear”. In the end, it comes down to the fact that the sample is not recognizable for a human being; the fact that a computer can find certain similarities – for example by comparing the sound waves or researching the Pro Tools multitrack files – is therefore irrelevant. Let it be clear that this remains a grey zone and that it is often quite a task to prove that a music fragment is “unrecognizable” compared to an older piece of music.
It seems to me that there is some nuance missing in the decision of the Court. The element of recognizability may be relevant as to copyright in the composition, but that does not alter the fact that if the existing recording itself (master) is used, the permission of the master owner would be required. Ultimately, the producer’s copyright (neighbouring right) exists precisely to protect his investment against leeches. The exploitation of a sample from someone else’s recording without remuneration could, in principle, be regarded as free riding on someone else’s investment.
I am plagiarized, what now?
Suppose you discover that someone has plagiarized your work or recording, what exactly do you have to do? In the first instance, it is safe to take “protective measures” by having the rights frozen with SABAM (and with master use also with SIMIM). At the same time, you can make a takedown request to the streaming services that offer the infringing track. You can then send a letter to the infringer asking him to stop any further infringement immediately (“cease and desist”) and to indicate what revenue has already been generated. If you do not reach an agreement, you will have to go to court. There, you follow the same logic: first of all, you ask for the cessation of the exploitation on pain of a penalty, and, whether or not in separate proceedings, ask for compensation for damages suffered and lost income. Anyone claiming compensation must be able to prove the damage. To this end, you can request statements from the record company, publisher and the collecting societies, for example. If an exact estimate of the damage proves impossible, a judge can also award compensation “ex æquo et bono”.
Your creativity and investments deserve the highest protection. If somebody else takes advantage of that and ignores your rights, then you must act. Those who, on the other hand, have bad intentions and wrongly accuse someone of plagiarism, should not act frivolously; as Phil Collins would say: Think twice! If it turns out that the claim is wrongful, then all costs (experts, court fees, etc.) and the income lost through takedowns can be recovered in full from the claimant.
Every note in the music has ever been played and we are consciously and unconsciously inspired by it. Above all, don’t let your creative zeal be curbed by it and don’t judge others too quickly. But when you suspect that you are a victim of plagiarism or are accused yourself: Stand up for your rights!
©2020 Emmanuel Verraes