Navigating through the mess of ideas that one can call the music industry can be difficult. And as an aspiring artist how does one know if the person who inspires you and your work will not sue you for copyright infringement on the off chance that your song blows up on Tiktok, where is the line between inspiration and copyright infringement?
What is copyright?
Copyright is a compilation of legal rights that artists have that protect their “expression of an idea/the creative work itself.” It gives artists the legal rights to control how others use their creative work.
What is copyright infringement?
Copyright infringement occurs when another person (or entity) does the things that only the copyright holder is usually allowed to do with their work, without the copyright owner’s permission (often called a license) and without any relevant defense. It’s not necessary for the infringer to copy or use all of your creative work to be “infringing” your copyright. As long as they have used a “substantial part” of it without either your consent or a relevant defense, they may have infringed your copyright. The question of what is a “substantial part” is not defined in the Copyright Act 1968 (Cth) but courts have made decisions about the meaning of “substantial part” over many years and it has generally been interpreted as an important, recognisable, essential part of the whole. The test of what is substantial is qualitative, rather than quantitative. In other words, there’s no rule that copying 5% of a work is okay. It depends on the quality of what is being copied.
Marvin Gaye Vs Pharrell Williams and Robin Thicke: An interesting copyright infringement case from the USA
Gaye’s “Got to give it up”
- Released in 1977 as a single from the album, Live At London Palladium.
- Was inspired by artists Johnnie Taylor’s highly popular “Disco Lady.”
- “Got to Give It Up” was written as a parody to the disco craze that was sweeping the music industry.
- The song contained some unique musical elements, including background conversations, the banging on a grapefruit bottle, and the use of a “hotel sheet” (a piece of polystyrene that would make a wobbly sound when shaken).
- The song became an instant hit, topping the Billboard Hot 100, the R&B Singles Charts, and various other disco charts.“Got to Give It Up” was later covered and sampled by a variety of artists.
Williams and Thicke’s “Blurred lines”
- Released by Pharrell Williams, Robin Thicke, and T.I. in 2013 as a single on the Robin Thicke album of the same name.
- Primarily produced by Williams through his record company Star Trak Entertainment.
- heavily influenced by “Got to Give It Up”. This influence can primarily be heard in the song’s percussions, which were designed to invoke a similar feel to the unique musical effects that Gaye first created thirty-six years prior.
- “Blurred Lines” became a commercial success, topping the Billboard Top 100 in June for 12 consecutive weeks. “Blurred Lines” later went on to become one of the best-selling singles ever, with over 14.8 million dollars in sales by the end of 2014.
The Gaye’s made an infringement demand on Williams and Thicke after hearing “Blurred Lines.” Negotiations failed, prompting Williams, Thicke, and Harris to file suit for a declaratory judgment of non-infringement on August 15, 2013. The Gaye’s counterclaimed against the Thicke Parties, alleging that “Blurred Lines” infringed their copyright in “Got To Give It Up,” and added the Interscope Parties as third-party defendants.
(Williams v. Gaye, No. 15-56880 (9th Cir. 2018), 2021)
At trial, the jury was instructed to determine whether infringement on the underlying musical composition of “Got to Give It Up” had occurred. They were to make their analysis based only on the sheet music Gaye had recorded with the Copyright Office in 1977. No actual sound recordings of the songs were to be used or relied upon by the jury, as the judge had ruled them inadmissible as evidence. This inadmissibility was due to the inconsistencies in federal copyright law. “Got to Give it Up,” which was published before 1978, was subjected to the Copyright Act of 1909, and not the Copyright Act of 1976. Under this older statutory framework, the creation of a sound recording did not constitute an adequate form of publication for copyright protection purposes. Instead, a musician had to deposit the sheet music with the Copyright Office in order to receive copyright protection and had to follow different procedural processes to receive protection on the recording. The Gaye family failed to offer evidence that proved the sound recording was entitled to copyright protection. Accordingly, the judge ruled that the sound recordings would not be at issue on trial, nor could they be admitted as evidence by either party.
Extrinsic similarity is shown when two works have a similarity of ideas and expression as measured by external, objective criteria. To make this determination, you must consider the elements of each of the works and decide if they are substantially similar. This is not the same as “identical.” There has been testimony and evidence presented by both sides on this issue, including by expert witnesses, as to such matters as: for “Got to Give It Up” and “Blurred Lines,” the so-called “Signature Phrase,” hook, “Theme X,” bass melodies, keyboard parts, word painting, lyrics, [and] rap v. parlando . . . . The Gaye Parties do not have to show that each of these individual elements is substantially similar, but rather that there is enough similarity between a work of the Gaye Parties and an allegedly infringing work of the Thicke Parties to comprise a substantial amount.
(Williams v. Gaye, No. 15-56880 (9th Cir. 2018), 2021)
The case was finally brought to a close in 2018 with a final settlement of $5m to be paid to the Gaye family, along with an additional 50% share of future royalties.
Many were stumped by the outcome of this case as most comments made post trial were negative. Some believed that the Gaye family was able to accomplish something that no one in music has ever been able to accomplish, which is they were able to claim a style/ feel as theirs. Many pointed out that all music is inspired by in one way or another whether that be by feel, genre, groove and copyright should not have the ability to protect that.
An in depth musical comparison can be found here
Copyright in US vs Australia
How to avoid copyright infringement
So how does one avoid copyright infringement? simple answer is to not use other artists work, create original pieces and hope some big artist that you are unaware of doesn’t sue you for infringement. But all jokes aside, copyright can be a touchy subject when creating work as some believe that nothing can be completely original. As music grows and so does one’s creativity the laws of copyright can be seen as a restricting boundary to ones creativity, but that’s something that we can hope changes in the future as music grows. Remember that a modern musician to a traditional musician is what a photographer is to a painter. Both undeniably talented but both different.
Arts Law Centre of Australia. 2021. Copyright Infringement – Arts Law Centre of Australia. [online] Available at: <https://www.artslaw.com.au/information-sheet/copyright-infringement/> [Accessed 9 April 2021].
Legislation.gov.au. 2021. Federal Register of Legislation – Australian Government. [online] Available at: <https://www.legislation.gov.au/Series/C1968A00063> [Accessed 7 April 2021].
Quagliariello, J., 2021. Blurring the Lines: The Impact of Williams v. Gaye on Music Composition. [online] Harvardjsel.com. Available at: <https://harvardjsel.com/wp-content/uploads/sites/9/2019/02/HLS105.pdf> [Accessed 8 April 2021].
Gaye, m., 2021. Got to give it up. [online] Youtube.com. Available at: <https://www.youtube.com/watch?v=fp7Q1OAzITM> [Accessed 13 April 2021].
Youtube.com. 2021. Robin Thicke – Blurred Lines ft. T.I., Pharrell (Official Music Video). [online] Available at: <https://www.youtube.com/watch?v=yyDUC1LUXSU> [Accessed 14 April 2021].
Anon (2021) Harvardjsel.com. Available at: https://harvardjsel.com/wp-content/uploads/sites/9/2019/02/HLS105.pdf (Accessed: 8 April 2021).
Justia Law. 2021. Williams v. Gaye, No. 15-56880 (9th Cir. 2018). [online] Available at: <https://law.justia.com/cases/federal/appellate-courts/ca9/15-56880/15-56880-2018-03-21.html> [Accessed 8 April 2021].
Wright, V., 2021. Comparison of U.S. and Australia Copyright Law – Photo Attorney®. [online] Photo Attorney®. Available at: <https://www.photoattorney.com/comparison-australia-copyright-law/> [Accessed 12 April 2021].