Intellectual Property

If Mozart and Beethoven Were Alive Today, Would they Be Guilty of Copyright Infringement?

A rise in copyright infringement cases in music, particularly over the general 'feel' of the piece, could restrict the creation of new music.

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Another day, another news story about a music copyright infringement case. Earlier this year, I covered the outcome in the “Blurred Lines” case, in which the heirs of Marvin Gaye sued over this single, which was done by Robin Thicke in 2012 and produced by Pharrell, claiming copyright infringement. (Quick summary: Thicke lost. Longer version: At the district court level, a federal jury found that “Blurred Lines” indeed infringed on Gaye’s song, “Got to Give It Up. ” The Ninth Circuit agreed, by a 2-1 vote, with the majority relying on procedural reasons, rather than substantively agreeing with the decision).

Robin Thicke/Pharrell aren’t the only artists to be hit with a copyright suit by Gaye. Gaye’s heirs also sued over singer-songwriter Ed Sheeran’s “Thinking Out Loud,” claiming infringement on Gaye’s “Let’s Get It On.” That is a particularly strange case that Eriq Gardner of The Hollywood Reporter, Esq. covered — and involves a second suit when Gaye’s co-writer Ed Townsend, Jr.’s heirs crawled out of the woodwork, based on claimed biological paternity (which apparently was not confirmed by birth certificate or paternity testing), suing to be a part of the infringement suit. It’s a fascinating case and I recommend Eriq Gardner’s post if you’re interested.

But an investigation into Ed Sheeran’s music led me to additional copyright infringement cases and the difficulties in determining what’s infringement and what’s not in music. For example, two songwriters alleged copyright infringement for Sheeran’s 2014 song, “Photograph,” asserting that the melody infringed on their song, “Amazing.” More recently, Ed Sheeran was sued over the song he wrote with country music superstars Tim McGraw and Faith Hill, “The Rest of Our Lives.” Australian artists alleged that this song infringed on their song, “When I Found You,” sung by Jasmine Rae.

While there are similarities between each of the songs at issue, it’s important to remember that they may not amount to copyright infringement. As I said in coverage of the “Blurred Lines” case:

All knowledge builds on existing knowledge and creation, which is why any functioning copyright system must have important limits. Fair use is an important limitation on copyright. The idea/expression dichotomy, by which an underlying idea is not protectable, is another limit. Not all original expression is copyrightable, either, for example, where the idea and expression are so intertwined that they essentially merge.

I noted then that the Ninth Circuit’s decision could, in effect, lead to the copyrighting of music genres, resulting in a “chilling effect because it’s impossible to create new music without inspiration from existing music.” Indeed, one of my favorite examples of a transformative fair use highlights how much copying there is in the copyright music genre. This YouTube video by Sir Mashalot seamlessly blends together six different country songs by some of the biggest names in country music: “Sure Be Cool If You Did” by Blake Shelton; “Drunk on You” by Luke Bryan; “Chillin’ It” by Cole Swindell; “Close Your Eyes” by Parmalee; “This is How We Roll” by Florida Georgia Line”; and “Ready, Set, Roll” by Chase Rice. In some places it’s almost impossible to tell where one song ends and another begins and all six songs sound pretty similar.

The outcome of many of these cases have relied on dueling musicologists, ones called by the plaintiff’s side to highlight any similarities and ones called by the defense to argue that the similarities are insufficient. (Side note: every time I think about music copyright cases and the reliance on musicologists, I think about the TV show The Good Wife and the musicologists in “Goliath and David” and “Tracks.”)

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Copyright infringement cases in the music world seem to be increasingly common, with most cases settled out of court. Sheeran settled in litigation over “Photograph”/”Amazing” and, just last week, settled in “The Rest Of Our Lives” case. Lest you think I’m picking on Sheeran, focusing on examples where he has been sued, here’s a short rundown of other prominent artists who have been sued for copyright infringement: Led Zeppelin (in more than one case) for “Stairway to Heaven,” Justin Bieber and Skrillex were sued over “Sorry,” Kanye West and Solange were sued for “Everything I Am,” and Bruno Mars and Mark Ronson were sued (in multiple cases) over “Uptown Funk.” These types of music infringement cases are often settled due to the high costs of litigation, even where no infringement occurred.

A rise in copyright infringement cases in music, particularly over short snippets of an overall song or the general “feel” of the piece, could restrict the creation of new music. It’s a shame given the long history of “borrowing” in the music industry. Indeed, classical composers frequently copied others, creating variations of older works and creating new interpretations. For example, Mozart borrowed from Haydn; Beethoven borrowed from Mozart; Schubert, Mendelssohn, and Brahms, in turn, all borrowed from Beethoven; Mahler borrowed from Brahms; and the list goes on and on. While some may argue that we don’t need six nearly identical country music songs (though I do personally love country!), imagine instead if the chilling effect applied to some of the greatest classical composers in history and the loss of their great music.

Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at [email protected].

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