Example Case - See You In Court
The Case
The fourth version of the new song incorporates more of what might at first be considered the ‘peripheral’ parts of the existing song – a second piano line and a synthesizer part. The second piano part is higher than the first, using the upper section of the keyboard. It adds bright interjections, often using syncopation. The synthesizer is added to provide musical interest in gaps between vocal lines where the singers rest.
Case for infringement
To most people familiar with the existing song, it is very likely the wholesale reproduction of the synthesizer part in the second bar of the new song that firmly recalls its identity in this study. This is the first time an actual melody has been copied, rather than a chord pattern or a rhythmic accompaniment part. The two bars reproduced below illustrate the synthesizer part in question, which occurs in the second bar of the work (at 3 and 22 seconds in the recording).
Even though it is a simple semiquaver arpeggio figure, playing nothing more than the notes of the D major chord, it is immediately identifiable as belonging to the existing song. A defence might claim that arpeggio figures are commonplace in music, citing numerous examples in music as far back as the 16th century.
This particular figure is more complex, however, playing a repeated three note semiquaver motif followed by a more melodic ending, which allows it to conclude on a note of C#, the third note of the A major scale. The skill and originality in crafting such a melody would be sufficient to afford copyright protection to the figure in the context of the existing song.
Another unusual feature of this arpeggio figure is that it does not recur later in the verse. Symmetry is a typical feature of popular music, and the listener would expect a similar arpeggio figure to be repeated at the end of the second vocal line in the fourth bar (at 8 and 27 seconds in the recording). Instead the second piano part enters at this point with a syncopated motif that plunges the harmony down to E major for the first time. The synthesizer part also echoes the opening oboe melody of the existing song in the final four bars of the extract, and this is without doubt a significant melodic ingredient that the new song copies. In reproducing these features exactly, the new song gives yet more ammunition to a claim of infringement against it.
The second piano part continues to add significant melodic interest later in the verse and chorus, clear examples of what Judge Astbury J referred to in the 1923 Austin v Columbia Gramophone case as “independent skill”. These are the short descending motif at the end of each vocal line in the chorus (illustrated on the musical evidence tab, bars 3 – 4 and 7 – 8), and, more strikingly, the extended syncopated rising figure beginning on the F#m chord in the second chorus, which lasts for two whole bars (illustrated separately on the musical evidence tab, the piano part shown in the top line of the example).
Case against infringement
A defence of parody could be made to step four, as by including many recognisable elements of the original while still employing original skill in its melody and lyrics it could be argued to be just the right side of the infringement line, but when the constituent parts of the existing song within the new song are added together they would in all probability be considered substantial, as in the Williamson v Pearson Partnership case, and the defence would fail.
Score Comparisons
The music example here shows significant melodic motifs from the piano part which are reproduced in step four, and which present a strong argument for copyright infringement. Many other elements copied from the existing song in step four could be argued to be commonplace and not copyrightable, but these examples would be hard to defend. The score below is heard in the audio from 45 to 62 seconds.
See You In Court
(Simon Anderson) ©and ℗ 2015, Simon Anderson. Please note that copyright is only claimed in the original elements of See You In Court, and not in the elements that have been reproduced from the existing song for the purposes of this case study.
9%
Safe
90%
Infringing
Our Summary
It seems clear that version four of the new song has crossed the line and contains some blatantly infringing melodic material. If this version were to be considered for commercial release, an agreement would have to be reached with the publishers of the existing song over a licence and a share of royalties. It is unlikely that they would agree to negotiate, however, being known for rarely consenting to license samples or arrangements of their repertoire. Madonna was one of only two artists to gain permission from the songwriters of the existing song to incorporate one of their songs into her own. Madonna shared 50% of performance royalties from her new work with them for permission to sample the synthesizer melody of the song Gimme Gimme Gimme. In an interview at the time one of them said, "we get so many requests from people wanting to use our tracks but we normally say 'no'. This is only the second time we have given permission. We said 'yes' this time because we admire Madonna so much and always have done. She has got guts and has been around for 21 years. That is not bad going."