In Court

"Is this safe?": attempting to locate the "line in the sand" that defines music copyright infringement

Authored by SimonA

20 Jul 2017 • 0 Comments (Add Comment)

"Is this safe?" is perhaps the question that most keeps composers and publishers awake at night. A niggling doubt that something they have written or published may rely too heavily on influence of other people's work. In recent years the spotlight has shone more brightly on this area of IP law than ever before, and high profile awards of damages have raised anxiety levels and given rise to musical "ambulance-chasing" by the less scrupulous side of the legal profession. A desire to explore the question of "defining the line" grew into a University of Westminster thesis submitted in 2015, and this in turn, aided by the vision and energy of staff from the University Law School and generous funding from the Quintin Hogg Trust, became Lost in Music. Here we look in more detail at the genesis of that study and how it feeds into the broader goals of the Lost in Music project.

Is my new song safe? How do I know? How can I tell? Is there a formula I can use to determine whether it's OK? The real answer is that nobody knows, nobody can measure, and not many people will feel brave, confident or qualified enough to offer an opinion. At best we can make an educated (or uneducated) guess. We can choose to pay for professional advice, but even this comes with no guarantee. We can choose to take out insurance against a claim, but of course at a cost. So it boils down to risk. Are we happy to take a risk? Do we need to pay money to mitigate the risk?

Yet there is information that we can use to help guide our decision-making, and Lost in Music aims to gather as much of this as possible and present it in a way that is clear and easy to digest. Below we consider what information is available to us, but first we ask why the question is so complex in the first place.

Music is a constantly evolving art form. Because of its complex construction it presents more of a challenge than other creative arts in analysing the degrees of similarity between two separate works, and establishing whether one may have infringed the other. Much has already been written on the evolution of melody, rhythm and harmony in different cultures over the centuries, and it is well recognised that composers from JS Bach to BB King take the best of existing styles of music and add their own original ideas to it. Thus, there always is an element of ‘borrowing’ in music, and it would be hard to argue any piece of music as being wholly original and free of external influence.

Craig Cross, in his book The Beatles: day-by-day, song-by-song, record-by-record, reveals how Paul McCartney, when discussing the composition of his song Yesterday, said that he was concerned he had subconsciously copied it, for the melody seemed familiar to him. > “For about a month I went round to people in the music business and asked them whether they had ever heard it before. Eventually it became like handing something in to the police. I thought if no one claimed it after a few weeks, then I could have it.”

UK copyright legislation forbids the copying of the whole or a substantial part of a protected piece of music, but does not attempt to define what is meant by ‘a substantial part’ in the context of an infringement. Music is the product of an infinite number of different notes of different lengths, with chords underpinning the melody, framed within 24 possible keys, scored for countless instruments, set to an infinite number of possible words, conceived of limitless structures. Owing to music’s structure and its infinite creative possibilities, we can only strive to move closer to a definition of the point at which an infringement of copyright occurs. A deeper understanding of this issue will better inform composers and publishers about staying ‘safe’ with what they create, and also how to evaluate whether they have themselves been infringed.

Lost in Music explores in detail the 13 UK music copyright infringement cases of the past century, examining how their outcomes have shaped the interpretation of copyright law, considering why some cases were upheld and some dismissed. In most cases the court papers provide detailed information on the areas of consideration, a luxury that is not afforded to the public in those cases that are settled out of court, where confidentiality of terms is standard. Nonetheless, we will also consider available information on those cases settled out of court, as well as providing musical examples for illustration. We will also shine the spotlight on current cases in the news, offering commentary and music extracts for comparison.

As a separate illustration, the You Decide tab (coming soon!) presents a case study, examining how a newly written piece of music moves closer to infringing the copyright of an original work as gradually more elements of the original work are added. Extracts from the scores and sound recordings are provided and you are invited to indicate your own opinion as to whether each version is infringing or safe.

An infringement cannot be measured mathematically, as can breaking the speed limit or buying alcohol under the permitted age. As Emma Steel observes in her 2015 paper Original Sin: Reconciling Originality in Copyright with Music as an Evolutionary Art Form, > “an unequivocal test has not been established to ascertain when a musical work that resembles a precedent work can be legally classified as an original work”. Cases only ever come to court when the two sides both believe vehemently that they are right. The stakes are high, and the legal costs of a trial can often outweigh the potential damages awarded. Thus we can only really take the available information from the precedential cases of the past hundred years, to help us move towards a better definition of where the notional ‘line in the sand’ actually lies.

Music is defined and described by its own ‘language’ and invariably requires the assistance of independent experts to translate this into words and examples that can be understood by the courts to aid the decision-making process. The expert testimony of the musicologist is often critical in the outcome of infringement cases. In a separate blog post the role of the musicologist is examined, and their contribution to case outcomes is appraised.

To explore the infringement issue fully, an understanding both of music theory and legal practice is helpful, in order that the relationships between the musical works can be appreciated. Nonetheless, Lost in Music aims to present legal and musical information in a way that is accessible to all.

Simon Anderson

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