Whilst Lost in Music currently focuses on musical works, the lyrics of songs can also be problematic. This blog shows another direction in which Lost in Music may develop in the future
Lyrics have always been really important to me. In fact I have blogged before on lyrics, poetry and the power of words, using The Jam’s seminal album Sound Affects as the focus. Paul Weller, lead singer, guitarist and chief songwriter of The Jam was the first lyricist I really picked up upon as a music obsessed child and I loved his use of words. Weller, as many writers are, is very up front about his reference points. Sound Affects itself abounds with touchstones of others, with echoes of The Beatles, The Kinks and The Small Faces, as well as more contemporary nods to the Gang of Four and others. Writing in the Quietus in 2010 Valerie Siebert put it thus; ‘Weller often toes the thin line between homage and theft, but manages to come out the other side of it virtually unscathed’.
An obvious musical link was between the songs ‘Taxman’ by the Beatles and the first single to be taken from Sound Affects - ‘Start’. In addition to this, some of the lyrics were also subject to a critical gaze. ‘That’s Entertainment’, to some Weller’s masterpiece, was later alleged to be loosely based on a poem, ‘Entertainment’,written by Paul Drew for a Weller poetry anthology. Similarly when I first encountered The Smiths’ eponymous album, and particularly tracks such as ‘Reel around the Fountain’, I was struck by the complex and beautifully constructed lyrics. Only later did I find out that some of these were borrowed from other works and texts. In fact one of the most memorable lines; ‘I dreamed about you last night, and I fell out of bed twice’ was drawn almost directly from Sheelagh Delaney’s play A Taste of Honey.
Turning to intellectual property considerations, under the Copyright Act 1956 copyright existed in a song, with music and lyrics intertwined, something that was altered in 1988 when the Copyright Designs and Patents Act 1988 created separate copyrights in the musical work (the music) and the literary work (the lyrics). So now the lyrics attract their own separate copyright as a literary work, and the same issues of infringement that we see for plagiarism of musical works, such as a consideration of substantiality, is just as pertinent for the lyrics. Cases involving lyrics are not as prevalent as the musical ones but there are, nonetheless, examples of the use of words proving problematic. One such instance involved Robbie Williams, where publishers acting on behalf of Woody Guthrie and in particular the owners of the song ‘New York Town’ which had later been rearranged by Loudon Wainright III as ‘I am the Way (New York Town)’. Robbie Williams, and his co-writer Guy Chambers, produced a track entitled ‘Jesus in a Camper Van’ which contained, amongst other things, the line;
‘I suppose even the Son of God/Gets it hard sometimes/Especially when he goes round/Saying I am the Way’
The Loudon Wainwright version contained the following line;
‘Every Son of God gets a little hard luck sometime…especially when he goes round saying he is the way’.
It was the similarity between these two lines that was the crux of the case. The case initially went before Nicholas Strauss QC as part of an application for summary judgement where it was held that the claimant’s copyright had been infringed;
‘In my view, the extent of the copying is substantial, although not by much. Quantitively, the defendants have copied one out of four verses, although allowance is to be made for the fact that ". . . get a little hard luck sometimes" was derived from the Woody Guthrie song. More significantly, "Jesus in a Camper Van" takes the central idea from "I am the way (New York Town)", namely that the Son of God attracts bad luck by going round saying "I am the way", and embodies it in virtually identical words. I think that this is of sufficient substance to amount to an infringement of copyright’
At the full trial in 2002 Mr Justice Pumfrey decided that damages for infringement should be paid at 25% of the mechanical royalties. More important than the actual decision is the acknowledgement that artists should be careful with their lyrics as well as their music. Whilst Lost in Music currently looks specifically at musical plagiarism, we would advise all writers of lyrics to also be careful from where they take their inspiration. As Lost in Music develops we aim to cover issues such as this in addition to our current offerings and an analysis of the Robbie Williams case above is sure to form part of this.
2 Oct 2017
This is an interesting case from the angle of how disputes start and progress. Williams’ managers having been told about the possible similarity between the two set of song lyrics thought it would be good for Robbie’s career to have co-written a song with Loudon Wainwright III. They approached Loudon Wainwright III’s managers who agreed to a co-writing credit and income share. When it came to agreeing this share, EMI thought there was no copyright infringement or it was slight at best so offered a 10% share. Ludlow the publishers wanted 50% of the whole lyric/musical work. EMI thought this was a ransom demand as the album had been manufactured and was ready to distribute. Later EMI voluntarily registered Loudon Wainwright III for 25% of the composition (ie half of the lyrics) with collecting societies even though they thought this was excessive, but they believed it would appease Ludlow. However, Ludlow's solicitors initially claimed 100% of the composition and so the legal case commenced. The case began with the creative starting point of Williams trying to show he had co-written a song with Loudon Wainwright III which Wainwrights’ managers agreed with but then evolved into an economic issue about what was the property right involved and what was it worth. But the general point about it being potentially dangerous to copy something you overhear and do not know the source for (“found lyrics”) is a good one.
2 Oct 2017
For a couple of USA cases – Braham v Swift 2015 in which Taylor Swift won against an allegation of lyrical copying in her song Shake It Off based on use of common phrases – see judgement at:
but Swift has now been sued over the Shake It Off song lyrics by Sean Hall and Nathan Butler, the writers of an earlier 2001 song Playas Gon’ Play, for lyric similarity. The song was performed by 3LW eg see:
There is also a case begun in 2014 between rapper Rick Ross and LMFAO (Gordy et al) over the lyrical similarity of LMFAO’s 2010 smash hit Party Rock Anthem to an earlier Ross song concerning, in particular, use of the words “Every day I’m hustlin” by Ross and “Every day I’m shufflin” by LMFAO in merchandising and in the lyrics of the song.
2015 Merchandising decision in favour of LMFAO here: https://www.documentcloud.org/documents/2425185-hustlin.html
but the Party Rock Anthem lyrics were held not to be protected by a copyright parody fair use in 2016 https://www.lexology.com/library/detail.aspx?g=aee9f9cb-5eb5-4c05-9661-726ca0ab104c
However Ross appears to have lost the case in 2016 when he was unable to prove who actually owned his song Hustlin’ due to confusing copyright registrations in USA: https://www.law360.com/articles/782621