Musical plagiarism

Music plagiarism is the use or close imitation of another author's music while representing it as one's own original work. Plagiarism in music now occurs in two contexts—with a musical idea (that is, a melody or motif) or sampling (taking a portion of one sound recording and reusing it in a different song). For a legal history of the latter see sampling.

Overview

Any music that follows rules of a musical scale is limited by the ability to use a small number of notes. The seven-note diatonic scale is the foundation of the European musical tradition.

No artist denies the existence of, and relation between, musical genres. In addition, all forms of music can be said to include patterns. Algorithms (or, at the very least, formal sets of rules) have been used to compose music for centuries; the procedures used to plot voice-leading in Western counterpoint, for example, can often be reduced to algorithmic determinacy.

For these reasons, accidental or "unconscious" plagiarism is possible. As well, some artists abandon the stigma of plagiarism altogether. Composer Dmitri Shostakovich perhaps commented sarcastically on the issue of musical plagiarism with his use of "We Wish You a Merry Christmas," an instantly recognizable tune, in his Prelude No. 15 in D Flat, Op. 87.

According to U.S. copyright law, in the absence of a confession, musicians who accuse others of stealing their work must prove "access"—the alleged plagiarizer must have heard the song—and "similarity"—the songs must share unique musical components. though it is difficult to come to a definition of what is "similarity".

Even if a piece of music is in the public domain and thus not protected by copyright, it may still be plagiarism to copy a portion (or all) of it without attribution. There are many changes in the creation, content, dissemination and consumption of popular music in the 21st century.

Folk tradition

The issue of plagiarism in folk music is problematic as copying and not crediting songs was common. Noted blues author and producer Robert Palmer states "It is the custom, in blues music, for a singer to borrow verses from contemporary sources, both oral and recorded, add his own tune and/or arrangement, and call the song his own". Folklorist Carl Lindahl, refers to these recycling of lyrics in songs as "floating lyrics". He defines it within the folk-music tradition as "lines that have circulated so long in folk communities that tradition-steeped singers call them instantly to mind and rearrange them constantly, and often unconsciously, to suit their personal and community aesthetics". In 2012, when Bob Dylan was questioned over his alleged plagiarism of others music he responded, "It's an old thing – it's part of the tradition. It goes way back". Princeton University professor of American history Sean Wilentz defended Dylan's appropriation of music stating "crediting bits and pieces of another's work is scholarly tradition, not an artistic tradition". In 1998, B.B. King stated on the issue, "I don't think anybody steals anything; all of us borrow."

Musical ideas

Plagiarism is relevant to different musical styles in different ways.

In classical music, software exists that automatically generates music in the style of another composer, using musical analysis of their works. Most notably, David Cope has written a software system called "Experiments in Musical Intelligence" (or "EMI") that is capable of analyzing and generalizing from existing music by a human composer to generate novel musical compositions in the same style. EMI's output is convincing enough to persuade human listeners that its music is human-generated to a high level of competence.

According to Theodor Adorno's highly controversial view, popular music in general employs extensive plagiarism: variety in the musical material occurs in details whereas genuinely original musical content tends to be sparse when compared to classical or art music.

Sampling

Main article: Sampling (music)

Sampling has long been an area of contention from a legal perspective. Early sampling artists simply used portions of other artists' recordings, without permission; once rap and other music incorporating samples began to make significant money, the original artists began to take legal action, claiming copyright infringement. Some sampling artists fought back, claiming their samples were fair use (a legal doctrine in the USA that is not universal). International sampling is governed by agreements such as the Berne Convention for the Protection of Literary and Artistic Works and the WIPO Copyright and Performances and Phonograms Treaties Implementation Act.

Today, most mainstream artists obtain prior authorization to use samples, a process known as "clearing," by gaining permission to use the sample and, usually, paying an upfront fee and/or a cut of the royalties to the original artist. Independent bands, lacking the funds and legal assistance to clear samples, are at a disadvantage unless they seek the services of a professional sample replay company or producer.

Recently, the free culture movement, started mainly by Lawrence Lessig, has prompted many audio works to be licensed under a Creative Commons license that allows for legal sampling of the work provided the resulting work(s) are licensed under the same terms.

Cases

Most cases of alleged plagiarism are settled out of court. Most artists try and settle for costs that will be less than defending costs. Since the 1850s federal courts have published fewer than 100 opinions dealing with this issue. The Columbia Law School Library's Music Plagiarism Project provides information on many cases over the decades, with a few dating back to the 19th century.

Successful suits and settlements

• In March 1963, The Beach Boys released "Surfin' U.S.A." When the single was released in 1963, the record listed Brian Wilson as the sole composer although the song was published by Arc Music, Chuck Berry's publisher. Later releases, beginning with Best of The Beach Boys in 1966, listed Chuck Berry as the songwriter. Later releases list both writers although the copyright has always been owned, since 1963, by Arc Music. Under pressure from Berry's publisher, Wilson's father and manager, Murry Wilson, had given the copyright, including Brian Wilson's lyrics, to Arc Music.

• George Martin's score for The Beatles' "All You Need Is Love" (1967) contained melodies from several songs thought to be public domain, including "In the Mood," written by Joe Garland and Andy Razaf. While the song was in the public domain, the Glenn Miller arrangement used was not and EMI made a royalty payment to KPM Publishing in July 1967.

• John Lennon's use of a line from Chuck Berry's "You Can't Catch Me" ("Here come up flat top / He was groovin' up slowly") in the 1969 Beatles' song "Come Together" ("Here comes ol' flat-top / He come groovin' up slowly") led to a lawsuit from Berry's publisher, Big Seven Music Corp. In 1973, a settlement was reached whereby Lennon agreed to record three of Big Seven's songs on his next album. Big Seven Music Corp. again sued Lennon for breach of contract, when his 1974 album, Walls and Bridges, failed to contain all three of the songs, with the court awarding the company US$6,795.

• George Harrison was successfully sued in a prolonged suit that began in 1971 for plagiarizing the Chiffons' "He's So Fine" (1963) for the melody of his own "My Sweet Lord" (1970).

• In 1971, Johnny Cash paid songwriter Gordon Jenkins an out-of-court settlement of US$75,000 for plagiarizing liberally from Jenkins' 1953 song "Crescent City Blues," for Cash's 1955 single "Folsom Prison Blues" (re-released in 1968).

• On Led Zeppelin's album Led Zeppelin II (1969), parts of the song "Bring It On Home" were copied from Sonny Boy Williamson's 1963 recording of "Bring It On Home," written by Willie Dixon. On the same album, "The Lemon Song" included an adaptation of Howlin' Wolf's "Killing Floor." In 1972, Arc Music, the publishing arm of Chess Records, brought a lawsuit against Led Zeppelin for copyright infringement over "Bring It on Home" and "The Lemon Song"; the case was settled out of court for an undisclosed sum.

• Led Zeppelin's song "Whole Lotta Love" contained lyrics that were derivative of Willie Dixon's 1962 song "You Need Love." In 1985, Dixon filed a copyright infringement suit, resulting in an out-of-court settlement. Later pressings of Led Zeppelin II credit Dixon as co-writer.

• Led Zeppelin also paid a settlement to the publisher of Ritchie Valens' song "Ooh! My Head" over "Boogie with Stu" (from their album Physical Graffiti) which borrowed heavily from Valens' song.

• In autumn 1984 and throughout 1985, Huey Lewis sued Ray Parker, Jr., for plagiarism, alleging that Parker stole the melody of the song "Ghostbusters" (the theme from the movie of the same name), from Lewis's 1983 song "I Want A New Drug." Lewis dropped the lawsuit after the two parties settled out-of-court in 1995. Lewis had been approached to compose the main theme song for the Ghostbusters movie, but had declined due to his work on the soundtrack for Back to the Future. It was reported in 2001 that Lewis allegedly breached an agreement not to mention the original suit, doing so on VH1's Behind the Music.

• According to the book Sharp Dressed Men by former ZZ Top stage manager David Blayney, who was with the band for 15 years, sound engineer Linden Hudson co-wrote much of the material on the ZZ Top album Eliminator album as a live-in high-tech music teacher to band members Frank Beard and Billy Gibbons. Despite continued denials by the band, it settled a five-year legal battle with Hudson in 1986, paying him $600,000 after he proved he held the copyright to the song "Thug" which appeared on "Eliminator."

• Due to similarities to "The Air That I Breathe", a song recorded by The Hollies in 1973, Radiohead were successfully sued for plagiarism over their 1992 song "Creep". Consequently, songwriters Albert Hammond and Mike Hazlewood are credited as co-writers.

• Oasis's 1994 single "Whatever" was initially credited as being written by the band's lead guitarist Noel Gallagher; a subsequent lawsuit awarded a co-writing credit to musical comedian Neil Innes due to similarities to his song "How Sweet to Be an Idiot." Oasis were also successfully sued for $500,000 by The New Seekers after the 1994 song "Shakermaker" was alleged to have taken its melody from "I'd Like to Teach the World to Sing". An Oasis song "Step Out," was originally intended for the (What's the Story) Morning Glory? album but was taken off after Stevie Wonder requested 10% of the royalties, as the chorus bore a similarity to his hit "Uptight (Everything's Alright)." Instead it was placed as a B-side on their 1996 single "Don't Look Back in Anger," and "Uptight" writers Wonder, Henry Cosby and Sylvia Moy received credit for writing the song, along with Noel Gallagher.

• In 2000, a U.S. Court of Appeals ruled against the Rolling Stones' former record company ABKCO Records, determining that two Robert Johnson songs recorded by the group, "Love in Vain" and "Stop Breaking Down" were not in the public domain.

• In 2005, Belgian songwriter Salvatore Acquaviva won a judgement against Madonna, claiming that her 1998 hit "Frozen" had been lifted from his early-1980s song, "Ma Vie Fout le camp." The judge declined to award damages, but did order the withdrawal of all remaining discs for sale and barred the song from airplay on Belgian TV and radio. See Frozen (Madonna song): Plagiarism.

• In early 2006, the writers of Lee Hyori's song "Get Ya" were accused of plagiarizing Britney Spears' 2005 song "Do Somethin'." This eventually led Lee Hyori to stop promoting the song and contributed to the failure of the song and its album, Dark Angel.^{[citation needed]}

• In early 2007, Timbaland was alleged to have plagiarized several elements (both motifs and samples) in the song "Do It" on the 2006 album Loose by Nelly Furtado without giving credit or compensation.^{[citation needed]}

• American musician Les Paul was successfully sued for plagiarizing Romanian composer Richard Stein's "Sanie cu zurgălăi" (1937) as "Johnny (Is the Boy for Me)" (1953).

• A lawsuit filed by Tommy Dunbar and James Gangwer of the 1970s power pop band the Rubinoos alleged Avril Lavigne stole their song "I Wanna Be Your Boyfriend" and reworked it into her best-selling single "Girlfriend." The case was settled for an undisclosed sum in January 2008.

• The Black Eyed Peas were successfully sued by Ohio disc jockey Lynn Tolliver, claiming that his song "I Need a Freak" was sampled without his permission in the Black Eyed Peas song "My Humps." Lynn Tolliver won $1.2 million.

• In 2009, Norman Lurie, then the head of Larrikin Music, successfully sued the members of the disbanded Australian group Men at Work on the basis that "a pattern of notes in five bars of a 93-bar song" in their hit "Down Under" sounded too much like the song "Kookaburra sits in the old gum tree," to which Larrikin owned the rights.

• Led Zeppelin's song "Dazed and Confused" was derived from a 1967 Jake Holmes song of the same name, which had been performed by Jimmy Page when he was with The Yardbirds. In June 2010, Holmes filed a lawsuit against the guitarist for copyright infringement in a United States District Court, claiming Page knowingly copied his work. The case was dismissed with prejudice in January 2012 following a stipulation filed by both parties. The 2012 Led Zeppelin release Celebration Day credits the song to "Jimmy Page, inspired by Jake Holmes".

Unsuccessful suits

• During the mid-1930s, Ira Arnstein became convinced that major pop songwriters had been illegally copying his work. During 1936–46 he brought forth five plagiarism lawsuits though none proved successful.

• In 1994 John Fogerty was sued for self-plagiarism after leaving Fantasy Records and pursuing a solo career with Warner Bros. Records. Fantasy still owned the rights to the Creedence Clearwater Revival library. Saul Zaentz, the owner of Fantasy, claimed Fogerty's song "The Old Man Down the Road" was a musical copy of the Creedence song "Run Through the Jungle." A jury found that "Old Man" was not derivative. See Fogerty v. Fantasy.

• In 1993 Killing Joke sued Nirvana alleging that the riff for the latter's song ""Come as You Are" was copied from the riff for their song "Eighties." The lawsuit was dropped after the sudden death of Nirvana frontman Kurt Cobain.

• The song "Thunderbird" was originally written and performed by the Nightcaps, a band formed in the 1950s when the members were teenagers. The Nightcaps performed the song and distributed it on their album Wine, Wine, Wine but never applied for copyright. ZZ Top began performing its version of the song in 1975, and has conceded that its version is lyrically and musically identical to the Nightcaps' song. The Nightcaps sued ZZ Top for, among other things, copyright infringement, but their claims were dismissed (in 1995) because, in part, ZZ Top had registered a copyright on the song in 1975.

• In 2003 Michael Cottrill and Lawrence E. Wnukowski claimed that Britney Spears’s "Can’t Make You Love Me," from her 2000 album Oops!... I Did It Again, misappropriated substantial melodic material from their "What You See is What You Get". The court was skeptical on the question of defendant’s access to the plaintiff’s work.

• Ronald H. Selle sued the Bee Gees, alleging their 1977 hit "How Deep Is Your Love" stole the melody of his own never-released 1975 song, "Let It End." The Bee Gees prevailed at trial on motion of judgment notwithstanding the verdict. Selle appealed, but the Seventh Circuit Court of Appeals upheld the verdict.

• On December 4, 2008 guitarist Joe Satriani filed a copyright infringement suit in Los Angeles federal court against Coldplay, claiming the Coldplay song "Viva la Vida" includes "substantial original portions" of the Satriani song "If I Could Fly" from his 2004 album, Is There Love in Space?. Coldplay has denied the allegation, which has resulted in further legal action from Satriani. On 14 September 2009, the case was dismissed by the California Central District Court, with both parties potentially agreeing to an out-of-court settlement.

• Baltimore songwriter Ray Repp sued composer Andrew Lloyd Webber, alleging the theme song from the musical The Phantom of the Opera was taken from his song "Till You." In 1998, a jury found Webber not liable for plagiarism.

• Elton John, Bernie Taupin, and Big Pig Music, have been accused of plagiarism by South African photographer and songwriter Guy Hobbs. Hobbs wrote a song in 1982 entitled "Natasha," about a Russian waitress on a cruise ship, who was never allowed to leave it. The song was copyrighted in 1983, and sent to Big Pig Music (John's publisher) for a possible publishing deal, but Guy never heard back from the publisher. In 2001, Guy came across the lyric book to "Nikita" and noticed similarities with his song. Despite repeated attempts by Guy to contact John over the issue, he never heard from him, and commenced legal action in 2012. On October 31, 2012, a federal judge granted John and Taupin's motion to dismiss, finding that the song did not infringe Hobbs's copyright because the only similar elements were generic images and themes that are not protected under copyright law.

Unsettled, alleged, and forgiven incidents

The following are accusations of plagiarism appearing in notable media:

• Ritchie Valens' 1959 song "Ooh! My Head" is a thinly veiled cover of Little Richard's 1958 single "Ooh! My Soul." Richard was never credited in the Valens song.

• The song "Babe I'm Gonna Leave You" by Led Zeppelin was thought to be a traditional song and was credited as "Trad. arr. Page" but it was actually written by folk singer Anne Bredon. Since 1990, the Led Zeppelin version has credited with Bredon, who received a substantial back-payment in royalties.

• In 1997, the Rolling Stones voluntarily credited k.d. lang and her writing partner Ben Mink on their song "Anybody Seen My Baby?", after a representative of the group noticed a resemblance to lang's 1992 hit single, "Constant Craving."

• Coldplay was also briefly accused of copying portions of "Viva La Vida" from "The Songs I Didn't Write" by American alternative band Creaky Boards. Creaky Boards later retracted the accusations and speculated that both songs may have been inspired by the video game The Legend of Zelda.

• A portion of the Bruce Springsteen single "Radio Nowhere" sounds similar to Tommy Tutone's 1982 hit, "867-5309/Jenny." Tommy Heath's response was "I'm really honored at a similarity, if any, I think there's too much suing in the world now."

• The New York Post reported similarities between the Red Hot Chili Peppers' "Dani California" and Tom Petty's "Mary Jane’s Last Dance" could turn into a lawsuit. Petty responded in a Rolling Stone interview:

The truth is, I seriously doubt that there is any negative intent there. And a lot of rock & roll songs sound alike. Ask Chuck Berry. The Strokes took "American Girl" [for their song "Last Nite"], and I saw an interview with them where they actually admitted it. That made me laugh out loud. I was like, "OK, good for you." It doesn’t bother me.

• Søren Rasted (formerly of Aqua) has been accused of copying Kate Bush's "Running Up that Hill" for a song composed for the winner of the X Factor Denmark contest.

• Korean pop artist G-Dragon has been accused of plagiarism by Sony Music, as his tracks "Heartbreaker" and "Butterfly" are similar to Flo Rida's "Right Round" and Oasis's "She's Electric", respectively.

• iTunes has found cases of musical plagiarism using software that automatically identifies a CD's track information when it's loaded, most notably the many instances with pianist Joyce Hatto.

• The Black Eyed Peas were charged in January 2010 by Ebony Latrice Batts (known on stage as Phoenix Phenom), claiming that "Boom Boom Pow" is just a copy of her song "Boom Dynamite," which she sent to Interscope Records, the Black Eyed Peas' record label. The suit is ongoing.

• Australian singer Delta Goodrem has been accused of copying the music of Arcade Fire's 2005 song "Rebellion (Lies)" for her own 2012 single "Sitting on Top of the World".

• The Beastie Boys were sued in May 2012 by Hip Hop label Tuf America, over misappropriation and infringing copyright for "Hold It, Now Hit It" and "The New Style" from Licensed to Ill, allegedly using portions of Trouble Funk's 1982 song "Drop the Bomb." In addition, the Beastie Boys were also sued for using the "Drop the Bomb" drum sound in Paul's Boutique track "Car Thief" and sampling Trouble Funk's 1982 song "Say What?" for another Paul's Boutique track entitled "Shadrach", without permission.

• Madonna has been accused of plagiarism by record label Vallejo Music Group (VMG). VMG claims Madonna stole samples from the 1977 single "Ooh I Love It (Love Break)" by Salsoul Orchestra, for her 1990 charting song "Vogue". In the lawsuit, VMG allege that horns and strings were taken from the earlier track and used in "Vogue" without permission, and intentionally hidden within the mix. The lawsuit was filed in July 2012 with the company seeking damages in addition to royalties gained from "Vogue".

See also

• List of plagiarism controversies
• Plagiarism detection
• Appropriation (music)
• Contrafact
• Credit (creative arts)
• List of musical medleys
• Mashup (music)
• Musical quotation
• Parody music
• Potpourri (music)
• Quodlibet
• Source criticism in the arts
• Variation (music)

External links

• A Mathematical Look at Musical Plagiarism by Frank Behrens, Art Times, May, 2004
• UCLA Law Copyright Infringement Project
• J. Michael Keyes, "Musical Musings: The Case for Rethinking Music Copyright Protection", 10 Mich. Telecomm. Tech. L. Rev. 407 (2004), available at [5]