Unclear Boundaries in Music Copyright Law: How Much Can an Artist Actually Own

printed musical note page

Photo by Pixabay on Pexels.com

By: Alexandra Bartos-O’Neill

If you listen to the recording of “Dovunque al Mondo” from Giacomo Puccini’s opera, Madama Butterfly, you may hear something familiar in the first seven seconds. At the beginning of his aria, Giacomo Puccini draws a section from the U.S. National Anthem (“O say, can you see..?”) before it quickly transitions into the rest of the aria. Puccini specifically chose and “quoted” the U.S. National Anthem to introduce the U.S. Navy and signal the character Pinkerton’s arrival, giving the music added depth and inserting a clever “inside joke.”This practice has traditionally been called “musical quotation,” as if the composer’s music has “quoted” another piece like an essay would a book.

Historically, and as evidenced by the U.S. Constitution’s First Article, protecting people’s ideas and inventions by implementing copyright laws was meant to encourage innovation, since individuals would feel a sense of ownership of their work and be credited for their accomplishment. When applied to music, this concept translates to encouraging musicians to create new music by creating ownership over musical innovations. The element of borrowing has always been a part of the history and creation of music, yet legal battles have shown a preference of artists to assert ownership over parts of their music, including parts that may be considered fundamental.

What is  Considered a Fundamental of Music?

Fundamentals of music include the tempo (speed) and the structure of how the music will be played, usually via a time-signature. For instance, a waltz typically has a time signature of 3/4. Your ears will typically hear this as “1,2, 3, 1, 2, 3.” Fundamentals of music also include notes and keys. Typically, each song or piece is in a key, such as C major or F minor. When a key is designated, commonly, it can create a scale of eight notes. This scale is sometimes designated by the solfege scale -“do, re, mi, fa, sol, la, ti, do”- made famous by Rodgers & Hammerstein’s The Sound of the Music. The options and combinations can be boundless. However, technically, the combinations are also mathematically limited by the notes to a certain extent.

Specific genres of music have certain fundamentals as well, beyond the year in which the piece was created or who specifically created it. For example, baroque music is often defined by its polyphonic pattern. The polyphonic pattern has not been copyrighted and to do so likely wouldn’t make sense. For instance, just because rock music will likely use a bass guitar, electric guitar, drums, and a vocalist, this doesn’t mean that every band that utilizes those elements must ask permission of the group that first utilized the form.

Recent Litigation of Music Copyright Claims

A concrete example of a claim of music plagiarism that involved what some consider a fundamental of music rather than copyrightable content is the lawsuit centered around Led Zeppelin’s “Stairway to Heaven.” The action spanned a 5-year litigation battle and appears to be one of the few instances where music infringement claims aren’t settled out of court for an undisclosed sum.

In the first few seconds of the song, you can hear a minor arpeggio. An arpeggio is like a broken-up chord, meaning the notes of the chord are not played at the same time. Led Zeppelin came under fire for allegedly plagiarizing the opening bars of Spirit’s “Taurus,” which also uses arpeggios in the introduction of their song. At the conclusion of the suit, the jury stated that, in addition to the songs not being substantially similar, Led Zeppelin didn’t have access to “Taurus” to actively copy the song.

In focusing on the arpeggiated guitar riff, the court states that although“[both songs] depart from the traditional sequence in similar and significant ways, the fact remains that the primary feature in both works is a common musical structure.” The court seems to be saying that even though the arpeggiated notes vary in their order, the arpeggio, at its root, is still a fundamental of music. On the arpeggiated riff, the court found it to be a fundamental of music and not evident of copyright infringement.

Litigation also caused a stir last year when a court found that Katy Perry’s “Dark Horse” plagiarized Flame’s “Joyful Noise,” though recently this verdict has been overturned, and the case has not yet reached a final conclusion. In the initial case, the court focused on the main issue to be resolved by the jury: a descending ostinato. An ostinato is defined as “a musical figure repeated persistently at the same pitch throughout a composition.” By definition, the three descending notes at issue are to be repeated throughout. The allegedly plagiarized portion in “Dark Horse” is the electronic sound beginning Perry’s verse (not the rap interlude), beginning on a minor third, repeating, then dropping down to a 2nd of a scale, and finally ending on the 1st note of a scale (for Sound of Music fans, this roughly translates to “Mi-Re-Do” with some caveats). You can hear that particular section starting from 19 seconds to 22 seconds, approximately, in the song.

This is allegedly almost identical to Joyful Noise’s song (which you can hear from the at the beginning of the song), according to Flame’s expert, in terms of timbre, electronic sound. However, some might consider those three notes to be an ostinato. Arguably, the alleged plagiarized portion would be a fundamental element in most musicians’ eyes. (For reference, Adam Neely, in the prior hyperlink, provides an in-depth look at the Gray v. Perry case from a musician’s perspective and to also gain an alternative perspective from a practicing lawyer, watch this clip)[1]. Potentially, this type of pattern could have also been used in many past classical pieces. Another underlying issue to consider is that the kind of electronic sound Perry uses, paired with simplified melodies and notes, could be thought of as a fundamental of the genre of we call pop music, perhaps like how polyphony is a characteristic of baroque music. At the moment, the answer to what’s copyrightable in music remains unclear – what may be considered a bright-line rule on the surface may not be so clear if the definitions of its underlying principles can’t be agreed upon. For now, rulings like the one in the Gray v. Perry case may hamper the creation of pop music and perhaps even extend to hampering the creation of new genres of music, creating a “chilling effect.”

 

[1] These are only two videos of several, linked here simply to provide some context from people who are more deeply ingrained with the music and the law surrounding the Gray v. Perry case that I thought were interesting to listen to.

 

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