By: Abigael Diaz
Since 2015, the music industry has been inundated by high-profile lawsuits and rampant with grants of retroactive credits. Though copyright infringement accusations are not new, these days more and more musicians are facing allegations of plagiarism.
Songs like Robin Thicke and Pharell’s Blurred Lines and Led Zepplin’s Stairway to Heaven have weathered plagiarism accusations resulting in costly lawsuits. These lawsuits have led to the courts setting vague and fact-specific boundaries for what constitutes copyright infringement. Recently, creators like Sam Smith and Katy Perry have applied retroactive credits to avoid lawsuits altogether. Not long ago, Olivia Rodrigo retroactively gave up to 50% of her profits for some songs on her debut album Sour.
What is Copyright Infringement?
In 1790, the Constitution gave Congress the power to protect creative works under Article I, Section 8. Forty years later, the Supreme Court decided its first copyright case. In 1909, President Theodore Roosevelt modernized the Copyright Act to include a mechanical license. This allowed listeners access to musical compositions as long as they fell within license limitations.
Copyright infringement is the unauthorized use of either original work, or updated versions of original content like lyrics, melodies, rhythm, chord progression, and other musical materials. The Copyright Act covers musical works and accompanying words. Musical works are defined as originals and other new versions of earlier compositions. Copyright protection of musical compositions includes “the exclusive right to make copies, prepare derivative works, sell or distribute copies, and perform or display the work publicly.” It also includes the ability to authorize use of the work by others.
Copyright protection only applies to works in the public domain. Federal law establishes that music compositions enter the public domain after the creator’s life plus 70 years. For example, Barry Manilow’s 1971 song “Could it be Magic” has a melody inspired by Chopin’s Prelude in C-minor. Manilow publicly credits Chopin, who died in 1849 in name only, without monetary compensation. However, even if Chopin’s estate wanted to sue for copyright infringement and damages, the 70-year temporal boundary beyond his death has passed.
Estates can sue after a creator’s death if it is within 70 years. Ed Townsend, a beneficiary of Marvin Gaye’s copyrights, is suing Ed Sheeran for infringing on the melody, harmony, and rhythm of “Let’s get it on.”
Olivia Rodrigo and her Brutal Predicament
Olivia Rodrigo is an 18-year-old singer and songwriter who began her career acting on the Disney Channel. During the Covid-19 lockdown, she wrote and produced her debut album Sour, released in 2021. Fans quickly noticed the similarities of Rodrigo’s songs to artists like Paramore, Taylor swift, and Elvis Costello. Theories went viral on social media. One user even created a mash-up of “Good 4 U “and Paramore’s “Misery Business,” which has been viewed on YouTube over 4 million times.
Costello addressed the use of a similar guitar riff by tweeting, “This is fine by me,” implying that he too contributes to Rock N’ Roll’s circle of life by being heavily influenced and partaking in subconscious plagiarism as well.
The other claims resulted in credits and royalties being applied retroactively. Rodrigo credited Hayley Williams and Joshua Farro from the band Paramore for a combined 50% royalty share for “Good 4 U”. Swift, Jack Antonoff, and St. Vincent shared 50% royalties for the “Déjà Vu” track. Rodrigo must also split her share of credit with her collaborator, Daniel Nigro. Swift and Antonoff are allocated a third each of the royalties for “1 Step forward, 3 Steps Back”. Rodrigo was vocal about being a devoted swiftie and publicly admitted being influenced by specific songs.
The retroactive credits resulted in a major financial win for those credited and a loss for Rodrigo. Billboard reported, “Good 4 U” is estimated to have generated $2.4 million in publishing royalties globally. This includes streaming, sales, and airplay within the United States. “Déjà vu” has earned $1.3 million in global publishing royalties. Another track on the album, “1 step forward, 3 steps back” is trailing global publishing royalties at a little over $258,000. These retroactive credits total a more than $2 million loss of publishing royalties for Rodrigo and her co-writer Nigro, but it is also possible that they avoided much more expensive copyright infringement lawsuits.
Subconscious Plagiarism: A Legal Gray Area
The legal distinction between influence and outright imitation is thin in the music industry. History is filled with examples of sharing, hybridizing, and assimilating other creations to create new musical artworks. Classical music enthusiasts have questioned whether Bethoveen plagiarized some of his sonatas from Mozart, who was also known for borrowing freely from his predecessors and peers. Whole genres of music are founded on the principles of sharing. For example, blues music has developed through a creative interplay of different musical cultures in Africa and along the Atlantic slave trade routes.
Cryptomnesia, commonly referred to as subconscious plagiarism, is the process of presenting someone else’s work as your own because you cannot remember perceiving it prior to using it in your creation. Brian Bornstein, a cognitive psychologist at the University of Nebraska, believes subconscious plagiarism results from information overload, where our brains cannot process all information and thus prioritize and concentrate on what it considers most important.
Some might say that subconscious plagiarism is a natural part of the music industry and welcomes new musical creations with open arms. In a BBC interview, Dolly Parton stated that musicians should give credit where due but “can’t help but be influenced by the things around them.” Igor Stravinsky, a composer, considered plagiarism a “rare form of Kleptomania.” Nevertheless, most artists generally understand that a certain amount of inspiration goes into each new musical creation.
Copyright infringement require intent and is considered a strict liability tort. Guilt can be established by showing the defendant had access to the original and created a substantially similar work. Songs can be so popular that there is little to no chance that a defendant was not exposed to it. For example George Harrison’s “He’s so fine” was found to have infringed on the Chiffon song, “my sweet Lord.” In that case, the judge determined that the chances were still very high that he had heard it and subconsciously internalized it, whether Harrison was aware he remembered the song or not.
Time, capital, and ability to sue impact an artist’s ability to take from another or protect their work from being used in another. With social media virality and advancing technology, some artists are becoming so prevalent, and their sounds are so well known, that it is nearly impossible to avoid exposure. Many of these viral artists have the wealth to position themselves so that it is subjectively impossible not to be aware of their music. This creates a floodgate of potential litigation for those plaintiffs. Big-name, ubiquitous artists then have the ability to reap massive long-term financial benefits from their royalties by bringing endless copyright infringement suits against less well positioned artists. Is this an economically fair system? One that diverts more money to those who already have it?
Moreover, while crediting artists for their act of inspiration or influence may be a valid and fair argument, is a 50% credit of financial profits a fair cost to pay? It might be if there was fair access to this litigation, but how often do we hear about the little player winning against a big player in the court system? Capital is a requirement to play the litigation game in the first place, thus small artists do not have access to the same processes to protect their their creative musical works. Even well-known artists without access to capital and legal teams struggle with this. For example, Ke$ha only recently received credit for singing on Flo Rida’s “Right Round” and still has received zero financial compensation.
Can this crackdown on subconscious plagiarism and copyright infringement prevent new artists from entering the music scene without massive capital to protect themselves? Copyright infringement and subconscious plagiarism may be making it so that developing new music, something that historically has been available to most with a recording device, is only available to those who can afford it.