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.

By: Smitha Gundavajhala

When HBO’s show Silicon Valley aired, many, including Forbes and Wired regarded fictional company Pied Piper’s concept of a “decentralized internet” as a not-so-distant reality. In the show, Pied Piper’ decentralized internet model involved a mesh network of smartphones that pooled their storage capacity to create an untethered internet. Wired noted that while a form of decentralized internet already existed at the time, those decentralized platforms built on the traditional internet infrastructure of fiber optic cables, rather than on a network of smartphones, as in Silicon Valley. Enter Amazon Sidewalk.

Amazon Sidewalk, which officially rolled out last year, uses Bluetooth and radio signals to transmit data across greater distances than Wi-Fi alone can reach. Currently, it connects Amazon-owned devices to extend the reach of Wi-Fi beyond of your home, but the technology could scale using internet-of-things devices such as smart watches. Some predict that Sidewalk might soon create entire smart neighborhoods. However, in order to achieve that kind of scale, it would have to bring a lot of devices online, and fast.

Season 4, Episode 9 of Silicon Valley foreshadowed this issue. Recognizing that they needed a lot of phones on their network for it to work, members of the Pied Piper team snuck into the conference of a competitor and uploaded Pied Piper to attendees’ phones without their consent. In order to get Amazon Sidewalk to scale quickly, Sidewalk did something similar, albeit much simpler: it enabled itself on existing Amazon devices. Amazon Sidewalk went live in June 2021, automatically enrolling Ring and Echo devices. Today, the network is also connected to Alexa and Tile.

According to the Amazon Sidewalk white paper, while users of new devices receive a notification allowing them to opt in or out, in existing devices it is enabled by default, so users can only opt out. However, under the European Union’s General Data Protection Regulation (GDPR), which is the current gold standard for data protection, consent must be opt-in. Under GDPR Article 7, consent must be freely given, implying that one is giving consent by a statement or clear affirmative act. When Amazon automatically enrolled Sidewalk-enabled devices, only giving existing users of those devices the choice to opt out, Amazon ran afoul of GDPR consent principles. 

If Sidewalk is to be the future of decentralized internet, it must contend with both local and international privacy regulations. Many state privacy laws, such as the California Consumer Privacy Act (CCPA), already reflect some GDPR principles, and there is a growing trend towards aligning local legislation with the internationally used privacy standard. While the CCPA does not require opt-in consent, Amazon will need to contend with privacy legislation at the state level that has opt-in requirements, such as the proposed People’s Privacy Act in Washington.

Rep. Shelley Kloba re-introduced the People’s Privacy Act in this legislative session. The bill, created by the ACLU of Washington with support from the Tech Equity Coalition, is based on the assumption that individuals’ data should not be used without their affirmative consent. The People’s Privacy Act is the first privacy bill in recent history to originate in the House of the state legislature, rather than in the Senate. If it passes, it would join the ranks of other state privacy laws in the country, including Virginia’s Consumer Data Protection Act (CDPA) and the Colorado Privacy Act (CPA), that require opt-in consent for the use or disclosure of all kinds of personal data. Of course, the People’s Privacy Act is subject to pushback from the many technology companies located in Washington, including Amazon. Even if it does not pass in this legislative session, it expresses a bold proposition that may become the gold standard of consent in the United States. 

In the Sidewalk white paper, Amazon claims that it will not collect personal data via Sidewalk enabled devices. Amazon goes to great lengths to describe the practices it will take to protect users’ privacy, including multiple layers of encryption and efforts to minimize data collection. However, internet-of-things devices are notoriously insecure, and Amazon’s current opt-out approach exposes users to privacy risks that they might not willingly take on. For instance, Sidewalk is a mesh network using Bluetooth, which is not invulnerable to malware or hackers. In addition, Sidewalk contains a Community Finding feature that allows users to look for Sidewalk networks. In practice, if you have Sidewalk-enabled devices in your home, this allows people to see the approximate location of your home. This location is anonymized, and the Community Finding feature is disabled by default. However, the very existence of this feature raises major privacy and cybersecurity concerns.

It is not yet clear whether Sidewalk will become the decentralized internet that Pied Piper envisioned. The notion of opt-in consent is in tension with Sidewalk’s ability to realize that vision, as it requires users to make an informed choice to volunteer some of their bandwidth for strangers to use, and to share relevant metadata with Amazon in the process. Sidewalk’s technology could be powerful for communities around the world, including rural communities that may have limited broadband access. However, if Sidewalk hopes to scale internationally, it must be prepared to adopt opt-in consent, the internationally used standard of consent from the GDPR. 

By: Gracie Loesser

With global sales exceeding $64 billion in 2019, the market for arts and antiquities has reached staggering heights. The state of the art market is perhaps best exemplified by the 2017 record-breaking sale of Leonardo da Vinci’s Salvator Mundi painting. Purchased at a Christie’s auction for $450 million, the work remains the most expensive painting ever sold. However, when you start to examine the details of the transaction, cracks in the art world’s shiny veneer become evident. The painting lacked a reliable provenance, or record of prior ownership, before the sale occurred. Since the sale, computer scientists, art historians, and museum experts have come forward with evidence suggesting da Vinci was not the sole artist of the work, further compromising the painting’s value. More worryingly, no one knows where the work is currently located. The official buyer was actually an intermediary for the true owner, the Crown Prince of Saudi Arabia. Despite assurances that the work would ultimately be displayed in the Louvre Abu Dhabi, the museum never received the painting. The work’s whereabouts became a source of rumor, with some reports suggesting it was in storage in Geneva and other reports stating it was on the Crown Prince’s luxury yacht. 

This chaos is indicative of the international art market in general, which has become a popular tool for the uber-wealthy looking for a way to shield assets and for powerful criminals to circumvent the law. As evident in the Salvator Mundi sale, the art market has historically welcomed buyer and seller anonymity. The trade of antiquities also has a culture of anonymity that facilitates illegal activities; secretive sales with unidentified parties have made it increasingly difficult for authorities to monitor and prevent the trade of looted and illegally acquired artifacts.

However, that culture of anonymity may soon be a thing of the past. In 2021, Congress passed the Anti-Money Laundering Act, placing a range of new stringent requirements on U.S. antiquities market participants. The Act adds antiquities dealers and advisors to the list of entities regulated by the Bank Secrecy Act, a statute designed to combat financial crimes by requiring certain kinds of organizations, such as banks, real estate companies, and pawnbrokers, to implement strict internal controls and to notify law enforcement of any suspicious conduct. Regulations vary by type of organization but generally require entities to verify the identities of anyone they do business with. The Financial Crimes Enforcement Network is still in the process of developing industry-specific rules for the antiquities market. Whatever they may be, they will certainly have a significant impact. 

Notably, Congress did not include art dealers and advisors in their recent legislation. Those in the art market remained understandably concerned, as evidence suggested that Congress planned to increase regulation of art sales in the future. A recent damning Senate report on the art market highlighted how the trade of high-value art undermined U.S. foreign and domestic policy. The report listed several recommendations, including adding art dealers to the institutions regulated under the Bank Secrecy Act and putting increased pressure on auction houses and art dealers to verify customers. In response to the report, the Department of the Treasury’s Office of Foreign Assets Control (OFAC) issued an advisory on high-value artwork, which stated that any individual involved in the art trade must be careful about who they do business with or face civil penalties; specifically, the advisory warned against doing business with designated terrorists or agents of any country subject to U.S. sanctions. 

Despite this evidence of growing political interest in regulating the art market, the Treasury Department released a report just a few days ago that will cause art dealers and advisors to breathe a sigh of relief. In response to the Senate’s formal request for a study investigating illegality in the art market and recommending next steps for regulation, the Treasury has now stated that it does not believe the art market requires immediate regulation. The report identifies many issues with the market but suggests Congress could institute regulatory measures at some point in the future.

The Treasury report suggests that the art market will not undergo a major overhaul in the near future. However, U.S. art dealers, advisors, and market participants would be wise to start preparing to amend their organizational processes. Although there is much still unknown about what regulations might be adopted, some resources should prove as helpful guidance. Given the similarities between the industries, the forthcoming regulations adopted for the antiquities market will provide insight into what kinds of regulations can be expected for the art trade. Additionally, organizations such as the Responsible Art Market initiative have developed guidelines for art market participants who wish to combat money laundering and other illicit activity voluntarily. Finally, one can look at recent anti-money laundering and illegal importation laws enacted in the European Union requiring compliance from the art market.

Indeed, if art dealers and other players in the world of high-value art sales want to avoid government regulation in the future, it is in their own self-interest to combat illicit activity by removing the shroud of secrecy from their transactions.