We’ve all come across a few examples of this in the media: cases of plagiarism. Especially when it involves big names from the music industry. But when does plagiarism actually occur? Is it, by definition, intentional, or can it be down to chance (i.e. the case of a so-called ‘independent creation’)? Is this a purely subjective assessment, or are there objective parameters, such as a minimum number of bars or seconds? Is it even possible to create ‘uncontaminated’ musical works given our global cultural and digital interconnectedness?
Moreover, our music is based on a 12-note scale and shaped by musical movements, genres, chord progressions (e.g. 1-4-5) and trendy gimmicks. One example of such a gimmick is the so-called ‘millennial whoop’: if there is a perception that many pop songs sound the same these days, this may well be one of the reasons. This figure is essentially a sequence of notes that alternates between the fifth and third notes of a major scale and lends itself perfectly to sing-alongs. After musician Patrick Metzger explicitly named the phenomenon (see his TEDx talk: https://youtu.be/fTvwM6S9vxI), numerous videos have begun to circulate that seek to demonstrate the resulting similarities between contemporary pop songs (for example: https://youtu.be/MN23lFKfpck).
The big question is: how much scope does the context outlined above still leave for compositional freedom?
‘Originality’ is not the same as ‘novelty’
The line between reproducing an existing musical work and capitalising on the same musical trend is not always clear-cut. The former constitutes a copyright infringement, whilst a style, trend or fashion phenomenon does not, in principle, enjoy copyright protection.
Bearing the existing framework in mind, it is clear why copyright law does not refer to ‘novelty’ as a requirement for protection, but rather to ‘original character’ or originality. This presupposes that the work bears the author’s ‘personal stamp’; it is the product of the creator’s creative efforts.
Novelty cannot, therefore, be an accurate criterion under copyright law: we do not live in a sterile laboratory environment, shielded from external influences. We listen to what we like to hear, and we also create what we like to hear. Blindly copying something from another author, on the other hand, does not meet that criterion of originality: it does not stem from a creative effort on the part of the creator and is therefore plagiarism or ‘counterfeit’ within the meaning of the law.
Filing a claim of plagiarism: when?
When is it actually advisable to consider bringing a claim for copyright infringement? It is best not to bring such a claim without careful consideration. Acting without due thought can have significant financial consequences. Blocking copyright, taking the targeted tracks offline and taking legal action may have a significant economic impact. If these actions subsequently prove to be unfounded, this could backfire badly on the person who initiated them.
It is not inconceivable that the huge success of a song might inspire someone with malicious intent to jump on the bandwagon and claim that the song bears a resemblance to their own work. If, as a result, they are granted a share in the rights, this equates to a share of the proceeds. It is often claimed that the entire plagiarism case surrounding Madonna’s song ‘Frozen’, brought by Salvatore Acquaviva, a local folk singer from Hainaut, was motivated by such a motive. The court had ruled in the man’s favour in 2005, resulting in the sale and distribution of Madonna’s hit having to be halted on Belgian territory. It was not until 2014 that the Court of Appeal ruled otherwise, meaning the song had ultimately lost out on nine years of potential exploitation revenue in Belgium.
Clouseau, too, had to contend years ago with someone who wrongly thought they had a ‘case’. Kris Wauters explains: “One day I received a letter in the post from Sabam, informing me that the rights to our song ‘En Dans’ had been blocked. ‘En Dans’ is a song I wrote together with Marc Vanhie. Apparently, a complaint of plagiarism had been lodged, as a result of which Sabam had blocked the rights. More specifically, the person in question was targeting the first five notes of the synths in the intro – the distinctive string motif. I therefore thought they wanted to claim arrangement rights, but no: it was about the entire piece of music! So, according to them, we’d stolen the song “En Dans” based on those five notes – notes that you wouldn’t hear in the singer’s melody even in a hundred years. Some Walloon songwriter had set a similar little tune to a slow bossa nova rhythm, and believed that “En Dans” had copied it. This ‘suspicion’ on the part of the complainant was prompted, amongst other things, by the fact that both tracks had been recorded using the same software (ProTools) in the same studio (belonging to producer Yannick Fonderie). Not that I needed to use it in this case, but as it happened we’d filmed a great deal of the recording process with our camera. We’d also filmed, whilst recording “En Dans”, everyone messing about on the keyboards in the studio to come up with a little melody for the intro. At one point, Hans (Francken, ed.) plays those notes, much to the amusement of the others. In the end, they were tweaked a little, but the video proved that it was indeed an original creation. Even if you’re in the right, it’s a nuisance. The rights get blocked, then another six months go by, and so on. In the end, we received a letter which – quite rightly – vindicated us on all counts.”
In other words: it’s best to seek expert advice before taking action on the grounds of plagiarism.
In some cases, however, it can be absolutely crystal clear. For instance, I once handled a case for a client, an international composer and performer, in which a section of his composition had been copied word for word in the opening credits of a highly popular foreign TV programme. The creator of the opening credits denied it outright. As the TV channel’s in-house composer, he had a great deal to lose: if his plagiarism were proven, it would undoubtedly have consequences for future commissions. As the infringer did not admit to the offence voluntarily, we commissioned an expert report from the director of the Brussels Conservatoire. The findings were clear: not only the melody, but even the tempo and the notes were exactly the same as those of the original. Ultimately, we were able to avoid legal proceedings by agreeing that we would refer the case to the plagiarism committee of the local copyright society and that we would accept the outcome as binding on both parties. The hearing was an experience in itself: my client, his manager and myself on one side, the infringer and his lawyer on the other, and directly opposite us at a long table, a seven-member panel asking very specific questions. As expected, the committee ruled in our favour, meaning that we ultimately secured the correct payment of the royalties.
But how substantial must the similarity be to constitute plagiarism? There are various ‘urban legends’ about a specific number of bars or seconds, but we can formally debunk these. The criterion is simply that it must be an identical or virtually identical reproduction of a pre-existing work. But a reproduction of what exactly: the lyrics, the melody, the structure, the rhythm? Well, if the melody or lyrics are copied to a recognisable degree, there is a good chance that the court will rule that it constitutes plagiarism. But when it comes to a ‘groove’, for example, matters are – at least in practice – more complicated. This is illustrated by the case of the Marvin Gaye Estate v Robin Thicke and Pharrell Williams concerning the song ‘Blurred Lines’. The title cannot be a coincidence, for this case blurs the lines between work (expression) and inspiration (concept, idea): to what extent can a particular groove, a drum rhythm, be an original work in its own right? After a legal battle lasting over five years, a federal judge in California has ruled that “Blurred Lines” (2013) by Robin Thicke and Pharrell Williams bears such a close resemblance to “Got To Give It Up” (1977) by Marvin Gaye that it constitutes plagiarism. An appeal and a subsequent ruling by the federal judge also reached the same conclusion, albeit with a slightly reduced amount of damages as a penalty. The judge did acknowledge that they had “not deliberately copied” Gaye, but that the song was “heavily influenced” by Gaye’s track. (Compare for yourself: https://youtu.be/ziz9HW2ZmmY) In response, a number of well-known musicians voiced their support for Thicke and Pharrell: in a written statement, they expressed their concern that the judge “wishes to criminalise the creation of new work inspired by older work”. This would jeopardise the “creative process”. In my view, this is a valid and highly relevant point. As someone succinctly summarises on YouTube: “There is a fine line between plagiarism and inspiration… you could almost say it is blurred”.
Sampling
Another context in which plagiarism may arise is sampling. If you use a sample without having obtained permission (‘sample clearance’) to do so, this amounts to plagiarism.
Just this summer (29 July 2019), the European Court of Justice handed down a hotly debated judgement (C-476/17) on copyright and music sampling in the ‘Metall auf Metall’ case. Some members of the band Kraftwerk claimed that the track ‘Nur Mir’ (1999) by Moses Pelham and Martin Haas had copied a 2-second section of their track ‘Metall auf Metall’ (1977) by using a sample, thereby infringing their copyright. The ruling confirms that producers of phonograms have the exclusive right to authorise or prohibit the reproduction of their phonograms, in whole or in part. Consequently, the reproduction by a user of a sound sample from a phonogram, however brief, must in principle be regarded as a (partial) reproduction of that phonogram. Such reproduction falls within the exclusive right of the producer (master owner). So far, no surprises. However, the following is new: the Court of Justice has ruled that a user does not need to seek permission to use a sample in an adapted form, in the sense that the musical fragment is not recognisable to the human ear. Such use of a sample is not regarded as a ‘reproduction’ within the meaning of copyright law. The Court refers to artistic freedom to justify its reasoning: if permission were also required for unrecognisable use, there would be no proper balance between the artistic rights of new users and the copyright protection of existing works.
It is striking that the Court of Justice applies the criterion of unrecognisability ‘to the ear’. Ultimately, it boils down to the sample not being recognisable to a human; the fact that a computer can identify certain similarities – for example, by comparing sound waves or analysing Pro Tools multitrack files – is therefore irrelevant. Let it be clear that this remains a grey area and that it is often quite a challenge to prove that a musical fragment is ‘unrecognisable’ when compared with an older piece of music.
In my view, the Court’s decision lacks some nuance. Whilst the element of recognisability may well be relevant in terms of copyright law, this does not alter the fact that if the existing recording itself (the master) is used, the master owner’s consent would be required. Ultimately, the producer’s neighbouring right exists precisely to protect their investment against third parties free-riding on it. Exploiting a sample from another person’s recording without remuneration could, in principle, be regarded as free-riding on another person’s investment.
I’ve been plagiarised – what should I do?
Suppose you discover that someone has plagiarised your work or recording – what exactly should you do? As a first step, it is advisable to take ‘precautionary measures’ by having the rights frozen with SABAM (and, in the case of master use, with SIMIM as well). At the same time, you can submit a takedown request to the streaming service offering the infringing track. You can then send a letter to the infringer asking them to cease all further infringement immediately (‘cease and desist’) and to disclose any revenue already generated. If you cannot reach an agreement, you will need to take the matter to court. There, you follow the same approach: first, you request that the use of the work be stopped, subject to a penalty payment (“cease and desist order”, whether or not in separate proceedings ‘such as summary proceedings’) and you claim compensation for damage suffered and lost revenue (‘claim on the merits’ with a view to obtaining damages). Anyone claiming damages must be able to prove the damage. To this end, you can, for example, request statements from the record company, the publisher and the collecting societies. Where it proves impossible to calculate the exact amount of damages, a court may also award compensation ‘ex æquo et bono’.
Conclusion
Your creativity and investments deserve the highest level of protection. If someone else benefits from them and disregards your rights, you must take action. On the other hand, those who harbour malicious intentions and wrongly accuse someone of plagiarism would be well advised not to act rashly; as Phil Collins would say: Think twice! If it turns out that the claim is unfounded, all costs (expert fees, legal costs, etc.) and the loss of income resulting from takedowns may be recovered in full from the claimant.
Every note in music has been played before, and we are inspired by it, both consciously and unconsciously. Above all, don’t let this stifle your creative drive, and don’t be too quick to judge others. But if you do suspect that you are a victim of plagiarism or are accused of it yourself: Stand up for your rights!