Can You Copyright a Drumbeat?

In light of the many high profile plagiarism cases making headlines in the music business over the last few years (Lana Del Rey, Led Zeppelin, Robin Thicke, Sam Smith, etc.), it felt like the right time to examine the topic of songwriting from where we all sit: the drum throne.

All of the above instances of alleged plagiarism involved similarities in melodies or chord progressions. But what about drum beats…can they by copyrighted?

As a starting point: any musical performance that is recorded in any form already has an automatic copyright in the recording of that performance. In other words, nobody could sample or otherwise exploit your recorded performance without your consent.

So the real question we need to ask: are drumbeats considered songwriting? If they are, then they form part of the musical composition and would be protected under the law just like a chord progression, melody or lyric.

The short answer: unfortunately, no. Drumbeats and drum patterns are not typically considered songwriting. The law makes clear that lyrics, melody, harmony and rhythm can be copyrighted. Most often, lyrics and melody are afforded protection under the law before the other two. This is arguably because the latter two are considered “accompaniment,” while the first two form the backbone of the composition, and remain consistent regardless of who is performing the composition.

This is actually a good thing in many ways. If every drumbeat was considered songwriting, the Bonham ‘Levee’ beat, the Bo Diddly groove, the ‘We Will Rock You’ stomp, even the standard four-on-the-floor pattern would all exist in only one song, and if you emulated any of them in a new song, you could be sued for plagiarism.

So really, the lack of protection affords us all the ability to do more in the studio, without fear of being sued. Singers and guitar players, for example, do not have such a luxury.

However, if you lifted the ‘We Will Rock You’ beat, along with similar hand claps and stomps, and added a vocal melody or phrasing similar to Freddie’s, that as a whole would likely be considered plagiarism. So it seems that a drumbeat and something else needs to be added before the piece will be considered songwriting.

Now, this is not to say that you don’t deserve a cut of songwriting when you write songs with your band. Many bands divide songwriting equally amongst all the members. The Red Hot Chili Peppers, Coldplay, etc. all divide the songwriting copyright equally for each song, even though the law doesn’t recognize the drummer’s contributions in the same manner. It’s a way of recognizing each member’s contributions as a whole to the songs and perhaps general operation of the band. In other words, it’s completely up to you and your band mates how the songwriting is divided for each song, regardless of what the law typically acknowledges.

As always, feel free to email me with questions, as songwriting is the most complex and sometimes confusing aspects of the music biz.

The Lana Del Rey and Radiohead Plagiarism Case: What You Need To Know

Your newsfeeds might be buzzing with the news that Radiohead are suing Lana Del Rey over her song “Get Free,” which they say plagiarizes their 1993 hit “Creep.”

Lana Del Rey tweeted yesterday: “It’s true about the lawsuit. Although I know my song wasn’t inspired by “Creep,” Radiohead feel it was and want 100% of the publishing – I offered up to 40 over the last few months but they will only accept 100. Their lawyers have been relentless, so we will deal with it in court.”

Now, here’s where the plot thickens: what some news outlets are missing is that Radiohead was previously sued for plagiarism. The song they were sued over? “Creep.” The song shares a similar chord progression and melody to the song “The Air That I Breathe,” written by Albert Hammond and Mike Hazlewood and initially released on Hammond’s 1972 album It Never Rains in Southern California. The song became a major hit for The Hollies in 1974.

You can hear the three songs here:

Lana Del Rey – “Get Free”

Radiohead – “Creep”

The Hollies – “The Air That I Breathe”

Hammond and Hazlewood sued Radiohead for plagiarism and won. Radiohead claimed that the similarities were unintentional and subconscious, but agreed to give a percentage of the songwriting royalties and songwriting credit to Hammond and Hazlewood. According to Hammond, “Radiohead agreed that they had actually taken it … Because they were honest they weren’t sued to the point of saying ‘we want the whole thing’. So we ended up just getting a little piece of it.”

So: Radiohead is suing Lana Del Rey for plagiarism over a song that they actually plagiarized. The irony is strong with this one! This is the kind of case that gets entertainment lawyers (and music fans) very excited.

Plagiarism Cases More Common

Music plagiarism is a hot topic in the music industry these days. From Sam Smith to Bruno Mars to Ed Sheeran, artists seem to be accused of music plagiarism more than ever.

Del Rey is the latest in a string of high-profile artists to be accused of copying. Sheeran settled out of court with a pair of songwriters after similarities were found between his song Photograph and the Matt Cardle song “Amazing,” and also retrospectively added the writers of TLC’s “No Scrubs” to the credits of his enormous hit “Shape of You.” As we examined in my article here, Tom Petty and Jeff Lynne were added to the credits for Sam Smith’s “Stay With Me” in 2014, while in 2015 Robin Thicke and Pharrell Williams were successfully sued by Marvin Gaye’s estate for $7.4M, after it was found that their “Blurred Lines” plagiarized Gaye’s song “Got to Give It Up.”

What makes the Lana Del Rey and Radiohead case particularly interesting is the fact that both artists have a very impassioned, vocal fan base.

The comment section on the “Get Free” video is full of arguments on either side, and makes for some entertaining reading: “The Radiohead lawsuit brought me here. Similarities aside (and as a Radiohead fan for the past 20+ years), I must say this song is actually pretty good. Never heard of Lana Del Rey before this, but I’m glad I did. Thanks Thom!”; “Radiohead must need the money so they can pay the original writers of their song”; “yes they sound similar, but ask for 100% of this song’s profit? Didn’t Radiohead steal it from the Hollies as well? don’t they feel ashamed?”; “this song is really creepy”; and “this song sounds like Gucci Gang by Lil Pump…Lana a thief.”

Now that we’ve heard from the court of public opinion, what does the law say?

The Legal Test for Plagiarism

What constitutes music plagiarism? The line between inspiration and plagiarism is a fine one, and is the crucial distinction when it comes to music plagiarism.

As poet T.S. Eliot famously wrote: “Immature poets imitate; mature poets steal.”

The law states that anything that reflects a “minimal spark” of creativity and originality can be copyrightable, including melody, chord progression, rhythm and lyrics. In the event of a trial, the person claiming infringement must prove two things:

1) Access – that the infringer had heard, or could reasonably be presumed to have heard, the original song prior to writing their song; and

2) Substantial Similarity – that the average listener can tell that one song has been copied from the other. The more elements that the two works have in common, the more likely they are substantially similar.

Did Lana Del Rey Plagiarize?

Disproving “access” in 2018 is becoming more and more difficult, as music is ubiquitous and accessibility to any major hit is hard to deny.

So that leaves us with the test of “substantially similarity.”

It doesn’t take a trained musical ear to hear the similarities between “Get Free” and “Creep,” as well as “Creep” and “The Air That I Breathe.” The three songs are in different keys, but they follow an almost identical chord progression, played at approximately the same tempo.

The common thread between the three songs is the final chord in the progressions, which happens to be a minor chord. It gives all three songs a darker feel at the conclusion of the chord progression.

This is called a “minor fourth,” and it creates a hook because it doesn’t technically fit the key of the piece. It stands out and makes the progression memorable.

It is sort of the reverse of what Leonard Cohen famously referred to as: “the minor fall and major lift.”

Countless pop songs have used this technique over the years, including doo-wop hits of the 1950s, the Beatles songs “Blackbird” and “I Saw Her Standing There,” and David Bowie’s breakthrough “Space Oddity.”

In other words, there is nothing copyrightable about the minor fourth in and of itself.

My opinion: the verse melodies in the two songs are very similar, while the instrumentation is different. The choruses are quite different, in both melody and instrumentation.

But the similarities in the verse melody is striking, and in addition to the same chord progression, the phrasing of the vocal is very similar. To me, this warrants some songwriting for Radiohead.

But 100% of the songwriting? That’s just greedy. If Lana Del Rey did in fact offer 40%, I think Radiohead should have taken it, or maybe pushed for 50%, especially in light of their song’s plagiarism history.

The real irony is that Radiohead had all but disowned “Creep” since it’s release, refusing to play it in concert for years at a time and calling fans who requested it “anally retarded.” Their attitude towards the song seems to have changed in recent weeks!

The question remains: if Lana Del Rey is found to have plagiarized “Creep,” does that mean that Hammond and Hazlewood will also get a cut of the songwriting? We must always be mindful of the statute of limitations, but as we saw in the Led Zeppelin trial, this did not stop a case being brought for royalties going forward.

Whatever the case, this dispute promises to have far-reaching effects on the music industry, and a lot of people (myself included) will be watching it closely in the coming months.

 

What Constitutes Music Plagiarism? The Sam Smith and Robin Thicke Trials

music plagiarism

Music plagiarism is a hot topic in the music industry these days. From Sam Smith to Bruno Mars to Beyonce, artists seem to be being accused of music plagiarism more than ever.

As the old saying goes: there is no such thing as an original thought. Everyone from Shakespeare to the Beatles to Zeppelin has been accused of stealing ideas from those that came before them. We are all influenced by the world around us, and songwriters are no exception. But where is the line drawn between being influenced by something, and plagiarizing it?

What is the Legal Test for Music Plagiarism?

The law states that anything that reflects a “minimal spark” of creativity and originality can be copyrightable, including melody, chord progression, rhythm and lyrics. In the event of a trial, the person claiming infringement must prove two things:

1) Access – that the infringer had heard, or could reasonably be presumed to have heard, the original song prior to writing their song; and

2) Substantial Similarity – that the average listener can tell that one song has been copied from the other. The more elements that the two works have in common, the more likely they are substantially similar.

Music plagiarism lawsuits in the music industry generate a lot of press, and seem to be more common in the digital era, where sampling, snipping and outright stealing parts of songs has never been easier.

Two of the most publicized cases of music plagiarism occurred in the last few years, involving Robin Thicke’s ‘Blurred Lines’ and Sam Smith’s ‘Stay With Me’.

music plagiarism

The Sam Smith Music Plagiarism Case

In October 2014, Tom Petty’s publisher contacted Sam Smith’s publisher about similarities in melody found in the choruses of Petty’s ‘I Won’t Back Down’ and Smith’s ‘Stay With Me’. Smith and his co-writers claimed that they were not previously familiar with ‘I Won’t Back Down’, but after listening to the two songs, acknowledged the similarity. Smith commented at the time: “it was a complete accident. I am 22 years old. I’ve never listened to that song.” (Author’s note: I don’t care if you’re 22…my 4-year-old niece has heard the song. I’m judging you Sam Smith).

Petty’s response was thoughtful and intelligent: “Let me say I have never had any hard feelings toward Sam. All my years of songwriting have shown me these things can happen. Most times you catch it before it gets out the studio door, but in this case it got by. Sam’s people were very understanding of our predicament and we easily came to an agreement. The word lawsuit was never even said and was never my intention. How it got out to the press is beyond Sam or myself. A musical accident, no more, no less. In these times we live in this is hardly news.”

In the end, Smith and his co-writers settled the dispute, accepting the similarities and giving Petty and co-writer Jeff Lynne writing credit on ‘Stay With Me’, along with 12.5% of the royalties from the song, which was one of the biggest singles of 2014.

music plagiarism

The Robin Thicke Music Plagiarism Trial 

In March 2015, a Los Angeles jury awarded Marvin Gaye’s children nearly $7.4 million after determining that Robin Thicke and Pharrell Williams plagiarized Gaye’s song ‘Got to Give It Up’ to create ‘Blurred Lines’, the biggest song of 2013.

The Gayes’ lawyer characterized Thicke and Williams as liars who went beyond merely being influenced by Marvin Gaye, and instead crossing the line into outright music plagiarism.

Williams testified that he created the music for ‘Blurred Lines’ in an hour in 2012, and that Thicke added vocals afterward. Williams told jurors that Gaye’s music was part of the soundtrack of his youth, but that he didn’t use any of this music to create ‘Blurred Lines’.

An expert “musicologist” for the Gaye family (where are these jobs posted??) said there were eight distinct elements from ‘Got to Give It Up’ that were used in ‘Blurred Lines’, including melody, lyrics, bass line, and rhythm.

For me, while I hear the similarities between ‘Blurred Lines’ and ‘Got to Give It Up’, they have less in common to my ear than ‘Stay With Me’ and ‘Won’t Back Down’. The melodies, chords, and bass line are all different. The feel is different.

By this logic, the Beatles can sue the Gallagher brothers for every Oasis hit, the Woody Guthrie estate can sue Bob Dylan for most of his catalog, and the Bob Marley estate can sue nearly every reggae artist of the last four decades.

For me, ‘Blurred Lines’ is not substantially similar to ‘Got to Give It Up’. Not enough to warrant a $7.4M decision.

music plagiarism

Where Did Thicke and Williams Go Wrong?

The outcomes from the two cases could not be more different. Where did the Thicke camp go wrong?

1) Admitted Access and Influence.

What really hurt Thicke was his own press interviews before trial, in which he admitted ‘Got to Give It Up’ was a template for ‘Blurred Lines’. His attempts to backtrack from these statements at trial hurt his credibility, and I imagine turned the jury against him. Williams also admitted that he knew the song well and was attempting to emulate its “vibe”.

2) Putting Thicke in front of the jury.

Months before the trial, revelations of Thicke’s infidelity were all over the news, complete with the infamous photo of his hand up a stranger’s skirt. His lawyers were wrong to put him in front of a jury. If anything, I would have had only Williams testify, as he is the main songwriter (and he makes everyone Happy!).

3) Less Litigious Parties.

Thick and Williams were actually the first to bring this issue to trial, filing a pre-emptive lawsuit against the Gaye family after they made comments in the press about the similarities between the songs. They started the fire, and the Gaye family was game. Both sides were far more litigious than Petty/Smith…there are reports that the children are currently fighting amongst themselves over the settlement money, and might be commencing lawsuits against each other for it. Also, the day after the decision was reached, the Gaye children suggested that they might sue Williams for this song ‘Happy’, which apparently plagiarizes the Gaye song ‘Ain’t That Peculiar’.

music plagiarism

Will This Result in More Music Plagiarism Suits Going Forward?

There are a lot of music industry commentators suggesting that the ‘Blurred Lines’ decision will have a chilling effect on creativity in the business. I disagree. While I think the jury got it wrong, I don’t think the verdict will have catastrophic effects on the industry.

First: jury verdicts have very little precedential value, and findings of actual infringement in the music business tend to be rare and fact specific. This is because there must be evidence that the infringer had heard the song in question; otherwise any similarities would be coincidence. In other words, courts accept the fact that two songs can be composed in isolation of each other, and yet be substantially similar.

Second: creative people will continue to create, as always. One doesn’t stop being a creative person because of a court decision.

Third: the only cases that will get anywhere near a courtroom are those that have lot of money at stake. There will continue to be “musical accidents” to use Tom Petty’s words, and there will be those that intentionally lift parts from existing songs. But it will only become an issue if the song hits. ‘Blurred Lines’ and ‘Stay With Me’ are two of the biggest songs of the last five years. If they were mere album cuts that got no radio, this story would hardly be news. In the ‘Blurred Lines’ case, there was plenty of money involved. Evidence presented at trial showed that the song had generated around $17M since its release. ‘Stay With Me’ is likely in the same range.

If an independent artist plagiarizes a song and sells a few hundred singles, nobody will notice. It’s only when that song becomes a worldwide hit that the original writer (or more likely, their lawyer) becomes interested.

As Isaac Newton famously said: “If I have seen a little further, it is by standing on the shoulder of giants”. As they have done since music was first created, musicians will keep drawing from their influences and continue standing on the shoulders of giants. Once in a while, the giants will sue.

music plagiarism

Why the Led Zeppelin Plagiarism Verdict Was Right, and What it Means to You

Led Zeppelin plagiarism

The Led Zeppelin plagiarism verdict is in. I’ve been watching with baited breath. Not because the Zeppelin tattoos on my arm might have to be covered with long sleeves the rest of my life if they had lost, but because of the deeper impact the decision would have on the music industry and creativity as a whole.

In my article here, I examined the legal requirements of a successful plagiarism suit, and predicted that Zeppelin would be found not guilty. This prediction turned out to be accurate as the Los Angeles federal jury charged with the task came back with a unanimous verdict: Led Zeppelin did not plagiarize the song “Taurus” by American band Spirit in the composition of their classic “Stairway to Heaven.”

Reactions to the Verdict

The jury’s decision comes after a highly publicized trial which saw heated debate on both sides of the issue, as experts in the music industry and legal profession pontificated on whether copyright law should protect certain elements of song.

“We are grateful for the jury’s conscientious service and pleased that it has ruled in our favor, putting to rest questions about the origins of ‘Stairway to Heaven’ and confirming what we have known for 45 years,” Robert Plant and Jimmy Page said in a statement. “We appreciate our fans’ support, and look forward to putting this legal matter behind us.”

Plaintiff Michael Skidmore, a trustee of the estate of Spirit guitarist Randy Wolfe (aka Randy California), had a different reaction: “It was all skewed in Led Zeppelin’s favor. All I can say is money talks louder than common sense. We did the right thing. We tried to carry on Randy’s legacy.”

Led Zeppelin plagiarism

Spirit circa 1968

“Communication Breakdown” – Plagiarism Lawsuits On the Rise

The decision comes amid a serious upturn in plagiarism lawsuits in the music industry in recent years, particularly following last year’s verdict in the Robin Thicke “Blurred Lines” trial. In that groundbreaking decision, a Los Angeles jury determined that “Blurred Lines” infringed Marvin Gaye’s 1977 single “Got to Give It Up” and awarded the Gaye estate $7.4 million (later reduced to $5.3 million and currently on appeal).

Led Zeppelin plagiarism

In the last year, plagiarism suits have been brought against Kanye West, Jay-Z, Beyonce, Justin Bieber and Ed Sheeran among others. In short, there has been a major increase in ambulance chasers in the music business since the Thicke verdict. The outcome of the “Stairway” trial shows that these cases aren’t easy to win, and might in fact slow down the increase in plagiarism suits.

Led Zeppelin plagiarism

“Celebration Day” – Why Did Zeppelin Win?

As I outlined here, a successful plagiarism claim must prove two things: access and substantial similarity.

1) Access

On the matter of access, both Plant and Page testified that they did not remember meeting the members of Spirit or hearing “Taurus”, despite the fact that the Spirit album was found in Page’s (admittedly vast) record collection and the two bands played together on the same bill multiple times.

There was also an amusing anecdote from a Spirit member involving rounds of drinking and snooker with Plant after a Spirit gig in 1970, but Plant testified that he only remembered his car crash on the way home, not hearing or meeting Spirit that night. While the car crash story would seriously undermine the credibility of a witness in most trials, I think it actually endeared Plant to the jury in this one. As such, the issue of access wasn’t as clear cut as I thought it might be.

(Author’s note: singers get away with everything!).

Led Zeppelin plagiarism

2) Substantial Similarity

On the matter of substantial similarity, the jury ruled that the elements of “Taurus” that were original and therefore copyrightable were not substantially similar to “Stairway,” and the parts that were similar were not unique or original.

And therein lies the rub. The elements of “Taurus” that were used in “Stairway” were not unique and original. To quote legendary guitarist Joe Walsh: “The Stairway claim was based on the four chord descending progression at the beginning of the song…Randy California came across [it] and used [it] for the Spirit piece – he didn’t write it. He used it. The Grandfather of these progressions is: C, Am, F, and G. Starting in the early 1950’s, there are probably 500 of these songs, all with those four chords – but each with different melodies and words. THAT should be the criteria for claims…”.

Led Zeppelin plagiarism

To paraphrase Joe Walsh: you can’t copyright a chord progression, but when original lyrics and vocal melodies are added, something changes.

Why Did Zeppelin Win?

Now, are the two songs similar? Without a doubt. But similarity does not equal plagiarism; “sounding alike” doesn’t violate a copyright. There must be many similar elements that combine to create an egregious copying of one song by another.

The major similarity between “Taurus” and “Stairway” is a descending chord progression. Musicologist Alex Ross devoted a chapter of his book Listen to This to the history of what is often called the basso lament – a bass line that descends chromatically (i.e. a half-step at a time) from the tonic note to the dominant.

The basso lament arose in operatic music of the early 17th century, and is incredibly common in Baroque music. The progression became less common in the Romantic period, but returned to fashion in pop music of the twentieth century, particularly in 1960s and 1970s folk and rock. The pattern can be found in everything from Bob Dylan’s “Ballad of a Thin Man” to the Eagles’ “Hotel California” to “Chim Chim Cher-ee,” from “Mary Poppins.

Jimmy Page actually acknowledged the influence of “Chim Chim Cher-ee,” on “Stairway” during the trial, noting that “I liked the idea of music going at counterpoint and I used that and similar ideas in my music. ‘Stairway to Heaven’ has a descending chromatic line over which there is also an ascending line, so that the music is going in two different directions.”

(Author’s note: I guess my next tattoo will be of Mary Poppins. I’m planning a back piece.)

Led Zeppelin plagiarism This so-called basso lament can be found in thousands of songs around the world, many of which share the same chords as “Taurus” and “Stairway.” Zeppelin’s lawyer was keen to point this out, and successfully so. For me, this was the argument that won the day – that you can’t copyright a chord progression, and a chord progression is what this case really boils down to.

“Good Times, Bad Times” – How This Verdict Affects You and I

The jury came back with the right verdict. As much as my personal biases lead me to root for David in a David vs. Goliath battle (and Page and Plant were surely Goliath in this case), this was the right decision for a number of reasons.

First, it will slow down the ambulance chasing that has been happening in the music industry these last few years. A verdict against Zeppelin in this case could have truly opened the floodgates on these claims. A music industry overrun by lawyers and sharks is not my kind of music industry. Don’t get me wrong, some plagiarism suits are valid and indeed necessary in order to protect creativity. But copyright law is a shield not a sword. When lawyers and litigants smell blood in the water, minor similarities in songs will trigger multi-million dollar lawsuits and the whole industry will be overtaken by men in suits. (I don’t wear a suit, if you’re wondering.)

The second reason that this verdict is the right one is far deeper, and more important in my opinion. The verdict is a good thing for creativity and art. Artists of all kinds, especially songwriters, need to be allowed some measure of borrowing. It’s asking an awful lot of musicians to clear their heads of everything that they’ve heard before when writing a song; to come at it with a clean slate. The tradition in rock, blues, jazz and many other genres is one of borrowing bits and pieces here and there from the giants that have come before you.

The modern-day insistence on clear-cut originality reflects a misunderstanding about the nature of creativity. T. S. Eliot famously noted that “immature poets imitate; mature poets steal” – but it’s the second part of the quote that I love and is often overlooked: “a good poet welds his theft into a whole of feeling which is unique.” In other words, all inspiration is borrowed from what has come before, but can be turned into something entirely novel. That is the alchemy of art and of songwriting: taking the common metal around us and turning it into gold.

This is the alchemy performed by Bach and Mozart, Shakespeare and Tarantino, the Beatles and the Rolling Stones.

This verdict reaffirms the creative rights of songwriters to be songwriters. Demanding that our geniuses create art in a vacuum is not only unrealistic, it would in fact kill the creativity that copyright aims to protect. We have little to gain from songwriters writing with apprehension and fear.

Led Zeppelin plagiarism