The Basic Law of Music Plagiarism

The Basic Law of Music Plagiarism

Intellectual Property Law
Mark Norton
Mark Norton

Led Zepplin is again being sued for plagiarism.  Willie Dixon was the first to sue the iconic rock band and then his estate.  Now, the estate of Randy Wolfe of the 1960s band “Spirit” is, in a Los Angeles courtroom trying to make the case that Stairway to Heaven is a close copy of its song Taurus.

This is one of many recent high profile copyright infringement cases that have appeared before courts in the United States.  In 2013, Robin Thick and Pharrell lost a suit to the estate of Marvin Gaye for having infringed the copyright of Got to Give it up with their hit Blurred Lines.  Tom Petty settled a claim against Sam Smith in 2015 related to his song I Won’t Back Down.  And other examples of cases of copyright infringement include George Harrison, Huey Lewis, the Rolling Stones, Rod Stewart…the list goes on.

So what do courts look at in determining if one song is a copy of another? In “music plagiarism” cases Courts look at two main concepts: “access” and “substantial similarity”.  It is important to note that courts do not need any proof of actual intention to copy a song in these cases; merely accidental or coincidental plagiarism is good enough for a Plaintiff to win.  

The first step in the Court’s analysis is access.  A court wants to know if the impugned song writer has ever heard or could reasonably be presumed to have heard the plaintiff’s song.  In the current Led Zepplin case, this is a big deal.  No offence to Spirit, but their song did not receive widespread and repeated airplay.   So, the main focus for access in this case is whether members of Led Zepplin attended a show where Spirit played.

A case can be made that no members of Led Zepplin ever heard or could reasonably be presumed to have heard the song.  For songs such as “Got to Give it Up” by Gaye, the focus on access is a foregone conclusion; the song is so widely known that it would be hard to believe that anyone in the music industry never heard it.

Substantial Similarity
This is the issue where many copyright infringement cases are hard fought.  The focus on determining if two songs are substantially similar is not in the actual recording of the songs, but in the written music itself.  As these suits are focused on the music, and not the production elements of the music, courts focus on the notes on paper and not the recording. Music experts (musicologists), with extensive composition backgrounds are hired by both sides to battle it out in Court.

The Plaintiff’s expert will point to the similarities in the music and specifically try to point to similarities in the most identifiable and key elements of the song.  The Defendant’s expert points to the differences in the music.  Where there are similarities, the defence says these similarities are not unique, or do not provide any individual character to the music. This testimony can be long (in terms of court days), very technical and Juries can get lost in this part of a trial.

In the Zepplin case, the Plaintiff relies on professors of music and former musicians to make part of their case.  This is curious as I don’t consider the knowledge and expertise to match that of a musicologist.

Given advancements in music technology, the evolution of estate rights for dead songwriters and performers, and the significant amount of money involved in music rights ownership, we will see more and more high profile litigation in this area.    

I certainly see that Defendants will be very challenged with these cases, whether they are legitimate or not.  This area is rife for the potential of nuisance lawsuits as we see in technology patents rights.  The verdict in the Led Zepplin case will certainly impact the likelihood of future litigation in this area and could go on long after the composers climb their Stairway to Heaven.

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