In the old days, musicians only had to clear the use of samples that they had taken out of other songs, created and released by other songwriters, composers and performers.
However, since the ‟Blurred lines” case, musicians, their labels and publishers should also obtain licences from the rightowners of any other song already in the public domain, which has a similar feel, vibe – a ‟sound alike”-, preferably before, but otherwise after, the new song is released.
In this uncertain musical environment, in which even the most simple of musical compositions could be deemed to be protected by copyright, by a court jury and/or a judge, how do musical artists and their advisers deal with copyright infringement claims (actual or possible), to preserve the performer’s reputation and commercial success of their musical output? Is the strategy of handing out songwriting credits the best, in this environment?
1. Before the ‟Blurred lines” case: licence clearance mostly limited to samples
As explained in my article ‟What’s wrong with musical adaptations of French songs and their ensuing rights?”, the world used to be a pretty simple place, whereby you only had to negotiate a licence in case you sampled – i.e. took a portion, or sample, of one sound recording and reused it as an instrument or a sound recording in a different song.
For example, sampling is the technique that brought Barry White’s groove ‟It’s ecstasy when you lay down next to me” to the top of the charts as part of ‟Rock DJ” by Robbie Williams.
The legal habit of obtaining a copyright licence to use a sample was established after the landmark judgement Grand Upright v Warner Bros Records was handed down in 1991. In this copyright case heard by the United States district court for the Southern district of New York, songwriter Gilbert O’Sullivan sued rapper Biz Markie after the latter sampled a portion of O’Sullivan’s song ‟Alone again (naturally)” in his own track ‟Alone again”, without permission. Specifically, O’Sullivan alleged that Biz Markie had used a section of the introduction to ‟Alone again, naturally” in ‟Alone again”. O’Sullivan’s claim was upheld by the court and the landmark ruling altered the landscape of hip-hop and rap, finding that all samples must be cleared with the original artist before being used.
So, after 1991, the rule of obtaining a prior copyright licence to use a sample was clearly set, and usually followed, although some hurdles still happened, along the way.
The most notorious of these sample clearance cases relates to the Verve‘s 1997 song, ‟Bitter sweet symphony”, written by the Verve’s singer and songwriter Richard Ashcroft. The track is based on a sample from the Andrew Loog Oldham orchestral cover of the Rolling Stones’ hit ‟The last time”. Other instrumental figures were tried out, which could have replaced the sample and consequently have removed the need for a clearance. However, these attempts failed and, at the last minute, with a release date already set, a negotiation was embarked upon with the Rolling Stones’ manager at the time, Allen Klein. As a result, Mick Jagger and Keith Richards were ‟added” to the songwriting credits, and all copyright royalties from the song went to them, since the talented the Verve frontman had to waive any possible songwriting share for himself, to make sure that the record got released: 100 percent was credited to M. Jagger and K. Richards and their publishers! In April 2019, after more than 20 years, M. Jagger and K. Richards finally signed over their copyrights to the song to the Verve’s talented frontman, Richard Ashcroft.
So, the rule was clear, for samplers, the world over: include the section of the track you want to use in a rough mix of your new song, for demonstration purposes only, and get the permissions you need based on that, before spending time, money and efforts refining the track and mixing it to perfection. That way, if your concept is not deemed acceptable by, or you can’t strike a deal with, the rightowners and their publishers, you can go back to the drawing board without too much resources having been lost.
This strategy was most important for the rap and hip-hop community, as this musical genre makes heavy use of sampling.
However, on more than one occasion, sample clearance fees prohibited the use of more than one or two samples for most tracks, with some copyright owners demanding up to 100 percent of royalties (as seen above in the Verve case).
As each sample had to be cleared to avoid legal action, records such as those produced by Public Enemy, which use dozens of samples, became prohibitively expensive to produce.
According to Pitchfork, ‟overnight it became forbiddingly difficult and expensive to incorporate even a handful of samples into a new beat… Producers scaled back their creations, often augmenting one choice groove with a bevy of instrumental embellishments”.
As a result, interpolation came to the fore, splitting publishing rights and master rights in the sampling sphere. Indeed, when you record a song, there are two types of copyrights:
- there is the copyright for the song composition and the lyrics, attributed to the songwriters, the lyricists and their respective publishers, so that’s often called the publishing rights, and
- there is the copyright for the recording itself, which belongs to the artist performer and the record label, which is often called the master rights.
Interpolation (i.e. replaying the requested sample using new instrumentalists, using the newly recorded version and simply paying the songwriters – and not the artist or the label, through a master licence – for use of the composition) became prevalent in the industry, especially in the work of Dr Dre. Indeed, Dr Dre’s production became styled around fewer samples per track, studio instrumentation, and sampling artists such as Parliament-Funkadelic who were amenable to having their music sampled. Perhaps the most famous example of interpolation is Eminem’s track ‟My name is”, produced by Dr Dre, which contains the replayed sample of Labi Siffre’s song ‟I got the…”.
2. After the ‟Blurred lines” case: increased legal risk for creators in the music sphere
This status quo, in relation to pre-copyright clearance – became a lot more complicated in 2013, with the ‟Blurred lines” case.
Further to accusations by the family and estate of Marvin Gaye, that Pharrell Williams, Robin Thicke and T.I. had copied the ‟feel”, ‟groove” and ‟sound” of M. Gaye’s hit ‟Got to give it up”, in their new released single ‟Blurred lines”, P. Williams, R. Thicke and T.I. sued for a declaratory judgment that their track did not infringe copyrights of the defendants. In the lawsuit, the Gaye family was accused of making an invalid copyright claim since only tangible expressions of creative endeavours – not ideas – can be protected by copyright.
Yet, the United States district court for the central district of California ruled the Gaye’s family counter-claims against R. Thicke and P. Williams could proceed, stating that the plaintiffs ‟ha(d) made sufficient showing that elements of ‟Blurred lines” may be substantially similar to protected, original elements of ‟Got to give it up””. In March 2015, a jury found R. Thicke and P. Williams, but not T.I., liable for copyright infringement, awarding the Gaye’s family USD7.4 million in damages and profits for copyright infringement, and crediting Marvin Gaye as a songwriter for ‟Blurred lines”. Whilst the verdict was lowered from USD7.4 million to USD5.3 million, R. Thicke, P. Williams and T.I. appealed the judgment to the 9th circuit court of appeals of California in August 2016.
However, in July 2018, the court of appeal confirmed the district court’s finding of infringement against P. Williams and R. Thicke, who had to pay, among other damages, the Gaye family USD5.3 million.
Aptly named, the ‟Blurred lines” case blurred the lines of rather well-settled copyright doctrine, as well as sent shockwaves through the musical community: never before had a copyright infringement been determined simply because the ‟groove” of two songs sounded similar. The landmark judgment has, at the very minimum, put artists and publishers on notice as to how they should approach musical composition to avoid legal issues.
So, has the ‟Blurred lines” case created a precedent, and therefore stifled music creativity?
3. Giving songwriting credits as a way out of any legal dispute?
Firstly, any neurosis caused by the ‟Blurred lines” decision needs to be calmed, since fair use decisions, such as this one, are supposed to be taken on a ‟case by case” basis.
There is a string of cases that confirm this approach, as follows:
- the Gray v. Perry case in which Katy Perry had to fight copyright infringement claims made by a Christian rock band called Flame. Flame alleged that K. Perry’s song ‟Dark horse” infringed on their track ‟Joyful noise” (which had 300 plays on Soundcloud when the lawsuit was filed). The focus of the similarity was a short descending pattern known in music as an ‟ostinato”. In both songs, a short ostinato is used repeatedly to form part of the beat of each song and both ostinatos share similar descending shapes. Gray et al. claimed that the instrumental beat of the ostinato in ‟Joyful noise” was protectable original expression and that K. Perry et al. had access to, and copied, the ostinato when composing ‟Dark horse”. After a jury found K. Perry et al. guilty, the defendants filed an appeal against the jury verdict in October 2019. The district court employed the two-part test of extrinsic similarity (protectability of elements) and intrinsic similarity (access) to determine any substantial similarity. In March 2020, the court granted the defendants’ motion for judgment as a matter of law and vacated the jury’s verdict as to liability and damages, since Gray et al. failed to satisfy the extrinsic test for substantial similarity. In plain English, the core little synth melody (ostinato) that sounds alike is not a unique enough creative expression to be protected by copyright law, found the district court. This is especially true since this ostinato has been used all the way back to the Renaissance where composers would intentionally take competitors’ bass lines and write new original material over them.
- the estate of Randy Wolfe (creator of the US progressive rock band Spirit) v. Led Zeppelin case in which Robert Plant and Jimmy Page were accused of copying the opening riff of ‟Stairway to heaven” from the Spirit song ‟Taurus”. In June 2016, a jury verdict found R. Plant and J. Page not guilty and, further to the appeal made by the estate of R. Wolfe, the 9th circuit court of appeal of California ruled in March 2020 that ‟Stairway to heaven” did not infringe Spirit’s ‟Taurus”, upholding the 2016 jury verdict. In October 2020, the US supreme court refused to hear the case following a petition filed by the estate of R. Wolfe, bringing a final close to this case.
Secondly, it is true that more and more artists prefer to avoid litigation for alleged copyright infringement, preferring to swiftly settle by granting songwriting credits to any competing artists who come forward, claiming his or her song was lifted in the new hit track.
Recently, Olivia Rodrigo, an 18 years’ old American singer-songwriter who recently released her debut album ‟Sour” in May 2021 to critical acclaim, made the headlines for handing out numerous co-writers songwriting credits to Taylor Swift and St. Vincent for her song ‟Déjà Vu”, and to Paramore frontwoman Hayley Williams and former band-member Josh Farro for her track ‟Good 4 U”. O. Rodrigo made this move after rather unsubstantiated allegations of plagiarism erupted on the internet, that her hit ‟Good 4 U” had similarities with Paramore’s 2007 song ‟Misery Business”, and that her track ‟Déjà Vu” was ‟influenced” by Taylor Swift’s ‟Cruel Summer”.
While the word on the street is that Olivia Rodrigo would have won any copyright infringement lawsuit with respect to her tracks ‟Déjà Vu” and ‟Good 4 U”, the main concern here is about whether or not people want to deal with what can happen in court. Court is expensive. It can destroy someone’s public perception. The outcome of a court case is uncertain. So why not give a small percentage of credit upfront, in exchange for a settlement agreement where the potential claimant waives his or her right to file a lawsuit?
So the new paradigm, today, in the music industry, is that as soon as a song becomes a hit (which, in itself, is very complicated, what with the noise created by the zillion of releases made daily on streaming sites, such as YouTube, and apps, such as Spotify), the artist who has just found fame can expect to have competitor musicians come at her/him for songwriting credits. And you definitely do not know who may come at you for a ‟vibe” or ‟groove”.
This situation is compounded by the fact that, in the USA, radio plays do not generate any royalties for performers, while the songwriters get paid: so, as a recording artist, if you also have songwriting credits (on your own song or on the song of another artist whose granted you writing credit), then you get paid on those radio plays. Therefore, there is a strong incentive, for performers, to grab songwriting credits right and left, in order to increase their pool of income streams, which bulk usually comes from streaming (where 80 percent of the royalty payouts go to the master recording, while the publishing royalties usually hover around 12 to 13 percent).
As an artist, it is up to you to devise the best strategy on how to deal with the heightened risk of potential copyright infringement claims, with your team of advisers (manager, entertainment lawyer, publisher), which fits your approach to handling conflict, your ability to withstand tough and protracted legal proceedings and negotiations, and the reputation you want to build for yourself in the public domain.
Songwriting credits or litigation: that is the question.
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