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Music: When Inspiration Becomes Imitation (copyright)
Music is a powerful force, capable of moving us, inspiring us, and even sparking legal battles.
When it comes to copyright infringement, perhaps it could be said that one of the trickiest questions is: How much is too much? Can a simple riff, a rhythm, or even a “feel” amount to theft? There is however something that many people don’t know and that is, when it comes to copyright and music in Australia, it’s not just about how much is borrowed but also about the quality of what’s taken.
What have the cases said?
EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 47
This case was heard by the Full Court of the Federal Court of Australia. It upheld the earlier decision that Men at Work’s song Down Under infringed copyright in the children’s song Kookaburra Sits in the Old Gum Tree. The court affirmed that the flute riff in Down Under reproduced a “substantial part” of Kookaburra, even though it was only two bars long.
Blurred Lines: Williams v. Gaye, No. 15-56880 (9th Cir. 2018)
Fast-forward to 2015, when Robin Thicke and Pharrell Williams were sued by the estate of Marvin Gaye over their chart-topping hit Blurred Lines. The accusation? That the song copied the “vibe” of Gaye’s Got to Give It Up. The result? A hefty $5.3 million USD in damages.
The case sent shockwaves through the music industry, with many fearing it would stifle creativity. People said that copyright infringement isn’t just about melodies but about the total concept and feel of a work.
Here is a link to the case:
https://law.justia.com/cases/federal/appellate-courts/ca9/15-56880/15-56880-2018-03-21.html#:~:text=These%20consolidated%20appeals%20stemmed%20from,Got%20To%20Give%20It%20Up.%22
Ed Sheeran: From Chart-Topper to Defendant
Even Ed Sheeran has faced the music, accused of copying Australian artist Jasmine Rae’s When I Found You in the song he penned for Tim McGraw and Faith Hill, The Rest of Our Life. This case served as a reminder of the importance of originality in musical compositions
Fair Dealing? Not So Much
In Australia, defences for “fair dealing” are limited. Unlike the US, where there is the concept of fair use, Australia’s copyright law offers no refuge for artists paying homage.
The Kookaburra case shows that even a tribute can cross the legal line.
A Medley of Legal Battles
Over the years, we’ve seen other disputes, including:
- All About That Bass by Meghan Trainor accused of copying Koyote’s Happy Mode.
- Viva La Vida by Coldplay settling with Joe Satriani over similarities to If I Could Fly.
- Vanilla Ice’s Ice Ice Baby famously sampling Queen and David Bowie’s Under Pressure—a case resolved with royalties rather than a trial.
Meghan Trainor’s smash hit ‘All about that Bass’ has over 2 Billion views on YouTube alone, however, it was accused of lifting from South Korean pop band Koyote. The songwriter, Joo Young-hoon, tweeted that he was consulting with a specialized lawyer. Meghan Trainor, however, did not receive a lawsuit in the end.
Released in 2008, “Viva La Vida” became Coldplay’s first No. 1 single in both the United States and the UK. The band even went on to win the Grammy for Song of the Year for it in 2009. So it must have been a shock when world famous guitarist Joe Satriani noticed that “Viva La Vida” contained “substantial original portions” of his 2004 release “If I Could Fly.” Coldplay maintained the similarities were entirely coincidental, however, the matter was settled with Satriani out of court.
Vanilla Ice reached No. 1 on the Hot 100 in 1990, giving hip-hop its first-ever No. 1 hit on that chart. Unfortunately for him, it was difficult not to notice the similarity to the 1981 song “Under Pressure” by David Bowie and Queen. While Vanilla Ice denied the similarity at first, he later relented, admitting to sampling the song and even defending his decision. Vanilla Ice decided to pay both parties royalties in order to avoid a court battle, the settlement amount remains unknown.
What Does This Mean for Artists?
The legal takeaway is clear: when it comes to music, originality isn’t just about new melodies but also avoiding too many similarities to other pieces of music or songs.
Australian courts focus on the quality of what’s taken, as well as the quantity.
For those in the music industry, the stakes are high.
At Sharon Givoni Consulting, we help artists and businesses navigate these complexities.
Please note the above article is general in nature and does not constitute legal advice.
Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.