Jun / 06
Coincidental or Copy? Copyright Infringement and Music
Sharon Givoni Consulting Intellectual Property
Copyright Infringement and Music
When it comes to copyright infringement and music, perhaps one of the most important questions asked is whether the alleged copy is a substantial reproduction of the original. This article considers the main principles of copyright law when it comes to songs and critques a number of important musical works. We also talk about news worthy and topical cases that caught the worlds attention. The bottom line is some people might think that changing music just a little bit might or sampling music will help them avoid copyright infringement. However, when it comes to copyright infringement and music, it’s not just about how much you take but the quality of what is taken.
For example, in the 2010 Kookaburra case below, what was copied was simply the flute riff. The riff only consisted of two bars which were reproduced in the 1981 version of Down Under by Men at Work. On the same vein a few years later, a US court came to a copyright infringement verdict against Robin Thicke and Pharrell Williams over the 2013 hit called ‘Blurred Lines’. This song, they said, illegally copied Marvin Gaye’s, ‘Got to Give it Up’. Copyright infringement and music lawsuits continue to this day with artists like Ed Sheeran currently in hot water over potentially plagiarising an Australian country artist.
The Kookaburra Song
The issue in the Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd [2010] FCA 29 was whether the Australian band infringed copyright the song Kookaburra sits in the old gum tree in their song Down Under. Interestingly, Kookaburra was written and composed back in 1934 for the purpose of a Girl Guides book. It consisted only of 4 bars. Down Under was written and composed in 1978 by two members of Men at Work and published in 1979. Between 1979 and 2010 no one questioned whether the Down Under song infringed the Kookaburra song. However, all that changed when ABC’s TV show Spicks and Specks posed the question, ‘What children’s song is contained in the song Down Under?’ and the answer was ‘Kookaburra’. The next day the phone at Larrikin Records were ringing hot. Larrikin Records holds the copyright to the Kookaburra song. The matter was then promptly taken to court.
Ultimately, the job of the Federal Court of Australia was to decide whether one song was a substantial reproduction of the other. They had to look at whether there was a sufficient degree of similarity between the two works. Further, whether the infringing part of the work formed a substantial part of that work. The conclusion was that to be an infringement, the music did not have to be identical to the original, however, the substance of that work must be taken.
The judge decided that there was a sufficient degree of similarity between Kookaburra and Down Under considering an aural comparison of the music as well as a visual comparison of the notations. In fact, the flautist Mr Hay even admitted that he had sung the words to Kookaburra while the flute riff was playing during concert performances. It is worth reminding you that only two bars of the Kookaburra song were taken by Men at Work for the song Down Under. However, in regard to copyright Infringement and music, a ‘substantial’ part of a work is referred to by a qualitative test, not a quantitive test.
The case went to appeal where the High Court of Australia upheld the original decision and ordered Men at Works record company EMI Records to pay Larrikin 5% of all royalties it had received from Down Under from 20 May 2002. The case was somewhat controversial because Men at Work had paid homage or tribute to the Kookaburra song. Nonetheless, Men at Work had infringed copyright because in Australia there is no fair dealing defence when it comes to the use of other peoples material.
Fair Dealing Exceptions in Australia
Briefly, the current ‘fair dealing’ exceptions in Australia’s copyright law cover: Review or criticism, parody or satire, research or study, news-reporting, judicial proceedings or professional legal advice.
Importantly, the ‘fair dealing’ exceptions are a purpose-based regime and the exceptions are notoriously restrictive, as they are unable to accommodate for ‘fair’ uses of copyright material that do not fulfil one of the above categories. Arguably, the Down Under case was one such example meaning that songwriters are unable to take inspiration from older works to create new works when the older works are still within copyright (life plus 70 years).
‘Down Under’ infringed the copyright of the ‘Kookaburra’ song, even though the band’s intention was to make a tribute and homage to popular Australiana folklore. Notably, it was the copyright owner, rather than the original author of the song that pursued infringement. There are proposals in place to potentially change Australia’s copyright law, which includes copyright infringement and music, for a broad fair use exception.
Marvin Gaye vs Robin Thicke/Pharrell Williams: Blurred Lines
In 2015 jurors in the US Courts awarded Marvin Gaye’s family $7 million USD (later trimmed down to $5.3 million). Robin Thicke and Pharrell Williams wrote the song ‘Blurred Lines’ which was held to be an infringement of the late Marvin Gaye’s song ‘Got to Give it Up’. Interestingly enough, Pharrell Williams admitted in court to being a Marvin Gaye fan and Robin Thicke had acknowledged drawing on Marvin Gaye’s songs in interviews.
Ed Sheeran, Faith Hill & Tim McGraw, “The Rest of Our Life” vs. Jasmine Rae, “When I Found You”
Ed Sheeran also made headlines when he was hit with a plagiarism lawsuit by Australian country music artist Jasmine Rae.
According to media reports, the song ‘The Rest of Our Life’ to which Ed Sheeran wrote for Tim McGraw and Faith Hill is accused of allegedly copying the Jasmine Raw song “almost note for note”, which was written by Sydney songwriters Sean Cary and Beau Golden.
Oddly enough, they are being represented by Richard Busch, who was the apparently the winning attorney in the Marvin Gaye vs Robin Thick/Pharrell Williams case.
An example of the two songs can be found below:
A number of other copyright infringement and music lawsuits or disputes have occurred over the years including but not limited to:
| Meghan Trainor's "All About That Bass" vs. Koyote's "Happy Mode" | |
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. | |
| Jennifer Lopez, "On the Floor," vs. Kaoma, "Lambada" | |
J.LO was accused of copying French pop group Kaoma with her song 'On the Floor'. For the same song she was also accused of lifting from Romanian musician Edward Maya's 2009 club hit "Stereo Love" and Hispanic singer Kat DeLuna's 2010 single "Party O'Clock". | |
| Radiohead, "Creep," vs. Albert Hammond, "The Air That I Breathe" | |
Thom Yorke was taken to court for plagiarising the Hollies' 1973 song 'The Air I Breathe' Although Yorke admitted at the time that he was inspired by the song he didn't give the band credit for the inspiration. | When the Hollies filed suit, Radiohead was ordered to give them cowriting credit in the liner notes of the Radiohead album, Pablo Honey. Hammond and Mike Hazlewood also now split royalties with Radiohead. |
| Ray Parker Jr., "Ghostbusters Theme," vs. Huey Lewis, "I Want a New Drug" | |
The Oscar-nominated theme song recorded by Ray Parker Jr. for Ghostbusters was deemed similar enough to Huey Lewis' "I Want a New Drug" that Lewis successfully sued Ray Parker Jr. | Parker sued Lewis right back when he broke their confidentiality agreement by discussing the suit on VH1's Behind the Music. |
| James Blunt, "Heart to Heart," vs. Five for Fighting, "100 Years" | |
James Blunt may have only sampled the melody and riff in the example. However, it is such a distinctive sound that it is very hard not to compare it heavily to "Heart to Heart". | No lawsuit occurred for this case. |
| Bruno Mars, "Treasure," vs. Breakbot, "Baby I'm Yours" | |
In 2012, Bruno Mars was called out on Twitter by musician Breakbot for the fact that the song "Treasure" sounded a lot like Breakbot's "Baby I'm Yours." |  |
| Katy Perry, "Roar," vs. Sara Bareilles, "Brave" | |
The dispute over whether or not Katy Perry's "Roar" was a rip-off of Sara Bareilles' "Brave" could have been a much larger spectacle. | However. Sara Bareilles assured the the world that the pair were friends and that a lawsuit was not necessary. |
| Coldplay's "Viva La Vida" vs. Joe Satriani's "If I Could Fly" | |
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 |
This case did end in litigation and the UK courts ordered the Doors to pay royalties to the Kinks' songwriters for borrowing their riff. In 2012, Kinks band member Ray Davies told Mojo magazine, "The funniest thing was when my publisher came to me on tour and said the Doors had used the riff for 'All Day and All of the Night' for 'Hello, I Love You.' | I said rather than sue them, can we just get them to own up? My publisher said, 'They have, that's why we should sue them!'" |
| Katy Perry (Again), "Dark Horse," vs. Flame ft. Lecrae, "Joyful Noise" | |
In 2008, the Christian rap group Flame createdthe Christian rap track "Joyful Noise." In 2014, the group filed a copyright infringement lawsuit against Katy Perry for her hit "Dark Horse," saying she lifted from their track. | A year later, Flame addressed the lawsuit to the Christian Post, saying, "Everything has been worked out amicably with patience and kindness, so people who are peering in should just know that." |
| Nirvana, "Come as You Are," vs. Killing Joke, "Eighties" | |
In 1992, Kurt Cobain felt nervous about releasing his track "Come as You Are" on the fear that it sounded too similiar to the Killing Joke song "Eighties". Kurt should have listened to his gut. | Killing Joke in the end chose not to file a copyright infringement lawsuit due to personal and financial reasons. |
| The Beach Boys, "Surfin' U.S.A.," vs. Chuck Berry, "Sweet Little Sixteen" | |
"I just took 'Sweet Little Sixteen' and rewrote it into something of our own," Brian Wilson told the Los Angeles Times in 2015. | The Beach Boys' manager gave Berry the copyright to the tune, to avoid a lawsuit. |
| Vanilla Ice, "Ice, Ice, Baby," vs Queen/David Bowie, "Under Pressure" | |
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. |
The main message of this article is that one piece of music does not need to be identical to another to be a copyright infringement.
- The test for copyright infringement in Australia is quality, not quantity.
- The principal melody or signature of the copyrighted work may amount to a substantial part of the song
- The question of whether two pieces of music are objectively similar can be determined by reference to an aural comparison.
- A song may be copied if it is not a result of the composers individual work but rather copied from another source
- Australian copyright law does not provide a defence in cases where homage or tribute is paid to an earlier work.
How can we help you
At Sharon Givoni Consulting we can assist you with any and all copyright infringement and music disputes, as well as making sure copyright in your music is owned by you. If you think you have copied someone’s work or that someone else has copied your work, please contact us here.
Disclaimer: This article is of a general nature and not to be replaced with tailored legal advice. All media and examples in this article are provided for the purposes of criticism and review.