"Where there's a hit - there's a writ!" sounds like a rip-off of that other old legal joke "where there's a will, there's a relative", but for the songwriter who has had an accusation of copying levelled against them - it ain't funny.
Jim Liddane looks at the murky world of song plagiarism.
What exactly is "song plagiarism"?
Basically, song plagiarism is the copying or the imitating of a significant portion of someone else's musical composition without proper authorisation or acknowledgement.
It is a form of intellectual property infringement and is generally viewed as unethical, involving as it does the presenting of another person's melodies, lyrics, chord progressions, or other distinctive elements of a song as one's own work, without obtaining permission from the original creator or giving them due credit.
How is it determined that a song has been plagiarised?
Determining whether a song has been plagiarised obviously involves analysing the similarities and substantial likeness between the original and allegedly copied work so musicologists and legal experts may be brought in to assess the melodic structure, rhythm, harmonies, lyrics, and other elements to establish whether or not there is a clear case of plagiarism.
Do all allegations end up in court?
No, only a small fraction do.
Is it true that at least four bars of music have to be identical before an action for song plagiarism is likely to succeed?
If it only were that simple! In fact, the amount of a song that needs to be copied for a successful claim of song plagiarism can and will vary, while the outcome of the case may often depend on several other factors.
But, sadly, there is no universally defined percentage or threshold that automatically determines infringement.
There are instead two key concepts which will be usually considered in such cases. namely "substantial similarity" and/or "originality".
(1) Substantial Similarity
This concept focuses on the quality and importance of the copied elements rather than the exact quantity.
If the copied portion of a song is deemed qualitatively significant or constitutes the "heart" of the original work, it may be more likely to support a claim of plagiarism and so, experts will assess similarities in melody, lyrics, chord progressions, rhythm, and other distinctive features to determine if there is "substantial similarity" between the two songs.
The degree of originality in the alleged copied elements is another factor to be considered.
If the elements in question are considered common, generic, or widely used in the genre anyway, they may be less likely to support a successful claim of plagiarism.
Originality and uniqueness of the copied elements on the other hand, can strengthen the case for infringement.
Is there nobody who can tell you in advance, if your song has broken the rules or not?
Determining the threshold of similarity that constitutes plagiarism in music can be complex, but worse than that, it can also be subjective, and since there is no fixed percentage or specific measure of similarity that automatically triggers accusations of plagiarism, cases will involve an assessment of many factors, including melody, lyrics, chord progressions, rhythm, and overall musical structure.
The general principle is that if a substantial portion of a song has been directly copied from another existing song without permission or proper attribution, it can be considered plagiarism.
However, the interpretation of what constitues "substantial" can vary, depending on the specific case.
So, what does my accuser have to prove?
To establish a plagiarism claim, the accuser typically needs to demonstrate that the alleged plagiarised elements are original and distinctive enough in the first place, to warrant protection under copyright law.
Additionally, they must show that the accused songwriter had some access to the original work and that the similarities between the two songs are not simply pure coincidence, but rather the result of copying.
What is a possible defence against song plagiarism?
All cases differ, but any list of the common defences used in cases of alleged song plagiarism would have to include:
(a) Independent Creation
We have all at some time or another in our daily life, experienced "coincidence" and so the defence may argue that any similarities between the two works are simply coincidental.
This defence typically relies on demonstrating that the alleged plagiariser had no access to (or knowledge of) the work he is alleged to have copied and therefore could not have copied it.
(b) Common Elements and/or Public Domain
If the elements in question can be shown to be in the public domain or are commonly used in the genre, it may be argued that the similarities are simply a result of using widely used musical structures, chord progressions, or motifs, and that any similarities are not unique enough or original enough to constitute plagiarism.
(c) Prior Art
The defence may present evidence of prior existing works that share similar elements, predating both the original work and the accused song. The argument here will be that the alleged plagiarism is simply the result of two writers drawing from a common musical heritage rather than from each other.
(d) Lack of Substantial Similarity
To prove plagiarism, it is essential to establish substantial similarity between the original work and the accused song and so the defence may agree that similarities do exist, but that they are in fact trivial, superficial, or insufficient to constitute plagiarism.
The outcome of each song plagiarism case depends on the specific circumstances, the evidence as presented on the day, and the interpretation of copyright law in the jurisdiction where the case is being tried.
That is why consulting with a legal expert experienced in intellectual property and copyright law in the relevant jurisdiction is absolutely crucial when dealing with any allegations of song plagiarism.
Would lack of access for example, be a strong defence in an allegation of song plagiarism?
A lack of access to the original work can be a potential defence in an allegation of song plagiarism, although its effectiveness may vary depending on the specific circumstances of the case.
Here's a closer look at how the defence of lack of access might be approached:
(a) Unavailability of the Original Work
If the accused songwriter can establish that they had no reasonable access to the alleged original work at the time of creating their own song, it can support their defence. This could be due to geographical, temporal, or any other factors that make it impossible, or at least very unlikely for the accused party to have been exposed to the original work.
(b) Independent Creation
The defence may argue that the accused song was independently created, and suggest that the similarities between the two works are purely coincidental. It is essential to be able to provide evidence that the accused party developed their work without having any knowledge of or exposure to the original work.
(c) Demonstrating Limited Distribution or Obscurity
If the original work had limited distribution, was relatively unknown, or had a narrow audience, the defence can argue that it was improbable for the accused party to have encountered it.
(d) Dissimilarities and/or Unique Elements
The defence may choose to emphasise the differences and unique elements present in the accused song compared to the alleged original work.
By concentrating on the substantial differences in melody, lyrics, structure, or other key components rather than the alleged similarities, the defence will claim that the accused work, while having perhsaps some coincidental similarities, is simply not a copy of the original.
How about titles? There are lots of songs all titled "I Love You". Does that mean a song title in itself is not capable of being plagiarised?
No it does not, although it is generally accepted that it is possible for different songs to have the same title.
In the wide world of music, there have been millions and millions of songs created, and over time, songwriters and musicians have come up with similar or identical titles for their compositions. This can happen unintentionally due to the vast amount of music that exists, or even occasionally deliberately - for example as an homage to an existing song.
Accordingly, you are probably quite safe penning yet another "I Love You" (if you really think such an opus will add to our musical heritage), but borrowing the title of something like Jan & Dean's "The Anaheim, Azusa, and Cucamonga Sewing Circle, Book Review, and Timing Association" might just be seen as taking the proverbial!
Does "public domain" mean that I can take the melody from a classical piece by (let's say) Beethoven, put words to it, and then claim it as my own?
A "public domain" melody is a melody that is no longer protected by copyright and is freely available for public use.
When a melody enters the public domain, it means either that its copyright has totally expired, or was at some stage not renewed, or even that the composer intentionally placed it in the public domain without ever claiming copyright protection in the first place.
Public domain melodies can include traditional folk songs, classical compositions, hymns, or any musical work where the copyright term has expired. These melodies can be used and adapted by anyone without seeking permission or facing legal consequences for copyright infringement.
However, care has to be taken, because the specific criteria for a melody to enter the public domain can vary depending on the copyright laws of different countries.
Generally, copyright protection lasts for a specific period of time, typically extending for several decades after the death of the composer. Once that copyright term finally expires, the work becomes part of the public domain and can be freely used by the public.
One word of warning however. It is important to remember that while the original melody itself may be in the public domain, any more recent specific arrangement or adaptation of the same melody may still be protected by copyright.
In other words, that lovely old folk tune which you learned as a child may well be in the public domain - but not the specific version that you learned.
Performers recording out-of-copyright songs have been known to change the melody here and there, or even add a new verse or two. In doing so, they may have thus created a "new" version of the song, and that new version (or arrangement) may very well be protected by copyright.
Therefore, it's crucial to consider the complete legal status of any musical work before using it in any commercial or public context.
Is the fact that I copyrighted my song before the other party copyrighted their song, a defence against a charge of plagiarism?
Not necessarily because most copyright services simply provide a certificate stating that they received whatever it is you sent them, on whatever date you sent it. That's all.
They are not in a position to guarantee that what you sent them is "unique" or "original" or even that you were the actual person who wrote it.
What they can say is that on a certain date, you sent it to them, which demonstrates that on a certain date, you had to be at least in posession of the work in question.
However, you should protect your work as soon as you have written it. Registering your song with a copyright office does provide important benefits, such as the ability to pursue legal remedies in case of infringement etc. However, the act of registering your song does not in itself guarantee absolute proof of ownership nor does it guarantee protection against plagiarism, or against being accused of plagiarism.
Some final thoughts....
Obviously you should never consciously copy anybody else's work. Apart fom being unethical, you may be held up to public humiliation and ridicule if you are found to have done so.
But do not on the other hand, ever let a fear of being accused of plagiarism inhibit your talent.
As a songwriter, your job is to concentrate on writing the best song you possibly can. If after that, any doubts arise about the originality of any portion of your song - then let your music publisher, his legal experts and assorted musicologists, be your guide.
And you can always ask somebody else for an opinion - not necessarily a music publisher or a musicologist. OK - it's not fool-proof but if you try enough people, and still nobody recognises the tune or the words - then chances are they are original.
Also, Google have an excellent tune identification gizmo, which attempts to name any tune played or whistled into it, while if it is the lyrics you are worried about, then there are loads of free Plagiarism Checkers online which will tell you if your lyrics are not quite as original as you thought!
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