Most Read Contributor in South Africa, September 2016
So goes the saying in the US entertainment industry. What it
means is this: If you have a successful hit, you may pretty much
expect to be sued by someone who will claim that you've
infringed their copyright.
Yet, notwithstanding this, cases involving infringement of music
copyright are fairly rare. Yes, it's well known that there was
an out-of-court settlement after claims were made that Sam
Smith's hit single Stay with Me infringed
the copyright in an old Tom Petty song. And, yes a few years back
we did write on an interesting case involving Elton John's old
Nikita. What happened in that case was that a certain Guy Hobbs
sued Elton John for having infringed the copyright in a song that
he had written called Natasha, a song that he claimed
he had sent to Elton John before the release
of Nikita. A US court found against Hobbs, saying
that although the two songs shared certain features – such as
the themes of a cold war love affair and unanswered correspondence,
as well as certain generic phrases and the repetition of the song
title in the chorus – these features were too
"everyday" to warrant protection.
The really big music copyright story has, of course, been
about Blurred Lines. When we
first wrote about it two years ago it was already big
news, but it became a great deal bigger recently when a US court
found that the mega-hit by Pharrell Williams and Robin Thicke did
infringe the copyright in an old song by the late Marvin Gaye
called Got to Give it Up. The jury held that Marvin
Gaye's heirs were entitled to damages to the tune of
The case is interesting because it highlights that there are
different copyrights involved with songs. The South African
Copyright Act, 1978, for example, gives protection to a
"musical work". The first owner of the
copyright in a musical work is "the person who first makes
or creates the work" – the songwriter in other
words, who may or may not also be the recording artist. The
songwriter has the exclusive right to do various things, including
the right to reproduce (copy) the work "in any manner or
form", as well as the right to make an "adaption
of the work".
The Act creates a separate copyright in a "sound
recording", which is defined as "any
fixation of sounds or signals representing sounds capable of being
reproduced". The owner of the copyright in
the sound recording is "the person by whom the
arrangements for the making of the sound recording were
made" – the record company in other words! The
owner has the exclusive right to do various things,
including "reproduction (copying) in any manner or
form" and "making an adaptation of the
As the judge in the Blurred Lines case
explained to the jurors, the issue that they had to consider was
whether the copyright that the Gaye family had in the sheet music
for Got to Give it Up had been infringed. In
other words, whether Pharrel Williams and Robin Thicke had copied
notes, sequences and the like. The issue was not whether the sound
recording of Got to Give it Up had been
infringed. It's reported that the judge even gave the jury a
clear instruction not to listen to Marvin Gaye's sound
recording, because the case was not about whether the overall sound
("look and feel", if you will) of the Marvin
Gaye sound recording had been copied.
This is interesting because Robin Thicke (even though it
eventually transpired that he had in fact played little or no role
in the writing the song) had never made any secret of the fact that
he and Williams had been inspired by the Marvin Gaye song. He said
that Blurred Lines was reminiscent of a particular sound or genre
and, in many ways, a tribute to a particular musical era. But, he
said, the similarities between the songs were confined to
"commonplace musical elements" – a high
falsetto voice, vocal and musical layering, and a particular beat.
Being inspired by something, he said, is not the same as copying
In the end, the case turned very much on expert evidence. Based
on the expert evidence that they heard, the jurors disagreed with
Robin Thicke and found that actual aspects of the musical work had
been copied. Williams and Thicke have responded by saying that the
judgment sets a "horrible precedent".
Whether or not it does remains to be seen. My understanding is that
the law is pretty much as it was. Which is that there may be
certain features that are so common that they cannot be
monopolised. But if it can be proven that there has been actual
copying of a substantial part of a musical work – and the
word "substantial" refers to quality not
quantity – then there is an infringement.
The message to songwriters is clear: Don't copy.
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