Tuesday, February 10, 2015

Copy or Coincidence? You Be the Judge

Sam Smith, the 22 year old British singing sensation, swept the Grammy Awards  Sunday night, winning best new artist, record of the year, best vocal album, and song of the year. With four acceptance speeches Sam had ample opportunity to thank many—and he did. He even acknowledged the man who broke his heart and for whom he credits the Grammys. The person he did not thank (but probably should have) is Tom Petty.

Smith’s wonderful song of the year “Stay With Me” became a smash hit on pop radio stations. It does sound similar to Tom Petty’s 1989 song “I Won’t Back Down.”  Smith and Petty recently agreed to settle any potential dispute amicably, with Petty receiving songwriting royalties without any admission of copying by Smith.

Listen to clips of Petty’s song and Smith’s song below, and judge for yourself. Copying or coincidence?   

How do the courts determine whether or not a song infringes an earlier melody? The traditional test for copyright infringement is whether an ordinary observer would find “substantial similarity” between the two songs. No need to be a musicologist or expert in music theory and composition or understand the meaning of adagio, allegro, ostinato, or staccato. If you have two ears (or just one) you qualify to apply the legal test of copyright infringement.   

Smith’s awards and his agreement with Petty made me think about other songs that may have been substantially similar to earlier tunes. So have some fun with the following song samples. Are they original or mere rip-offs?

There is no more iconic song then Led Zeppelin’s “Stairway to Heaven.” It is 
        instantly recognizable from just a few chords. But, did Led Zeppelin steal this 
        ethereal melody from Spirit’s 1968 tune “Taurus”? Have you ever even heard of 
        the band Spirit or “Taurus”? Stay tuned - Led Zeppelin is currently embroiled 
        in a copyright infringement lawsuit in the U.S District Court for the Eastern 
        District of Pennsylvania.
        Taurus – Spirit

How similar is Vanilla Ice’s “Ice Ice Baby” to Queen and David Bowie’s 
       “Under Pressure”?

        Robert Matthew Van Winkle (aka Vanilla Ice) never obtained a license,
        gave credit to, or paid any royalties to Queen or David Bowie. He was 
        sued for copyright infringement and settled for an undisclosed sum.

How about the Chiffon’s “He’s So Fine” hit in 1963, followed by George 
        Harrison’s “My Sweet Lord” in 1970?

        In Bright Tunes Music vs. Harrisongs Music the judge found that Harrison 
        had “subconsciously” copied the Chiffon’s tune, resulting in a large payment.

In 2013 Pitbull and Keisha released their hit song “Timber” that quickly soared 
        to the top of the charts. Timber sold over 4 million copies and spent three 
        weeks at the top of the Billboard digital downloads in 2013. 
        Pitbull ft. Kesha –Timber 

        Now listen to San Francisco Bay , a tune written in 1978 by Lee Oskar:
        Lee Oskar – San Francisco Bay

        Lee Oskar and the other two songwriters of San Francisco Bay are seeking 
        over $3 million dollars for copyright infringement. They allegedly never gave 
        Sony the rights to make this recording using their music.

Oskar, one of the founding and original members of the band WAR, is recognized as one of the top harmonica players in the world. It is therefore not a surprise that the producers of Pitbull’s recording of “Timber” reportedly asked their harmonica player, Paul Harrington, on the “Timber” recording to emulate Oskar. In this case, while there may be no argument that copying took place and was deliberate, the legal question is whether Sony had obtained the necessary rights from Oskar and the other songwriters.

So copyright infringement or mere coincidence? What do you think? Are the original songwriters entitled to some credit, royalties, or a big payday?  Meanwhile, next time you hear “Stay With Me,” “Stairway to Heaven,” or “Timber,” think of Spirit, Tom Petty, and Lee Oskar. They deserve some recognition along with possible royalties. 

If you’re looking for a more complete discussion of copyright infringement and related legal issues, check out my chapter entitled Entertainment Industry Agreements(25B) in Wests® Legal Forms, 3d, 4th & 5th.

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