November 13, 2012

How Similar Are Songs Legally Allowed to Sound

When a court has to look at two pieces of music and decide whether or not they're substantially similar, the cases are really all over the board.   One of the first cases on this issue wasn't a music case.   It was a case about a play with a particular plot about an Irish family and a Jewish family, and a similar movie was made not too long after.

 

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Matt:   Hello again! Welcome back to Copyright Law Radio.   This is Matt Plessner speaking again, and today we're joined by Tara Aaron, a copyright attorney from the Aaron Sanders Law Firm in Nashville, Tennessee.   We're going to talk a little bit about music today, and how similar two copyrighted compositions are allowed to be.   We're going to answer this question for you, go over it, and debrief you on some of the misconceptions for it as well.   Tara, thank you for joining us today. 

Tara:   Thanks, Matt.   Happy to be here.   

Matt:   Tara, just to start off in a brief overview, can you please tell us how similar are two copyrighted pieces of music allowed to sound? 

Tara:   That's a really hard question to answer actually, Matt.   When a court has to look at two pieces of music and decide whether or not they're substantially similar, the cases are really all over the board.   One of the first cases on this issue wasn't a music case.   It was a case about a play with a particular plot about an Irish family and a Jewish family, and a similar movie was made not too long after.   The case is from 1930.   In that case, the judge said, "We always have to decide how much, meaning how much material can be copied and how much of it is in the public domain, and while we are aware as anyone that the line, wherever it is drawn, will seem arbitrary, that is no excuse for not drawing it.   It is a question such that courts must answer in nearly all cases."  So, in other words, the courts will just have to look at the facts each time and make a decision, so it's really hard to predict.   There's no minimum or maximum amount that you can talk about in terms of numbers or percentages to decide how much is OK to copy.   

Matt:   So, Tara, it sounds like you're saying that there are no hard and fast rules for this.   I think a lot of it depends upon the artists and the judicial members involved as well.   There's also this rumor out there that says that it becomes copyright infringement when over 20% of the song's notes are used.   Is this true, Tara?

Tara:   It's completely false.   There are no hard and fast rules.   It's true what you said that there are no hard and fast rules.   A lot of times, it does depend on who the artists are.   It also depends on how good their attorneys and their experts are, but there is certainly no rule that says that if you've copied less than 20% of another song that you're OK.   It can be as little as 5% and sometimes, depending on the use, it can be as much as 80 or 90%.   When you're talking about substantial similarity, the cases are going to be literally all over the board.   

Matt:   Tara, can you please tell us the difference between copying like we're talking about where it just sounds similar and sampling?

Tara:   Sure.   When we're talking about a case where we're actually deciding substantial similarity, usually what we're talking about are two pieces that have been independently created.   So, for example, the Coldplay track, Viva la Vida.   Coldplay wrote that song, but an artist came along and said you heard my song somewhere in your past and your song sounds similar to mine.   Therefore, you must have copied what I wrote.   Sampling doesn't have anything to do with independent creation.   Sampling is when you literally lift a piece or an entirety of a track and just copy it into your track.   You see this a lot in hip-hop and in rap, especially where they'll use backtracking that's an old Sting song, for example.   It's absolutely 100% clear that that's the song that it is.   In those cases, there's always a license that's paid.   Sometimes it can be as much 75 or 80% of the royalties the artist would see on that song or the writers would see on that song.   In those cases, there's always a license paid.   If there is no license paid, then there's no question that it's copyright infringement.   Substantial similarity cases where both songs were independently created are, like we've been saying, a lot harder to decide.   

Matt:   Of course, you said that this is done a lot.   Of course, there are no lawsuits if there's an agreement between the two artists where a percentage of the money goes to the original artist where the piece is sampled from, then it becomes legal, correct?

Tara:   Right.   Of course.   Anytime you've got a license agreement in place where you've got permission to use the song, then we don't have to talk about lawsuits or copyright infringement at all because then you've got permission.   

Matt:   All right and one final question for you, Tara.   As an artist, myself, I know a lot of times myself and many others write songs that just happen to sound similar to something else.   We don't even realize it.   What advice would you give an artist to avoid copyright infringement and lawsuits from other artists?

Tara:   Well, the old phrase is that there's nothing new under the sun.   Every artist is inspired by what they've heard before.   I think intrinsically artists know when they're writing something because they've been inspired by a previous artist that they've heard and when they're simply just copying what they've already done.   A lot of times it's going to be hard to predict whether or not you're going to get sued.   Unfortunately, in these substantial similarity cases it's sometimes very hard to predict whether or not you're going to win.   If you are writing from your own mind, and your own creativity, and your own heart, I think that's always the thing that the artist should do.   

Matt:   Well, Tara, thanks again for being with us and talking with us about this today as well as clearing up some of these rumors.   

Tara:   Happy to do it.   

Matt:   I'm Matt Plessner and join us next time on Copyright Law Radio.   

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