Analysis of Copyright Infringement Cases in Music

Introduction

Music is a huge part of popular culture, with millions of songs being released every year. What most people do not realize is even in such a large and innovative market, there are often only twelve notes used in western music, making it almost inevitable that some degree of copying will occur. The United States copyright law protects “musical works” that are fixed in a tangible means of expression. Therefore, as soon as a musician creates a song, that composition is protected by copyright. Sound recordings and musical compositions are considered two separate works. Registration of musical compositions covers the music and lyrics embodied in a song, but not the recording. This article focuses on the rights of the copyright owner of musical compositions, where infringement often occurs. In recent years, plagiarism cases involving music have become increasingly common. Most instances stem from similarities in the music and lyrics of the allegedly infringing work. Discussed below are some of the most famous copyright infringement cases in music, the merits of these claims, as well as the outcomes of the trials. To properly analyze these claims, it must be understood what specific aspects of musical compositions are covered by copyright law. 

As previously stated, music and lyrics are covered by copyright law. “Music” includes the vocal melody and any melodic instrumental riffs, which significantly protects the writer from plagiarism. However, copyright protection does not cover other aspects of the composition, such as rhythms (e.g., specific drum or 808 beats), intervals, and chord progressions, due to their nature of unoriginality. For example, no writer can claim they own going from a B flat major chord to C major. Beyond copying song elements, a major criteria of proving infringement is that the infringer must have had access to the original work. The lines for plagiarism can be blurry, and the following infringement cases have left the general public and music community confused in regard to the extent of copyright protections.

Ice Ice Baby

One of the most famous cases of music copyright infringement is Vanilla Ice vs. Queen and David Bowie in 1990. When Vanilla Ice released his highly popular single, “Ice Ice Baby” in 1990, listeners immediately recognized the intro guitar riff and bassline from the 1981 hit song “Under Pressure” by Queen and David Bowie. The rapper clearly sampled “Under Pressure.” Many times artists use samples to pay tribute to others who have inspired them musically, or simply because they enjoy the original song, and samples have become increasingly frequent in popular music. Although they are a common occurrence, it is necessary for the writer, publisher, and/or record label of the new composition to get permission from the owners of the sampled composition, as well as give the original writers credit. In the case of “Ice Ice Baby,” Vanilla Ice did not get proper permission to sample the song.¹ This was a direct infringement of both the sound recording, due to Queen’s recording being used while not properly licensed, and the musical composition, due to the underlying instrumental melody being the same. When the press confronted Vanilla Ice about this, he originally denied it. He claimed the two melodies were slightly different because he added an additional note on the “and” of the fourth beat, which is not enough to make the melody distinct (fig 1).

Figure 1

Castillejos, Michael. “Ice Ice Baby vs Under Pressure.” September 17, 2013. https://www.macastillejos.com/blog/ice-ice-baby-vs-under-pressure

He later stated this was a joke, but many speculated he was serious and trying his best to avoid the lawsuit coming his way.² Representatives for both Queen and David Bowie threatened to take Vanilla Ice to court, and the matter was eventually settled with the rapper paying Queen and David Bowie, as well as giving the original writers and publishers of “Under Pressure” credit on “Ice Ice Baby.” This case was one of the clearest musical copyright infringement cases in music history, and it acted as a warning for all musicians to make sure any samples they use are properly cleared and credited.

Stairway to Heaven

Although the “Ice Ice Baby” case was easily settled, most musical copyright cases are not as straightforward. A case that has been far more complicated is Led Zeppelin vs. Spirit. This case was challenged many times, with multiple different verdicts and appeals. Led Zeppelin released “Stairway to Heaven” in 1971, and it became one of the most iconic rock songs of all time. With the song’s massive success, legal troubles followed its release. In 2014, over forty years after its release, the estate of Randy Wolfe, the frontman of the band Spirit, sued Led Zeppelin for copyright infringement.³ His estate claimed the song’s opening notes were stolen from Spirit’s 1968 song “Taurus” (fig 2).

Figure 2

Bennett, Joe. “What exactly did ‘Stairway to Heaven’ copy from ‘Taurus’?” April 14, 2016. https://joebennett.net/2016/04/14/what-exactly-did-stairway-to-heaven-copy-from-taurus

The claim was backed up by proving Led Zeppelin had direct access to the original song “Taurus,” as Robert Plant saw Spirit perform “Taurus” at a show in Birmingham in 1970. Both Plant and guitarist, Jimmy Page, testified on their own behalf claiming they did not intend to steal the opening riff at all. Page elaborated that the chord progression he used has “been around forever” and used by many musicians over the years.⁴

Due to both sides of the case feeling confident their respective claim was correct, it was not settled by a simple payment, and instead went to trial multiple times. In 2016, a six-day trial cleared Led Zeppelin of the copyright infringement charges. The jury rejected the claim that Plant and Page were not familiar with “Taurus” since they had direct access to the song and relative proof they heard it. However, the jury agreed the songs were “not intrinsically similar” which is necessary to prove infringement. Despite this verdict, the case was far from over. The original case was overturned in 2018 when it was discovered that the judge incorrectly stated “descending chromatic scales, arpeggios or short sequences of three notes” can still be considered melodies as well as can be deemed intrinsically similar.⁵ It was also discovered that “Taurus” had not been played for the jury in court, making the verdict invalid.⁶ The case was sent to the Supreme Court, which declined to hear it, and it was closed with the original verdict.⁷ This case specifically opens further discussion regarding coincidences which are bound to happen in music versus legitimate plagiarism. This claim could have gone either way, showing how careful songwriters have to be. To this day, it is still unclear whether Led Zeppelin were inspired by “Taurus” and whether or not they intentionally copied the intro of their iconic song.

Blurred Lines

Led Zeppelin might have walked away without paying the estate of Randy Wolfe, but not all artists are this lucky. A different outcome happened in the “Blurred Lines” case in 2014. “Blurred Lines” was released in 2013 by Robin Thicke and Pharell Williams, and was one of the biggest songs of the year, even receiving recognition from the Grammy Awards. Issues began later that year when Marvin Gaye’s family and Bridgeport Music Publishing Company claimed “Blurred Lines” infringed their copyright on Marvin Gaye’s song “Got to Give It Up.” The claim was based on the “feel” and “sound” of the track. Pharell Williams then sued both Gaye’s estate and Bridgeport Music Publishing for declaratory judgment, claiming “Blurred Lines” did not infringe the copyright.⁸ Williams was right, copyright law does not include “feel” or “sound.” He defended himself stating that the songs are “completely different…” just simply go to the piano and play the two. One’s minor and one’s major. And not even in the same key.”⁹ The counterclaim made by Gaye’s family was “many of the main vocal and instrumental themes of “Blurred Lines” are rooted in “Got to Give It Up”; namely, the signature phrase, vocal hook, backup vocal hook, their variations, and the keyboard and bass lines” and “the substantial similarities are the result of many of the same deliberate creative choices made by their respective composers.”¹⁰

The first trial for the “Blurred Lines” case was on February 10, 2015. The trial was solely based on the sheet music; “Got to Give It Up” was never played in the courtroom because it was decided Marvin Gaye’s voice did not play a role in the trial. The case came down to whether “Blurred Lines” infringed on signature phrases, hooks, bass lines, harmonic structures, and keyboard chords. The jury deemed Robin Thicke and Pharell Williams liable, and they were charged $7.3 million in damages, as well as half of the future royalties for “Blurred Lines.”¹¹ In 2016, Williams and Thicke submitted an appeal. In 2018, the verdict remained the same, but the penalty was reduced to half of its original amount, though they were still liable for half of the song’s future royalties.¹² This case has become controversial and established that the “feel” or overall vibe of a song can be enough to win an infringement suit, despite this not being stated in the copyright law. This case led to many similar infringement cases over the past few years.

Dark Horse

The “Blurred Lines” case can be seen as unfair to songwriters, as well as copyright lawyers who have intensely studied these statutes. Another case that went to court around the same time, but ended completely differently involved Katy Perry’s “Dark Horse.” In 2014, rapper Marcus Gravy sued Perry for infringement of his song “Joyful Noise.” He claimed the ostinato used in “Dark Horse” was intrinsically similar to that used in his track.¹³ Both songs include short eighth-note ostinatos that are looped throughout and are used as a part of the beat (fig 3).

Figure 3

Veregin, Lawrence. “Dark Horse Comes in Just at the Wire! A Music Copy- right Analysis.” The Spotlight, April 09, 2020.

The plaintiff hired a musical analysis expert who testified that the songs shared multiple points of similarity, specifically in these ostinatos. Similarities included phrase length, timbre, rhythm, and pitch context. The defendants claimed this was a small part of the song due to the differences in the ostinato and the fact that the similarities were not part of the “fundamental musical idea” of the song. They also brought up that many other songs came before “Joyous Noise” which included the same alleged similarities to the song as well, which is a common defense for musical copyright lawsuits.  On the matter of access, the defendants claimed they never heard “Joyous Noise” before the trial. However, the plaintiffs argued “Joyous Noise” was a viral Christmas rap song in the Christian community, citing over 4 million views on YouTube and other platforms. This issue will be seen more frequently in trials due to the prominence of the internet in the music industry. 

In July 2019, the jury found the writers and publishers of “Dark Horse” guilty of copyright infringement. The jurors took into consideration the number of views and streams “Joyous Noise” had acquired, as well as the fact that Katy Perry began her career in Christian music. They believed this proved the defendant had access to the song. The “Dark Horse” writers and publishers were ordered to pay the “Joyous Noise” team $2.8 million in damages. However, the defendants issued an appeal. In 2020, the court decided the jury did not correctly judge whether the two songs were substantially similar. The court also recognized the success of “Dark Horse” was due to Katy Perry’s extreme popularity, and the catchy hook and songwriting, not the similar ostinato. This time the court sided with Perry, stating “The portion of the ‘Joyful Noise’ ostinato that overlaps with the ‘Dark Horse’ ostinato consists of a manifestly conventional arrangement of musical building blocks. Allowing copyright over this material would essentially amount to allowing an improper monopoly over two-note pitch sequences or even the minor scale itself.”¹⁴  This case shows once again it can be very complicated to prove copyright infringement of a song, especially if a similar part is a diminutive element of the song. This was another case that continued the ongoing conversations on what elements of a song are copyrightable.

Thinking Out Loud

Ed Sheeran’s most recent copyright infringement allegation, which was closed earlier this year. Sheeran has been involved in multiple copyright cases; he settled a case for his song “Photograph,” and won his UK case for his song “Shape of You.” In 2018, the estate of Ed Townsend sued Sheeran, claiming he infringed on the copyright of “Let’s Get It On,” which Townsend wrote with Marvin Gaye. The claim stated Ed Sheeran’s Grammy-awarded hit song “Thinking Out Loud” had similarities to “Let’s Get It On,” specifically the chord progression, time signature, and bass line. The plaintiffs stated Sheeran “experienced a sharp and sudden rise as an international music star in less than eighteen months as a direct result of the commercial success of the release of ‘Thinking Out Loud,’” implying that this was due to the alleged similarities shared with “Let’s Get It On.”¹⁵

The case went to trial in New York City in May 2023. Sheeran, Amy Wadge (co-writer), and their team of publishers and lawyers defended themselves almost flawlessly. Sheeran gave the jury a brief description of chord progressions and explained how common it was for popular songs to contain similar progressions. He even played dozens of popular songs on his guitar that contained the same progression as “Thinking Out Loud” and “Let’s Get It On.” They were able to convince the judge and jury that the similarities of the songs were simply coincidences and are not valid forms of copyright infringement.¹⁶ Judge Stanton stated, “It is an unassailable reality that the chord progression and harmonic rhythm in ‘Let’s Get It On’ are so commonplace, in isolation and in combination, that to protect their combination would give ‘Let’s Get It On’ an impermissible monopoly over a basic musical building block.”¹⁷  He also added that the same chord progression has been used in popular songs at least 29 times before the release of “Let’s Get It On” and at least 23 times after its release. This case further proved that chord progressions are not unique enough to be protected by copyright laws.

Final Thoughts

Through analysis of these infringement cases, it is clear to see that such allegations can be difficult to prove. Although some of these artists, such as Vanilla Ice, clearly stole from other writers, some of them may not have meant to, and some may have known they were stealing but refused to admit it. Many aspects must be considered to prove plagiarism. Since the law only protects lyrics and melodies, it can be very confusing when songs sound similar, but there was no copying in the eyes of the law. On top of this, there also has to be proof the new artist and writers had access to the previously released song. This was harder to prove before the internet and streaming services became such a big part of the music community. Nowadays, a song on Spotify or Apple Music can be accessed by anyone, making it less fair to the artist who may not have heard the song but had access to it. 

For a fair trial to occur, juries could be educated on some basic music theory topics, such as scales, intervals, and chord progression. They should also be briefed on what copyright law specifically protects so they can make a decision that is fair for both sides. 

More music is being released nowadays than ever before. An artist does not need to have a major record deal to release music and have millions of people hear it. Anyone can decide to release a song through independent distributors. Millions of songs are released each year and there are commonly only twelve notes and a handful of common chord progressions used in popular music. There is bound to be some overlap. Due to these facts, many successful songwriters and artists feel that copyright infringement claims are disrespectful toward their craft. After his most recent lawsuit, Ed Sheeran stated, “There are four chords that get used in pop songs, and there’s however many notes – eight notes or whatever – and there are 60,000 songs released every single day,” he then added, “And if you just think mathematically the likelihood of this song having the same chords as this song … you are going to get this with every single pop song from now on – like, unless it just stops, which I don’t think it does because it’s a big money business to take things to court.”¹⁸ There is a valid argument to be made that copyright infringement cases can hinder an artist’s ability to create, as most songwriters are not constantly thinking about whether or not they will be sued when they are in the process of creating a song. 

Overall, it is important to find a way to protect artists and writers through existing copyright law and make these trials as fair as possible. There is no denying that people who plagiarize music should be penalized and proper credit and compensation given to the original writers. However, it is also important to not punish artists over coincidences that affect their ability to be creative.

Endnotes

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