Copyright and Some Cases of Plagiarism in the Music Industry
To establish some kind of measure or delimitation regards the ownership of something abstract is not always easy. The creation of stories contained in books coming from the imagination of an individual as well as musical products turned into songs requires a certain protection against the possible use of third parties. This is the origin of what we know as Intellectual Property, which contains the Copyright. In the context of Copyright, this article will concentrate on certain international regulations that tried and are also trying to protect these rights with the focus on the music industry and on certain emblematic cases of plagiarism.
To understand the legal framework that globally protects Copyright, some of the European and American regulations will be detailed below. From a global perspective, the first regulation to be mentioned is the Berne Convention. It was first made in the year 1886, being the object of several amendments, the last one in 1979. The Berne Convention sought to protect artistic and literary works and the rights granted to the author thereof. It stipulates three fundamental principles: the works of countries that integrate the Convention or published for the first time in one of them may receive in each of the other Member States the same protection that they grant to their citizens; this protection must not depend on the fulfilment of any formality and also on pre-existing protection in the country from which the work originates. The Geneva Convention of 1952 is the other global normative that also protects the author rights as the Berne Convention. In the European context, the most recent regulation available in relation to Copyright is the Directive (EU) 2019/790 of the European Parliament and of the Council of April 17th, 2019. It covers Copyright and Related Rights in the Digital Single Market and amends the two previous directives regulating the same subject matter (Directives 96/9/EC and 2001/29/EC). The purpose of this new directive of 2019 is to adapt the Copyright since the previous one was eighteen years old and had become outdated due to the technological changes that have taken place in the last twenty years. In the case of the United States, the author rights are regulated by the Copyright Act of 1976. It was amended in some cases (1998) and protects the expression of ideas but not the ideas themselves. It states that the ideas are part of the public domain and the monopoly of them is not allowed .
After exposing some of the most important international regulations regarding the Author´s Rights and Copyright, we will define now what is understood as plagiarism in the Music Industry. Plagiarism occurs when a piece of music is copied or adapted without obtaining the prior consent of the original author and without giving him the credit he is entitled to. The questions to be asked in this regard are: How can we define whether there has been plagiarism? What are the appropriate parameters to determine it? To answer these questions, it is necessary to analyse whether lyrics, arrangements, or melodies have been used without the prior consent of the original author. The context and the period in which the songs were created is also an object of analysis; if they are very similar and the time that separates both releases is short, the chances of plagiarism increase. The rhythm of the song, the harmony, and the chord progression used are other items needed to be considered under analysis and if the author of the suspicious song was familiar with the genre of the original one must also be considered. Anyway, all these requirements need to be analysed in a single case as is not easy to establish them for all the cases from an objective perspective.
A very famous case of plagiarism was the song “My Sweet Lord” written by George Harrison which was included in the Album “All Things Must Pass”, released in 1970. He was found guilty of plagiarism in 1976 by the United States District Court in Manhattan which determined that the ex-Beatle copied his song from another one named “He´s So Fine”, a John Mack song that was released in 1962. Richard Owen, the judge of the case, also mentioned that he did not believe that was done deliberately. On his verdict, he added that “He´s So Fine” was published in England and was one of the top hits of the early sixties so it was obvious that George was familiar with that composition. In addition to this, he added that the song was managed by Apple Records, the same recording company that had The Beatles at that time. He concluded that George Harrison was not conscious of this plagiarism, but he was very familiar with the song and unconsciously he wrote “My Sweet Lord” based on “He´s So Fine”. He was found guilty of unconscious plagiarism and was sentenced to pay $1.599.987.
Another well-known case of plagiarism was in 1989 when the group 2 Live Crew released a parody of “Pretty Woman”, a Roy Orbison´s song that was originally released in 1964. 2 Live Crew wanted to make a parody of Pretty Woman and after receiving the refusal from Acuff-Rose Inc. (Pretty Woman´s rights holder) they decided to do it anyway. After taking the case to trial, the U.S. Supreme Court of Justice sentenced that the parody performed by 2 Live Crew was fair use and was not equal to the original song so because of that it could not be considered as plagiarism.
In this article, some global and local regulations that protect copyright have been detailed and some emblematic cases of plagiarism in the world of music have been described. As we have seen, the line of analysis to determine whether there has been plagiarism in a given song is fine. In the first of the cases seen, it was determined that the author had made an "unconscious plagiarism" without intention but, nevertheless, given his knowledge and contextual proximity to the original song under analysis, it was concluded that evidently "My Sweet Lord" was a copy of "He's so Fine". On the other hand, in the second case, a song was deliberately plagiarized with the addition that the performers knew that the song rights owners refused to allow them to do the new song base on the original one. And, nevertheless, it was determined that such action did not constitute plagiarism given the parodic sense that the song under analysis had had as well as the distinctive features that differentiated it from the original one. The purpose of this text is to show that the field of copyrights and intellectual property is broad, subjective, and difficult to delimit. It could even be said that all these issues should be treated with caution because of the further impact the judicial decisions may have in future creations.
Bibliographical references
A Simple Guide to U.S. Copyright Law (2020). https://www.copyrightlaws.com/a-simple-guide-to-u-s-copyright-law/
Convenio de Berna para la Protección de las Obras Literarias y Artísticas Acta de París del 24 de julio de 1971 y enmendado el 28 de septiembre de 1979. http://www.mcu.es/archivoswebmcu/LegislacionConvenio/legislacion/convenio_berna_paris_240771.pdf
Hutchinson, L. (2015). George Harrison´s "My Sweet Lord" Copyright Case. https://performingsongwriter.com/george-harrison-my-sweet-lord/
Fair Use - Parody: Campbell, aka Skywalker, et al. v. Acuff-Rose Music, Inc. (1994). https://www.law.cornell.edu/supct/html/92-1292.ZS.html
Maza, P. (2023). Qué es un Plagio en la Música. https://pablomazaabogado.es/propiedad-intelectual/que-es-un-plagio-en-la-musica-plagio-musical/#:~:text=El%20plagio%20musical%20es%20cuando,de%20otra%20canci%C3%B3n%20sin%20permiso
Official Journal of the European Union (2019). https://www.boe.es/doue/2019/130/L00092-00125.pdf
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