Copyright Law and the Music Industry: Part I


By Katie McCort of Rock Edition


The 2014 Grammy Awards proved to be an impressive night for French electronic duo Daft Punk. Guy-Manuel de Homem-Christo and Thomas Bangalter walked away with five of the night’s top honors, including Album of the Year for Random Access Memories (Columbia Records, 2013) and Record of the Year for the house group’s summer smash hit “Get Lucky” featuring Pharrell Williams. While Daft Punk’s wins appear to be well deserved given the album’s meritorious popular and critical reception, those discerning of “Get Lucky”‘s originality may be put off by the results of this year’s Grammys.

Earlier in 2013, “Get Lucky” was accused of ripping-off YouTube famous Zack Kim’s popular guitar track, “Robot Dance.” Metro reported in September 2013 that a Reddit user had suggested that “Get Lucky” sounded substantially similar to the Korean guitarist’s 2011 YouTube upload. A copyright controversy ensued, leaving both fans and haters of the song to contemplate if Kim should sue the powerhouse duo for the infringement. However, no lawsuit was ever filed and the similarity between the two songs was accepted to be mere coincidence. Legendary singer-songwriter Bonnie Raitt summed the dispute up best when she told Metro that, “There are thousands of songs in the last two years that have the same chord progressions…Unfortunately, chord progressions can’t be copyrighted. If they could, there would only be eight songs.”

This logic may have stopped Daft Punk from facing legal trouble with their popular, now two-time Grammy-award winning tune. However, not all music publishers have been discouraged from taking out impractical lawsuits in court.

Berklee College of Music professor and intellectual property consultant Dr. E Michael Harrington proposes that the music business has a tendency to abuse the copyright law. “[The industry] exploits the copyright law like [the U.S.] exploits children in Bangladesh,” he assesses, specifically citing a recent lawsuit between the American rock band The Black Crowes and American country artist Gretchen Wilson to justify his claim. In 2008, Wilson was brought to court over a short melodic phrase in her song “Work Hard, Play Harder,” that was allegedly a copy of a short chord progression within The Black Crowes’s “Jealous Again” from their 1990 album Shake Your Money Maker. Wilson’s publishers conceded to the suit, awarding half of Wilson’s copyright to The Black Crowes for about five notes of music within a one second duration.

“That’s nonsense,” remarks Dr. Harrington, “we’re talking less than two seconds of music. Just because you both used the same tiny phrase, you shouldn’t lose half of your money.”

Luckily, Dr. Harrington explains that these types of lawsuits do not happen as often as one may assume: “People who accuse others of infringing copyright [are] usually crazy. There are good reasons not to sue. For one, it costs too much and you don’t know the outcome. And it takes too long–the quick one is two years.” He further continues that lawsuits over copyright infringement are usually settled out of court where the defendant gives the prosecutor thousands of dollars to “shut up.” However, these settlements have given publishing companies incredible monetary incentives to exploit the law for capital gain, leading to what appears to be an increase in petty copyright lawsuits.

Theoretically, one could make the argument that Daft Punk could have faced a legal debacle if “Robot Dance” was a highly-profitable mainstream release instead of a very successful YouTube post. This wouldn’t have seemed out of place given the recent and often unsound lawsuits tackling copyright infringement in the music industry. Some of the most popular examples include Marvin Gaye’s estate versus Robin Thicke over “Blurred Lines,” R&B singer Devin Copeland and songwriter Mareio Overton versus Usher and Justin Bieber over “Somebody to Love,” producer Vincent Peters versus Kanye West over “Stronger,” Arcade Fire versus Delta Goodrem over “Sitting on Top of the World,” and The Black Crowes versus Gretchen Wilson over “Work Hard, Play Harder.”

As The Black Crowes/Gretchen Wilson case specifically shows, the growing number of chiefly unsanctioned copyright disputes within the last five years calls for a solution:

How can suing over copyright disputes for profit be discouraged within the music industry?


Unfortunately, this issue has no easy solution and creates a conflict that is far more complicated and more perilous to the productivity of the music business than “crazy” publishers looking for a quick buck. A seemingly easy solution would be to make a more explicit and well-construed copyright law that would require specific definitions detailing the duration and numerical amounts of individual notes and phrases that would have to be copied within a piece of music to count as a copyright infringement.

Dr. Harrington identifies that “there’s nothing in the U.S. copyright law to help you determine whether or not one music composition infringes another. It’s insanely vague.” Regardless, he makes it clear that making the copyright law more stringent would not be a sufficient solution to the law’s abuse within the industry. He asserts that “it is likely impossible to change the law in a way to give much clarity to the determination of infringement.”

Professor at the University of Vermont and copyright and intellectual property law consultant Dr. Alexander Stewart agrees, insisting that “the law is going to end up having criteria that is somewhat less than clear cut…It’s not just that the copyright law is vague, it has to be.” In other words, including such provisions in the law that would demand that a certain amount of copied notes be present in order to introduce a suit to the courts would demean the structure of the law itself. Even if this type of requirement could, in theory, discourage vague and frivolous copyright infringement cases, evolution of the law should be left to the jury to decide in order to preserve the institution of the law.

Of course, Dr. Stewart acknowledges that preserving this institution and allowing the jury to justify the legitimacy of such cases favors the industry: “Big record companies can hire teams of lawyers and fight any kind of claim against their roster of artists much more easily than somebody who has had their work stolen. The problem is that the legal system is set up in such a way that you need a lot of resources in order to pursue a case.”

What does all of this mean for the future of copyright law in the music industry? Unfavorably, this means that lawsuits such as The Black Crowes versus Gretchen Wilson will continue to be irrationally fought in court and songs such as Daft Punk’s “Get Lucky” will continually be held under fire as a copycat. This furthermore decreases the legitimacy of copyright law, whose purpose is to invoke innovation and preserve creativity; not stuff the pockets of industry executives and frame common chord progressions as out-right fraud.


What hit-song will be summoned into court next as a victim of this bloated and vague institution?  We most likely will not have to wait very long to find out.