When Does Inspiration become Infringement? The Impact on Copyright

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What is it about songwriters, musicians and copyright? Lately there has been an explosion of copyright infringement cases with bands, songwriters and artists accusing each other of stealing lyrics, riffs, parts of arrangements, melodies, harmonies and what have you. The high profile cases have involved such well known groups as Led Zeppelin, Demi Lovato, Ariana Grande and Ed Sheeran. In Sheeran’s case he is accused of taking key parts of a 1973 Marvin Gaye song, and is also being sued by two songwriters over his track Photograph. The plaintiffs claim that the chorus of Sheeran’s track contains no less than 39 identical notes with their song Amazing and that the chord structures are very close. Brad Paisley and Carrie Underwood have just had accusations of copyright infringement against them over their hit country song Remind Me dismissed after a three year process. The nub of the issue was the use of the phrase “remind me” repeatedly in both the Paisley/Underwood song and another Remind Me song written by the plaintiff. The judge ruled that the phrase was used quite differently in the two pieces.

Ever since a California jury awarded over $7 million to the estate of Marvin Gaye last year for copyright infringement by Pharrell Williams and Robin Thicke in the Blurred Lines case, (now under appeal) the music industry has been running scared. What happened to the good old days when there were good guys—the artists—and the bad guys—the pirates? The issue has become so controversial that composer Hans Zimmer, who had a copyright infringement case brought against him by another composer, Richard Friedman, actually received an apology from Friedman after the case was dismissed by the court, with Friedman saying he should never have brought the suit, blaming it on “a music expert”. Today it seems that any successful artist had better cast a long glance over their shoulder and be ready to defend their artistic integrity if and when challenged. Has musical creativity become so exhausted of innovation that it is impossible to create new works without standing on the shoulders of those who have gone before? Or is it inevitable that there will be borrowing and repetition of certain core musical elements that have become so common as to be almost unavoidable. Where does inspiration end and plagiarism or worse, copyright violation, begin? And what does it mean for creators and others in the copyright value chain?

Music is not the only area of copyright where accusations of theft of original material for reuse in other works have been brought forward, in short, where inspiration has become infringement. The movie industry has seen a number of copyright cases usually involving a relatively unknown author claiming that the script of a movie was actually based on a book they had written some time ago. Sometimes the book and the film contain only a few common elements. And since most movie scripts usually bear only passing resemblance to the book on which they are ostensibly based even when a licensing agreement is in place, the link between a book and a subsequent script can become very blurred when there is no agreement in place. Most such cases are normally dismissed before they ever get to trial, but it is worth remembering why copyright law is there in the first place–to protect authors–and there have been cases where infringement was established by the courts or an out-of-court settlement was reached. It’s even more complicated when an unsolicited script is submitted and a studio makes a film that bears some resemblance to the script. Who is to say that it was that particular script that became the basis for the movie, and not some other? It’s complicated and as a result there are very specific requirements that must be fulfilled before a scriptwriting case against a studio is likely to prevail.

Disputes about inspiration don’t always end up in court, but they still have the potential to harm a reputation. The noted Canadian writer Yann Martel, winner of the Booker Prize for his novel “Life of Pi” (later made into a movie, with full credit to Mr. Martel) became embroiled in a controversy with Brazilian writer Moacry Scliar who had written a book called “Max and the Cats”. Scliar’s book was about a young Jewish boy sharing a lifeboat with a panther. Pi of course was about the solo voyage of an Indian teenager, Piscine Molitor Patel, across the Pacific in a lifeboat—solo that is except for an enormous Bengal tiger. So we have panthers and tigers and boats. In the author’s note to his book, Martel acknowledges the inspiration he took from Scliar’s novel, although he claims he did not read the book, only a review of it. Nonetheless Scliar was not happy, resulting in widespread media coverage in literary circles, and a lawsuit was contemplated (but in the end not pursued) by Scliar’s publisher. The two books were apparently completely different; in fact the only similarity was reportedly (I have not read Scliar’s book) the lifeboat/wild feline element. Would this have been enough to establish a case of copyright infringement? We will not know but it seems unlikely. After all, you cannot copyright an idea, only the expression of an idea. Animals in boats, talking horses, vampires and other such “ideas” are all pretty generic.

It is more difficult–but not impossible–to imagine inspiration crossing the line and becoming infringement in other areas of copyright such as art and photography, but it can happen. As usual, it all depends on the degree of copying and originality, and often on the use to which the “copy” is put. If I am inspired by a Dali landscape of melting clocks and attempt to recreate that in a painting, could I be accused of infringement even though my (amateurish) painting wouldn’t bear much of a resemblance? It’s unlikely but not impossible to contemplate, although I will not lose any sleep over it. It was Picasso after all who is reported to have said “good artists copy; great artists steal”. Picasso and many other artists were inspired by the work of others, and this inspiration was often incorporated into their own work. Acknowledgment is often a key factor. A painting by someone inspired by Dali, but not purporting to be Dali, should be correctly marked as “after Dali” and signed with the artist’s name. Attribution and acknowledgement of inspiration works in the art world, but apparently not when it comes to music. Robin Thicke’s troubles were compounded by his open admission that he was inspired by Marvin Gaye’s music in writing Blurred Lines.

If being inspired by someone’s copyrighted art requires careful handling, what about photography? If I am inspired by a photograph, like the famous photograph by Art Rogers of a couple holding a litter of dogs (which was indeed the subject of a successful copyright infringement case when artist Jeff Koons created a sculpture based on Rogers’ photo), and if I decide to take my own staged photo that is similar in content, I had better be careful that it is sufficiently different from the original, especially if I intend to sell it. A lot depends on the subject. You can take a photo of a stop sign and so can I and they will be completely different works, but in the London bus case a British court found that a similar but not identical photo of the iconic London bus against a monochromatic Westminster background infringed the original photographer’s copyright (although the second photo had been manipulated, a further factor). So it is complicated, as it is in the music world. The end composition can be different, the lyrics and key can vary from the original, the theme and mood can be different but if some key elements of my new composition substantially resemble elements of an earlier work that I was aware of, and have thus drawn inspiration from, then I could be accused of, and even found guilty of, copyright infringement. (Especially if my song makes a lot of money).

What does all this mean for the world of copyright? For musicians, the challenge is obvious. This is why more than 200 musicians have filed an amicus brief in the appeal of the Blurred Lines case supporting Williams and Thicke. For those who work in the copyright world, and who respect copyright, these cases pose particular challenges. The copyright system is in place to protect creators and artists and to ensure that they are rewarded for their work. Lawsuits involving disputes over authorship are complex and often controversial. The Blurred Lines case has brought out many critics, including the musicians mentioned above. More worrisome though, it has also provided a pretext for organizations that push for weaker copyright laws under the guise of “balanced copyright”, such as the EFF and Public Knowledge, to jump on the bandwagon. Behind much of the rhetoric of these organizations is a desire to gut the copyright system, not balance it, and cases like Blurred Lines provide a convenient smokescreen to undermine the rationale for strong copyright protection.

The Blurred Lines appeal may provide some clarification as to what constitutes actual infringement and this could have an impact on the current spate of alleged infringement cases as well as those contemplated in future. The line between inspiration and infringement may not always be as clear and bright as one would like, which is why we have a legal system to adjudicate. But this doesn’t mean that the copyright system is broken. There will always be cases in that grey area between inspiration and infringement, and they will sometimes be controversial. That is no reason to throw out the baby with the bathwater.

© Hugh Stephens 2016. All Rights Reserved.

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