Serena Nath is a 1L JD candidate at Osgoode Hall Law School.
It used to be that occasionally we would hear in the news that some artist is suing some other artist for infringing their song. You may remember the big music copyright infringement case of 2012, where Robin Thicke was sued by Marvin Gaye over claims that Thicke’s hit song “Blurred Lines” infringed on Gaye’s “Got to Give It Up”. However, nowadays, it seems that many major artists are frequently being sued for copyright infringement.
Originally, copyright in music only targeting lyrics and melodies that sounded similar between songs, helping to protect artists and uphold integrity in the music industry. This prevented typical building blocks of Western music, such as arpeggios or musical phrases, from being copyrighted. This also prevented musicians from copyrighting themes in music, and a song’s composition or general pattern. In Canada and the United States, copyright infringement generally requires two components to be present: 1) copying of work in which copyright subsists, and 2) this copying was a “substantial part” of the original work.
Current Issue
The case against “Blurred Lines” revolutionized copyright claims in music. This case allowed for more abstract qualities such as a song’s rhythm, tempo, and feel to be eligible grounds of infringement. Where does this leave the music industry now? Can musicians be sued for using the basic building blocks of Western music that were formerly protected? Based on the past decade, it seems that many artists, such as Ed Sheeran and Dua Lipa, are facing infringement claims based on these exact things (with articles about both Sheeran and Lipa’s copyright cases to follow on the IPilogue later this week).
With so many artists being sued frequently for infringement, many musicians and record labels are now fearful and hesitant before releasing songs. Large record labels and successful artists may be able to afford mixologists to ensure there are no copyright issues in new songs or obtain expensive error-and-omissions insurance for copyright infringement. It is unlikely that smaller musicians and record labels will be able to afford such services—will they stop producing music due to the fear of being sued? If so, how will this impact the evolution of music?
Additionally, how does this interpretation of copyright reconcile with what music is supposed to be about? Music is supposed to be a medium by which borrowing from other musicians is commonplace and evolution is encouraged. For example, transforming existing music via digital manipulation and sampling is a key component of hip-hop and some forms of electronic music. Additionally, “covers” of existing songs are highly common and innovation in genres like jazz commonly stems from studying “standards” and their re-composition. If copyright prevents using key components of certain music genres, will that halt the genre’s evolution as a whole?
Possible Solutions
Copyright is still essential in some respects due to the protection it provides musicians from blatant plagiarism. However, the way copyright is currently used and interpreted in the music industry seems to conflict with its original purpose of fostering progress. Thus, copyright in music needs to be re-evaluated. Giving greater importance to musical expertise in copyright infringement lawsuits may allow for more relevant determinations of whether the two components required to prove copyright infringement are truly present in the accused work, leading to stricter interpretations of copyright infringement in music.
Or, perhaps, copyright infringement in the music industry will self-correct without outside intervention. Recently, Katy Perry was successful in appealing a copyright infringement claim for her song “Dark Horse”. In 2019, a jury decided that “Dark Horse” had too similar of a musical phrase to the 2009 song, “Joyful Noise” by Flame. However, an appeal court overturned this decision in March 2020, stating that Flame was claiming copyright for “musical building blocks” which was not allowed. Maybe there is hope for the music industry but only time will tell.