How Close is Too Close: Licensing and the Law

April 3, 2017

For this week’s blog we thought we’d take a look at an issue that’s equally important to music supervisors AND artist – copyright law. When it comes to music, how close is too close?
We’re all familiar with at least a few examples of artists getting into legal trouble after recording a song that closely resembles another. Recently we’ve heard about Led Zeppelin being accused of plagiarism by the band Spirit, Sam Smith’s “Stay With Me” being compared with Tom Petty’s “Won’t Back Down,” and probably the most complex instance, Robin Thicke’s “Blurred Lines” cutting it too close to Marvin Gaye’s “Gotta Give It Up.”
If there’s one takeaway from these kinds of conflicts, it’s that music copyright law is messy, and often, largely subjective. Similar cases can yield widely different results, making it nearly impossible for both music creators and licensors to know exactly where the line is. And with billions of songs in existence is it even possible to create something wholly original?
The good news for honest, hardworking musicians is that accusations of plagiarism have been notoriously tricky to prove. The vast majority of cases are dropped, settled, or simply never pursued at all, since music is so deeply subjective and bringing these issues to a jury is a bit of a gamble. But the “Blurred Lines” case seems to be an exception, resulting in a massive defeat for Thicke and Pharrell and making musicians everywhere a little more nervous.  So what is the law, and how can we do our best to protect ourselves and our music?
Proving Access
In the eyes of a court, there are two things that must be proven beyond a reasonable doubt to constitute plagiarism. The first is access – that is, it must be proven that the accused had access to the music in question. Decades ago, the question of access was more clear cut – could the accused have reasonably purchased an album containing the song? Or did he or she attend a live performance where they might have heard the song?
Today, the concept of access is infinitely more complicated, as anyone with an internet connection has unlimited access to nearly every significant piece of music ever recorded. Music that doesn’t exist on the internet might as well not exist. So today, proving access is trivial in most cases.
Proving Substantial Similarity
The second element is where things get very, very fuzzy. To prove that a copyright infringement has occurred, what must be shown is a “substantial similarity.” If you’re already wondering exactly what “substantial” means, you’re on the right track – and unfortunately, there are no simple answers for you. Contrary to popular myths, there is no magic number of notes in a melody, or words in a lyric, that constitutes infringement. In the eyes of the law, it’s all about intent.
Generally, a plaintiff in a copyright case will be arguing that one or more similarities between their work and that of the defendant could not be explained by coincidence. Some examples from copyright expert William Patry include:

Uniqueness, intricacy, or complexity of the similar sections.
If the plaintiff's work contains an unexpected or idiosyncratic element that is repeated in the alleged infringing work.
The appearance of the same errors or mistakes in both works.
Fictitious entries placed by the plaintiff that appear in the defendant's work. For example, fake names or places are often inserted in factual works like maps or directories to serve as proof of copying in a later infringement case since their appearance in a defendant's work cannot be explained away by innocent causes.
Obvious or crude attempts to give the appearance of dissimilarity.

As you can imagine, it’s easy to argue the definition of “unique” or “idiosyncratic,” and this is where it can be risky to put things in front of a jury of non-experts. When discussing substantial similarity, we must resort to vague questions like, “Does it have the same feel?” or “does it remind you of something else?”
Where is the Line?
So what can a music creator or licensor take from all this? To put it as simply as possible: it’s better to be safe than sorry. If you think your track might be too close to something – it’s probably time for some tweaks. First you’ll need to isolate the offending element – is it melody, accompaniment, percussion, lyrics, something else? – and replace it. When in doubt, it’s always a good idea to have a friend listen with fresh ears. If you feel like there’s a substantial similarity, there are lots of tricks that can take your track in a different direction without significantly altering your vision. Some of those include: changing the key, tempo, or rhythm of lyrics, as well as changing production elements like distinct samples or patches.
When a copyright infringement is uncovered, it’s the composer who’s typically on the hook for damages. But when you’re an artist embroiled in a copyright suit, money is only the start of your troubles. These kinds of issues – even if the accusations are completely unfounded – can put a huge strain on all of your professional relationships. If you license through a publishing company, they may be forced to pay if you cannot. If you’re working with a film or TV studio, you may damage not only your own reputation but that of the studio and potentially the music library you’re working with. The music industry, as well as that of TV and film, is smaller than you think, and big mistakes aren’t easily forgotten.
The same goes for music supervisors. Often temp music on a project is replaced with a cheaper option, and when the replacement track is too close, it’s easy to show some degree of intent. While you’re unlikely to be targeted for damages as a supervisor, using a bad knockoff track certainly isn’t worth the headaches that may come with it.
While originality is what all artists strive for, it’s impossible to know every piece of music and avoid every potential influence. But by being aware of the laws and being thoughtful about your art, you can avoid major trouble and perhaps even strengthen your own voice in the process.

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