The Complex History of Plagiarism in Music
As far as dysfunctional relationships are concerned, art and commerce is a broken marriage. And yet one begrudgingly depends on the other for protection of assets and a steady income. Artists uphold the right to defend the worth of their original ideas. Similarly, barons of big business uphold the right to defend their clients in cases where original thought has been appropriated or, at worst, pirated. But how do we define originality in a time where the culture of perpetual reproduction and emulation is universally accepted as the norm?
When pressed on matters of an artist’s creative estate, peace-mongering pacifist, Wayne Coyne put it best. “There is obviously a fine line between being inspired and stealing,” he conceded when asked about the audial similarities between The Flaming Lips’ single Fight Test from the band’s 2003 breakthrough record Yoshimi Battles the Pink Robots and Cat Stevens’ song Father and Son, which was released over three decades prior. Sonically, the parallels are not only explicit but reportedly non-coincidental. The estate of Cat Stevens put forward the case that segments of Fight Test overtly plagiarised the original intent of Father and Son while the Flaming Lips claimed ignorance over not seeking clearance from the singer-songwriter’s record label before releasing the track. 75% of Fight Test’s royalties are now beelined directly to Stevens and Coyne admittedly suffers from mild embarrassment over the accusation.
Cases such as this make up the rippled muscles of the music industry’s business arm. Coyne held no malicious intent when unconsciously referencing Cat Stevens in a song. But the similarity was arguably too unsubtle to ignore. This, as we’re currently enduring with Radiohead and Lana Del Rey in the latest of an attention-sapping sprawl of plagiarist accusations, is where the waters between law and artistry are muddied. Where does the fine line that Coyne speaks of sit? Should an artist or musician still be formally penalised if semblance between their art is an unconscious coincidence? And if so, how can an artist vindicate themselves from such accusations?
As history dictates, no matter how trivial the matter, it’s actually easier to incriminate artists over their alleged theft of creative property than it is to absolve or exonerate them from legal action. In most publicly recognised scenarios, the lawsuits are not only justified, but hold the potential to generate tectonic paradigm shifts in the ownership of music. Essentially, if a re-appropriated sample or sound is not cleared by the bodies that own the rights to the original score, levies will be persistently applied to those involved with the theft. Mammoth commercial lawsuits against some of pop’s most successful chart hits seem to have multiplied over the past decade on both a micro and macro scale. Back in 2015, Tom Petty was awarded songwriting royalties and co-writing credits for Sam Smith’s Stay With Me. While regarded as “nothing more than a musical accident,” by the amicable rockstar in an online statement, 12.5% of Stay With Me’s royalties are now owned by Petty’s estate.
Habitually, as soon as names are made public in copyright infringement cases, suits are settled outside of the courtroom. But sometimes these honest musical mistakes can be financially immobilising. One of pop’s most innocuous songwriters, Ed Sheeran has faced legal action on multiple occasions due to assumed plagiarist activity. A $20million lawsuit for the song Photograph was settled outside of court following accusations the song copied a ‘note-for-note’ (39 to be precise) chordal progression of X-Factor winner, Matt Cardle’s song, Amazing. Writing accreditation was also offered to TLC last year following the success of Sheeran’s record breaking single Shape of You, which mimicked the group’s melodious vocal hook. And now, only within the past weeks, Sheeran faces further accusations of plagiarism by Sydney songwriters Sean Carey and Beau Golden for The Rest of Our Life; a song the British singer co-wrote for Tim McGraw and Faith Hill. Again, the representatives of Carey and Golden have deemed Sheeran’s track to be almost a note-for-note rehash of country song When I Found You and claim that the “copy…is obvious to the ordinary observer.”
This notion of the ‘ordinary observer’ is a cryptic and uncertain definition for a majority verdict in which one piece of music has categorically copied another. Does the ‘ordinary observer’ take note of the similarity between emotive dynamics of songs? In some cases, such as the ongoing battle between Pharrell Williams, Robin Thicke and the Marvin Gaye estate, plagiarism extends beyond that of the original sheet music. In the most high-profile music plagiarism lawsuit since George Harrison was accused of copying elements of his rock ballad My Sweet Lord from The Chiffons track He’s So Fine, this embittered entanglement between Williams and Gaye’s heirs has presented musicologists and lawyers alike to establish whether a sound and groove of a track holds enough legal gravitas to prove copyright infringement. “We owe it to the creative world to make sure this verdict does not stand,” said attorney Howard King when appealing against the $7.4million jury verdict in support of the Gaye estate.
But despite those willing to fight against the ambiguity of unconscious creative ownership, many cases, especially in the realm of hip-hop, are due to sheer negligence to clear samples with labels. From Biz Markie being sued in 1991 for not receiving permission to use a sample from Gilbert O’Sullivan’s Alone Again, to Raekwon, Ghostface Killah, Method Man and RZA being hit with a lawsuit in 2009 for New Wu’s illegal use of The Magitone’s 1971 song I’ve Changed, sampling without the creator’s consent is ubiquitous throughout the genre.
The general rule of thumb is for musicians to give credit where credit is due or suffer the repercussions in or out of court. Yet this was not the case for the most heavily sampled measure of music to enter a producer’s creative consciousness. The four-bar drum solo commonly known as the Amen Break garnered attention from DJs and turntablists from the 1980s onwards and became the staple sound of hip-hop breakbeat, hardcore, drum’n’bass and jungle. Originally performed by Gregory Sylvester G. C. Coleman in the 1960s funk song Amen, Brother, the drummer’s percussive break unknowingly conceived entire subcultures having been sampled over 2200 times. Neither Coleman, nor the song’s copyright owner Richard L. Spencer received any royalties for the sample’s use, inspiring DJs Martyn Webster and Steve Theobald to set up a GoFundMe campaign to raise money for the owner as a humbled thank you. The Amen Break has been a gift to the world that realigned the trajectory of contemporary music for free. And while many of the sample’s abusers have profited from its addition in their compositions, there exists an immorality in the knowing that its creators failed to reap the benefits.
For the most part, songwriters today are incessantly cautious and protective over their ideas. This is what makes the outcome of Radiohead vs. Lana Del Rey equally as tenuous as it is tense. Whether or not the chord progression to Del Rey’s album closer, Get Free, replicates, copies, steals or simply sounds similar to that of Creep (and by default, Albert Hammond Sr and Mike Hazelwood’s song for The Hollies, The Air That I Breathe), the extremities of copyright infringement in the music industry seem to not only resonate louder upon each passing year but become all the more dubious. If the Amen Break acts as a gross oversight by both the original writers and its plagiarists, then the dilute similarities between a familiar chord progression should hold no grounds for such severe legal action.
That fine line between flattering inspiration and career flattening infringement that Coyne spoke of has become all the more blurred.