At the current stage of social and economic development, the role of the results of intellectual activity, including copyright objects, is steadily growing. The use of these results in the field of music has traditionally been widespread. The recent rapid growth of the copyright market in the field of music leads to an increase in the number of infringements in this field. This, in its turn, leads to an increased number of disputes regarding music copyright protection. The most significant issue is the question of where to draw the line between inspiration and appropriation when it comes to musical compositions. This question is at the heart of many famous high-profile court cases. This paper claims that it is hard to draw the line between inspiration and appropriation as it has always been blurred due to the fact that in some cases, the one who appropriates wins. Such issues take place because the law regarding music copyright is very controversial and confusing. Besides, it makes freedom of speech controversial and confusing as well.
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Background and the Line between Inspiration and Appropriation
The people in a society have always been exchanging and using the ideas of each other. This can be seen in the quotes of such famous people as Pablo Picasso and the playwright Wilson Mizner. Thus, Picasso once said that Good artist’s copy; great artists steal; and according to Mizner If you steal from one author, it’s plagiarism; if you steal from many, it’s research (Crosse, 2016). The line between inspiration and appropriation is constantly redefined. All thoughts and ideas are influenced by the already formulated thoughts and ideas to a different extent. This is especially the case of the music compositions. According to the theory, western music is composed of only twelve notes, which could provide almost an infinite number of songs, though they will all have these notes in common (Runtagh, 2016). Moreover, the most interesting thing is that the discussion and the standards differ according to the context; in one case the appropriation may be seen as appropriate when in the other even the inspiration is considered as a theft (Crosse, 2016).
The legal cases regarding the blurred line between inspiration and appropriation started in the 20th century, and since that time, they have only gained momentum. The accusations of appropriation vs. inspiration do not end and take place in many industries. In the music industry, the perception of appropriation has significantly changed since the emergence of hip hop and the development of sampling (Crosse, 2016). Hip hop was born in the 1970s and was immediately criticized for being of unoriginal nature, which was mainly due to the melody this genre came along with (Birdsong, 2007). Thus, DJs experimented with records of popular songs on two turntables and an audio mixer, while MCs used to rap (the term meaning street conversations that were used in African American dialect for a long time) to make people dance (Birdsong, 2007). And here comes the first blurred line. The rap is lyrically originated from the black poets of the 1960’s Black Arts Movement, from the musicians of blues and jazz genres of the 1920-1930s, and from traditional African oral historians, called griots, and it was common to inspire or appropriate from these previous works (Birdsong, 2007). However, in the case of the accompanying and interrelated sampling – taking a portion, or sample, of one sound recording and reusing it as an instrument or a sound recording in a different song or piece was considered as plagiarism, though for the first time. Later, hip-hop music became to be considered authentic art. According to one of the most prolific samplers in English literature, T. S. Eliot, hip hop is the essence of art with its tendency to include allusions, quotes, fragments, and analyses of the past in the present (Birdsong, 2007).
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Moreover, for the hip hop, the outside inspiration and appropriation have always served as means that help to improve the original message of the art, but definitely not as things that help to acquit the theft of someone’s work. The rap musicians have always borrowed phrases and parts of songs from traditional black musical compositions, such as spirituals, gospel, jazz, and the blues, thus, consciously paying tribute to artists of these genres, who were considered cultural and artistic ancestors of hip hop as well. Besides, the hip hop musicians believed that using ideas of such legends as Bessie Smith, Miles Davis, Diana Ross, and others, they promote the black community in general and raise the pride in the hearts of its members in particular (Birdsong, 2007).
Thus, the struggles to find the line between inspiration and appropriation both in the past and in the future can be clearly seen. Today, while some level of appropriation is perceived acceptable, many artists still continue to sue against each other regarding plagiarism; many grey areas still exist in this field.
Cases Regarding the Music Copyright Infringement
It is also hard to draw the line between inspiration and appropriation when it comes to musical compositions. In some court cases a musician, who was accused in too much appropriation or plagiarism, wins while in others the case is won by the one who brought it to the court. Sometimes, the cases are settled out of court. For example, in the case of “Oh, Pretty Woman”, written in 1964 by Roy Orbison, vs. “Pretty Woman”, written in 1989 by 2 Live Crew, the latter was accused of using the idea, tune, and some words of the first song without the permission (Runtagh, 2016). Indeed, the song of the Crew leader, Luther Campbell, was a humorous take on Roy Orbison’s song describing that woman in less pleasant terms. Besides, previously Campbell asked for permission from the song’s publisher but received the denial. However, he did not take it into account (Runtagh, 2016). Though, reaching up to the Supreme Court, Campbell and his 2 Live Crew were released from any accusations as the court claimed the “Pretty Woman” being a parody; thus it is an inspiration and can be fairly used (Runtagh, 2016).
Another example is the case of “The Old Man Down the Road,” written in 1985 by John Fogerty, vs. “Run Through the Jungle,” written in 1970 by Creedence Clearwater. Fogerty was accused of stealing from the song from Clearwater (Runtagh, 2016). In fact, before 1972, Fogerty had a band together with Creedence Clearwater, Revival, during which the “Run Through the Jungle” was written and recorded. However, 15 years later, after the split and the refusal to perform songs of the previous band, Fogerty wrote the song “The Old Man Down the Road”, which seemed to be stolen from Creedence Clearwater (Runtagh, 2016). Thus, the Supreme Court released Fogerty from any accusations and ruled the Creedence Clearwater to recoup his legal costs because Forgetry brought a guitar to the court and demonstrated that the two songs were actually different (Runtagh, 2016).
On the other side, in the recent case of Blurred Lines by Robin Thicke vs. Got to Give It Up by the family of Marvin Gaye, Thicke was accused of stealing from Gaye (Challis, 2015). In fact, both songs were copied from the third, already established song. Particularly, sound formulas such as the bass lines, falsetto vocal, percussion, and even the party sounds that were common between the two songs appeared in the affair and the common source, which should be perceived as inspiration. However, the court ruled in favor of Marvin Gaye and made Thicke pay the reimbursement accounting for $7.4 million, though Thicke tried to prove the fact of common source existence (Challis, 2015). Moreover, in the case of “Dazed and Confused by Jake Holmes against “Dazed and Confused” by Led Zeppelin, the latter was accused of stealing the idea, motives, words, and music of the former. In fact, the Led Zeppelin’s song was recorded in one take with a Telecaster and violin bow using new blues lyrics (Mccabe, 2015). The case was settled out of the court as the suit was “dismissed with prejudice.” Eventually, the song credit of the song was changed to the “By Page Inspired by Jake Holmes” Thus, the line between inspiration and appropriation can be too hard to prove. This is especially the case of young only developing musicians, who do not have so much knowledge, power, and resources to prove this line. The reason is that the law regarding music copyright infringement is controversial and has many loopholes, such as the fair use defense, performing for the jury, and the common source mentioned in the case examples.
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The Law Regarding Music Copyright Infringement
Musical compositions and infringements regarding them are protected by copyright law. Under the Copyright Act of 1976, the copyright automatically exists without the need to register in any copyright offices every time when creating original piece of music (Ugwu, 2015). However, according to Paul Fakler, a veteran copyright lawyer with a specialty in music law, copyright law is the most metaphysical of all the laws which he dealt with and can be very confusing (Ugwu, 2015). First of all, there are such confusing things as ideas, volume, and the public domain. Thus, the copyright does not protect the ideas in the music compositions, but rather the creative expressions of these ideas, such as melody, chord progression, rhythm, and lyrics. Besides, it should not necessarily be a whole composition that is copied or appropriated, but a small part of it, such as one chord progression, could be enough to be protected (Ugwu, 2015). Additionally, the copyright is not applied to the public domain which is also very confusing to define as it has many limitations (Lehman, Phelps, 2008).
Moreover, it is hard to draw the line between inspiration and appropriation regarding musical compositions because the copyright law confuses people in terms of proving the “substantial similarity” when drawing this line or claiming infringement (Ugwu, 2015). Thus, the defendant does not need to have a particular intent to infringe; the claimant should only have to prove that the defendant had “access” to the original song and that both songs have a “substantial similarity.” While the access has nothing in common with the reason of the blurred line between inspiration and appropriation, the substantial similarity has. Substantial similarity involves the ability of an average listener to tell that one song was copied or appropriated from another (Ugwu, 2015). The more fragments and elements will be similar in the two songs, the more substantial similarity they will have. However, when one song is just inspired by the other and not copied, there will be also many things in common. Besides, the fact that all music compositions are protected by two types of copyright, composition and sound recording, provides more complexity as these issues should be examined separately. According to Fakler, songs that people hear are usually sound recordings with many creative decisions of performers, thus the court may hear similarities between the two songs because of the similarities of performances, but not of the songs written by the songwriters (Ugwu, 2015).
Furthermore, the most important thing in the law that contributes to the blurred line between inspiration and appropriation is the loopholes. One of such loopholes in the Scnes faire, or the already mentioned common source. Thus, when the music has a common element, such as the genre, it can be freely used (Huck Magazine, 2016). So, even if the composition was appropriated from someone else, it could be claimed as inspired from the common source and should not be restricted. Another loophole is fair use. It involves the fact that the songs that fall under fair use, such as parody songs, can be freely used (Huck Magazine, 2016). So, even though the parody songs borrow the elements from other songs and therefore appropriate, they could be claimed as inspired. The next loophole is the statute of limitations. It involves the fact that the copyright infringement claims should be made within a 3-year period; after the expiration of this period, they will not be taken into account. So, one song could be the appropriation of another, but after the 3-years period, it is considered as inspiration. Moreover, the loophole de minimis involves the fact that the small elements of the song that are stolen and that are hard to notice by the consumer could be freely used. Thus, some elements could be appropriated from other songs but could be considered inspired due to being hard to define. There are also other loopholes, but these are the most confusing.
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How Does this Issue Affect the Principle of Freedom of Speech?
The blurred line between the inspiration and appropriation regarding musical compositions is not only confusing itself, but it also affects the principle of freedom of speech as singing, as well as writing song texts, also refers to saying. This involves such important law as the Universal Declaration of Human Rights. It protects the music copyright under the freedom to create, and Article 27 that states that: Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits” (Dessemontet, n.d.).
It is the complement to the freedom of speech; both freedoms are interrelated. However, the Declaration simultaneously proclaims the freedom to create and speak, the freedom to benefit from the creation and speech, and the protection of the copyright, therefore making the line between fair use and copying blurred and affecting the freedom of speech at the same time (Dessemontet, n.d.).
In general, the blurred line between inspiration and appropriation created by the law and its effect on the freedom of speech could be seen from the two sides. Thus, from one point of view, the law, particularly the music copyright, restricts the freedom of speech. Taking into account that copying is illegal, the copied words could not be used in the own speech, thus making it restricted and not free (Sax, 2016). The copyright law allows those who say original sentences not influenced by someone’s previous statements to speak freely, while others are left with restricted speech. However, from the other side, due to the existence of the loopholes in the laws, such as the fair use that also protects the comment and criticism, the freedom of speech could not be affected (Dessemontet, n.d.). People can say anything they want, even if it is appropriated, and claim these words as common or fair. So, again the blurred line between inspiration and appropriation in musical compositions transfers to the Universal Declaration of Human Rights and the freedom of speech making it also controversial.
In conclusion, it is quite difficult to draw the line between inspiration and appropriation when it comes to musical compositions, and it has always been so. In the past, the sampling in rap was considered appropriate, while the sampling in hip hop was considered inappropriate. Currently, some level of inspiration is present in each composition, but musicians continue to use it against each other. The line between the inspiration and appropriation is blurred because in some cases the sampler wins, while, in others, loses as in the examples of the 2 Live Crew and Robin Thicke respectively. The reason for this issue is that the law regarding music copyright infringement is very confusing. At first, it confuses people when proving the substantial similarity, and then – by having a lot of loopholes. Finally, such a blurred line between inspiration and appropriation transfers to freedom of speech and makes this right confusing too. On the one hand, people are restricted to speak what they want because it involves an inability to use someone’s words. But, from the other side, the law doesn’t restrict this freedom and even facilitates it through protecting comments and criticism.