By, Arnav Bose
On 9th March 2020, the United States Ninth Circuit Court (‘US N.C.C’) passed a judgment in the publically acclaimed case of Michael Skidmore v. Led Zeppelin (‘Led Zeppelin case’) which held that the renowned Led Zeppelin song “Stairway to Heaven” did not infringe the copyright of the song “Taurus” (a composition of the 1960s rock band Spirit).[i] This judgment is of immense significance on the music industry, especially music creators, as it has clarified the scope of copyright claims through the interpretation of the law in tandem with the modalities of the creative process involved in making a song.
Prior to this judgment, the jury had already given verdict in the case of Williams v. Gaye (‘Blurred Lines trial’) where Robin Thicke and Pharell Williams were instructed to pay compensation amounting to 5.3 million US Dollars (‘USD’) for infringing the copyright of Marvin Gaye’s 1977 single “Got to Give it up”.[ii] This was followed by several plagiarism lawsuits against musicians like Kanye West, Jay Z and Ed Sheeran amongst others.[iii] It was largely due to the fact that the Blurred Lines trial had diminished the value of originality regarding songs which were influenced from previous work in the context of a copyright claim, and the scope of examination thereof.
At the outset, it is pertinent to understand that the aim of copyright laws is to preserve the idea versus expression dichotomy which simultaneously: (a) encourages innovation and creativity and (b) protects the rights of those whose ingenuity and vision are chiefly responsible for the idea.[iv] The idea versus expression dichotomy essentially means that copyright laws strive to protect the manifestation of an idea rather than the idea itself.[v] However, this dichotomy is often subject to lapses due to varied interpretation which swings the pendulum towards a specific side.
In this context, the author aims to analyse the scope of copyright infringement claims as laid down in the Led Zeppelin case and sheds light on the creative process of music-making. In doing so, it is argued that the envelope of copyright claims within this framework needs to be limited in order to protect the creativity of artists and ethos on which songs are created. Further, the author also attempts to focus on the consumption pattern and the behavioural trend of the consumers on the affirmation that these factors endorse the decision of treating the music industry on a separate standard in a copyright infringement claim.
Music Creation and Scope of Infringement Claims
In order to establish a successful copyright claim under the US copyright law, a plaintiff must: (a) own valid copyright of the work and (b) the protected aspects of the work must be copied.[vi] The bone of contention in the Led Zeppelin case lay with the examination regarding the substantial similarity of the two compositions. Unlike the Blurred Lines trial where copyright infringement was determined based on a reasonable man’s perception under the “total concept and feel” test,[vii] the US N.C.C evolved the scope of examination by focusing on the methodology involved in creating the songs.[viii] The findings of the case observed that the elements of “Taurus” that were original and therefore copyrightable were not substantially similar to “Stairway to Heaven” and the parts that were similar were not unique or original.[ix] The rationale of the judgment was based on the analysis of chord progressions which were largely based on four chords (C, Am, F and G) which are also known as descending minor chromatic progression which has been extensively used to create songs in the music industry since the late 1950s with different melodies and words.[x]
Music in its current form relies heavily on formal and tonal practices which can be traced back to the 1800s.[xi] Tonality can be defined as “a musical theoretical concept centred on one primary pitch or tone which is composed of at least seven other chords that gravitate away from and finally back to.”[xii] The limitations from an artistic perspective is with respect to the chords which includes a certain number of keys (both major and minor) that designate a note within the twelve-note chromatic scale which can be adapted into various modes to form a chromatic progression.[xiii] This is a structural component to the process of creating music in multiple genres such as jazz which is heavily influenced from basic chords of opera and further evolved from the impact that rock music had in the society.[xiv] Scholars have identified this phenomenon as “bisociation” which involves the intermingling of two or more unconnected matrices of thought.[xv] It is argued that the novelty aspect in creating music is not just limited to producing original chains of thought but also extends to the different patterns and conceptual spaces that are combined to create a unique harmonic space.[xvi] On a fundamental level, unlike an artistic work where unlimited options are available to shape the work, the rules governing the creation of music is way more constrained than the ones involving literature as there are only a limited number of combinations that fit with each other and appeals to the human ear.[xvii]
Consumption Pattern and Behavioural Trend of Consumers
The human brain’s interpretation of music is different from literature or artwork as it is the only form of creative work which primarily relies on the human ear for its sensory experience. [xviii] Studies have gone on to indicate that the brain captures and retains musical information in a unique way which can vary from person to person.[xix] The interpretation and analysis of music involve both hemispheres of the brain, with different aspects of musical composition attributed to different areas.[xx] The left hemisphere of the brain captures the rhythmical, temporal, and sequential components of music while the components of pitch and perception of the melody are attributed to the right.[xxi]
This highlights the complexity involved in an analysis of a musical piece as they are consumed in a continuous and uninterrupted manner unlike any other form of artistic work whose transformative value can be compared side by side.[xxii] It results in making a legal finding based on musical interpretation extremely difficult since it relies largely on circumstantial evidence that can vary due to which it is essential to examine it differently than any other form of literary work in a copyright infringement claim. This issue gets further exacerbated when music is broken into components such as harmony, melody, and rhythm, which are not necessarily ought to be deemed copyrightable when viewed in isolation as it goes against the principle of idea versus expression dichotomy.[xxiii]
Moreover, this unique form of interpreting music can be indicated by observing the consumption pattern of consumers as well where it has been noted that people tend to approve songs which has a certain amount of novelty but don’t drift apart from the usual musical symphonies that they are accustomed to.[xxiv] In an industry which is driven by consumerism and a profit-making agenda, these factors limit the amount of manoeuvring an artist can do. To that end, it has also been concluded that in order to become a successful musician it is pertinent to utilize and reflect the influence of certain existing melodies in their own compositions.[xxv]
With the boom of digitalisation, the importance of borrowing in music has become even more important as it provides different avenues in which music borne out of similar influence can be produced to sound different. It is imperative that legal frameworks re copyright claims take due notice of the modalities specific to music for creative purposes. Considering this, the Led Zeppelin case has rightly sided with the world-famous rock band since the music is inherently referential. The judgement had a two-fold implication on the music industry, first, it has ensured that the idea versus expression dichotomy is preserved by promoting creativity; and second, it has provided some clarity to maintain a balance with the number of plagiarism suits that have increased manifold in recent times. However, the problem remains that with the commercialisation of the art and issues of ownership that remains associated with it, the entity of music is moving away from the expression of communal harmony it is supposed to be. Nevertheless, the solution would possibly lie in recognising the unique circumstances related to music creation and adopting a liberal interpretation of the copyright laws by focusing on the methodology adopted by the defendants and scrutinising the same on a case to case basis.
[i] Michael Skidmore v. Led Zeppelin & et al, Case No. 16-56057 (9th Cir. Mar. 9, 2020).
[ii] Pharell Williams & et al. v. Frankie Gaye & et al, Case No. 15-56880 (9th Cir. Jul.11, 2018).
[iii] Abhimanyu Mishra, It’s raining lawsuits for international singers in 2016, (July 7,2016), https://timesofindia.indiatimes.com/city/ahmedabad/Singers-who-got-sued-in-2016/articleshow/53080638.cms
[iv] Alfred C. Yen, A first amendment perspective on the idea/expression dichotomy and copyright in a work’s “total concept and feel”, 38 Emory Law Journal 34-35 (1989).
[v] Steven Ang, The Idea-Expression Dichotomy and Merger Doctrine in the copyright law of the US and the UK, 2 International Journal of Law and Information Technology 112 (1994).
[vi] Harper & Row et al. v. Nation Enterprises et al., Case No. 83-1632 (US S.C. May 20, 1985).
[vii] Supra note 2.
[viii] Supra note 1.
[x] Enrico Bonadio, Led Zeppelin, Plagiarism claims, and why we should be worried about the future of music, (Jun. 12, 2020), https://theconversation.com/led-zeppelin-plagiarism-claims-and-why-we-should-be-worried-about-the-future-of-music-57832.
[xi] Margit Livingstone et al., Copyright Infringement of Music Cases: Determining whether what sounds alike is alike, 15 Vanderbilt Journal of Entertainment and Technology Law 241 (2013).
[xiii] Joseph M. Santiago, The Blurred lines of copyright law: Setting a new standard for copyright infringement in music, 83 Brooklyn Law Review 305 (2017).
[xiv] Philip Ball, Musicians are wired to steal each other’s work, (Sept. 14, 2016), https://www.theatlantic.com/science/archive/2016/09/music-plagiarism/499985/.
[xv] Arthur Koestler, The Act of Creation, 42-45, (1964).
[xvi] Margaret Boden, The Creative Mind, 277, (2004).
[xvii] Kurt Dahl, Why the led zeppelin plagiarism verdict is right and what it means to you, (July 7,2016), https://lawyerdrummer.com/2016/07/led-zeppelin-plagiarism-verdict/.
[xviii] Supra note 10.
[xix] Donald A. Hodges, Implications of Music and Brain Research, 87 Music Educators Journal 17-20 (2000).
[xx] Herve Platel et al., The Structural Components of Music Perception: A functional Anatomical Study, 120 Brain Journal 229-230 (March, 1997).
[xxii] Supra note 12.
[xxiii] Paul Hindemith et al., Methods of music theory, 30 The Music Quarterly Journal 20-25 (1944).
[xxiv] Dean Keith Simonton, Thematic Fame and Melodic Originality: A multivariate computer content analysis, 48 Journal of Personality 78 (2006).
[xxv] Richard W. Hass, An exploration of relationship between melodic originality and fame in early 20th century American popular music, 44 Psychology of Music 715 (2015).