Warren Chu
Copyright law was designed to protect artists and their creations; one was able to utilize the law in order to ensure that their valuable intellectual property was not stolen or used without attribution. These days, popular artists have begun to see copyright infringement as a weapon waiting to be used against them. From the 1976 case against George Harrison to the 2013 suit against Robin Thicke and Pharrell Williams for Blurred Lines, artists have found themselves increasingly on the defense against lawsuits for infringement. For some in the industry, whether these songs are even similar enough to constitute infringement remains an open question, but the cases continue to be decided by juries of average listeners befuddled by copyright tests for infringement.
The issue here is one that has come up extensively in Trademark law as well: the material available may simply not be as bountiful as the public would expect.[1] For musical artists, it may just be that there are a “finite number of notes, chord progressions, and melodies available.”[2] The top 100 songs often contain the exact same chords and sometimes even the same chord progressions, which further illustrates this issue. It would seem that the chords and melodies that are most pleasing to the largest audience are rather limited and can only be combined in so many ways. However, if this is the case, how can we both protect intellectual property and ensure that artists aren’t harassed with excessive and potentially unmeritorious lawsuits?
One potential solution could be to allow juries of musicologists to actually determine the likelihood that the allegedly infringing piece was actually copied. Experts are currently allowed to testify and present their professional opinion, but it still cannot always dissuade an average listener from deciding that two songs sound the same, even if there are important distinctions that should be accounted for. A panel of professional musicologists could potentially serve to ensure that a song is infringing instead of just having surface-level similarities. This sort of expert decision-making is already seen in the realm of patent law and perhaps could be well-suited to copyright law as well. While infringing artists should obviously be sued, some of these cases have been shocking in their outcomes. Perhaps a panel of experts would serve to further the aims of copyright law by encouraging creativity without having to fear excessive litigation. In this day, the music industry is booming and incessant litigation against popular artists could serve to stifle creativity. These new cases have reformed how copyright infringement is adjudicated in the music industry and have encouraged more and more lawsuits.[3]
While I absolutely don’t condone artists being able to avoid infringement suits due to their popularity, it’s clear that there are some litigants that see these looser copyright infringement precedents as a means to a quick payday. I believe that by ensuring that infringement cases are meritorious and that a panel of experts has rigorously analyzed the two songs before handing down a decision would benefit all artists, small and large, and slow the constant stream of lawsuits. Whether this is even a semi-plausible solution is up in the air, but at the very least, it is clear that copyright infringement law for music is in desperate need of clarification.
[1] See Barton Beebe & Jeanne Fromer, Are We Running Out of Trademarks? An Empirical Study of Trademark Depletion & Congestion, 131 HARV. L. REV. 945 (2018).
[2] How Music Copyright Lawsuits Are Scaring Away New Hits, RollingStone.com (Jan. 9, 2020), https://perma.cc/S87A-7NYG.
[3] Why All Your Favorite Songs Are Suddenly Being Sued, RollingStone.com (Aug. 2, 2019), https://www.rollingstone.com/music/music-features/katy-perry-led-zeppelin-ed-sheeran-music-lawsuits-865952/.