Gersham Johnson
Songwriters across the country likely breathed a sigh of relief in response to Led Zeppelin’s recent victory in the Supreme Court. The Court’s decision to deny certiorari and curtail an infringement suit[1]—in a case holding that the band’s legendary 1971 song “Stairway to Heaven” did not infringe Spirit’s song “Taurus”—comes after a tidal wave of copyright infringement litigation that has led some songwriters to seek insurance[2] for fear of facing crippling liability. But while courts may have begun putting the brakes on excessive music infringement claims, copyright law itself may continue standing in the way of musical progress.
Borrowing has long been a defining feature of the creation of music.[3] Some genres—from Blues and Folk all the way to Classical—expressly encourage composers to liberally lift guitar riffs, melodic passages and compositional structures from other artists. Indeed, several of the lawsuits that Led Zeppelin faced before its recent victory, involved music from some of those very traditions.[4] While there can be no denying that musicians need some form of protection for their artistic works, the nature of music creation seems largely opposed to a legal system that threatens to punish any form of substantial similarity between works.
There are, after all, only twelve notes in the Western musical system. In a world where every melody may have already been written,[5] it seems that in order to truly protect musicians, copyright law has to take into account the culture of borrowing that actually produces music. Of course, how the law should address this is not always clear. The idea-expression dichotomy, a key test for determining what is copyrightable, may be ill-equipped for music; it isn’t perfectly clear where a musical “idea” ends and its “expression” begins.[6] Moreover, relying on derivative works doctrine may prove prohibitive to musicians, as they would be in constant danger of producing an unauthorized work whenever they lifted musical passages.[7]
Even when musical borrowing is painfully obvious, as it was when George Harrison lifted major portions of the melody to “My Sweet Lord” from the Chiffons’ early ‘60s hit single “He’s So Fine,”[8] copyright law might not provide the proper solution. It is worth noting that, despite sharing musical DNA, both songs were major U.S. Number 1 hits and both songs continue to be consumed by the public.[9] This observation may lead some to conclude that a market-based solution is inevitable—if the artists are still making money, then no foul. But more importantly, it raises the notion that musical “plagiarism,” whether subconscious or not, can indeed result in distinct, crowd-pleasing works of authorship.
It bears emphasizing that the complex cultural issues at play—when, for example, a white Rock artist borrows music from Black artists—should not be brushed under the rug. Nor should power dynamics raised by very successful artists borrowing from more obscure artists be ignored. But in a world where Chuck Berry can (arguably) invent the genre of Rock and Roll via a Rhythm-and-Blues update of an earlier Country tune,[10] copyright law’s goal of promoting “the Progress of Science and useful Arts”[11] may require a more liberal approach—at least when it comes to music.
There of course remains the question of who (if anyone) should be allowed to borrow (and how much). Should only Blues artists be allowed to borrow Blues music? There are those who will argue that musical borrowing in general is perfectly fine—provided that the source work is old enough and in the public domain. But musical innovation can and often does take place as a result of artists who subsume the contemporaneous developments of their peers.
Copyright law, as it currently stands, has (at times) been a useful tool for protecting songwriters and their creations. But it is also a double-edged sword. Musicians of all stripes borrow. Perhaps it is time for the law to better reckon with the reality of musical composition.
[1] Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020), cert. denied, No. 20-142, 2020 WL 5883816 (U.S. Oct. 5, 2020).
[2] Amy X. Wang, How Music Copyright Laws Are Scaring Away New Hits, Rolling Stone (Nov. 11, 2020, 7:39 AM), https://www.rollingstone.com/pro/features/music-copyright-lawsuits-chilling-effect-935310/.
[3] J. Michael Keyes, Musical Musings: The Case for Rethinking Music Copyright Protection, 10 Mich. Telecomm. & Tech. L. Rev. 407, 426 (2004).
[4] Aram Sinnreich, Plagiarists or Innovators? The Led Zeppelin Paradox Endures, The Conversation (Nov. 11, 2020, 7:39 AM), https://theconversation.com/plagiarists-or-innovators-the-led-zeppelin-paradox-endures-102368.
[5] TEDx Talks, Copyrighting All the Melodies To Avoid Accidental Infringement, YouTube (Nov. 11, 2020) https://www.youtube.com/watch?v=sJtm0MoOgiU&ab_channel=TEDxTalks (discussing how there are potentially a finite number of melodies).
[6] Dawn Leung, Did Copyright Kill Classical Music? Copyright's Implications for the Tradition of Borrowing in Classical Music, 3 Ariz. St. Sports & Ent. L.J. 327, 361–62 (2014).
[7] See id. at 379 (“Copyright's vague standard of ‘sufficient originality’ creates a good deal of uncertainty as to whether a borrowing composer's work is an unauthorized derivative work.”).
[8] See Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (S.D.N.Y. 1976).
[9] As of November 11, 2020, “He’s So Fine” has over thirty-seven million streams on Spotify. It is unclear how much of this is due to its initial four-week run at the top of the charts, or to its later exposure via copyright law.
[10] Jesse Wegman, The Story of Chuck Berry’s ‘Maybellene’, NPR (Nov. 11, 2020, 7:39 AM), https://www.npr.org/2000/07/02/1076141/maybellene.
[11] U.S. Const. art. I, § 8, cl. 8.