Thursday, June 24

Borrowing from Legends

Inspiration vs. Theft in copyright law
By: Adam Barnosky

Julian Casablancas did not likely have the United States Copyright Code in mind when he penned the introductory measures to "Last Night," the first single from the Strokes' 2001 certified-gold album Is This It. Although his heavy-handed lifting from the Tom Petty original "American Girl" may seem akin to stealing, no legal action resulted. In fact, Petty himself acknowledged the similarities in a 2006 Rolling Stone interview, stating, "It made me laugh out loud. I was like, 'OK, good for you.' It doesn't bother me." Other artists, however, have not been so lighthearted. It was only a few years back when Yusuf Islam (formerly Cat Stevens) threatened to sue the Flaming Lips for copyright infringement after Islam claimed the song "Fight Test" ripped off his 1973 classic, "Father and Son." Islam won out, and according to the terms of an agreement between the two artists' publishing companies, the Flaming Lips have agreed to split all royalties derived from the song.
It is not uncommon for artists to find themselves in the center of copyright litigation. It is also not uncommon for the infringement to stem from what was - for the artist - only a moment of divine inspiration. Certainly, there are times where components of a song are so reminiscent of another that infringement is easily discernible (see George Harrison's 1971 hit "My Sweet Lord" and the Chiffon's 1962 classic "He's So Fine"). There are also times when infringement is less axiomatic. In a third set of circumstances, infringement, while easily identified, is never litigated (see Killing Joke's 1984 song "Eighties" and Nirvana's "Come As You Are"). So where is the line drawn between "inspiration" and "infringement"? And as an artist, how do you know when the line has been crossed?
The United States Copyright Code defines infringement, in part, as "anyone who violates any of the exclusive rights of the copyright owner." Exclusive rights are the rights to claim authorship of that work, the right to distribute to the public, and the right to prevent the use of his or her name as the author of any work of visual art which he or she did not create, among others. Copyright protection exists in original works of authorship for the life of the author plus 70 years (if the work was created after Jan. 1, 1978).
While the complexities of the copyright code are vast, here are some general rules of thumb to avoid infringing on the exclusive rights of a copyright owner:
Song Titles: Generally, song titles are not copyrightable due to a lack of expression (different songs entitled "I Miss You," for example, have been recorded by over a dozen artists). Be cautious, however, of naming your composition after a creative or uniquely famous song title as this may be grounds for infringement.
Melody: Absolutely copyrightable. However, as the judge wrote in Selle v. Gibb (1983): "Simple, trite themes are likely to occur spontaneously and only few suit the infantile demands of the popular ear." While insulting the tastes of pop music enthusiasts, the judge acknowledged a certainty in popular music: some songs simply sound alike.
Lyrics: Copyrightable, but this depends on creativity and uniqueness. (The lyric "I love you" is likely not copyrightable, where the phrase "Picture yourself in a boat on a river, with tangerine trees and marmalade skies" certainly is).

Illegal without authorization, for now. The industry is loosening its restrictions and while many artists are operating without legal threat from record companies (i.e. Girltalk), some artists continue to find themselves under fire (i.e. Danger Mouse's The Grey Album).
Harmonies, Bass Lines and Drum Beats: Copyrightable, except when they're not. Like lyrics, this depends on the degree of creativity, uniqueness, placement within the song and other components.
Finally, two lessons that should always be on your radar: First, don't steal. An artist needs to walk the fine line between inspiration and infringement. Infringement can include hefty civil damages, fines and imprisonment (in 2000, the Isley Brothers were awarded $5.4 million after a jury found Michael Bolton took the title and several phrases from their song, "Love Is A Wonderful Thing").
Second, protect yourself. Have your work filed with the United States Copyright Office. While registration is not a condition for copyright protection, it is important to note that (1) you may not sue for infringement until a work has been registered and (2) a work must be registered prior to the infringing acts in order to receive statutory damages.
Adam Barnosky is an attorney specializing in small business development, intellectual property, licensing and civil litigation. He has worked with musicians, actors, and playwrights in Boston and New York City. He can be reached at
DISCLAIMER: the information contained in this column is general legal information for educational purposes only. Any information herein should not be construed as legal advice to be applied to any specific factual situation. Any use or reliance on this column does not create or constitute an attorney-client relationship.

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