Why you may well have heard that song before

Dr Liam Sunner, Department of Law, explores the complex world of music copyright, cover versions, samples and plagiarism

We've all had moments listening to a new hit song when we go:
(a) I’ve heard that one before
(b) All the music of today sounds the same
(c) We had much better music years ago

The third classification may be true to some degree as nobody likes to remember the bad songs of their own formative era.

But there may be more to the issue with the first two classifications because you might well have heard the song or elements of the song before. How this is possible will depend on whether the song is a cover, if it samples other work or if the song's composers have stolen elements of another piece. Each of these have their own legal protection and legal requirements before the song can be released.

It is important to remember how this protection works. The protection afforded to the work of the author for their work, also known as the copyright protection afforded to the work, only covers the specific expression of the work - it covers the expression of the lyrics of a love song, not the idea of a love song itself. This then applies to the musical composition, lyrics, and their overall combination.

You need a mechanical license to cover and release another person or group's work. The process is a relatively straightforward application, but it can be refused by the original artist or rightsholders. Once this license has been granted the new performing artist can record and distribute their version of the song on condition that original artists are credited as such.

There are still some issues where a cover is performed live at a concert. The performing artist may feel they own the rights to this performance and seek to prevent bootleg copies from being distributed (for free or for profit). However, the rights to the covered song remain with the original artist allowing them to permit the distribution. To quote Radiohead's Thom Yorke, after Prince sought to remove video recordings of his live performance of their big hit "Creep": "tell him to unblock it - it's our song".

One thing to note is that Prince changed the lyrics in this performance. While slight, the change from "I'm a creep" to "you’re a creep" and the removal of profanity arguably alters the message the song. This then raises questions of how a cover becomes a new piece of music and the creation of derivative work through the use of music samples.

Sampling can trace its origins to the New York hip hop scene of the late 1970s/early 1980s, where DJs would use vinyl records to create new music. As technology has advanced, the process to take a snippet or instrument line from an existing song to sample has become easier.

But without the permission of the original artists, this is considered theft in the legal sense and there is an ongoing debate in the creative field as to the limits and definition of this theft. In the event the sample is used without permission, the original artists are entitled to a percentage of the royalties of the song for the sample and may seek damages.

This has been seen in recent years such as the lawsuit surrounding the use of an Andrew Oldham Orchestra's cover of The Rolling Stones' "The Last Time" on The Verve's "Bittersweet Symphony". The use of the sample would ultimately result in the Rolling Stones credited as the co-writers until the situation was resolved in 2019 when Mick Jagger and Keith Richards signed over all their publishing for "Bitter Sweet Symphony" to The Verve. A similar situation arose in relation to the use of a sample of  "Every Breath You Take" by the Police by Puff Daddy on "I’ll Be Missing You", where the former won the rights to 100% of the royalties of the song.

This then bring us towhere an artist unintentionally or subconsciously plagiarises or steals the work having accidently heard the song and used elements of it in their own work. For example, this is what happened when George Harrison was found to have "subconsciously" sampled and used elements of The Chiffons' "He's So Fine", written by Ronnie Mack, for "My Sweet Lord". A similar situation was seen in relation to "Stairway to Heaven", but the courts would ultimately find no such plagiarism had occurred.
However, the limits of this have been tested more recently in relation to allegations of plagiarism of the work of Marvin Gaye in the song "Blurred Lines" by Robin Thicke and Pharrell Williams. While the pair had admitted to wanting to write in the style of Gaye, they would ultimately settle with the Gaye estate over the matter.

All in all, while copyright protects the work of the artists, there are allowances for others to use the material in new and exciting ways. That said, it’s an ongoing and complex area with many issues to come.

Photo: Caught In Joy on Unsplash