Thinking Out Loud (About Copyright Infringement)

What is the line between inspiration and copying? Homage and plagiarism? As a musician you want to be able to create freely, following your intuitions about what sounds good and feels right. But you also don’t want your work, which you have poured your heart into, to be ripped off by other artists. The law of copyright must strike a balance, and that’s not an easy thing.  

There’s a famous saying in copyright law: “where there’s a hit, there’s a writ”. In other words, popular songs attract lawsuits because people (rightly or wrongly) see money they’re missing out on.

A federal court in the United States of America had to recently consider the similarities between Ed Sheeran’s “Thinking Out Loud” and Marvin Gaye and Ed Townsend’s “Let’s Get it On”. Sheeran’s team argued that “Thinking Out Loud” only used what were common musical building blocks while Townsend’s team argued that a substantial part of the musical composition from “Let’s Get it On” was copied by Sheeran.

As hilariously dramatized onstage by the Axis of Awesome in their “Four Chords” song – most pop songs are made from similar chord progressions. And it was this argument that won out in Sheeran’s case. The federal court jury found that Sheeran had not infringed copyright in “Let’s Get it On” and had simply used what were common musical building blocks.

But what about…

Interpolation, sampling, quotation, toplines, basslines… Think Vanilla Ice’s use of the bassline from Queen’s “Under Pressure” in “Ice Ice Baby”, or the vocal topline in Pink Floyd’s “Great Gig in the Sky”. Both these situations involved copyright claims that were settled after the songs were released.

It goes without saying, then, that it is important to understand copyright basics as an artist using other people’s music. What do you need to think about?

1. What are you using? Copyright in Australia separately protects music, lyrics and sound recordings. Copyright could be (and often is) owned by different people in each of these elements. Ideas, concepts, generic techniques – these are not protected by copyright – only the specific way they are expressed in music and lyrics. If you are using part of a melody, then you need to think about the musical work. If you are using part of the lyrics, you need to think about the literary work. If you are, for example, sampling a segment of a recorded track, you need to think about the sound recording as well as the musical and literary works.
   
2. Is it still protected by copyright? Generally, copyright in music and lyrics last for the life of the creator plus 70 years. For sound recordings, it is generally 70 years from first publication. Outside this period of protection, material goes into the “public domain” and you are generally free to use it.
   
3. Are you using a substantial part? In Australia, you only infringe someone’s copyright if you copy a “substantial part” of their music, lyrics and/or sound recording. This is not just about how much you take. It is about the quality of what you take and how important, distinctive and recognisable it is. If something is generic or common to many songs, it is unlikely to be a substantial part. (This can be a tricky question – as evidenced by the case about “Thinking Out Loud” in the USA).
   
4. Is it fair dealing? There are specific defences for “fair dealing” in Australia covering things like parody and satire, and criticism and review. To qualify, your use has to be “fair” in light of how much you’ve taken, whether you could have got a licence, whether your genuine purpose was parody/satire or criticism/review, and other factors.
   
5. If in doubt, think about getting permission! These questions can be hard to answer. There are countless cases of songs and albums getting released that are dogged by copyright infringement claims that artists’ and labels’ have to settle for huge sums after-the-fact. Sometimes, the safest option when you’re not sure is to ask for permission and pay for a licence. (APRA AMCOS may be able to help you find copyright owners.)

Do you need legal advice? Arts Law can help you with copyright infringement questions you have relating to your music. Check out our legal query form here.