IN 1977, THE Doobie Brothers sang "Takin' It to the Streets." In 1980, they might as well be humming "Taking It to the courts."
More than in any other year since the rise of rock music, songwriters are going to court trying to prove that somebody stole their songs. Charges of plagiarism have rocked the reputations of some of the biggest names in the business. The attendant publicity has led record companies and personnel managers to stop listening to demo tapes. And the phenomenon has dampened the enthusiasm of many songwriters for entering song festival contests.
"It's a tenor of the times," says one veteran copyright specialist who has followed the increse in plagiarism suits. "The major artists are making unbelievable money. And eventually that leads to legal problems."
Some current examples:
Pop star Billy Joel settled out of court earlier this year with Nevada piano man John Powers. At issue were the substantial simlarities between Joel's big hit, "My Life," and Powers' "We Got to Get It Together." Despite the traditional provision in settlements banning disclosure of details, Powers' lawyer admitted that published reports of a $50,000 figure were "in the ballpark." A pugnacious Joel told Rolling Stone several months later, "I never stole nobody's music!"
Michigan poet Carol Hinton is suing Stevie Nicks of Fleetwood Mac, claiming that she actually wrote the lyrics to Fleetwood Mac's hit single, "Sara, as a poem in 1978, before it appeared on the group's "Tusk" album. The case is pending in trial court, moving toward discovery at the end of October. "Stevie feels very hurt by this," says her attorney, Mickey Shapiro of the Los Angeles law firm of Shapiro and Steinberg. "She sees her song as children. We're not inclined to a settlement. I think the case will be heard on its own merits."
A year after the Doobie Brother's Michael McDonald had a monstrous hit with "What a Fool Believes" (which he co-wrote with Kenny Loggins), one could hear another hit single from a newcomer named Robbie Dupree called "Steal Away." There are several similarites between the songs, including the keyboard rhythm backup and vocal style. At this time, McDonald's publishing company has "made claims on that particular song," and correspondence is in the prelitigation stage. McDonald is reportedly not inclined to sue ("out of respect for Dupree's musical integrity," says a source at the Doobie Brothers' management. Michael's not into sensationalism.") Industry insiders say, however, that the case has a strong chance of ending up in court soon.
Probably the best known plagiarism case involves a former Beatle George Harrison and his 1970 hit "My Sweet Lord." In 1976, Federal Court Judge Richard Owen found Harrison liable for "unconsciously" plagiarising Johnny Mack's 1962 hit for the Chiffons, "He's So Fine." Four years later, the court has not determined damages. "The wheels of justice grind very slowly," says Gideon Cashman of Pryor, Cashman, Sherman and Flynn, lawyers for the plaintiffs.
Jerry Herman wrote "Hello Dolly" in 1963, but in 1948 Mack David (brother of Hal David and a well-known Broadway and Tin Pan Alley songsmith in his own right had written the melody in a song called "Sunflower." David sued, Herman settled. The terms were not disclosed, but the figure of $300,000 has been printed in several New York papers.
Relatively few plagiarism cases ever get to the settlement stage, much less to court. For one thing, many are of the nuisance variety. In the '30's, the courts were kept busy by a man by the name of Arnstein who regularly claimed that Cole Porter and Frank Loesser had stolen his material. "He was not very successful," says Noel Silverman, whose law firm, Silverman and Schulman, represents the Harry Fox Agency and the National Music Publishers Association. "Litigation for plagiarism is relatively minor because trials are so expensive that if you're not dealing with an important copyright, it doesn't become worthwhile."
Adds Mickey Shapiro, "one ends up having to pay a lot of money to defend a moral and ethical position. It's really a form of extortion." Shapiro opposes what he calls the "moral dilemma of an out-of-court settlement" by advising his clients to "fight it to the hilt." This can entail $100,000 or more in lawyers' fees, many days over to disposition, delayed or postponed or dragged-out hearings. "Sometimes it's not worth the aggravation of fighting in court," Shapiro says. "The cost to the artist -- leaving the road or studio, the acute anxiety -- is enormous."
The cases that make the news tend to involve at least one big name, usually the defendant. For every harrison case, though, there are hundreds of smaller suits. "We summarily chuck them out," says Shapiro. "There was one guy who claimed to have written every single song on (Fleetwood Mac's) 'Rumors.' He showed up and wanted to collect the royalties."
The Copyright Law of 1976, which took effect on Jan. 1 1978, will be clarified over the next few years as precedents accumulate. Prior to 1978, as long as a song was not published, no statuatory copyright existed; unpublished materials were protected only by local and common-law copyrights. The 1976 revision did away with common-law copyright, replacing it with the Federal Statuatory Copyright which protected songwriters from the moment a song was commited to paper or any other tangible medium, including audio tape.
As far as where the line lies between plagiarism and fair use, the Act basically says that it's okay to use a little but not a lot of any coprighted material. It further required understanding the purpose and character of use (commercial or non-commercial), its nature, amount and substance and, perhaps most important, the effect on potential use. "There's actually nothing in the section that talks about music in particular," says Lon Soble, publisher of the Entertainment Law Reporter. "You have to prove two things (in court)," adds ASCAP attorney Fred koenigsberg. "Substantial similarity and access of the plagiarist to the work that has been plagiarized."
Access is often the main issue. In the Harrison case, though Harrison denied ever having heard "He's So Fine," Judge Owen ruled that Harrison was active in the music business at the time that "He's So Fine" was a hit -- and therefore probably was exposed to it. He added that "My Sweet Lord' is the very same song and is no less in infringement of copyright, even though subconsciously accomplished."
In the Joel case, Powers claimed that his 1974 copyrighted composition had been sent to the 1978 American Song Festival where Joel's producer, Phil Ramone, was a festival official. An independent orchestrator found that 14 to 16 bars of the primary chorus of "My Life" were identical to the Powers song in terms of melody and tempo. Though Joel continues vehemently to deny plagiarism charges, he did settle.
Access was also an issue earlier in the decade as some of the biggest British bands "borrowed" songs liberally from American bluesmen for the foundation of their blues-rock sound. Settlements were made: The Rolling Stones shifted the credit and royalties for "prodigal Son" to the song's rightful owner, the Rev. Robert Wilkins. Led Zeppelin settled with Willie Dixon on "Bring It on Home." Blues purists feel many more of the songs in their older "original" repertoire had their origins in Chicago and the Delta. Cream started paying Skip James' window for "I'm So Glad." A suit against the makers of "Nashville" was filed by the late Washington-area blues singer Esther Mae (Mama) Scott over the film's use of the song "Keep a-Goin'," which she claimed as her own. The case is currently up for review before the Supreme Court.
Plagiarism suits, in the general context of copyright actions, are not nearly as numerous as infringement suits, which are most often brought by the two major music publishers, ASCAP and BMI, against clubs and bands (mostly of the Top-40 or cocktail lounge variety) for performing copyrighted songs without paying for performance rights, or against radio stations for not paying mechanical royalties. But because plagiarism suits generally involve big names, less exotic copyright actions go for the most part unnoticed.
A more basic problem is one that exceedingly familiar in the music industry.
"When a hit song comes out," says one producer, "and when it has an impact, producers and A&R (aritst and repertoire) guys just want to clone that sound and repeat the hit." Since most pop songs are made simple to appeal to the largest possible audience, it's a wonder there hasn't been more obvious cloning.
The end result of the "notorious" cases that have made the headlines is two-fold. First, many record companies and personal managers have stopped listening to unsolicited tapes entirely. "It's a method of self-protection," says one record company executive. "Very little that comes in that way is worthwhile and the headaches that could occur later are an even more discouraging influence."
Second, songwriters have become wary of song festivals, which tend to be music's equivalent of the film industry's cattle-call. Judged by publishers, A&R people, arrangers, producers and other industry insiders, song festivals draw hundreds of thousands of entrants who pay to have their songs judged (and on rare occasion, evaluated). In a sense, the contests depend on the evergrowing ranks of fledgling songwriters to keep those songs coming. But cynics feel that the contests provide the judges with too many ideas at a very cheap price. On the moral side, most major performers are not going to risk their careers over one song. It's only been in the last 20 years that the songwriter and the singer have merged into a single being, anyway. Billy Joel himself has said that in the many years before he became more than a piano man, he felt his music was being ripped off. The issue of simultaneous discovery -- two people writing songs with similar lyrics or melodies -- may never be resolved satisfactorily.
George Harrison may have gotten the last word in. His follow-up album after the court decision against him contained a sarcastic little ditty with an escape clause for a chorus: "This song has nothing tricky about it/This Song ain't black or white/And as far as I know/Don't infringe on anyone's copyright!"