Edward Lee is a professor at the IIT Chicago-Kent College of Law.
Perry is not the only megastar to face a copyright imbroglio. Pharrell and Robin Thicke lost a high-profile case to Marvin Gaye’s estate after a jury found that their song “Blurred Lines,” the top selling song of 2013, infringed the copyright of Gaye’s 1977 hit “Got To Give It Up.” Led Zeppelin now faces a rehearing in the appeal of the jury verdict finding that the guitar opening of the band’s iconic 1971 song “Stairway to Heaven” did not infringe the copyright of Spirit’s “Taurus” from 1968. The rapper Drake, too, is involved in an appeal of a lower-court decision that found in his favor, defending against a copyright infringement claim.
The list goes on — major performers including Taylor Swift, Beyoncé, Lady Gaga, Bruno Mars, Ariana Grande, Ed Sheeran and Jay-Z have all faced legal action for allegedly copying other artists’ works. Although most of these artists prevailed in or settled the lawsuits, Mars, Sheeran and Jay-Z face still more.
The storm of lawsuits is troubling. Is there an epidemic of musical plagiarism by major recording artists? Unethical copying might explain some cases, but other factors are likely to be at play. First is simply the nature of music, which has a limited number of notes, chords and beats that sound harmonious together. An even smaller number of these elements are effective for popular songs and are employed by savvy artists and producers attempting to appeal to young people’s changing tastes. The acoustic tools that Dmitri Shostakovich used can’t be adapted for hip-hop.
Moreover, research in recent years suggests that humans innately recognize universal patterns in music, such as certain combinations of beats. Humans are, in effect, hard-wired for music. No wonder many songs sound similar, given the narrow range of appealing notes and patterns.
Add copyright law to the mix, and music lawsuits become inevitable. Copyright law has evolved in several ways that increase, unintentionally, the exposure of musicians and songwriters to copyright infringement claims. The first development is modern courts’ apparent shift away from early courts’ acceptance of the need for borrowing to compose music — an approach that Judge Benjamin Kaplan favorably described in 1967 in his seminal book on copyright as the law’s “permissive attitude toward cross-lifting among serious musical works.”
Although an entire field of study of “musical borrowing” documents the commonplace overlap of musical works from classical to contemporary, copyright law today increasingly subjects any apparent borrowing of musical elements to greater suspicion. The lengthy term of copyright, lasting the life of the author plus 70 years, and a 2014 Supreme Court decision on the statute of limitations for copyright claims, compounded the problem by allowing the owners of many old copyrighted works to still bring copyright claims today — as with the Taurus suit filed in 2015 against Led Zeppelin more than four decades after the infringement allegedly started.
In copyright law, the fair use doctrine is supposed to provide an important limitation on infringement claims, allowing some breathing space for creators to borrow parts of existing works in the process of creating new, transformative works.
Yet few music infringement cases have discussed fair use outside of the small class of parody songs, as in a 1994 case when the Supreme Court recognized the principle in 2 Live Crew’s parody fair use of Roy Orbison’s “Oh, Pretty Woman.” In the Drake case that is on appeal, he successfully employed fair use to defend his inclusion of a spoken-word passage from jazz musician Jimmy Smith, who died in 2005. (I was a signatory of an amicus brief supporting the fair use decision in Drake’s case and of one supporting the verdict against Pharrell in Williams v. Gaye.) But the Drake case didn’t involve copying of music. Courts have yet to determine, beyond parody songs, what constitutes fair use in borrowing elements of a musical work.
As I discuss in a 2018 article for the Boston College Law Review, the fair use defense might become more attractive for defendants as allegations of copyright infringement proliferate, especially if juries, as in the Katy Perry case, reject the “I never heard it” defense. Previously, defendants have been largely successful in taking that approach and in insisting that snippets of melodies or beats are not copyrightable. Courtroom losses and the assessment of significant financial damages might prompt musicians and producers to change their legal tune. What if Perry had invoked fair use to show how “Dark Horse” alters the beat of “Joyful Noise” by giving it new expression and a much different character in a song about romance, not religion?
Correction: An earlier version of this article misstated the title of the song of which Led Zeppelin was accused of infringing on the trademark, as well as the band that wrote it. The earlier song was “Taurus,” by Spirit.