Imitation is the best form of flattery.
Plagiarism is theft.
Both statements are widely accepted as true, but the Blurred Lines between imitation and plagiarism, especially in music, have long been scrutinized. (That was a terrible play-on-words; please keep reading).
By now, you have seen artistic disputes spill from the sound booth into the court of law. Whether this publication reaches Vanilla Ice, Led Zeppelin, Puff Daddy, Ed Sheeran, or just a curious observer like me who clumsily strums cords together in private, an explanation is in order.
At its simplest form, musicians enjoy protections under the Copyright Act – a law that provides exclusive rights to the owner of a song. That protection protects both the music itself and the lyrics. Infringement of those rights can, and often does, lead to disputes, especially when lost royalties are projected into the millions. The potential damages are clearly not trivial. Sean “Puff Daddy” Combs recently claimed to pay Sting $5,000 per day for Puff Daddy’s I’ll Be Missing You, which borrowed (or outright copied) Every Breath You Take. While there is some dispute about the deal between Vanilla Ice and Queen, Vanilla Ice purportedly avoided royalties into perpetuity by purchasing publishing rights to Under Pressure for $4 million.
Proof of copyright infringement requires proof that: (1) the claimant owns a valid copyright in the song and (2) the alleged infringer copied protected aspects of the song. Copying in this context can simply mean that the infringer had access to the original work and the infringer’s work is “substantially similar.”
The debate over the term “substantially similar” rages on in courtrooms throughout the United States, including as recently as the first week of May when a jury returned a verdict in Ed Sheeran’s favor, finding that he did not copy Marvin Gaye’s Let’s Get It On. There are a finite number of notes and cord progressions from which to create a new song that is completely dissimilar to all songs that came before it. “Substantially similar” is a difficult concept because essentially all rock music of the 20th and 21st Centuries share common elements of the 12-bar blues. So, while independent creation is a complete defense to infringement claims, it is also a concept that undoubtedly leaves even the most sophisticated musician Dazed and Confused. (I promise, that is the last corny play-on-words).
If you have made it this far into the article, you may be asking, “What does this have to do with me?” Stop, collaborate, and listen. (Okay, one more bad joke). If you are a small business owner of a restaurant or an amateur musician whose local band plays covers for financial gain, these financial pitfalls may still apply. (Amateur musicians who play publicly for free, receiving no financial gain, are protected). Playing cover songs without a license can result in a claim of $750 per song or more, and attorneys’ fees.
Local restaurants can reduce their liability exposure—and the exposure of every cover band that insists on playing Free Bird in their establishments—by paying an annual licensing fee to Performing Rights Organizations (“PROs”). PROs are organizations comprised of songwriters, lyricists, and publishers. PROs can grant licenses to authorize public performances of members’ songs for an annual fee. That annual fee is based on individualized factors, which take into account the size and business capacity of the restaurant, the type of music (live versus recorded), and whether there are cover charges for patrons. Live music comes at a premium and at an increased cost to the establishment.
Before performing a risk analysis and evaluating whether it is worth paying an annual fee for a license, know that PROs hire “secret shoppers” – customers who have no real interest in patronizing a local establishment. These secret shoppers exist only to compile evidence of copyright infringement for future demands that can easily exceed six figures when the recovery of attorney’s fees is also available. As a result, for a restaurant industry that already exists on thin margins, consultation with an entertainment and/or business services attorney is, surprisingly, prudent. Additionally, at the first sight of a demand letter, consultation with a litigation attorney could save a business hundreds of thousands of dollars.
So the next time you find yourself on a nine-mile skid on a ten-mile ride, you can remain hot as a pistol but cool inside. (Sorry, had to do one more).
-Zachary R. Fowler is a Partner and commercial litigator at Gross McGinley, LLP, representing businesses in court and developing best practices for litigation avoidance.
