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Table of contents :
List of Figures......Page 7
List of Tables......Page 8
Chapter 1: What Is Plagiarism and What Is Musical Plagiarism?......Page 9
1.1 What Is Music and What Is Plagiarism?......Page 11
1.2 Why Is Music Plagiarism a Problem?......Page 18
1.3.1 The ‘Criminal Economy’ View......Page 19
1.4 Deciding on Plagiarism in General?......Page 22
1.4.1 The Problem of Cognitive Bias in Deciding Plagiarism......Page 25
1.5 Borrowing from Other Creative Outlets......Page 30
1.6 Unconscious Plagiarism Considered......Page 32
1.7.1 What Kind of Data Can We Get?......Page 34
Chapter 2: Plagiarism the Old Fashioned Way: Steal from a Composition......Page 45
2.1 Self-Plagiarism in Music?......Page 46
2.2 Unconscious Plagiarism: Music Specific......Page 48
2.3 Is Parody a Valid Defence?......Page 50
2.4 Composition and Plagiarism’s Role in It......Page 53
2.5 Creativity......Page 56
2.6 Arnstein and Beyond......Page 61
2.7 The Issue of Delay in Bringing Composition Cases......Page 65
Chapter 3: Sampling, Samples and Library Music......Page 69
3.1 What Is Sampling?......Page 71
3.2 Why Sample at All? Plunderphonics, Sound Collage and Bricolage......Page 82
3.2.1 Plunderphonics......Page 84
3.2.2 Vaporwave......Page 86
3.3 Sampling from an Economic Point of View......Page 90
3.4 The Sample Clearance Problem......Page 91
3.5 Conclusion......Page 93
Chapter 4: Policy Issues......Page 97
4.1 Recap and Agenda......Page 98
4.2 The Thin Empirical Evidence......Page 101
4.3 Standard Welfare Economics......Page 106
4.4 The Digital Libertarians: Boldrin and Levine......Page 110
4.5 Voluntary Settlement......Page 115
4.6 The International Dimension and the Berne Convention......Page 117
4.7 The Bitter Sweet Symphony Case......Page 120
4.8 Finale. Eleven Final Questions and How to Use the Appendix......Page 125
Electronic Freedom Foundation. Documents with No Date as Follows:......Page 128
List of Those Accused......Page 131
CULTURAL ECONOMICS & THE CREATIVE ECONOMY. ECONOMY
An Economic Approach to the Plagiarism of Music Samuel Cameron
Cultural Economics & the Creative Economy
Series Editors Erwin Dekker Erasmus University Rotterdam Rotterdam, The Netherlands Andrej Srakar University of Ljubljana Ljubljana, Slovenia Michael Rushton Indiana University Bloomington, USA
This series aims to provide original and societally relevant perspectives on the modern creative economy from the perspective of cultural economics broadly understood. In the past decades it is increasingly realized that value in the economy is realized in the creative industries and the more traditional cultural sectors. This series will aim to shed light on how value is created and realized and how the creative economy shapes the broader economy. We believe that trends in the creative economy are often a sign of things to come in the broader economy, this is true for the way in which work is organized, how innovation happens, how entrepreneurs act and the relevance of cities in the modern economy. The series will provide a collection of works of leading cultural economists on theoretical and empirical topics. It will cover the field in its most broad sense and focus on the current open problems and topics in cultural economics, covering micro, macro end methodological aspects. More information about this series at http://www.palgrave.com/gp/series/16422
An Economic Approach to the Plagiarism of Music
Samuel Cameron Bradford, UK
ISSN 2662-4478 ISSN 2662-4486 (electronic) Cultural Economics & the Creative Economy ISBN 978-3-030-42108-3 ISBN 978-3-030-42109-0 (eBook) https://doi.org/10.1007/978-3-030-42109-0 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover pattern © John Rawsterne/patternhead.com This Palgrave Pivot imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
1 What Is Plagiarism and What Is Musical Plagiarism? 1 2 Plagiarism the Old Fashioned Way: Steal from a Composition 37 3 Sampling, Samples and Library Music 61 4 Policy Issues 89 Appendix123 Index139
List of Figures
Fig. 1.1 Time series of songs produced using proxy data 1956–2017 Fig. 1.2 Natural log time series of songs produced proxy data 1956–2017
List of Tables
Table 1.1 Table 1.2 Table 4.1
Songs released per year proxy data from Wikipedia container category27 Cases in the USA 1841–2019 from Burns website 31 Dramatis personae in the ‘Bittersweet Symphony’ case 114
What Is Plagiarism and What Is Musical Plagiarism?
Abstract The distinction is made between musical and other plagiarism. The right to be recognised as an author is discussed with reference to moral rights, the theoretical idea of ‘death of the author’ and socialist principles. The role of expert testimony versus AI-style metrics in detecting academic plagiarism is discussed and the greater difficulty of reaching unambiguous decisions in musical cases is highlighted. The decision to plagiarise in terms of rational choice economics, in the form of the economics of crime literature, is appraised with respect to its behavioural applicability and the accuracy of its predictions. We move on to consider empirical evidence on unconscious plagiarism and self-plagiarism in academic work. Nine sources of cognitive bias are identified, which may systematically distort judgements about one’s own or others’ degree of plagiarism. The chapter concludes by looking at the thin statistical evidence. Proxy data for the growth in song output is used to estimate the growth rate in material available as a target for musical plagiarism. Some evidence is shown for the claim that recent decades have seen a marked upsurge in litigation. Keywords Plagiarism • Economics of crime • Cryptomnesia • Cognitive bias • Growth in song production
© The Author(s) 2020 S. Cameron, An Economic Approach to the Plagiarism of Music, Cultural Economics & the Creative Economy, https://doi.org/10.1007/978-3-030-42109-0_1
‘In the end, it was Hay’s own admission that he would often sing the words of Kookaburra while performing Down Under that helped the judge come to his decision. “In my opinion, there is a sufficient degree of objective similarity between the bars of Kookaburra, which are seen and heard in Down Under, to amount to a reproduction of a part of Miss Sinclair’s round,” Justice Jacobson ruled yesterday. Mr Hay’s performance of the words of Kookaburra shows that a substantial part was taken.’ The above is from the 4th February edition of the Australian newspaper Herald Sun (Catanziriti, K. (2010)) about the plagiarism case brought against Colin Hay’s song (co-authored with Ron Strykert), for the band Men at Work, ‘Down Under’ originally released in 1983 (but composed in 1978). The case lay dormant for over 25 years and its success relied on the claim that there had been unauthorised borrowing from a 1934 Australian’s children’s song, written by Marion Sinclair and sung by the Girl Guides, ‘Kookaburra sits in the old gum tree’. This was not part of Hay’s original composing process and was added as a deliberate flute quotation to the arrangement by Greg Ham of the band. This quotation was used to signify something intrinsically Australian—in the same vein as an English composer might work an ironic quotation of ‘Jerusalem’ into a work. It is important to note that ‘Down Under’ did not use the musical motif ironically, satirically or parodically, although as we shall see it is only the third, of these three, that really matters where ‘fair use’ is allowed. At this time, Australia had little allowance for this type of exception—the subsequent changes are detailed in Hurwitz (2015). Hay claimed that it was not part of the composition but only part of the arrangement. This brings up the question of why arrangement might not be protected yet composition is and the further question of ‘How do we tell the difference between them?’ The case originally sought 40–60 per cent of royalties (although a media interview on the documentary on Men at Work has the claimants saying they want 25 per cent of all royalties) but the final decision was to pay 5 per cent of earnings, from 2002, retrospectively and in perpetuity. This decision was made by a judge sitting solely in an Australian federal court who concluded that a Qantas advertisement, which used a small, similar section of the riff was not in breach of copyright laws. There are two dimensions in the decision, of interest to an economist, a price (the ratio of remittance) and the quantity (in the form of the duration of remittance). There is also the interesting economics of law issue of delay (the doctrine of laches). Sinclair died in 1988 without even making informal claims but Larrikin Music bought the rights to the song, in 1990,
1 WHAT IS PLAGIARISM AND WHAT IS MUSICAL PLAGIARISM?
and subsequently brought the case. This was a long wait to make the claim against probably the best known Australian song of all time.1 The case was only kicked into life by a chance event in 2007, when the ABC-TV quiz show ‘Spicks and Specks’ asked ‘What children’s song is contained in the song Down Under?’ and the answer was ‘Kookaburra’. The case plays out mainly as a copyright holding issue given that, in the judgment, considerable effort was made to explore the question of whether original copyright had in fact been assigned to the Australian Girl Guides rather than the claimants. As I do not want this work to become a mere litany of cases exhibited for their entertainment value alone, I have provided an Appendix which gives, in alphabetical order of those accused of plagiarism, a selection of interesting and relevant cases with some brief notes. This is not a comprehensive compendium of all known cases, nor are all the cases in it discussed within the current text. The selection made provides a mixture of genres and artists to cover different factors which may be at work. As this work is by an economist, the account of the cases is not musicological or legal although I am, of necessity, required to comment on those areas. The same goes for the main ‘text’.
1.1 What Is Music and What Is Plagiarism? Everyone has some idea as to what constitutes music and as to what plagiarism is. Put these together and they have some idea of music-related plagiarism—someone has ‘stolen’ someone else’s musical idea. In the simplest case, it is stealing someone else’s song (or part of) although such theft is wider than plagiarism as it includes non-crediting of contributors. Plagiarism, as such, relies on prior publication of the work. Such publication does not have to be a recording as composers can deposit outlines of compositions to establish ownership while they wait for them to be recorded. Stealing of a non-published idea, such as from someone else who hummed the tune to you is simply theft, not plagiarism, and is the subject of an equally problematic body of legal decisions. Same thing goes for band members who contributed to a song without credit. Conversely, 1 Although Men at Work are an Australian ensemble, Colin Hay, is in fact, Scottish having been moved as a child. The song itself is lyrically full of Australian references including the title and the foodstuff Vegemite. It is also sung at many national sporting events to celebrate national pride.
where a non-contributor’s name is forced on to the credit against the wishes of the actual composers, this is NOT plagiarism. It seems simple—surely it is wrong to steal someone else’s ideas and the victims may even deserve to be paid MORE than any possible loss of income as compensation for the wrong inflicted on them? The idea of a ‘wrong’ being involved in using ideas/creativity previously attributed to someone else requires that we accept a two-step process of justification. The second step is that we permit ‘authors’ to exercise some kind of control over rights, or agents to acquire such rights and exercise the control either on their behalf or independently. The first step is that we accept that there is still a meaningful entitlement due to an author. The validity of the concept of authorship has been challenged on two fronts. The first is in terms of critical thinking that proposes the notion of the ‘death of the author’ and thus we should only revere and/or analyse the themes and ideas in the work produced in their own terms as objects of art and desist from the ad hominem reification of works. The second is from internal communes, as a mode of production, or a wider ideology of socialism where property is antithetical to the overall social ownership protected by the state. These critiques are not incompatible although one can espouse one without necessarily following the other. Death of the author ideas has not been popular in music criticism (but see Greenfield and Osborn (2005)). Possibly the most conspicuous instance of the ‘death of the author’ view is in the work of Foucault (see Foucault (2003), Hess (2006)) which is along the lines given above. The communal or socialist derogation of authorship is most prominent in musical terms in the proclaimed manifestos of the Slovenian polemicists ‘Laibach’, chiefly in their Ten Covenants document (Laibach (1982)). Only 4 and 7 relate to our concerns, as the rest are basically general Marxist ideology. The most interesting feature is the constant reference to their artistic work as a form of industrial production. Number 4 says the following (I have omitted several parts to save time and space): ‘The triumph of anonymity and facelessness has been intensified to the absolute through a technological process. All individual differences of the authors are annulled, every trace of individuality erased.(…) LAIBACH adopts the organizational system of industrial production and the identification with ideology as its work method. In accordance with this, each member personally rejects his individuality, thereby expressing the relationship between the particular form of production system and ideology and the individual.’ Number 7 says: ‘LAIBACH excludes any
1 WHAT IS PLAGIARISM AND WHAT IS MUSICAL PLAGIARISM?
evolution of the original idea; the original concept is not evolutionary but entelechical, and the presentation is only a link between this static and the changing determinant unit. We take the same stand towards the direct influence of the development of music on the LAIBACH concept; of course, this influence is a material necessity but it is of secondary importance and appears only as a historical musical foundation of the moment which, in its choice is unlimited’. One can find more in Ke (1994, p. 54) on their ethos that originality is impossible as industrial arts work, such as music, only recycles the past and therefore should not be personified in nominal creatives masquerading as geniuses/icons/legends and so on. Bulc (2009) argues that because Laibach did not consider themselves to be musicians that they do not then respect the authorial right of musicians. Their only concern is with the music of and for ‘the people’ as they are part of NSK (Neue Slovenische Kunst), a Slovenian collectivist art group. Laibach are reportedly not at all interested in pursuing charges of plagiarism against Rammstein ‘stealing’ from them. They responded that ‘Laibach does not believe in originality… Therefore, Rammstein could not “steal” much from us. …. In a way, they have proven once again that a good “copy” can make more money on the market than the “original”’ (from an interview for which the link has lapsed). Laibach’s direct use of the work of others, to produce its industrial output, has consisted mainly of radically deconstructive and polemical cover versions. These could be construed as a critique of capitalism (cp. the discussion of ‘Vaporwave’ in Chap. 3). Laibach’s direct use of samples, from records, seems to have petered out (if we are to take whosampled.com as reasonably accurate in this case and in at least one instance it wrongly attributes as a sample what is in fact a quotation) in the wake of the Grand Upright case. They also tend to be from recordings before copyright was implemented in the USA for musical recordings. Surprisingly there is very little work on the economics of music plagiarism bar the few empirical papers which are now emerging on sampling cases (Watson (2017), Ceulemans and Lowe (2018)). There is much more economic literature on copyright in general and music and other cultural goods in particular (see e.g. Novos and Waldman (1984), Landes and Posner (1989), Einhorn (2004, 2010, 2014), Klein et al. (2002), Scherer (2008), Stav (2014), Towse (2017)). The deliberate choice has been taken not to write a book about copyright as such which merely highlights plagiarism as an issue rather than focusing on it overtly. This is merited from
the viewpoint of other disciplines in the field such as law, media studies, musicology, sociology and law. For example, the most exhaustive tome on the law of music copyright by Rosen (2008) is over 600 pages, yet only overtly mentions plagiarism three or four times. This suggests that plagiarism requires more of a solo spotlight. Part of the case for this is that it brings in a variety of normative elements in judging whether or not a breach has taken place and how serious that breach is. Music plagiarism brings to the fore more than just legal and narrow economic issues as such accusations influence the way typical consumers and (more extremely) fans frame their enjoyment of music by the accused artists. Believing your hero is a cheat (and that this has been hidden from you) is something that has to be dealt with. The narrow economic impact would be a fall in demand due to disloyalty, which in a textbook model might further impact prices, but the very simple microeconomics textbook approach tends to run out of easy applicability when we come to musical matters (cp. Cameron (2015)). Plagiarism accusations have spread to a greater degree than ever before thanks to access to formulations of such accusations on social media and content display with comment platforms such as You Tube. Previously such accusations were more politely restrained in the domains of documentaries and print journalism where fear of litigation attenuated the tone of the debate. Now there is a constant stream of commentaries usually in the click-baiting list ‘number of’ format using different common parlance terms ranging from ‘songs you didn’t know were based on something else’ up to ‘most blatant rip-offs by famous artists’ and use of the word ‘stolen’. For example, here are some milder titles of pages from journalistic examples rather than private you tube channels: 11 Famous Rock Songs You Didn’t Know Were Sued for Plagiarism (Newman (2016)) 27 Pop Songs You Didn’t Know Were inspired by classical pieces (Classic FM website no author no date) 35 Songs You Didn’t Know Were (Allegedly) Plagiarised (Sparkles (2018)) and 57 Songs That Sound The Same (Jacob Moore and Ernest Baker (2013)).
Such lists contain a mixture of the out of copyright (so non-actionable), the merely accused and not tried and those actually taken to plagiarism cases.
1 WHAT IS PLAGIARISM AND WHAT IS MUSICAL PLAGIARISM?
The Moore and Baker list claims: ‘Great minds think alike, and as more music gets made, it’s only natural that more artists’ sonic ambitions begin to overlap with what’s already been put out there. That means that, yes, it’s possible for a Nicki Minaj album cut to sound a lot like a Radiohead one from 10 years earlier’. It is worth commenting on the words used here with respect to the history and practice of legal treatment of plagiarism. It suggests a casual attitude where cryptomnesia (unconscious plagiarism) is a typical part of the modern information processing world and not a crime after all. Also there is the supposition that those named (there are several others in the rest of the paragraph quoted) have some equality as ‘great minds’. There is also a curious use of the phrase ‘sonic ambitions’ which is clearly not the same thing as composition or songwriting, perhaps suggesting that there is and should now be more focus on what the derivative work sounds like. This problem has reached its apex in the Robin Thicke case brought by the Gaye family (see Appendix). It suggests the definition of music under legal dispute is ‘sonic ambition’ not a composition alone. This further implies that music may start to be treated as if it were a product like cars or perfume in terms of the ownership attributable to those who deliver it. As the video montages on which You Tube versions of plagiarism lists are predicated generate income, it is desirable for sustained negativity to fuel further comments and replies by the consumers. One crucial thing which such montages allow is a-b ing of the actual recorded output so the listener can assess the source and derivative works from side-by-side listening. The Moore and Baker ‘57 Songs…’ piece gives the tracks side by side and also points to the exact time at which the alleged copying takes place. Such comparative listening sounds like a fundamental element in plagiarism cases. That is it would seem to be the gold standard for evidence as per the use of a witness in a case of property theft. However, as we shall see later, there are many obstacles in making a-b listening tests decisive. Further, that they are not necessarily used in legal settings. This can be seen in the ‘Stairway to Heaven’ and ‘Blurred Lines’ cases. In the ‘Down Under’ case there was no jury at all, so all similarity decisions were the province of the sitting judge. In short, there are no real gatekeepers—so there is no set requirement as to how the a-b test is carried out by the listener for anything on a ‘list of accused songs’ video. That is, there is no requirement on the content provider to display passages where the similarity is strong with clear musicological expert annotation on how the passages differ between the two
songs. For a case, like the Steely Dan song ‘Rikki Don’t Lose That Number’ it is blatant, to the point of incontrovertibility, that it repeats constantly as its underpinning the riff from an instrumental work by Horace Silver. But this drags us into issues of ‘what is the creative aspect of composition?’ which are pursued later when we consider the scenes a faire defence which attenuates claims on the use of riffs and generic melodies. So we move forward relying on the definition that music plagiarism is unauthorised (and hence unpaid for) use of material created by someone else in your own music. Further as with academic plagiarism you are deemed to be attempting to ‘pass off’ the work of others as your own. It is important to note the term ‘created by’ as opposed to ‘owned by’ as the latter is general copyright infringement. Typically there are rights holders who are not creators who therefore have an incentive to issue claims on the platform of plagiarism. This is evident in cases where there has been a long delay where the claim is brought by the publisher not the composer such as the ‘Down Under’ case. We might expect that a morally outraged composer would bring the case as soon as they heard the infringement, as in the Repp v. Lloyd Webber case over the song ‘Phantom of the Opera’. However, it is wrong to assume that lengthy delay automatically devalues the legal weight of a case, on the grounds that the plaintiff should have noticed a lot sooner, as is sarcastically and sneeringly implied in a recent account of the ‘Stairway to Heaven’ case (Sanchez (2019)). Musical plagiarism, at its broadest, is to be judged by the idea that something ‘sounds like’ something else which in legal terms is the substantial similarity criterion applied to other intellectual property such as software and capital goods used in musical creation (like instruments and effect processors). In non-musical cases it would be looks like and acts like (‘look and feel’). A judgement of similarity can be made in any field of endeavour on non-legal grounds, that is one bar of chocolate is like another but the formalisation into a more precise form is required due to copyright disputes over infringement. Balganesh et al. (2014) say that the US judicial definition of ‘substantial similarity’ is ‘Premised on the idea that “[n]ot all copying … is copyright infringement,” copyright law’s substantial similarity doctrine requires a plaintiff to satisfy a court that a defendant’s copying is quantitatively and qualitatively enough like the original to render it actionable as infringement. The defendant’s copying, in other words, needs to result in a copy that is “substantially similar” to the plaintiff’s protected work for the copying to be actionable’ (ibid., p. 268) (emphasis added to original).
1 WHAT IS PLAGIARISM AND WHAT IS MUSICAL PLAGIARISM?
It is important to note here that the word ‘copy’ has crept into the discussion. Unlike plagiarism as such, there is a significant amount of economic research literature on copying of products generally in terms of providing a lower price version (Varian (2005), Shenkar (2010), van Horen and Pieters (2012)), which is also prone to use the term ‘copycat’. Does this difference matter? Is it misleading to use the term copying? The important distinction is in the copycat notion. In consumer products, the copying tends to be of the entirety of the concept as a whole. Perfume is a good example of this as the chemical formula can be exactly copied and sold at a fraction of the price devoid of the original branding. But, digital products have led to copycat branding in the form of ‘clones’. The obvious example is smartphones where very cheap android phones are remarkably similar to much dearer Samsung offerings but do not claim to be the items copied and hence are not counterfeit. The comparator music case is tribute bands which have however never been charged with plagiarism from the sources of inspiration (although there were threats made, in the Abba case, and some tributes have now copyrighted their own entity). The tribute sector has flourished in the absence of fears of plagiarism or copycat branding litigation. This is because tribute acts do not attempt to pass off recordings they have made, which are heavily derivative of the original artists, as their own work. So, in contrast, the core of musical plagiarism is generally the use of some parts of the source but not an attempt to pass off all of it, in complete imitation, as one’s own work. The Steely Dan use of Horace Silver’s riff is an example of this as they add words and other musical elements to the riff and do not repeat any of the solos he produces over the top of the riff. So, as it tends to be use of an element we enter complex possibilities about the importance and centrality of the element in the total work which leads to the legal de minimis criterion that it is okay to use a sufficiently small part which requires us to define ‘sufficiently small’. However there is an alternative definition of de minimis which is small as in an irrelevant trifle rather than small in amount. One might claim that the use of a pre-existing riff or phrase is in fact a ‘quotation’ and might therefore be exempted under the concept of ‘fair use’. The fair use doctrine is exemplified in academic books where it is deemed okay to quote a certain amount of words from authors (as is done here) without paying them. In academic work, the notion of plagiarism seems quite simple as it is ‘passing off’ due to not identifying elements as quotations and failing to reference the source. Many books written on
popular music cannot rely on such fair use conventions over the use of song lyrics or interviews from previously published sources. Hence they often are filled with new interviews to fill the void of being unable to pay for the source material directly. It is very unlikely that an interview of a musician would be plagiarised in the sense that all the questions were stolen from an earlier instance. However, a de facto recreation could be attempted in the same material (anecdotes, recollections is being elicited). This equates to the practice of recreation as evasion effort (in sampling use) which we encompass in the economics of crime approach to plagiarism. We also need to look at the matter of quotation in the form of repeating a phrase from the source for deliberate effect. Such quotation may be of musical phrases or riffs or of words only, which may not be taken from musical works. This is discussed below in the specific case of the song ‘Charlotte Sometimes’ by The Cure, where the source is a literary text.
1.2 Why Is Music Plagiarism a Problem? Similarity per se does not mean there is necessarily a problem to be addressed in a creative sector such as music. If there is a problem (and in Chap. 4 we will look at the case that it should not be) then it is not a single-issue, single-solution problem. This is demonstrated in our decision to have a separate chapter on songwriting and sampling. The relevant law now generally recognises ‘moral rights’ (the economics of which are fully explored in Hansmann and Santilli (1997), Vaver (1987), Rushton (2001)), although these do not map identically to what a lay person would consider the moral element in a case. The two key moral aspects of creative output are recognition of contribution and the ability to prevent unacceptable usage. The obvious case of the latter is where someone objects to use in a work of pornography or which is pro- terrorism or a political view which is unacceptable to the morally asserted author. It is common to see in written work a statement that the author asserts the right to be acknowledged as the author of the work. This can logically be separated from the payment aspect, for example if one writes a work where all proceeds go to charity, it is still reasonable to affirm authorship to demonstrate that it is not considered a public domain or ‘free good’ source for others to use at will without permission or restriction of any kind. Music is a problem partly because it is recorded music under consideration and legal frameworks have evolved around the written word. In
1 WHAT IS PLAGIARISM AND WHAT IS MUSICAL PLAGIARISM?
written work, quotation marks can be used to identify a source and references given in a list. Analogous practices cannot operate for music so the only recourse would be to give an authorship credit to a source or license the use of material. Music has become a bigger problem with the complexities arising from sampling (see Chap. 3) where the de minimis criterion has not applied.
1.3 The Obvious Economic Approach to Acts of Plagiarism 1.3.1 The ‘Criminal Economy’ View The decision to plagiarise can be approached in terms of rational choice economics deriving from the large existing economics of crime literature. There are a number of interesting economic questions that fall within this literature (originally framed in Becker (1968)) which do not seem to have been asked about this phenomenon, for example: 1. What type of penalty should be used to punish the plagiarist? Incarceration, fine or other. 2. How strong is the incentive to steal a song? 3. How strong is the incentive to seek redress? 4. Do most current legal systems offer too much incentive to speculative accusations motivated solely by the desire to make money off of others? 5. Do normative elements cloud adjudication decisions thus making them sub-optimal? Litigation is a potential free-for-all given that most popular music revolves around a very limited set of chords/chord sequences and melodies. The same applies to words; the frequent repetition of the same words/phrases would prevent copyright hanging on them. A basic supply and demand approach to the effect of the penalty rate could be used, that is if the penalty rate goes up (ceteris paribus the likelihood of an action succeeding), the incentive to steal goes down and the incentive to sue goes up. If the fine rate is set arbitrarily by a judge rather than any equilibrating process, it is highly unlikely that thefts will equal actions (total observed thefts and actions would be derived by grossing up this diagram over the
number of songs). The case of a ‘low’ fine rate where thefts exceed actions is intuitively easy to grasp. The converse may appear a little stranger but it is simply the case that a very high fine rate may encourage picking on innocent victims because of the narrow range of chord variation. Press coverage of the Michael Bolton-Isley Brothers case dwelt extensively on how much he was ‘losing’ because of the Isley’s success but, if this is a genuine form of theft, then he was of course potentially making a net gain on a crime. If he has genuinely stolen the song then his earnings should be compared with those for simply covering the original. Setting penalty rates of less than 100 per cent suggests there is every incentive to steal unless there are costs associated with stealing which outweigh the gains. As theft is involved, there is a tendency to see a plagiarist as a criminal. A satisfactory model, of the plagiarist as criminal, should involve all the relevant costs including evasion capital, camouflage effort and reputation damage. The basic concept here is of ‘camouflage effort’ as part of the production function for songs. This is equivalent to physical camouflage which has been modelled for the smuggling of goods across trade borders (Thursby et al. (1991)). For theft to be worthwhile the expected marginal productivity of camouflage effort must exceed that of truly original composition. In the case of sample use, evasion capital involves hiring someone to do an audibly exact recreation of the source sampled so one cannot be charged with unauthorised use of a fragment of a copyrighted recording. This would drive the accuser into bolstering their case by regression to a composition argument that the portion recreated was a compositional foundation stone. This is illustrated in the Justin Bieber case in the Appendix to this work. A crucial question is what form the utility function of the criminal plagiarist takes. A model of the subjective expected utility type is used in the core basic economics of crime approach. This will mean there can be different results in terms of response rates to deterrent effort depending on the assumptions made about so-called risk preference such as measured by the Arrow-Pratt measure of risk aversion. This seems to be ignored in economics of crime style papers by Collins et al. (2007), Sattler et al. (2013). The first of these, a purely theoretical paper on the college student plagiarism decision, makes the assumption that the decision-maker is risk neutral whereas much work in the economics of crime tended to assume risk aversion in a simple von Neumann-Morgenstern utility function. There seems to be no specific debate on whether it is more appropriate to assume risk aversion or risk neutrality for a plagiarist. Or indeed a so-called risk lover which is a generally unpopular assumption in this framework
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given that it relies on the presence of increasing marginal utility of wealth. This oversight seems to be carried into the empirical work of Sattler et al. (2013) which uses a large sample of German students to estimate the magnitude of norms and opportunity as determinants of plagiarism. The norms measure is a five-point Likert scale on student’s attitudes to the immorality of plagiarism. If the papers in question were based on the common assumption, which is made in the narrow field of economics of crime literature on which they heavily rely, of diminishing marginal utility of wealth, we would encounter some further implications. Chiefly: 1. with high levels of risk aversion, very substantial punishments and/ or very large reductions in the benefit from plagiarism might produce very little impact; 2. assuming that individuals have similar underlying fundamental preference, then the pattern would tend to be that the lower wealth individuals would be more likely to perform the plagiaristic acts. In the case of music, some things run counter to implication 2. As we shall see, it tends to be lower-wealth individuals who claim that the plagiarism was done by the higher-wealth individuals. Next, we may note that the accused plagiarist seems usually not to have done it on purpose for the benefit of gain. However, we should note that the situation is not much changed by dealing with an ‘innocent’ plagiarist where all plagiarism is subconscious and the creators believe that all their output is their own work and that any similarities or infringement are coincidences and accidents. Unless they are deemed to be irrational, then they would have to consider the problem in a similar manner to the ‘criminal’ plagiarist given that they are aware of the possibility of being accused. This leads us on to consider the detection of plagiarism problem and the matter of subconscious plagiarism. It needs to be pointed out that, in the economics of crime model, everyone is a criminal given the right incentives. Hence we have criminality in those who bring cases not just those accused of plagiarism. This could be vexatious litigants bringing nuisance claims on the chance of a pay-off. For example, if we think that the legal treatment is so chaotic that there is as much chance of winning as losing a case even with weak evidence and let us say the payout is estimated at one million gain over losing, then applying the probability of 0.5, the expected take is half a million. But of course you might lose so the degree of relative risk aversion would dictate whether this is worth it.
1.4 Deciding on Plagiarism in General? The following chapters look at the specifics of music-on-music plagiarism. It is useful first to review how we decide that plagiarism exists, in general, in all fields. There are, of course, cultural and territorial differences in views on the attribution of plagiarism as well as differences across fields of relevance. Although music shares some copyright problems with other cultural industries such as film and literature, the chief relevant comparator is academic teaching and research. This is an area which has increasingly been subject to the use of metrics derived from AI (artificial intelligence) to inform the decision rather than lay or expert knowledge alone. It is easy to make an accusation of plagiarism by simply claiming something is ‘similar’ to something else, in some element of its content, in a high degree. We have to consider how similarity can possibly be established for the purposes of making a decision. One approach is to rely on the testimony of an expert. This seems obvious enough but we have problems of what we do if the experts disagree on the existence and extent of problematic similarity. Also, there might not be congruity between what the experts consider to be similarity and the requirements of the process which is passing judgement. The customary outcome of this is that the expert witness is consulted as a source by the decision-making body. In the sphere of written academic work, whether it be research output or student work, it might seem obvious that the view of the expert is vital. And that expert would be the examiner of the student work or external examiner from another institution or peer reviewer in the case of research output. A non-expert might think that there was dangerous similarity in the text reporting the outcome of statistical tests between two pieces of work, simply because they are not au fait with the restricted and repetitive language used in such lines of work. Before the arrival of AI-style metrics, experts investigating written work faced substantial workloads as they would need to comb the text of both works to do an a-b comparison. On top of this, they would have to find some way of establishing if there is significant similarity where camouflage investment has taken place. Even worse, where plagiarism is merely suspected, without prior identification of an original source, they would have to go and look for the original source based on memory, hunches or some other heuristic. This scenario was totally revolutionised by the consequences of the digitisation of academic written work and the profusion of accessibility to such content due
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to the expansion of the internet. This allows for the use of AI to comb a massive sample of material which is at risk of being the source material for the derivative content. The software is used to do such internet crawling can go on to use algorithms which generate a metric for the degree of similarity. Not surprisingly, this has been most usually on an unweighted percentage scale of 0 (no similarity at all) to 100 (completely identical) with use of so-called heat maps in the form of colour flagging for different ranges with the move from white, for zero, through the spectrum to red, for dangerous. There may be over-vigilance in the decision that a work has been plagiarised due to being a slave to metrics. However, student academic work allows a lenience in treatment that is seemingly not available for musical work. That is, the suspected offender can often be allowed to have another go, with no or a proportional penalty, at producing a work which is not plagiarised. However, we may see some parallels in heavily sample- influenced musical works which have now had to be reissued in altered form (see the later discussion of work by The Avalanches). As with many student cases, in higher education, we now find that there is pre-screening as per the idea that the ‘innocent offender’ needs protected from the risk of punishment. In educational work, this involves the use of the dedicated systems of the ‘Turnitin’ or ‘iThenticate’ variety to look at the metric score to decide if the work can be submitted. These systems are dedicated software designed for the problem. In musical cases, the equivalents are items designed for other uses, such as using Shazam to check what the work is supposed to be if it was an existing song or by accessing YouTube’s Content ID system. For a large corporation with publishing rights at stake, this is too sketchy to be a full proofing system of low risk of reprisal. So, they resort to pre-emptive use of full canonical exegesis by experts. This may include further technical analysis of digital waveforms including use of algorithms to uncover camouflage effort in processing but in the last call comes down to labour-intensive ear tests. As Drury (2018) reports, a musicologist such as Professor Joe Bennett at Berklee College of Music may ‘listen to the two tracks being compared around 100 times—and some particular sections more than 1000 times’. Outside the musical world, the digital revolution has led to more scrutiny of the research output of academic staff themselves on top of the investigation of students. There has also been growing concern over self- plagiarism which seems to cause confusion in some popular discussions of the matter. This would be on the rational position that surely it is
impossible not to repeat one’s own work to some degree? Self-plagiarism in academic research has to be more than mere resemblance to one’s earlier work in order to justify the fact that punishments have been administered for it and that journal editors take steps to establish that it has happened. The practice concerned is not really plagiarism in the everyday usage: for example let us say X, Y and Z publish an empirical paper on some topic in Journal A. This is their first published exploration of the individual data set and ideas. It is normal to expect that they will develop this further, and that others will do the same and have been doing the same, hence they will produce affiliated but not plagiarised further works. Given anonymity in academic peer review, the reviewer may not know that some cited papers are by the authors of the paper they are reading. Naturally, if papers are cited, with which they are unfamiliar, they may feel the urge to check the similarity of these to the paper under review. For these later works of X, Y and Z to get through the gatekeepers for academic outlets, in the form of peer reviewers, they are supposed to denote a sufficiently significant ‘original’ contribution as is the case for award of a PhD thesis. The gatekeepers would be concerned if they found substantially similar prior papers. For work in economics, this tends to mean not only similar ideas but also, possibly almost identical empirical work. The authors might choose not to refer to their own previous work in their citations. It might be claimed that this is an innocent ploy to try to preserve the problematic anonymity required by peer review. However, where there is an accusation of self-plagiarism, it is seen as deceitful as the authors are milking material occasioned by opportunities due to imperfect information. That is, generating more than one published work from the material of one work due to self-plagiarism. Going back to general plagiarism, let us highlight the key differences between academic and musical cases (specific comparison of academic and journalistic plagiarism with hip hop can be found in Chanbonpin (2012)): 1. Academic work is much more linear than music so it is more amenable to a metrics-based judgement. This is reflected in the rarity of usage of a direct similarity percentage score in music cases. In all the material I have read on cases, the only instance so far where I have seen such a number is in the case brought by the van Passels, in a Belgian court against R. Kelly, as writer of Michael Jackson’s ‘You Are Not Alone’, where the similarity is reported as 43.46 per cent. Unfortunately, the absence of reasonably neutral index measures
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leaves music cases vulnerable to the spurious quantification employed by attorney Richard Busch in recent cases against work by Robin Thicke and Ed Sheeran where he presents large volumes of similarity data as a persuasive rhetoric rather than musicological analysis (See Cronin (2016)). 2. The addition of sample use to the composition problem makes point (I) even more acute as the size of amount used is not necessarily proportional to the significance of the role of the sample in composition (this is well illustrated in the Justin Bieber case in the Appendix). 3. The arena for judgement differs—it may be legal for music but generally not legal in academic cases. Here it is at the whim of internal decision-making by an institution or scholarly body. It would become legal if the findings were challenged, for example if a penalty such as dismissal from a job or removal of a PhD from an academic due to the violations of the ethics of their profession. 4. Self-plagiarism of the type just described is, in music, different as described in the next chapter. Although key differences exist in the nature of academic and musical plagiarism, they do have in common the risk of subjective biases in judgement of severity assuming we do not delegate the task solely to metrics. 1.4.1 The Problem of Cognitive Bias in Deciding Plagiarism The use of AI systems may introduce biases, in either direction, due to imperfections of the algorithms and the data sample available especially in the face of camouflage and evasion by the authors of the documents checked. Some of these may be user induced, for example if the checker uses default settings on a ‘Turnitin’ system when custom settings may be more appropriate to the task at hand. This is user inefficiency of detection tools rather than bias as such. We are concerned with judgemental bias. There are no empirical studies of whether such biases are relevant in the case of juridical or jury comparisons of similarity of two creative works. However there are some studies of structural biases by expert judges in music competitions (as opposed to law-making judges) (e.g. Glejser and Heyndels (2001), Ginsburgh and van Ours (2003)) which show that there are biases of ordering, that is from where a performer is in the diet of assessment.
Judging a competition is a wider information set than deciding on similarity in plagiarism cases, as it involves comparing a series of events some of which require recall of how person X performed at an earlier time in a different task. It is carried out for the purpose of ranking not an outright decision on a moral and legal case. There are relevant studies of cognitive biases in legal situations in general. For example, Cameron (1993) reviews several studies showing that the way information is presented significantly influences people’s views on whether or not capital punishment should be introduced. Fariña et al. (2003), in a study of Spanish sentencing claim that most sentences are based on informal reasoning. Their content analysis of 555 sentencing decisions concluded that almost 75 per cent showed the presence of cognitive biases. They deem those to be ‘information salience and availability, preconceived ideas or theories concerning people or events, and the phenomena of anchoring and perseverance’. They also attempted to attribute underlying mechanisms in terms of cognitive processing in the reconstruction of events to the different types of bias. Possibly, naively they propose that judges should be trained to reflect on their own thought processes in order to eliminate such biases in their decision-making. It would seem that elimination of biases, by training, would be even more questionable in similarity cases of musical products given their intrinsic non-linearity of narrative and the normative disputation over the relative importance of copied and non-copied elements to the pecuniary returns. A more directly relevant study was by Balganesh et al. (2014), who conducted two experimental studies in the context of software plagiarism. Here the bias studied is that of a selected sample of non-expert non-judge individuals. These are the kind of people who would be in a jury. This paper reports two separate controlled experimental studies. On p. 287 they justify the second study as an attempt to look at theories to the extent that motivated reasoning explains the results—which aspect of morality-based determinations drives subjects to import their perceptions of wrongfulness or unfairness into the similarity analysis. Are they concerned about the rights of an owner because of the amount of work she put in? Do they fear that the new work will supplant the old work in the market? (….) The results of our second study suggest that labor-based considerations play an important role in motivating decision-makers’ reasoning on the question of similarity.
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This kind of bias would seem to exist in the case of lay judgment of musical cases. But there is also a possible reverse judgmental bias that the litigants are ‘losers’ who are pitifully attempting to leach some money off a vastly superior artist. Clearly music may share elements with software and criminal cases, but which types of purely cognitive bias are most relevant in music cases for judges, juries and interested music consumers? Selection from the menu is further confused by the ‘list-o-mania’ tendency of modern digital communication. At the time of writing, the Wikipedia page on cognitive bias lists 175 types. It would be folly for me to now wade through all of these, but even a more suitable specialist behavioural economics website (Hochma 2017) called ‘HumanHow’ gives almost 50 types in its ‘Ultimate List of Cognitive Biases’ and this is a continually updated source with the concomitant threat (or promise as they see it) to add more to the list. We can narrow down to the key ones largely by the fact that our interest is in judging similarity, in the output of others, generally in the form of pairwise comparisons NOT single decisions which have direct personal consequences such as getting married, changing job, betting on a horse or buying house. These sources of bias are studied in many behavioural economic works (such as Ariely (2009), Thaler and Sunstein (2009), Kahnemann (2012)) but get very little attention in cultural economics, in general, and studies of music by economists in particular. However, Cameron (2015) discusses cognitive dissonance in the context of consumer reactions to the furore over Robin Thicke’s Blured Lines video which is not to be confused with the later case of the Gaye family’s plagiarism case against Thicke. So, the pertinent biases in the HumanHow revised list are nine items, as follows, where number 3 includes two others from the original list which I have subsumed under it due to the similarity of reasoning: 1. Anchoring This is a tendency to rely too heavily on the first piece of information offered (the ‘anchor’) when making decisions. In a music plagiarism case, this could be the initial notification of the argument which may therefore override updating of the cognitive process from such things as expert testimony. For example, in the ‘Down Under’ case, first encountering the fact about Colin Hay singing the source song concurrently may have been overweighted. 2. Availability Heuristic The use of time and cost-saving shortcuts in assessing a case. Different individuals will rely on recall from the personal ad hoc store of information
that seems relevant and this could outweigh the weight given to expert testimony and narrative evidence. For example, if Noel Gallagher was now brought to defend a case where he felt genuinely innocent, a juror might be swayed by the ready availability of his past bravado-infused statements on stealing from others, even though these took place in informal contexts such as non-specialist magazine interviews (see Moreton (1997)). 3. Bounded Rationality (combining ‘choice overload’ and ‘decision fatigue’ into this one) This concept was introduced to economics long ago by H.A. Simon (1956) in terms of decisions by a firm. This is because people are limited by the information they have (if it is not free to access) and the processing capacity of their minds when information enters it. As a result, the optimal decision may be a mythical ideal or benchmark rather than a valid target in a model of behaviour. Simon proposed the alternative of satisficing outcomes which are ‘good enough’ but not the best that could be achieved. In the present context, this would entail unwillingness to seek out additional information about the extent of musical derivation. In a court room setting, such information would be provided and so it would seem the other sources of bias are more relevant and that bounded rationality has more bearing on consumer judgement of the originality of questioned music. 4. Confirmation Bias This is essentially lazy prejudice where the information signal is ignored or distorted in order to confirms one’s pre-existing beliefs. In this context, this might be that rich white rock musicians have ‘stolen a living’ by stealing from impoverished black bluesmen or that a Madonna or Michael Jackson may have pillaged melodies from workers in nations which are musical underdogs in the global market compared with the USA. 5. Elimination-by-Aspects In essence, this is really a more complex heuristic to arrive at a satisficing outcome, when we are in consumer purchase decisions. That is, it may lead to a higher value outcome than a simple rule of thumb such as buying a ‘good’ brand of the product. People sequentially evaluate features that matter to them. An item is rejected if it fails the criteria they have established with such screening progressing down the ranked list of features that matter. 6. Priming Exposure to a stimulus influences how people respond to another stimulus. The unconscious brain is affected by stimuli which create an emotion
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that will generate conditioning in decisions. A good example of this can be found in the UB40 and Justin Bieber cases, noted in our Appendix, as the similarity claim is around material which occurs at the very start of the tracks. To the non-musicologist this may create a bias, of its importance to the whole work, as they will not be analysing the technicalities of how it impacts subsequent development of the pieces. 7. Representativeness heuristic This says that people tend to judge the probability of an event relative to a ‘comparable known’ event. They make an ad hoc statistical inference that the probabilities will be similar in the newly presented case to those which they know about. This can create cascading inference if either there have been multiple accusations prior to the current case which were found against the defendant, or the information has other biases which persuade the judge, jury or lay audience. 8. Herd effect Herd effects are well known since time began. Given their sociability humans will always display some tendency to follow a leader, or group of leaders, in their actions or beliefs. 9. Social Proof This is superficially similar to Herding but involves more conscious statistical inference mechanisms. It states that people will use the behaviour of others as an information source to guide their choices. We may note regarding 8 and 9 that earlier economic theory work does not regard these as biases but as rational outcomes, for example the Gary Becker (1991) ‘fish restaurant’ model and the much earlier bandwagon model of Leibenstein (1950). In a musical case, the various sources of bias may be applied to the evidence about access and to the testimony of musicological experts and the witnesses themselves. There may also be cognitive biases for the accuser who overestimate the likelihood that someone ‘stole’ their work. For expert testimony, there are additional problems of using different human senses to assess similarity of an item whose chief commercial operation is in the domain of mainly one sense. This will apply to deciding if music ‘looks’ similar when permission to do a-b listening is ruled out. Showing passages of sheet music for two songs to a jury, who do not read music, may make them seem more significantly alike than they would be considered to be by a musicologist. Further, the visual representation may create some availability heuristic bias. This may also arise in the way attorney Thomas Busch has presented in cases against Sheeran and Thicke where
he counts up the number of pitches in common, or similar, in two works. The impressiveness of being told that this is 39 and 4 (Sheeran case) may override the difficulty of absorbing more complex information from musicologists as to why this is not conclusive.
1.5 Borrowing from Other Creative Outlets Plagiarism related to music can be from music or to music from other forms of creativity. So we come to the ‘based on’ problem—that is where the core idea is derived from another form or medium, for example a song is based on a book or play. In the case of musicals and grandiose full-blown projects such as Jeff Wayne’s ‘War of the Worlds’ and Lloyd Webber’s ‘Cats’, prior permission was obtained from the estate of the authors. For individual songs, this is not so common. The James Joyce estate did not object to Kate Bush basing a song on his work but objected initially to direct quotation but finally relented over twenty years later so that she could record it with the original wording (see Michaels (2011)) and even change the title accordingly. It will be useful to review a specific case where the rights holders of the literary source did contemplate action against the unapproved borrowings. Besides direct use of words, the music written, performed and produced could be said to have drawn inspiration from the words of the source (i.e. ‘use of themes’ in copyright terms). Hence it produces an output, which could not otherwise have happened, and an attendant income stream. This opens the door to nebulous and intangible retrospective claims being brought against someone who says ‘I wrote this song after I watched this film and although it’s not about it, the song was greatly inspired by it’. In terms of the ‘economics of crime’ approach, the rational utility maximising plagiarist who is stuck for ideas might resort to appropriation from such non-musical sources if they believe the expected outcome is better than from musical borrowing due to lower risks of punishment and/or lower punishments themselves. The track ‘Charlotte Sometimes’ by the Cure appeared as a non-album single in 1981 and achieved only modest commercial success but it acquired greater circulation via appearance on compilations and performances in concert. It is based on a novel by an author whose work is forgotten and mostly out of publication (Penelope Farmer). Besides
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near-verbatim passages from the novel, the B-side to the same single and a later album track also are derivative of this source, to a lesser extent. For the record, the Cure also in their early career issued a literary novel-based song called ‘Killing an Arab’, the inspiration being the work of Albert Camus, and produced some works with quite explicit links to the work of J.D. Salinger. But they are not alone in this period of British music for deriving from literary works as this can also readily be found in the works of The Smiths, The Police and The Fall (some further ‘songs inspired by books’ sources are given in Scott (2017)). Going back further, Bob Dylan produced many songs which relied quite heavily on the works of French poets and Van Morrison has been prone to lean on text from spiritual self- help type books. The interesting thing about ‘Charlotte Sometimes’ is that we have the account of the author of the source material in a blog on her website—see Farmer (2007). Penelope Farmer’s blog is ironically titled ‘Cure(d)’ and is in two parts. The reference to this case in Wikipedia is somewhat in error, as they do mention the overlap issue but not the extent of her disputation. In the late sixties, she wrote the book Charlotte Sometimes about a time- travelling character whose problems of identity lead to the poetic use of the word ‘sometimes’ as she is not sure she is Charlotte all of the time. It became her most successful book. As she notes, the usage, in the song, did bring her benefits in the form of increased revenue and recognition despite absence of overt credit. She was alerted to the derivative nature of the song by her daughter. She then notified her literary agent who was equally oblivious but instructed her to obtain the record. She found that song lyrics on the record sleeve consisted of several direct quotes from the book plus the title of the instrumental track on the ‘B’ side was another quote from the book. Her immediate action would seem to stem mostly from a ‘moral’ and ‘intellectual’ rights stance that her themes and ideas were being used to a more significant degree than the direct quotation of text. At this time, the Cure were not the massively successful operation, but they became by the time she decided to meet them with no intention of bringing a case. They were initially opposed to meeting her due to suspicions about motive at a time when the law might have been more favourable to her than it was in 1981. Then, UK law did not give her any scope under moral and intellectual rights so, under the de minimis criterion, in volume terms, as a basis, her case seemed weak. The amount of text used in the song is a very small part of the novel so it would not count as breach of copyright. It
follows that, if the words had instead come from a short poem the matter would have been very different. She was not entitled to seek rights violation on the basis of use of the same title. If titles of musical pieces were ownable there would be chaos in the market as many titles are reused frequently. Slight changes needed to overcome this might disrupt the delicate balance of a musical work however simple it might appear on the surface. Titles of performing artists are however protected. Logically it might be possible to pursue trademark law instead of copyright to engineer some form of title protection particularly if a ‘ghost’ product with the name was issued first in order to trademark the name. But Farmer gave in without even a ‘behind the scenes’ side-payment. However she did take the case up seriously with the Cure’s management and later represented by The Society of Authors. They were not keen to pursue the case, being weak both financially and strategically, even though their legal advice suggested there might be a case for breach of copyright notwithstanding the de minimis issue. The opposition threatened to delete the recording (the ultimate ironic fate of disputed provenance as instanced in the Loudon Wainwright v. Robbie Williams case). This is simple economic bullying by the more powerful party as she would lose some of the benefits she was getting from their derivative use of her work. Her final personal resolution of the moral and intellectual rights trauma is remarkably similar to Gregory Coleman of the Winstons, the drummer of the ‘Amen Break’ (see quote in Chap. 3). She says: ‘I ceased to be annoyed, even enjoyed the whole thing. It’s good to be remembered for something as a writer, if only for one book’. Unlike him, she did not get a crowdfunding restitution campaign, and unlike her, he would be unable to meet the users of his work unless he had several lifetimes to pursue the matter.
1.6 Unconscious Plagiarism Considered The case just considered is clear in the overt recognition of the use of source by those accused. So there is no defence that the resemblance is purely accidental due to embeddedness in memory. In any case, legal positions are not supportive of this defence in pure music-on-music plagiarism cases as sums have been awarded where the claim has been accepted. It is however relevant to reparation payments and attribution is influenced by the acceptance of such a claim. Unfortunately, given the dearth of
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empirical research on this topic there are no available estimates, of how much, if any, it ‘saves’ the accused. There is research on the formally defined concept of Cryptomnesia in the area of psychology of memory. It would seem logical this is to distinguish this from Kleptoamnesia being theft of physical objects although I have seen this term also used to cover idea or creativity theft hence making it a less-used version of the same word. Such unconscious or inadvertent plagiarism was tested experimentally for the first time by Brown and Murphy (1989) who found that, in an experimental setting, participants plagiarised each other’s ideas more frequently than would be expected by chance. They also note that plagiarising others occurred more often than self-plagiarism (in this instance defined as presenting one’s previously proposed idea as being novel in the generate-new phase). This has led to suggestions that people monitor self-generated and other-generated information in different ways. Such experiments take place in a group work setting where individuals are working on a shared task requiring the generation of ideas. Clearly this is applicable to the song theft problem which is not itself plagiarism in the legal setting. A later paper by Perfect and Stark (2008) indirectly looks at cognitive bias in unconscious plagiarism experiments, by introducing controlled variation in terms of judging the quality of ideas generated in the group tasks. Ideas judged to be ‘excellent’ were plagiarised more often than those judged to be ‘satisfactory’ despite both not having been subjected to any elaboration by participants. In the case of music, such biases seem more relevant to conscious borrowing. In sample-based music (Chap. 3) where there is some tendency to borrow from sources based on esteem given to them in some circles. The cryptomnesia experimental research seems to imply that subconscious borrowing may be forgivable and ‘natural’ and capable of being designed out. The applicability to music cases may be limited for plagiarism, as such, as the taker and source are separate in time and space rather than working on a group project. However, the literature gives us an insight into the syndrome and a possible rationale as to why it is allowed as a discount in punishment if not as an actual defence.
1.7 Data Sources and Empirical Investigations The most obvious type of econometric work on this topic would be based on the criminal model where we have at its simplest an isolated single structural equation where the ‘supply’ of crime is related to proxies for the return on the effort, the probability of being caught and the size of the punishment if caught and some control variables. In a more complex model, this would be embedded in a multi-equation system where some of the punishment variables are made endogenous. As with property crimes, musical theft would seem to have a massive array of untapped targets to which the criminal could supply effort if they so chose. As we find in Watson (2017), the key interest, in econometric work, is in a step shift in the costs of infringement following the Bridgeport decision. The empirical papers cited relate only to sampling cases and this leads us on to the difficulties with finding data on plagiarism, in general, and the quality and validity of any such data we do find. 1.7.1 What Kind of Data Can We Get? The most blatant problem here is that there is no time-series data of the amount of plagiarism or even epiphenomena related to it. We cannot readily estimate an equation of the type suggested above. As with property crime, the true supply function ought to include attempts and so we would need to know how many plagiarism cases had been brought and dropped and what the outcome is. Some evidence exists on individual cases but some will be subject to non-disclosure agreements and some will have been dropped with no trace. Let us have a look at what data there is specifically related to the quote above from Moore and Baker (2013) which, you will recall said that as ‘more music gets made, it’s only natural that more artists’ sonic ambitions begin to overlap’. We can get some rough idea of the amount from Table 1.1. Unfortunately there is no official or validated time-series data on the amount of music published in terms of number of compositions. Music has been acknowledged as a form of economic output thanks to the perpetual claims about the importance of the ‘creative economy’ but it is not measured as an output but simply as a revenue source. There are production data on sales of music but these do not proxy the pool of material which represents targets for plagiarism and instances of it. So they do not
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Table 1.1 Songs released per year proxy data from Wikipedia container category
1956 1957 1958 1959 1960 1961 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001
247 249 275 294 270 330 359 399 500 521 593 754 698 735 726 663 613 683 750 700 655 746 776 899 1031 954 984 1028 1017 1065 940 1000 1073 1185 1131 1164 1253 1378 1355 1333 1477 1362 1360 1532 1585 1508 (continued)
Table 1.1 (continued)
2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017
1351 1685 2014 1930 2148 2636 2553 2741 2605 2183 2341 2386 2300 2687 2616 3079
help with generation of metrics for looking at the ‘opportunity expansion’ proposition of Moore and Baker (2013). The nearest we can get to measuring the ‘at risk’ of plagiarism pool of music requires resort to Wikipedia ‘container category’ data. This is an auto-generated series relying on bots to tag every song mentioned within Wikipedia to a year and then collates number of entries per year into an alphabetical list of songs per year. There are obvious problems with such data: . Only songs mentioned on Wikipedia are included. 1 2. Only songs are counted so items classed as ‘instrumental’ may be omitted. 3. Selectivity bias may be present as coverage of songs in Wikipedia from the total populations for a given year might be an increasing percentage over time. 4. As the mentions of songs include cover versions there could be year attribution problems of various types such as double counting for the year of inception and wrong year of inception being attributed. The total is unlikely to be an accurate reflection of the total of songs ‘in the wild’ but once the market is sufficiently established the growth of the total may be a more accurate proxy of the growth of the underlying unobservable statistic. The series actually starts at 1603 but coverage is very sporadic for a long time. So, I have taken the decision to start at 1956 as
1 WHAT IS PLAGIARISM AND WHAT IS MUSICAL PLAGIARISM?
Scatterplot Songs vs. Year
2500 2000 1500 1000 500 0 1950
1980 1990 Year
Fig. 1.1 Time series of songs produced using proxy data 1956–2017
this is a significant time for the emergence of the market and that year also marks a very big one-step jump from the previous year which is maintained. Bearing all these reservations in mind we can see from Table 1.1 and Figs. 1.1 and 1.2 that there is a broad substantial growth pattern. To pin a figure on this I ran some simple OLS regressions of the number of songs on a time trend. With a linear time trend (the variable 1, 2, 3….) the results are: SONGS = −3.89 + 39.76 TIME ( 0.06 ) ( 23.54 ) with absolute ‘t’ ratios in brackets. The R squared value is 0.90. The point estimate of the slope shows that the annual addition to songs, over time is estimated at almost 38 per year. Given that this is proxy output data, and the real interest is more on growth it is more useful to regress the natural logarithm of SONGS on the linear trend as its coefficient will be the compound growth rate (when ×100). This result is as follows: Ln ( SONGS ) =
5.79 + 0.04 TIME (138.63) ( 31.28)
Scatterplot Insongs vs. Year
1980 1990 Year
Fig. 1.2 Natural log time series of songs produced proxy data 1956–2017
with the absolute ‘t’ ratios in brackets. The R squared value is 0.94. This indicates an estimated 4 per cent growth in output per year. Figure 1.2 shows the corresponding log of songs scatterplot to Fig. 1.1, the approximate linearity of which suggests how well a logarithmic growth curve fits this data. For what its worth, the share of songs from 2011 onwards in the table is almost 23 per cent. Obviously, even a steady state of output of items to plagiarism from creates a growing target population due to the cumulative effect of accretions of past material. With an increasing growth rate the target population rises even more rapidly. If establishing ballpark figures for the ‘at risk of plagiarism’ population of songs is difficult, then identifying the volume of supply of plagiarism itself is even harder. As with a crime like drug use we can resort to the number of prosecutions. A useful source for this is the ‘Cases’ page from the Music Copyright Infringement Resource website maintained by the Jacob Burns Law Library of the George Washington University Law
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Table 1.2 Cases in the USA 1841–2019 from Burns website
Period Before 1900 1900–1909 1910–1919 1920–1929 1930–1939 1940–1949 1950–1959 1960–1969 1970–1979 1980–1989 1990–1999 2000–2009 2010–
Number of cases 6 1 4 4 7 15 10 6 7 10 28 34 89
Source: This data is as of the date 15 November 2019
School. There are other sites, not from legal scholars, such as ‘Lost in Music’ which covers some of the same cases as the Burns source but also looks at reported and alleged instances which did not result in cases. The Burns site gives the published decisions of cases heard, mainly in US federal courts. The website commentary implies that there is a growing number of cases, in recent times, which chimes with the Moore and Baker (2013) proposition addressed in Table 1.1. The list runs from 1844 to 2019 beginning with a song called ‘The Cot Beneath the Hill’ in Millett v. Snowden. Of these a small number are from elsewhere being Canadian, Australian (including ‘Down Under’), from New Zealand, the UK, Germany, China and Taiwan. I removed these from the data in Table 1.2 due to the sporadic coverage. Table 1.2 in intervals of 10 years to smooth out point to point fluctuations, save space and improve intelligibility of the presentation. Here we can clearly see the recent surge in cases. As Table 1.2 gives the total number of cases, it does not tell us about the distribution across individual song titles, complainants or defendants. This information is available in the original source (but not tabulated here) which shows that the key figure of Ira Arnstein (see Chap. 2 of this work) had cases heard in these courts in 1933, 1936, 1939 two cases in
1943 and one in 1946. This does not fully encapsulate his herculean efforts as he ended up as a vexatious litigant bringing cases on technicalities in order for him to be allowed to bring another case per se. He is not followed up by other significant serial litigants taking their cases to the court although the currently vigilance of the Marvin Gaye estate and their ability to obtain decisions against the run of play suggests they may inherit the mantle. The tabulated information from the individual cases also identifies which Court the decision was heard in which could be of interest in an economic model of the reaching of decisions. I am not going to conclude with any kind of regression equation for numbers in the source of Table 1.2 on those from Table 1.1, as the data is not sufficiently defined or accurate to allow hypothesis testing of the ‘more brings more’ idea. However, we should note the brutally obvious fact that the number of cases bought is very very small relative to the population of songs which could be subject to litigation. I have earlier mentioned the use of whosampled.com as a data source but will postpone further discussion of it until it becomes more relevant in Chaps. 3 and 4. There are also databases which can be used to assess the similarity of compositions, irrespective of whether any accusation of plagiarism has been made. Such metrics would tend to be based on note patterns in the lead melody and the main chord progressions used in the song. It would be misguided to use tempo of recorded performance, or key the song is in, as measures of similarity as these are performance aspects. We do not think that someone has created a new song when he or she performs an existing one slower and in a different key. Yet elements of this sort of claim do sometimes surface, in the defence, in some high profile cases such as the Gaye family one against Robin Thicke’s ‘Blurred Lines’. The use of composition databases to decide plagiarism is quite difficult, as the degree to which a song is very typical/common versus unusual is not decisive. The most effective use would be to paradoxically claim that plagiarism is not happening when the similarity of songs is high as the patterns used are so common they do not denote individual originality. Threats to this common elements claim are at the heart of the amicus brief brought due to the retrial of the ‘Stairway to Heaven’ case (see Sanchez (2019)).
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1.8 On We Go The next chapter looks at the history and present position of traditional composing/songwriting in terms of economic analysis. We then look at the related issue of sampling. In the final chapter, the policy issues are considered. We have identified in this chapter that there may be problems in the following areas: 1. Applications of standard, and modified, economic models to explain the behaviour of plagiarists and supposed victims of plagiarism in general regardless of whether the site of the activity is musical. 2. Application of metrics to detect plagiarism and determine punishment is fraught with difficulty more so in musical cases than in academic authorship/student ones. Musical cases do not suffer from the ‘needle in the haystack’ problem like algorithmic detection software which can be very useful for student essays. This is because the victim is incentivised to notify the event in music cases due to pecuniary and moral rights concerns. Hence we find what most people deem to be relatively obscure sources being brought forward to make claims (see e.g. the Adele case in the Appendix).
References Ariely, D. (2009). Predictably Irrational: The Hidden Forces That Shape Our Decisions. New York: Harper Books. Balganesh, S., Manta, I. D., & Wilkinson-Ryan, T. (2014). Judging Similarity. Iowa Law Review, 100, 267–290. Becker, G. S. (1968). Crime and Punishment: An Economic Approach. Journal of Political Economy, 76(2), 169–217. Becker, G. S. (1991). A Note on Restaurant Pricing and Other Examples of Social Influences on Price. Journal of Political Economy, 99(5), 1109–1116. Brown, A. S., & Murphy, D. R. (1989). Cryptomnesia: Delineating Unconscious Plagiarism. Journal of Experimental Psychology: Learning, Memory and Cognition, 15, 432–442. Bulc, G. (2009). Laibach: Manipulation of the Manipulation. Bturn online magazine. Bturn.com. Retrieved October 21, 2019. Cameron, S. (1993). The Demand for Capital Punishment. International Review of Law and Economics, 13(1), 47–59. Cameron, S. (2015). Music in the Marketplace: A Social Economics Approach. Routledge.
Catanziriti, K. (2010). Judge Rules That Men at Work Hit Down Under Rips Off Kookaburra Sits in the Old Gum Tree. Herald Sun. February 4. Retrieved June 28, 2019, from https://www.heraldsun.com.au/entertainment/judge-rulesthat-men-at-work-hit-down-under-rips-off-kookaburra-sits-in-the-old-gumtree/news-story/a8b35a1225cd120504de96f017b6b4b4?sv=a65d8853ffe 2c017cb6cd5b6527139f0. Ceulemans, C., & Lowe, S. (2018). The Cost of Creation: Technology, Sampling and Lawsuits in Hip-Hop Music. Working Paper. https://www.cedricceulemans.net/uploads/2/0/4/2/20423775/the_cost_of_creation_abstract.pdf. Chanbonpin, K. D. (2012). Legal Writing, the Remix: Plagiarism and Hip Hop Ethics. Mercer Law Review, 63, 597–638. Collins, A., Judge, G., & Rickman, N. (2007). On the Economics of Plagiarism. European Journal of Law and Economics, 24(2), 93–107. Cronin, C. (2016). Comment by Charles Cronin on HaloSongs, Inc., Martin Harrington, Thomas Leonard vs. Ed Sheeran, et al. Retrieved November 18, 2019, from https://blogs.law.gwu.edu/mcir/case/inplay-halosongsinc-martin-harrington-thomas-leonard-v-ed-sheeran-et-al/. Drury, J. (2018). Radiohead v Del Rey: How Record Companies Use Waveform Analysis, Forensics and… Shazam to Avoid Being Sued. The I. Originally published on 11th January and updated on 6th September 2019. Retrieved October 3, 2019, from https://inews.co.uk/culture/radiohead-v-del-rey-record-companiesuse-waveform-analysis-forensics-shazam-avoid-sued-515084. Einhorn, M. (2004). Media, Technology and Copyright: Integrating Law and Economics. Edward Elgar. Einhorn, M. (2010). Damage Valuation in Music Copyright. Retrieved July 9, 2019, from https://ssrn.com/abstract=1611219. Einhorn, M. (2014). Copyright, Causality and the Courts. Retrieved July 9, 2019, from https://ssrn.com/abstract=2406392. Fariña, F., Arce, R., & Novo, M. (2003). Cognitive Bias and Judicial Decisions. In M. Vanderhallen, G. Vervaeke, P. J. Van Koppen, & J. Goethals (Eds.), Much Ado About Crime (pp. 287–304). Bruselas: Uitgeverij Politeia NV. Farmer, P. (2007). Granny blog. Retrieved April 6, 2019, from http://grannyp. blogspot.com/2007/06/cured.html. Foucault, M. (2003). What Is an Author. In P. Rabinow (Ed.), The Essential Foucault (pp. 101–120). New York: New Press. Ginsburgh, V. A., & van Ours, J. C. (2003). Expert Opinion and Compensation: Evidence from a Musical Competition. American Economic Review, 93(1), 289–296. Glejser, H., & Heyndels, B. (2001). Efficiency and Inefficiency in the Ranking in Competitions: The Case of the Queen Elisabeth Music Contest. Journal of Cultural Economics, 25(2), 109–129. Greenfield, S., & Osborn, G. (2005). Law, Music and the Creative Process – Who Is Now an Author? In Readings in Law and Popular Culture (Vol. 14, pp. 310–324). Routledge Studies in Law, Society and Popular Culture.
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Hansmann, H., & Santilli, M. (1997). Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis, originally published Journal of Legal Studies, 26, 96–141. Obtained from: Faculty Scholarship Series. 5065. Retrieved July 10, 2019, from http://digitalcommons.law.yale.ed. Hess, M. (2006). Was Foucault a Plagiarist? Hip-Hop Sampling and Academic Citation. Computers and Composition, 23, 280–295. Hochma, T. (2017). The Ultimate List of Cognitive Biases: Why Humans Make Irrational Decisions. Human How website, Continually Updated Webpage But the Time of Access Gave 30 May 2017 as the page date. Retrieved May 22, 2019, from https://humanhow.com/en/list-of-cognitive-biases-with-examples/. Hurwitz, L. (2015). Can’t Touch This: A Comparative Analysis of Sampling Law in the United States and Internationally. Michigan State International Law Review, 23(1), 231–264. Kahnemann, D. (2012). Thinking Fast and Slow (Penguin Reprint ed.). Harmondsworth. Ke, J. (1994). Slovenia (Entry in Section- GLOBAL PULSE the Latest Music News From Round the Planet), Billboard. November 5. Klein, B., Lerner, A., & Murphy, K. (2002). The Economics of Copyright “Fair Use” in a Networked World. American Economic Review Papers and Proceedings, 92(2), 205–208. Laibach. (1982). 10 Items of the Covenant. Retrieved October 22, 2019, from http://www.laibach.org/data/10-items-of-the-covenant/. Landes, W., & Posner, R. (1989). An Economic Analysis of Copyright Law. Journal of Legal Studies, 18(2), 325–363. Leibenstein, H. (1950). Bandwagon, Snob and Veblen Effects in the Theory of Consumer Demand. Quarterly Journal of Economics, 64(2), 183–207. Michaels, S. (2011, April 5). Kate Bush Reveals Guest Lyricist on New Album – James Joyce. The Guardian. Moore, J., & Baker, E. (2013). 57 Songs That Sound the Same. Retrieved June 24, 2019, from https://www.complex.com/music/2013/01/57-songs-thatsound-the-same/. Moreton, C. (1997, November 30). No Regrets as Oasis Admit They Stole Tunes. The Independent. Retrieved July 9, 2019, from https://www.independent.co. uk/news/no-regrets-as-oasis-admit-they-stole-tunes-1297147.html. Newman, J. (2016). 11 Famous Rock Songs You Didn’t Know Were Sued for Plagiarism. Retrieved from https://www.fuse.tv/authors/jason-newman#latest (not the actual page). Novos, I., & Waldman, M. (1984). The Effects of Increased Copyright Protection. Journal of Political Economy, 92(2), 236–246. Perfect, T. J., & Stark, L. J. (2008). Why Do I Always Have the Best Ideas? The Role of Idea Quality in Unconscious Plagiarism. Memory, 16(4), 386–394. Rosen, R. S. (2008). Music and Copyright. Oxford University Press.
Rushton, M. (2001). The Law and Economics of Artists’ Inalienable Rights. Journal of Cultural Economics, 25(4), 243–257. Sanchez, F. (2019, August 2). 123 Artists File an Amicus Brief in Led Zeppelin’s Closely Watched ‘Stairway to Heaven’ Lawsuit. Digital Music News. Retrieved November 18, 2019, from https://www.digitalmusicnews.com/2019/08/ 02/led-zeppelin-amicus-brief/. Sattler, S., Graeff, P., & Willen, S. (2013). Explaining the Decision to Plagiarize: An Empirical Test of the Interplay Between Rationality, Norms and Opportunity. Deviant Behaviour, 34(6), 444–463. Scherer, F. M. (2008). The Emergence of Musical Copyright in Europe from 1709 to 1850. Review of Economic Research on Copyright Issues, 5(2), 3–18. Scott, A. (2017). 40 of the Best Songs inspired by books. Scottish Book Trust. Blog. Books-Reading. Published 9th November, 2017. Retrieved June 23, 2019. Shenkar, O. (2010). Copycats: How Smart Companies Use Imitation to Gain a Strategic Edge. Strategic Direction, 26(10), 3–5. Simon, H. A. (1956). Rational Choice and the Structure of the Environment. Psychological Review, 63(2), 129–138. Sparkles, J. (2018). 35 Songs You Didn’t Know Were (Allegedly) Plagiarised. Retrieved June 24, 2019, from https://www.sheknows.com/entertainment/ articles/1049435/songs-you-didnt-know-were-allegedly-plagiarized/. Stav, I. (2014). Musical Plagiarism: A True Challenge for the Copyright Law. DePaul Journal of Art, Technology and Intellectual Property Law, 25(1), Fall Article 2. Thaler, R. H., & Sunstein, C. R. (2009). Nudge. Improving Decisions About Health, Wealth and Happiness (Penguin Reprint ed.). Harmondsworth. Thursby, J., Thursby, M., & Jensen, R. A. (1991). Smuggling, Camouflage and Market Structure. Quarterly Journal of Economics, 106(3), 789–814. Towse, R. (2017). The Economics of Music Publishing: Copyright and the Market. Journal of Cultural Economics, 41(4), 403–420. van Horen, F., & Pieters, R. (2012). Consumer Evaluation of Copycat Brands: The Effect of Imitation Type. International Journal of Research in Marketing, 29(3), 246–255. Varian, H. (2005). Copying and Copyright. Journal of Economic Perspectives, 19(2), 121–138. Vaver, D. (1987). Authors’ Moral Rights – Reform Proposals in Canada: Charter or Barter of Rights for Creators? Osgoode Hall Law Journal, 25(4), 749–786. Watson, J. (2017). Copyright and the Production of Hip-Hop Music. Semantic Scholar website. Retrieved July 7, 2019, from https://pdfs. semanticscholar.org/7219/a09fa0a5b9b569ea9255088ab24bc8a2c7c4. pdf?_ga=2.117682305.907132683.1562585029-1907714462.1562585029.
Plagiarism the Old Fashioned Way: Steal from a Composition
Abstract This chapter begins by looking at some ‘exceptions that prove the rule’ cases of self-plagiarism in music to establish why it is generally disregarded. We then move on to look at the defences of subconscious musical plagiarism and the use of quotation as a form of parody which is legally allowed in many countries. There is a specific discussion of Weird Al Yankovic and some lesser known serial parodists. The importance of the ‘vexatious litigant’ cases brought by Ira Arnstein against the composers of the ‘great American songbook’ body of work is highlighted in terms of dissuading litigation in the pre-digital era. There is an extended discussion of creativity in the composition and production of music to help contextualise the defence against plagiarism that any use of prior elements, from others, has been subject to ‘transformative’ enhancement. The chapter concludes with reference to the doctrine of laches, in law, to give a background to the presence of legal cases being permitted despite very long passages of time since the supposed plagiarism took place. Keywords Creativity • Fair use • Parody • Access argument • Delay in bringing cases
© The Author(s) 2020 S. Cameron, An Economic Approach to the Plagiarism of Music, Cultural Economics & the Creative Economy, https://doi.org/10.1007/978-3-030-42109-0_2
2.1 Self-Plagiarism in Music? We have seen that self-plagiarism (where it is deemed to be a problem) in academic research is not really plagiarism in the everyday sense but a type of deceitful ‘milking’ of material occasioned by opportunities due to imperfect information. This cannot realistically be the case for musical self- plagiarism. We would expect there to be a lack of legal interest in this accusation as it tends to be a norm in popular musical forms that there is a ‘style’ of a writer-performer (such as Oasis or Bob Dylan) where we expect their new material to be highly similar to their old material. Indeed, complete and utter originality, or even a significant change of direction is risky and often rejected by consumers. On top of this, it would seem there is no incentive to pursue musical self-plagiarism cases as why would a rational composer take a case against themselves for stealing from themselves? Thus there would seem to be no consequences of musical self- plagiarism rendering it an empty set in the category of phenomena discussed here. However, there certainly are exceptions to this rule. The music to the film The Godfather was nominated for an Oscar in 1972 but the nomination was withdrawn on the grounds that composer Nino Rota drew significantly on music he had written for the 1958 Italian film Fortunella. The basis of this withdrawal is in a very strict interpretation of the award criteria which require the work to be a ‘best original score’. As is pointed out in ‘Copyrightuser.org -lesson 30 the creative copy’, in Fortunella the tune is delivered in a totally opposite way as a fast upbeat march. As we all know, in The Godfather, the orchestration, tempo and mood are slow, mournful and downbeat even though the underlying melody is the same. However this could easily be the case in a traditional cover version scenario and hence does not constitute automatic grounds for it being deemed to be a different composition. Bizarrely, in 1974, Nino Rota and Carmine Coppola were awarded the Oscar for Best Dramatic Score for The Godfather II. As the core melody of the original score (derived from Fortunella) had to feature in all the series, as it is a significant piece of branding, this effectively reverses the original decision in 1972. There is a clear inconsistency of decision here although it is by an organisation enforcing its own rules so not in a formal legal context. In this respect, it does resemble an academic research case although the consequences are different. Hence there was no pursuit of copyright infringement. The retaliatory response of the holder of the
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original publishing rights from the 1958 score was to reissue the recorded music with advertising tagging it on to the Godfather publicity. The consequences for Rota were not detrimental, bar losing one Oscar (although one presumes he may not have got the one for the second film IF the one for the first had not been snatched from his grasp). Indeed, he may have made more money from royalties on the reissue of the 1958 original than he may have potentially lost due to the decision. To wrap this case up we need to address its bringing new confusion to the use of the word ‘original’. The Academy Award for the best ‘original’ score is not a judgement about originality in the non-plagiarised sense but refers to the music having been generated specifically for the film as opposed to say the score being made up of prior recordings of existing material such as work by Mozart or songs by the Beatles. Unlike the Rota case, our other noted anomaly did get taken into formal legal processes. This concerns John Fogerty the leader of the band Creedence Clearwater Revival. The publishers of a composition he produced with them decided that a song in his solo career was too similar, so took a case against it. As Fogerty was the composer on both, this could not involve moral rights issues of affirming the right of another to be recognised as creator. It is purely a financial case due to infringement of copyright. It may seem an odd instance but is logically consistent with allowing publishers to take ownership rights in the work of creators as if the outputs were entirely the same as consumer products or technical ‘intellectual property’. This is seen in related phenomena such as the publishers/record companies refusing to allow some musicians to re-record new versions of their own previous work and even more extreme cases where they barred musicians from releasing any work at all for several years. These situations emphasize that the act of musical creation does not automatically confer property rights on the creator as these can be attenuated and even overridden by others. This is more so the case when free market trading of copyright in creative works is allowed. If the Fogerty case had been settled in favour of the accusers and become a widespread precedent, it would have very serious implications for writers who switch publishers. For example, it could have meant Michael Jackson (when he held the rights to the Beatles catalogue) could have taken an action against Paul McCartney for solo work which was deemed too similar to earlier Beatles songs on which he is credited. In terms of moral judgements, as per the student essay cases, it is clear that Fogerty was not trying to pass someone else’s work off as his own and so
it might be deemed purely a copyright case and not a plagiarism one in the sense that a plagiarism case has normative dimensions not found in pure copyright. We now proceed on the assumption that any claims of plagiarism will be brought on the basis that someone else, other than the composer, has improperly borrowed from the original work. Given that the Fogerty case did not open the floodgates to similar cases, it may be deemed the exception that proves the rule that plagiarism only matters in music if it is from someone else.
2.2 Unconscious Plagiarism: Music Specific Rolling Stone, Keith Richards (2010) recalls how Mick Jagger would often turn up with formative ideas for a new song and had to be told that it was actually a close copy of something else already well known. In the same vein, it is said that Paul McCartney told John Lennon that ‘Come Together’ was much too similar to ‘You Can’t Catch Me’ by Chuck Berry from over a decade earlier. The two songs start with the same word usages but the final Beatles recording has a range of elements not found in Berry’s piece. McCartney is also famous, as was Lloyd Webber, for ad hoc self- protection by asking other people to check what sources might have been overexploited in a new composition. That is, asking friends or relatives to do an ‘ear test’ of substantial similarity which obviously might not ultimately hold sway in court. Sounes (2001) recalls how Bob Dylan, in his early days, literally stole the sources from his own subconscious plagiarism from fellow folk musicians by borrowing, and not returning, their source material vinyl LPs. In lay terms, subconscious plagiarism would seem to convey some notion of ‘innocence’ in that the composer did not mean to intentionally steal from someone along the lines of the ‘criminal economy model’. The non-musical empirical research on students, reviewed in the last chapter, tends to the non-criminal view that people may plagiarise without knowing they are doing it. People do not scientifically monitor how ideas come to them in creative pursuits and thus may exhibit a bias towards thinking that they have had a completely new idea. In the student group work case people may still hold on to this bias even when confronted with evidence subject to intrinsic triggers (they think higher quality work is more likely to be their own idea when it is not) in the way the evidence is presented.
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In the musical context, the informal cases discussed above usually result in an acceptance that the unintentional borrowing has arisen. In the ‘My Sweet Lord’ case, George Harrison claimed that his borrowing was innocent, that is that he was not acting with criminal intent hoping not to get caught. This is one of those strange ‘after the fact’ plagiarism cases as most people will now say the similarity is obvious and the two songs are so simple in construction that it is hard to defend. Yet we have a seemingly non-criminal ex-member of the world’s most famous popular group none of whose associates managed to spot the problem. Once such a work is published and hence in the public domain, this will not directly protect an offender from legal sanction due to traditional copyright protection and moral rights. Then the issue of metricisation rears its head in terms of the author getting a discount in the share of authorship lost due to the absence of conscious plagiarism. To be more specific, if innocence is accepted in the findings, it does not impact the decision—only the amount in the settlement so it is effectively a mitigating circumstance. It is trivial but very important to point out that unconscious plagiarism requires that you must have heard the work at some point (although it could have been a similar work to the work actioned) as otherwise the similarity is a genuine accident. This means that the issue of access will enter into case evidence, as it did with Harrison as it was clear he was very likely to have heard the source material. This is also evident in the Repp v. Lloyd Webber and Led Zeppelin cases (which are however cases where conscious plagiarism is asserted). In the Tom Petty/Jeff Lynne-Sam Smith example, the authors claimed when settling that they did not have a conscious knowledge of the song, independently of writing their song, but admitted that it was very possible that they could well have heard it and been influenced by it due to the pervasiveness of music radio and ambient use of music in other social contexts. For the composer, unconscious plagiarism represents a risk factor as they will be penalised for it even if they were completely innocent. The solutions to this problem are to change the song significantly to avoid the charge or, in some cases, to give up altogether and simply record a cover version of the song which intruded itself into the attempt at a new original composition. The reason that innocence is a weak defence is because the commercial protection of composing rights is an intellectual property. In the case of inventions, computer code, medicines and so on the system for dealing with this is patent protection. For consumer end products where
innovation is less conspicuous the protection is in the form of registered trademarks. In such cases, accident is no defence as the matter is contested in terms of prior ownership by some form of licensing or registration.
2.3 Is Parody a Valid Defence? The total opposite of subconscious plagiarism is the deliberate and outright parody which mimics most of the original but typically changes most of the words for polemical or sarcastic effect. On occasions, music could also be significantly changed for such purposes but this is rarer. Notable changes in music cases are in the form of The Rutles performances of pastiches of the works of the Beatles. The author (Neil Innes) is prone to tell numerous jokes about George Harrison making comments about some of the songs being ‘too close’. The parody case has clear precedents in literature which is rife with parodies of prominent works such as the Lord of the Rings, and in film where the comedic parody of mainstream successes (such as Star Trek) was a regular trope of porn films. The Rutles songs are not isolated but produced in the context of a parallel universe story style version of a group like the Beatles. This may have the immediate appearance of being plagiarism in a legally actionable sense. But is this how such seeming infringements have been treated in the legal arena? Few performers have made a persistent career out of the blatantly derivative musical parody as such efforts have tended to be one-offs. Noted exceptions to this, in the UK, are The Barron Knights and the short period of album releases spawned from the BBC comedy radio show ‘Radio Active’ and, in the USA, Weird Al Yankovic. The Barron Knights released a series of records, during the 1960s ‘British Beat Boom’, which mocked the performers using variations of their own material. An example of this is ‘Call Up the Groups’ (1964), in which they joke about popular UK musicians of the day being sent off to compulsory military service even though this practice had been abandoned. The words to Part One of the song only contain fourteen words (slightly varied from the song ‘Needles and Pins’) directly from the work by those mocked. However, of necessity, they play facsimiles of the songs alluded to and perform very accurate renditions of the vocal style of the originals. The parody defence in their work seems to have protected them from any threat of action at any time. The most provocative work of the ‘Radio Active’ team was ‘Meaningless Songs in Very High Voices’ by the Hee Bee Gee Bees (i.e. the Bee Gees) which greatly annoyed its targets but did not drive them to any legal
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action. All of their works were released as ‘The Hee Bee Gee Bees’ even when the source is by other artists. Not all the material directly undermines the source work, although their Supertramp take-offs (‘The Scatological Song’) seem to constitute derisive mockery of a more sustained level than say their Status Quo parody (‘Boring Song’). Unlike the Barron Knights, who subsided into cabaret, and the Hee Bee Gee Bees, which was short-lived, Yankovic has gone on, and on, in almost a lone furrow of sustained musical parody as a sole career. His most feted work is probably ‘Eat it’ a very accurate retread of Michael Jackson’s ‘Beat It’ whose motivation is tenuous food-based punning from removing the first letter of the chorus/title and parading a list of food types in front of the listener. It is clearly not an attack on the source in the way that the ‘Radio Active’ work is nor does it contain a narrative about those parodied in the case of ‘Call Up the Groups’. Weird Al shares with these two earlier British parodists a very meticulous attention to recreating the sound, feel and texture of the originals. By itself this may create momentum against attributions of plagiarism as such accuracy takes the work well away from passing off others’ work as one’s own and into mimicry such as comedic impersonations of famous politicians. Yankovic’s career has evolved in a very interesting way in terms of plagiarism. It was sustained for a long time by relying on US law giving protection under fair use. He has had few problems, it would seem, with objections from the sources of his parodies apart from his polka medleys (which I shall not discuss here). He has increasingly sought permission before commercially releasing parodies in view of the increased litigiousness around musical material notwithstanding the affirmation of fair use in the ‘Oh Pretty Woman’ case (Campbell v. Acuff Rose Music in 1994). Yankovic’s chief difficulties have been with Prince, Coolio, Paul McCartney, Eminem and James Blunt. Of these cases, the only one with wholehearted opposition was Prince who refused at all points. As with the others this was not seemingly a money issue as the driver. Prince is a curious case as he was the target of some of the more derisory work by the UK’s Radio Active/ Hee Bee Gee Bees team. These presumably passed by simply because he was unaware of them given that the recordings only had much circulation in Australia and, at the critical period, we had not yet entered the cauldron of social media and comments and file sharing on other sites. Money entered the Blunt scenario as the rights holders objected to the usage even though he personally did not. McCartney also liked the parody of Live and Let Die but refused on vegetarianism grounds as the parody
was chicken based. For Coolio and Eminem, refusal was grounded in objections to damage to their reputation capital in that they thought the derivative work was not funny and might on top of this be demeaning to their oeuvre. The Eminem case was specifically about video parody. Coolio eventually came to an agreement over the ‘Amish Paradise’ parody of his ‘Gangster’s Paradise’ and later claimed to find the work extremely funny. Yankovic said that he had proceeded on wrong information that Coolio had agreed to the parody. The record was not withdrawn and so the source authors received royalty payments as they were credited. This of course includes Stevie Wonder, whose work is a significant part of the initial derivative work from which this work is derived. It does not seem to be recorded whether he, or Coolio, had any moral issues with the mockery of a minority belief group which some might consider offensive. There is an acute distinction between parody and satire for plagiarism cases. Satire is not accepted as a fair use exemption (Rosen (2008), p. 94) because satire is aimed at society’s customs and mores using the original work as a vehicle to help get the point across. In parody, the parodist is homaging or attacking only the original composer. In the case of ‘Shakermaker’ by Oasis, Noel Gallagher appeared to offer a satire type defence as he claimed he was being ironic in borrowing from the song used in ‘Coca Cola’ adverts on the grounds that everybody drinks Coca Cola. In his monumental tome on copyright, Rosen (2008, p. 335) reviews the decision in MCA, Inc. v. Wilson, related to a parody of the song ‘The Boogie Woogie Bugle Boy of Company B’, made famous by the Andrew Sisters and Bette Midler. He considers the decision to be a flawed fair use analysis in the finding against ‘The Cunnilingus Champion of Company C’ play Let My People Come—A Sexual Musical. Although one judge dissented on the grounds that this WAS a parody, his view did not prevail and Rosen reproduces the judgment as follows: We are not prepared to hold that a commercial composer can plagiarize a competitor’s copyrighted song, substitute dirty lyrics of his own, perform it for commercial gain, and then escape liability by calling the end result a parody or a satire on the mores of society. Such a holding would be an open- ended invitation to musical plagiarism. We conclude that the defendants did not make fair use of plaintiff’s song. (Emphasis in original)
This is a good illustration of the cognitive biases, in plagiarism cases, which were enumerated in Chap. 1. The most prominent later ‘dirty
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words’ cases is the 2Live Crew sample usage of ‘Oh Pretty Woman’ by Roy Orbison as ‘Pretty Woman’. This is not a cover version as the track uses a repeating loop of the basic instrumental part of the source but with entirely different words. This was found not to be plagiarised precisely because it was ‘lewd’ and deemed to constitute fair use. Given the serial inconsistency of legal judgment on creative industry cases, this cannot be automatically seen as a move to the unbiased position for future instances of the same category.
2.4 Composition and Plagiarism’s Role in It In 1994, the Isley Brothers succeeded in litigation against Michael Bolton for the degree of similarity of his song ‘Love Is a Wonderful Thing’ to an earlier piece of theirs. The judge awarded 66 per cent of Bolton’s single royalties and 28 per cent of his album royalties to the plaintiffs. Thus we have an inference as to how much similarity there was. From an economist’s point of view, the fractions in such cases are interesting. They show the metricisation of plagiarism cases. Such decisions suggest quantification can be used to apportion guilt and to determine the optimal punishment in terms of whatever the objectives of a plagiarism policy might be. We saw this initially with the ‘Down Under’ case on our very first page which however settled in a similar way to ‘song theft’ cases (like ‘A Whiter Shade of Pale’) even though it is a plagiarism case. In terms of the standard theory of production in economics (see Cameron (2015), Chapter 5), it might be argued that the victims of plagiarism such as the Isley Brothers were unpaid co-workers in the creative output. Thus their marginal revenue productivity should be a factor in determining the sums in an award and so the awards could be deemed to be an attempt to proxy this. How we determine the contribution of an unremunerated co-worker to creative work is very difficult due to problems of non-separability and synergy which cast a doubt on any marginal revenue product imputation. We can even end up in the farcical situation where an estimated imputation of rewards to all possible claimants exceeds the revenue generated by a highly successful product in the first place. This is before we get to the matter of damages for personal injury/reputation which can make such an outcome logical. Such matters invite us to consider the problems of definition of a musical composition, as an economic output, and its relationship to an arrangement and a performance. Historically these are quite distinct, within the
business. These divisions may not be so apparent to the typical consumer who responds to the whole package as a piece of work. Granted, there may be some who are connoisseurs of songwriting who seek out multiple versions of the same composition looking for the classic or definitive production and performance. However, casual evidence in popular music genres suggests that consumer search and purchase is driven by loyalty to an individual artist they like and/or the total attractions of the whole package of composition-arrangement performance. The song is important but it is not necessarily the product being bought but an element in it. This being so it is difficult to determine how much revenue is derivative of the three elements’ role in consumer satisfaction. As technology has advanced, the arrangement function has increasingly shaded into the ‘production’ element where the producer oversees the recording and supervises processing of sound to achieve a better result. In the archetypal tripartite arrangement, the composer writes the song or composition, the arranger adds to it and the performers perform it. Classic examples of these are in the most acclaimed work of Frank Sinatra and Michael Jackson. Sinatra’s most acclaimed works would draw on the works in the idiom of the ‘Great American Songbook’. He and his arrangers would not seek to claim compositional rights for what they had brought to the raw material of the song. Although Jackson contributed compositions to his albums, he was a writer competing with third-party material; in ‘Thriller’ for example there was effectively a beauty contest to get songs placed by large numbers of competing writers. These songs would be published prior to use to protect the rights of the composers. But who is the author of the work? In terms of rights, the authors are seen as the writers of the songs as musical copyright proceeded along lines of the literary model, that is the song is a text which can be interpreted. The text can be reproduced independently of the performance in a physical form to show what might have been copied. This was historically originally as sheet music (the original lead sheet still features in some cases such as ‘Stairway to Heaven’), but when popular music became more recording-based it could be in the form of ‘Publisher’s Demos’ which were originally in the form of tapes or disc but we now find publishers who will only accept demos as MP3 files or links (see e.g. http://www.sgomusic.com/aboutsgo/faq: accessed 25 June 2019). It should be noted that the publisher cited in the last link gives as number 11 (and last) in the list of what ‘the role of a music publisher involves’ as:
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Taking appropriate action against anyone using music without the necessary licence
In terms of the literary origins of the notion of plagiarism of composition, a playwright would be seen as the author, not the actors. Noted examples of improvisational theatre and film do not lead to socialist style attribution of authorial rights to the performers and the performers do not seem to bring plagiarism cases if the writer uses a similar character again in another work in which they are not involved. This is because ‘style’ would need to be given copyright protection although characters have been copyrighted in some cases. In music, style has not been the source of plagiarism cases as style has not been protected—so simple ‘soundalikes’ have not normally been the subject of claims (see Carroll (2003)). Problems arise with feedback loops in the chain of creation in music where the non- composers may make suggestions and alterations. These may be important determinants of the revenue stream. However this is not the specific act of plagiarism but of allocation disputes at the point of origination of a creative recorded work (‘song theft’). Disputes based on it may create problems later if financial compensation of a non-composer composer is retrospectively given rights in a composition which itself is claimed as a source in a plagiarism case. Thus we have the type of domino effect which becomes a much more extreme problem for use of samples. The non-composing contributors are removed from composition by the payment of a fixed fee or of some general share payment. This can be justified in terms of principal-agent theory, in economics, on the grounds that they are not the primary risk-takers but are hired to perform specific tasks. Composers take the risk that they may get no income at all from their efforts if songs are not taken up—for example the song Repp claimed Lloyd Webber had borrowed from had earned him only 78 cents to that point (albeit it was niche music and thus not intended to be a pop hit). This constitutes one economic reason for protecting their ownership to reward and induce creativity. If they are weakly protected they may reduce their supply due to low income. However, this claim is totally dismissed by the digital libertarians, Boldrin and Levine, covered in Chap. 4. They may also be disincentivised from taking risks and producing original work as the original content cannot be adequately protected. They could even adopt the strategy of engaging in ‘safe plagiarism’ themselves. That is, borrowing from a pool of material which is seen as a tacitly accepted public domain source at the time of so doing. Problems may arise when
attitudes, and the law, change so that retrospective cases are brought. We will see this clearly when we come to sampling, and loop-based competition, where people originally thought that some sources were effectively free as they were worthless and/or unprotected. It requires consideration of the acceptable time length of any delay in bringing a case which we take up below. This all seems clear enough. But what happens if a composition is primarily derivative of the arrangement, not the registered authorial content of a previous composition?
2.5 Creativity So, the sources of plagiarism in composition are various as are the motivations. In Chap. 1, we dealt chiefly with the criminal style ‘not getting caught’ and punishment issues. These imply deliberate and conscious using of other sources as something other than ‘quotation’. In respect of this, there is the obvious point that a wise composer will ‘borrow’ from old out of copyright sources where enforcement is thought to be weak. We need to think more about why the creative process would induce plagiarism. Why do they want to borrow? If they are trained (including the informal training of hundreds of hours of practice and listening to those who cannot read and write music) and literate in their profession why would they behave in such a way? We also need to understand the creative process from an economic point of view to move beyond the ‘criminal’ view of the composer to a more nuanced approach. This is discussed in Chapter 5 of Cameron (2015 and see also Cameron (2016) in terms of the SAD+ production function where the acronym represents Serendipity (S), Authenticity (A) and Drugs (D). These are brought in to augment the more usual terms of capital, labour and technology in the production function although we might see drugs as a form of capital and if there are routines to manufacture or borrow authenticity then these can also be seen as a special case. The idea of a musical production function is purely a theoretical one as there have not been any empirical usages of the concept. If there were a Cobb-Douglas (or more general multiplicative constant elasticity) model, it would be inadequate to capture the relationships given the presence of threshold effects, synergy and lexicographic relations which may vary across different production units. Serendipity is documented in many forms. For example, records such as ‘Cars’ by Gary Numan (1979) and ‘Rio’ by Duran Duran (1982) arose from slight ineptitude, or abuse, in using the technology coming on
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stream at the time. In the former case, this was difficulties in programming, and in the latter, use of the randomization mode on a built in arpeggiator on a C major 7th chord on a Roland Juno keyboard synthesizer. As noted in Cameron (2015, p. 80), serendipity may also arise due to inability to copy a source work, meaning that a person could not plagiarise it even if they wanted to but finds that they accidentally end up with a new song that is deemed to be original in conception. The obvious relation of drugs to plagiarism is forgetting that material has been taken from somewhere else—that is chemically induced subconscious plagiarism which was common with the poet Samuel Taylor Coleridge. A musical example of this (Chapman 2010) is to be found in the solo works of Syd Barrett where he was unaware of quoting extensively from the texts of poems from works in his childhood such as by Edward Lear. The drug taking of Thicke was brought in to the recent ‘Blurred Lines’ case (see Appendix) although it has not earned any mitigation. The fact that ‘authenticity’ seems to be highly esteemed as a characteristic of musical output seems to tie in to plagiarism although the link is not completely straightforward. Authenticity can be an ambiguous notion. The key definers seem to be the idea of being ‘real’ and ‘genuine’ which might suggest that the pursuit of authenticity would go against plagiarism as it would be seen as ‘fake’. However, authenticity is often ascribed not on an individual case basis but in terms of membership of a category such as a genre of music. This may induce elements of plagiarism if the motifs of the genre are limited and the thin line is crossed from homage into outright borrowing. This might be regulated by conventions or codes within a genre. For example, we seem to see few reported cases of heavy metal or country artists taking cases against those within their own genre. For example, a ‘You Tube’ video entitled ‘Some Rare Cases of Plagiarism in Metal/Rock Music Pt.1’ is indelicately named as it contains only a-b comparisons with attribution by the provider (dreamforever 89, channel) of the similarity as there have been no cases brought for the items identified. Are we to believe that plagiarism is rare in such genres because the contributors are supremely ethical and their work is so original that each new item is dramatically unlike the rest? Maybe so. Possibly the answer lies in the other direction that this is conceptually a ‘folk’ idiom like the blues where each composition is a melange of the toolbox components to the point where it is specious to stake a claim based on similarity. In heavy metal, there is however a huge amount of concern about the artwork used being very heavily plagiarised from older visual art which is
uncredited and unremunerated. This was sparked by an anonymous blogger (see Stewart-Panko (2018)) who later analysed the practice as due to economic pressure in the genre leading the bands to cut costs in cover design fees. A specific case of this involved the album Hadeon by Pestilence where the art was withdrawn after protest, in 2017, and the musicians and their label announced they would no longer use the artist who has serial instances of such activity. At the individual motivation level, there may be, for musicians as for heavy metal album designers, the simple economic imperative of pressure to provide volume of output and volume of revenue from output. In the era of the coming of popular songwriting to its estimation as a legitimate work of art (enshrined in ‘The Great American Songbook’—see Yagoda (2015)) the songwriter was a ‘hack’ scraping a living who was often excluded from other employment by general macroeconomic slumps and/or disadvantaged labour market status of being a migrant. The hack status of songwriters eventually became enshrined in hothouse factory style environments like ‘Tin Pan Alley’ and later the Brill building. These were not the ‘creative hubs’ which they might be claimed to be in modern hype but sweatshops where hopefuls strove to come up with a hit by whatever means necessary. Opportunistic or hack songwriting would lead to a welter of novelty songs like ‘Yes We Have No Bananas’ (originally published in 1923) which lack musical sophistication but gained wide social currency due to their gimmickiness creating a short-run participation cult. Arbiters of taste bemoaned the lack of musical sophistication providing claims about motivation that the plagiarist composer, like many accused university students, has borrowed someone else’s work because they lack the ability to come up with their own. In the case of music, there is the additional factor that the less sophisticated author will tend to be relying on their ear, not musical theory, to come up with a work. That is, unless they employ specific devices to introduce variation into a derivative core idea. In ear-based music, the brain will store melodies from previously heard works and will tend to mimic those when composition is attempted. Modern software in the form of DAWs (digital audio workstations) will tend to assist novice/untrained composers by a variety of mean, for example it will tell them what key a piece of audio is in and will auto-generate harmonies, riffs, chord progressions, arpeggios. It also makes it incredibly easy to play any phrase backwards in its entirety or backwards and forwards in fragments. Such software also tends to provide a ‘library’ of elements to be used in a composition in either audio or midi form. These are
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often pastiches of well-known works with jokey titles to indicate the provenance but they may be used by someone in an unconscious plagiarism way without being fully aware of the magnitude of debt the usage may ultimately place them to the inspirational material. Thanks to the take-up of GarageBand, many people are familiar with this situation even if not active users of it themselves. Such ‘instant’ or ‘painting by numbers’ style composition has been around for much longer. Its most prominent impact was in the form of digital hardware in small portable user friendly interfaces known as ‘grooveboxes’, such as the original Korg Electribe series launched in 1999. The grooveboxes provide drum, bass and lead instrument parts on separate tracks that can be sequenced and thus provide a sketch of a composition built up from 1 to 4 bar-length patterns. Such software-derived variation might seem to mock the ideas of ‘creativity’ venerated by those who see music as a great form of art. In the extreme, it could be suggested that the authors of the ‘toolbox’ material should be granted a composition credit. However such rights will be attenuated by the contract they signed when providing the material which effectively makes it a form of library music but with less restrictions on its use. In the manuals of grooveboxes, there are sometimes named authors of patterns but (as with sound programming) this does not automatically confer composer rights. Things like grooveboxes and GarageBand might even be seen as indicative of a fin de siècle symptom of the exhaustion of the seam of musical riches inherent in the popular genre as an art form (see Galenson (2009)). Thus musical composition ceases to be an act of creativity and becomes more an act of routine mechanised industrial or post-industrial production. As such, it might be argued plagiarism should be reformulated in terms of production rather than artistic creativity. Which could mean that trademark rather than copyright protection may be more efficient. The chapter on the death of music in Cameron (2015, Chapter 3) considers the nineteenth-century economist and Liberal thinker John Stuart Mill who claimed that there could not be a steady flow of composers of the quality of Mozart and Weber and explains his position in terms of the production possibility frontier or production function in economics. This is taken as the assumption that we are in an environment where performance skills are not relatively scarce but compositional skills are. Technological change, such as grooveboxes and GarageBand will mean the expansion of some non-labour limiting factor, which has held down the economic value of musical output. For example, it is possible to
programme parts digitally that no human being could have played which therefore may well not have been regarded as suitable content for compositions. Digital synthesisers or virtual instruments, on computers, can relatively easily be set to produce not only endless scales but also auto-generated patterns. This seems to imply that music is now potentially limitless. It may not even need composers with devices such as Guitar Hero and its spin-offs, Buddha machines or self-perpetuating algorithmic composition software. We have here the yin and yang of new technology. It makes plagiarism much easier but also makes avoiding it harder although, in the limit, we could use software to induce enough variation in the work that it would probably defeat a plagiarism suit using previous data to generate the variation. The birth of rock and roll did, of course, bring accusations of lack of originality and creativity due to the work being by untrained and undisciplined writers rather than people who had too much done for them by machines. Ennis (1992) argues that there was genuine creativity in rock and roll as ‘the seventh stream’. His position is that it was not ‘new/original’ but that does not mean it was not creative but rather it drew from a common resource pool of ideas, riffs and phrases in the six streams of soul, gospel, country, folk and combined these in a way that was a creative act meriting authorship rights. In fact, the traditional approach to artistic plagiarism, in US law, as discussed in the cases covered in Rosen, for example the ET theme tune case (2008, p. 606) recognised this kind of toolbox justification as a ‘commonplace building block’. The Les Baxter case, against usage in the soundtrack for the film ET, was lost and the decision concluded that: These examples of prior art were used by defendants’ experts to demonstrate that the motif (or fragment) at issue had been employed by composers from Bach to Neil Diamond as a standard building block of music. As such, it was not protectable under the copyright laws because “a statutory copyright does not give a monopoly over (…) a musical phrase, but merely protects against the unlawful reproduction of an original work”. (Rosen (2008, p. 611)
This does raise the problem of what we do when a work ONLY contains ‘common place building block content’ without any creative/original additions. It would then seem to be a type of modern folk music which has an attributed author but no protection in copyright. This particularly
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relates to cases involving the use of ‘Blues’ material by artists like John Lee Hooker and Lightning Hopkins. From an economics point of view, if there is a lack of enforcement in the form of few plagiarism cases, on common place building block grounds, can be seen as beneficial to the seventh stream as it allowed free use of the common resource pool of ideas.
2.6 Arnstein and Beyond The career of serial vexatious litigant, Ira Arnstein (see Rosen (2012)), is the most significant in the legal and economic history of composition/ arrangement/performance plagiarism. The criteria established in his cases brought against the composers of the ‘great American songbook’ body of work have shaped the findings of plagiarism cases for many decades. It helped coalesce legal thinking on musical plagiarism into the form that we find it now and which has been partially revealed in some of the discussion above. One point, which Rosen (2012), is wary of dealing with, is the issue of Arnstein’s mental health as an explanation of the severity of his beliefs and seemingly irrational pursuit of them against all the odds. Arnstein seems to be unique, amongst songwriters, in asserting that he is the victim of serial plagiarism by a wide range of much better-known composers. Subsequent to him, serial accusers would seem to be third-party financial opportunists, of a corporate nature, or the estate of the late Marvin Gaye. The multiple cases brought by the Gaye family have brought them money, but their claimed chief motivation is to protect the legacy of his work by assuring that he receives credit for creative work that is not wrongly ascribed to others who are refusing to acknowledge it. One could imagine a rough statistical test of their moral versus financial motivations if we could obtain data on the relative income they would get from a lump sum pre-emptive settlement versus authorship credits. That is, we could infer the level of monetary equivalent of recognition. Arnstein’s targets were the elite of the profession which gives his effort the appearance of a conspiracy theory. The cases were brought on the grounds of conscious plagiarism that the thieves were aware of his work and quite knowingly took elements of it for their own gain. His comparative obscurity would appear to offer them some defence on lack of access grounds. In the 1946 case Arnstein v. Porter, he filed against Cole Porter for allegedly plagiarising his compositions with the most conspicuous case being ‘Don’t Fence Me In’. He lost due to failure to demonstrate
substantial similarity. This case, and his others, established the bedrock of evidence appraisal in future cases. It would seem that the outcome dissuaded others from bringing these types of cases for a long time afterwards. The chief factor was burden of proof that the Defendant copied from the Plaintiff’s copyrighted work and that this went so far as to constitute improper appropriation (see Rosen (2008), Chapter 11). The burden of proof tends to override any passing accidental similarity due to the fact that the conventions of music tend to dictate certain ‘following’ elements in composition given the use of a particular dominant chord, see for example the cases of The Pet Shop Boys and The Streets in the Appendix. Arnstein was an example of a little guy versus (a lot of) big guys case where a struggling low-income composer initiates against more noted and affluent colleagues. It is not a ‘honeypot’ case (such as we might assume in the Mariah Carey, Bruno Marrs, Ed Sheeran, Michael Jackson and Madonna cases outlined in the Appendix) as there is no evidence to suggest that he was anything but sincere in his motivations. Other possible scenarios are: big guy versus little guy, little guy versus little guy and non- authorial rights holders (i.e. publishers) versus alleged infringers. I am talking here about the motivation and drive for the case as opposed to who actually brings the case although the publisher and author may match in some cases. The first two types of case seem much rarer which is what an economist would expect for two reasons: 1. Information costs. It is much easier for a little guy to be aware of the work of the big guy than vice versa and hence the probability of the infraction being known is greater. 2. Incentives. One would assume the relative net marginal utility gain of win income to a little guy is weak compared with the big guy given their respective incomes. One would thus expect little guys to either give up quickly, accept a settlement or lose if the case goes on. Their weak bargaining position is likely to make the settlement a fairly poor one in terms of net return after effort, legal costs and so on. Good modern examples of the little guy versus big guy case can be found in two very well-known pieces of work—‘Stairway to Heaven’ (hereafter called STH) by Led Zeppelin and ‘Phantom of the Opera’ by Andrew Lloyd Webber (i.e. the individual title song not the complete
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work). The plaintiffs, Repp in the latter case and estate holders for Randy California, the composer of the Spirit song, are not without demonstrated achievement in the musical field but their economic power is miniscule compared with those whom they brought cases against. Repp’s prior work is very little known though he is a reputed worker in his field. Hence they are in a very similar position to Arnstein although their focus is purely on one song, not an alleged conspiracy of multiple powerful figures to deprive them of income from their creative efforts. It is worthwhile to here delve into the ‘ordinary person’ (or ‘audience’) test which the Arnstein cases brought to the fore. It can be seen to still have currency in the work of legal scholars discussed in Chap. 4, and in some of the judicial utterances summarised in the Appendix to this work. At first sight, the ordinary person test seems reasonable and unproblematic in terms of what might be called the ‘duck’ hypothesis as in ‘if it walks like a duck and talks like a duck and looks like a duck then it is a duck’. However there are ambiguities brought into this by possible psychological biases in perception arising from the structure of the information flow. This means there can be Type I and Type II errors in the use of an ordinary person test. To establish this we have to imagine the situation where it is definitely the case (outside of our perception) that is substantially plagiarised on all the relevant grounds. Hence there is a ‘true’ outcome that can only be approximated in the course of legal hearings and a judgment arrived at on the basis of probability. Type 1 and Type II errors refer to actual cases of ‘true’ plagiarism being found to be baseless and to cases where there is no base to the case yet it is found to be substantially plagiarised. In terms of the ordinary person test, we refer to a listening test where the ordinary person might fail to spot what they should have, or will attribute similarity where there is not much grounds to believe this in terms of what an expert musicologist might say. The expert musicologist may dismiss the apparent similarity that excites the ‘ordinary person’ as accidental by-products of the rules of musical composition. In this regard, the Repp case is one of many accusations (most notable being frequent claims of high reliance on ‘Echoes’ by the Pink Floyd) levelled at Lloyd Webber which are prevalent in You Tube compilation videos that also berate him for self-plagiarism. However action has not been brought on these other cases but the commentaries one sees are clear instances of the
fact that the ‘ordinary person’ or ‘audience’ is likely to prescribe similarity in far more cases than a musicologist expert acting neutrally. This is an acute problem for some of the proposals we consider in Chap. 4. The setting of precedent is of paramount importance in legal systems. Arnstein’s cases might be seen as frivolous cases brought by a serious man. In that, to the outsider the cases seem without foundation but the accuser is a proper professional musical worker regardless of what one may think about his achievements, in the business, outside of his cases. His targets were highly successful and generated a lot of revenue prior to his actions, hence the payouts might be expected to be good if he won. However he lost on a broad front and ended up as a vexatious litigant. This would seem to create a deterrent for the ‘Honeypot’ type of case where a composer is motivated by the possible revenue on offer. The greatest general deterrent is not to have no win no fee payment schemes for legal representation in such case. Under such a scheme, any given individual could constantly mount speculative cases in the expectation of winning enough to get a significant positive net return. If there is variability and inconsistency in the case judgments, then simple Type I/Type II error grounds suggest that serial accusation is potentially a worthwhile investment if the individual follows the subjective expected utility model. This will be more so the case the less is the degree of relative risk aversion. We now live in a very different world from that of Arnstein, in terms of how music is composed and distributed and the sources of revenue. So we might expect that speculative investment cases might revive and, in the limit, we could have a ‘honeypot mania’ where a flurry of cases clogs up the system and has deleterious effects on the production of songs and performances. However, technology also impacts on some of the grounds illustrated in the Repp v. Lloyd Webber and STH cases. Most notably, the availability and subconsciousness grounds. The change is at its most extreme here in the case of ‘derivation from a foreign language’ compositions. We see such cases for songs by both Madonna and Michael Jackson where some degree of success was initially achieved by the plaintiffs and in the more recent case of the Adele song ‘A Million Years Ago’. The latter has remained as a twitter spat whereas the Madonna and Jackson cases brought formal accusations. Plant/Page and Lloyd Webber sought to demonstrate that prior hearing could not have influenced them into borrowing from the sources claimed. This was upheld despite the clear evidence in the former case that the authors had heard the source composition in concert when appearing together and that Page’s record collection held
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many Spirit albums including the one with Taurus on it. This type of casuistry is irrelevant to the modern world due to the pervasiveness of global content. Even if a source item is not explicitly available on any streaming or download site, any individual could still have heard it to subconsciously, or otherwise, borrow from as a passing play on an internet radio station. This could have also been the case in earlier times via mainly long- or shortwave radio but an individual would stand a better chance of showing they could not have absorbed the source in that way. So we find ourselves in the revolutionary ‘no escape’ position where it pretty much has to be assumed that anyone could have heard and then plagiarised anything.
2.7 The Issue of Delay in Bringing Composition Cases Repp cannot be accused of notable delay as, after he had a ‘sickening’ feeling, when he heard ‘Phantom of the Opera’ he moved to bring his case fairly swiftly. The STH case falls into the problematic category of long delayed music litigation cases such as the authorship disputes surrounding ‘A Whiter Shade of Pale’ (see Cameron 2008, 2015) and, of course the bizarre, ‘Down Under case which opened’ this book. The STH case has taken 43 years to begin, and arrived 17 years after the author died and there is no doubt that the alleged similarity would have been evident to the plaintiffs from the outset. As a reference point we may note that 50 years has frequently been the reference point for lapse of copyright protection in authorship. The STH case was brought on behalf of the original author with the stated aim of getting him the credit he deserves. As with ‘Down Under’ and typical authorship disputes, any royalty claim was only going to be applied to the future earnings and not to the retrospective income stream. Taken at face value, the presence of substantial delay seems to weaken the force of any case and we might imagine that substantial delay would void actions especially if no meaningful new evidence has recently come to light. No new evidence had come to light at the time of bringing the case of STH although the proceedings brought disclosure of the extent of Page and Plant’s degree of familiarity with ‘Tarkus’ despite claims to the contrary. The claimants against STH offered lack of money and a mistaken belief that the case was timed out, by the statute of limitations, as reasons why it had taken 43 years. The delay issue about composing rights comes
under the doctrine of laches which has been pertinent in a wide range of music industry cases including others about composition in terms of authorship disputes (Tomlinson (2002)). The application of laches can lead to a case being dismissed because of unreasonable delay. This is not judged on the basis of the amount of time and the onus is on the defendant to prove that the delay was unreasonable and prejudicial to the defendant and would have been to their detriment. That is, the defendant may have taken actions which weaken their position such as spending the money that had accrued to them in the intervening period when the right had not been notified or they may have put more effort into promoting the disputed copyright than they would have done if they had known there was a dispute. The summary of the Appeal decision in the AWSOP case argues that the value of the song was nurtured and upheld by the accredited composers, and Procol Harum, by promoting it. There is considerable sophistry of language in the appeal decision (see 2008 EWCA Clv 287). It is repeatedly claimed that Fisher’s waiting period was not a ‘mere delay’ but an ‘extreme’, ‘inexcusable’, ‘unconscionable’ delay in the sense that although he did not implicitly assent to waiving his copyright by his inaction, he had misled the owners of the song and worked into believing that there was no dispute. One would imagine that if these claims are valid they could equally well be applied to plagiarism cases like the STH one. Such claims did not feature in the cause of the loss of the first STH case as this was decided on the grounds of insufficient similarity and a willingness to believe that the defendants were not familiar with the source work at the time of composition. The lack of sufficient similarity seems to have been down to the convincing presentation against this by the defendant’s musicological expert. Regardless of our opinions on the fairness of the outcomes of heavily delayed cases, there is an obvious issue of concern about the economic and social efficiency of the legal system where delayed cases seem to be quite easy to bring. That is cases can crawl out of the woodwork long after they were buried and saddle all agents concerned with the onerous burden of decoding the reliability and weight of evidence from very long ago. This is of course not a problem if we simply discard totally all other criteria bar substantial similarity and abolish any relevance of familiarity or subconscious influence.
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2.8 Conclusion In this chapter we have considered plagiarism arising in the ‘old fashioned way’ from composition. Even if the compositions are recorded, the plagiarism charges are based not on the recorded aspects of the work but the elements of it which can be written down as sheet music without any reference to the recorded version of the work. Copyright in sound recordings clearly makes it possible that plagiarism can be levied at the use of the sound recording itself and that we can have the ‘doubling up’ effect where the use of the recording as a sample triggers further questions about the copying of the composed material in the recording. This is strongly evidenced in the ‘Bittersweet Symphony’ case that we shall end this whole story with in Chap. 4. In Chap. 3, we enter into the plagiarism of the sound recording and the mass emergence of this problem due to the growth in ease and availability of sampling itself and the spread of sampling as the basis of composition versus traditional methods of composition.
References Cameron, S. (2008). A Paler Shade of Litigation. ACEI Conference Northeastern University Boston, June. Cameron, S. (2015). Music in the Marketplace: A Social Economics Approach. Abingdon: Routledge. Cameron, S. (2016). Music and the Music Industry: A Sad-Onomics Approach. Economists TalkArt. blog at. Retrieved August, 2019, from https://economiststalkart.org/2016/06/14/music-and-the-music-industr y-a-sadonomics-approach/. Carroll, M. W. (2003). Whose Music is it Anyway? How we came to view musical expression as a form of property. Part 1. Villanova University School of Law. Working Paper Series. Chapman, R. (2010). Syd Barrett: A Very Irregular Head. London: Faber and Faber. Ennis, P. H. (1992). The Seventh Stream. The Emergence of Rocknroll in American Popular Music. Hanover and London: Wesleyan University Press. Galenson, D. (2009, November). Innovators: Songwriters. Working Paper 15511. Cambridge, MA: National Bureau of Economic Research. Richards, K. (with James Fox). (2010). Life. New York and Boston: Little Brown and Company. Rosen, R. S. (2008). Music and Copyright. Oxford: Oxford University Press. Rosen, G. (2012). Unfair to Genius. The Strange and Litigious Career of Ira B. Arnstein. Oxford University Press.
Sounes, H. (2001). Down the Highway: The Life of Bob Dylan. New York: Grove Press. Stewart-Panko, K. (2018). We Talk to the Anonymous Person That’s Calling Out Artists Plagiarizing Others in Heavy Metal Artwork. Metal Injection Website. Retrieved August 6, 2019, from https://metalinjection.net/interviews/ sad-but-true-art-plagiarism-interview. Tomlinson, D. E. (2002). Federal Versus State Jurisdiction and Limitations Versus Laches in Songwriter Disputes: The Split Among the Federal Circuits in Let the Good Times Roll, Why Do Fools Fall in Love? and Joy to the World? Loyola of Los Angeles Entertainment Law Review, 23(1), 55–79. Yagoda, B. (2015). The B-Side: The Death of Tin Pan Alley and the Rebirth of the Great American Song. New York: Riverhead Books.
Sampling, Samples and Library Music
Abstract In this chapter sampling audio products is reviewed as a source of plagiarism and its complex possibilities of triggering further traditional composition claims are enumerated. The various meanings of an audio ‘sample’ are explained and a brief technical history of the development of sampling methods is given. This leads into the case for ‘loop based composition’ as a valid alternative to traditional composition which can equally be ‘transformative’ of the core material used. The external benefit argument, in terms of ‘rubbish theory’, is given that some hip hop sampling adds value to neglected or obsolete outputs by recycling/upscaling them. We go on to look at genres of music, other than hip hop, which are overtly sample-based and which make a claim for free use of samples being the optimal policy. These are the Plunderphonics work of John Oswald and the online internet community genre of Vaporwave. A critique is given of the claim that such work constitutes an ideological attack on capitalism. Keywords Sampling • Bricolage • Beat • Amen Break • Plunderphonics • Vaporwave • Hip hop Sampling final end audio products (released recordings) is obviously not identical to traditional compositional plagiarism in composition. Consultations with lawyers would be equally required in both cases but there is effectively ‘double jeopardy’ in the sampling case as the user may © The Author(s) 2020 S. Cameron, An Economic Approach to the Plagiarism of Music, Cultural Economics & the Creative Economy, https://doi.org/10.1007/978-3-030-42109-0_3
well infringe both the rights of authorship and the copyright in the sound recordings. The latter problem may further create a hideous ‘domino effect’ of spiralling claims as any given recording infringed may trigger sequential cases under both compositional and copyright grounds. The classic case of this is described in McLeod and DiCola (2014, p. 95) in terms of Alan Lomax, the legendary archivist of folk/blues music ending up with a credit on Jay Z’s ‘Takeover’ through a convoluted route for a song he did not even write in the first place. Their explanation is expanded with a useful graphic and video illustration of the songs by Ethan Hein in a blog of 30 August 2011. He says: When KRS-One sampled Grand Funk Railroad’s cover of ‘Inside Looking Out,’ he needed the permission of both the owner of the recording and the underlying composition. This is in spite of the fact that the sample is from an instrumental section that Grand Funk added, and that doesn’t reference the original melody at all. And even though Jay-Z sampled KRS-One’s unaccompanied vocal, he also needed to get copyright permission from everyone sampled in KRS-One’s track. Including Alan Lomax.
‘Rosie’ can’t be said to have any particular author. But Lomax was the first person to record and publish it, so according to the peculiar norms of America’s property laws, he was able to copyright it. Not only does Lomax hold the copyright for ‘Rosie’, he’s also listed as a co-author of both versions of ‘Inside Looking Out’. Despite mockery of the ridiculousness of this outcome as a revenue distribution system to various authors, the words/music conundrum identified therein is not anything new as in the case of legitimated instrumental cover versions of songs where the writer solely of words will still share in the income. The casual reader is likely familiar with the idea that there is some kind of sample clearance industry due to heavy reliance on James Brown material. And they might imagine that such an industry would function like the searches taken out before a house is purchased if we lived in an efficient economic universe but such imagining belongs more in the final chapter. However the most illuminating general instance of non-clearance, accompanied by no consequence is one short piece of work by one person, the celebrated ‘Amen Break’ which is discussed below. This is a usage which is counter to the bomb that sampling cases threw into the musical plagiarism world by resulting in decisions where there is no de minimis criterion even for the tiniest unrecognisable fragment of recorded sound in some landmark cases.
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Besides the above, the understanding of the role of sampling also requires some background technical history on the development of sampling methods due to the ‘ethics of creativity’ argument that figures in the discourse on plagiarism.
3.1 What Is Sampling? Sampling, in music, is an ambiguous and somewhat misunderstood term. Sampling activity can be found in a wide range of popular music genres for a long period of time. An obvious example being that samples were used in the mid-1960s by the Beatles and that the instrument, the mellotron, consisted of pitched samples triggered from the corresponding note on the keyboard. The use of this instrument spread in the 1960s but it was purely monophonic and the initial version only had one set of keys covering a 35-note range. It also had a limited set of sounds and users could not sample in new ones. The mellotron ceased production in 1986 (although there have been revivals) and some of its limitations were overcome with the arrival, in 1984, of the Fairlight made by the Australian company of the same name. Significantly this permitted user sampling into its memory and any such sample (whether it be cat, a trumpet or a tin can falling down a hill) could now be played polyphonically. Thus it could be played as per any other keyboard instrument but with seemingly almost any sound in the world used. It had a revolutionary impact on the mainstream music of the 1980s but it had a very tiny amount of sample memory and was prohibitively expensive. Thus the access, even for professional musicians was limited, and it was certainly not going to spark a revolution caused by people sampling from old forgotten vinyl records. It was however first used in hiphop, in 1985 on Kurtis Blow’s ‘If I ruled the world’ where the actual machine used is said to have cost 250,000 dollars (in the then currency value). Such usage required the hip hop artist being allowed to enter studios which had one courtesy of the money from record labels. Each mellotron sample was on an individual piece of magnetic tape and some such tapes were rumoured to be from radio broadcasts of orchestral music. However, the most common perception is that sampling is a relatively modern phenomenon most generally associated with hip hop and the emergence of specific keyboard-less specific hardware devices known as ‘samplers’. It is perhaps correct to take this view, as it is only in the post- hip hop world that sampling becomes an established method of
composition as opposed to traditional jamming on instruments or writing out musical notation. It is a method of composition which clearly can be used in any genre of music as the only barrier to use would be self-censorship based on an ideology of what is the ‘proper’ or ‘real’ way to make music in the genre. Hence we might think that a heavily sample-based country or heavy metal music would be a hard sell to the consumers. It may or may not be a coincidence that these are the main sectors of popular music which are lightest on any kind of plagiarism litigation. Heavy use of sampling to make music tended to bring concerns about harmfulness of the practice to both creativity and copyright due to the ‘ease with which anyone can do it’ point of view. These concerns have been counteracted by academic works which extol the virtues of a ‘remix’ culture (in all areas not just music) where the chopping up and recycling of the past is now an accepted and socially legitimate practice (see e.g. Paul and Miller 2008; Navas 2012) with high creative (not just economic) value. The majority of academic and popular literature around sampling sees it as a ‘problem’ for the music industry and copyright literature has tended to focus on hip hop (see e.g. Arewa 2006; Evans 2010; Perchard 2011; Said 2015; Watson 2017; Joo 2012). We have now reached the point where the sampler will usually be in software form although there are still hardware samplers being manufactured with these, to some extent, now being marketed as ‘retro’ fun or tools to assist creativity in a way that software cannot. The software sampler is also likely to be completely integrated into a larger software suite which can allow complete musical production typically known as a DAW (digital audio workstation). The item termed a ‘sampler’ is an audio collection and playback tool. It must be able to record and play back audio which may be music or non- musical effects. If the sample source is analogue, such as vinyl records, then the sampler must convert this from analogue to digital format for the purposes of storage. The greatest interest in use of samplers has been when they are integrated with the ability to play back a set of samples in a specific order, at a specific speed or time signature, in different ways (i.e. backwards or on repeat (looping)). This is known as a ‘sequencer’. A sequencer can be a stand-alone device (whether hardware or software), hence one can use different sequencers with different samplers. Or sequencing and sampling can be integrated into one device which can load samples, record samples on the fly and also allow the programming of patterns using these events. The drum machines of the ‘golden era’ of drum machines were
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effectively such devices with the limitation that new samples could not be recorded on the fly or imported. The hardware samplers associated with the emergence of hip hop (chiefly Akai MPCs as other products tended to be followers of this brand line) had these missing features which became standard for samplers used in this genre. The most relevant thing about such sampler-sequencer devices coming to popularity is that it alters the process of composition. A creator can produce a composition without musical input or any cooperation from others, if they so wish. Many people who developed their compositional methods on samplers have had some experience in the traditional means of composition prior to this. The rapper Eminem does not fall into this category and he would initiate works using his Akai MPC and then take them to others for development. The problem then arises whether these others are producers or co-composers. This problem of attribution is typically taken care of by some spot contracting with the producer which will specify rates and roles. Sample-based composers can rely heavily on pre-existing material which has been sampled for them and prepared by others, with supplementation from ‘real’ instruments or other devices and other electronic devices such as drum machines or synthesisers which have their own sequencers which contain pre-written patterns and allow composition of new patterns. The first samplers available to the general consumer had very low amounts of time available to hold samples. This was due to digital memory scarcity and expense. This also meant they had very limited polyphony, so could not create a sequence which played a large number of different samples simultaneously. The workaround for this is ‘resampling’ where the sample sequence is itself sampled in a process analogous to older methods of ‘bouncing’ tracks in magnetic tape based studios. Samplers would become expandable through digital media cards and other devices like Zip drives and eventually CD drives. However this would for a long time be a very clunky process compared with the ease to which any user of software such as Ableton nowadays, on an ordinary domestic PC or laptop, can fly in and out any kind of sample to any point in a composition and can interact by using specially designed dedicated controllers to recreate the hardware experience at a much higher level of sophistication and speed. They also have vast polyphony and do not tend to need to use resampling, due to scarcity of memory, so it would only be done for creative effect. The memory limitations, of early hardware samplers, have been elevated into the ethos that limitations are a good thing because they encourage
creativity. An aspect of this is the use of changes of pitch as a workaround for the memory capacity restrictions. Degradation of sonic quality due to resampling can be given similar claims of artistry and creative enhancement. The economics of scarcity effect of having few samples and few tools in general to work with inspired further manipulation of sounds as a means of bringing variety into a work. Such manipulation brings in the prospect of rebutting plagiarism accusations by arguing that the material has been developed in a similar way to the musical extensions employed around a standard riff in traditional methods of composition. A good example of elementary sampler-based composition is the 1988/1989 ‘acid house’ British hit by A Guy called Gerard called ‘Voodoo Ray’ (see Aitken 2005). His inspiration was a sketch on a Peter Cook and Dudley Moore vinyl comedy record which was non-musical, that is only spoken word. He said that he ‘found this sample saying “Voodoo rage”. That was originally the title but the old sampler I was using didn’t have that much memory. I just about had enough for “voodoo ra…”, so that’s what it became’ (Q Magazine 2001). So here we have the notion that this work would not have come into being without free access to a sample but also was due to limitations of sampling which bring a different kind of skill into play from that of the traditional composer. The work produced quite evidently uses the work of Cooke and Moore but what is finally produced bears no meaningful relationship to the source and has added value in the form of a new cultural product which we may argue did not ‘steal’ from the original source. In this instance, the sampler is mainly an instrumental aid and a composition tool. It was not used for sequencing but simply to play back at specific times in conjunction with other instruments/sound sources. Here as in the ‘golden age of hip hop’ there was little concern with copyright or plagiarism, as it either simply did not cross the minds of users or they thought it was okay under fair use. The time limit on primitive hardware samplers seemed to play into the idea of avoiding fair use without trying because the samples are so short they might easily fall below the size limit if it had turned out that courts were able to apply compositional fair use provisions to use of recorded material. Digital disruptive innovation would eventually tend to undermine the quantity rule for fair use. It is common to see this stated as six seconds rather than as three bars which was the stipulation in US copyright law for traditional methods of composition in the pre-digital era. One assumes that this is because at 120 bpm, three bars of music is six seconds. Quite obviously it is not six seconds if the tempo is increased or decreased. The
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first sample-based music producers were not using pitch change as speed change as evasion or camouflage effort to trip round fair use as per the economics of crime model. Rather it was simply a technical ploy which became a ritualistic part of production. The work of The Prodigy, which came after Voodoo Ray, provides good case study material of sample based composition given that their sample usages is fairly well documented from interviews with the chief member (Liam Howlett) or research on the fan website page which identifies all their sample usage (https://theprodigy. info/samples/). The Prodigy are not regarded as a hip hop group but emerged from a specific dance-oriented epoch in British culture. Their music has been variously genre typed, for example it is claimed to have emerged from techno and iTunes tagged it as ‘Electronic’.Their work is motivated by admiration of hip hop such as the main reference point of emergence of that genre is the work of Public Enemy (see Ogg 2002). The word ‘punk’ also tends to creep into Prodigy literature partly based on attitude and upbringing (see James 1997; Roach 2010) but also due to the basic and DIY or homegrown origins of the creative output. Although the above fan page repeats a quote from the Prodigy leader, Liam Howlett which says ‘we’re pirates, we steal things and make them our own’ which sounds provocative, the truth is milder. This is evidenced in the next sentences describing the work of Maria Forte, of EMI, in getting clearance of the samples used by the Prodigy where it was needed (as some come from library sources). Further claiming that you have made things your own implies that, in the world of plagiarism, you did not literally steal but may have engaged in enough transformative effort to avoid being accused of being a thief and/or pirate. It is perhaps significant that the beginning of the Prodigy’s recorded output comes just around the time of the landmark ‘Grand Upright’ decision in favour of Gilbert O’Sullivan against Biz Markie (see Appendix) which drove record companies to insist on prior licensing of samples. And so they steered clear of trouble. Anyone who wishes to see the loop and sample based composition in action can usefully look at the videos on the You Tube channel of Jim Pavloff which provides walkthrough recreations, in Ableton, of how the Prodigy’s ‘Firestarter’ and ‘Smack My Bitch Up’ were made. Watching these makes it clear that, although the sources can be identified, the final products are conceptually and thematically quite distinct from the material used. Thus they can be deemed ‘transformative’ and rescued from any risk of traditional plagiarism composition-based law suits even though the samples themselves have been cleared (as is the gist of the accusation made against Justin Bieber—see Appendix).
Having introduced the sampler, it is time to go back to the concept of the individual sample generated by, or used in, one. There are two aspects to the use of the term ‘sample’. The obvious one is that it is a piece of something else taken from it. In statistics a sample comes from a population being the total group of such objects under consideration. In terms of rubbish theory (see Thompson 1979; Hutter 1992) applied to composition, we might say crudely that musical sampling is sometimes the ‘good’ bit taken out of something otherwise fairly useless to the user or even the whole of society at that point in time. Thus the good bits are upscaled and repurposed and this is a valid economic act of creation that requires reward to create incentives. Most commonly the ‘good bit’ is a rhythmic section such as a drum break. The second meaning of ‘sample’ comes from the process of digital recording. As explained above, a sound has to be converted to and/or stored in digital form so it is a computer file. The size of the file depends on the amount of information captured from the source which is manifest in the sample rate of a file. That is, how often the samples are taken from the original source as it is playing. The higher the sample rate the more accurate the reproduction of the original source. When CD formats arrived on the market as a dominant force they established a dominance of a sample rate of 44.1 kHz although many hardware samplers used a rate of 32kHz to increase storage capacity. Samplers often allowed the use of even lower rates to increase storage time. Very low rates would become an effect in themselves which is now widely used in many areas as a creative form of sound degradation. The sampler may also allow reduction of the bit rate, to save space, from a hi-fi usage (CD-audio was determined at a standard of 16 bits) which has similar creative degradation qualities as sample rate reduction. Low bit rates have had vogue in ‘rubbish theory’ style (since around 2006) due to the ‘chiptune’ sound coming from 8-bit samples in early video game consoles. The lower the sample rate is, then the smaller is the fraction of any original source that has been taken. If the unauthorised use was seen as ‘theft’ in the property sense, then we seem to have the problem that the user can claim to have stolen only a fraction. This situation was at its height when there was a desire to prosecute consumer end use of music via MP3s at a compression rate which typically discarded 90 per cent of the data in the music. However given the move to see music as ‘intellectual property’, this was overridden as a data-compressed copy takes 100 per cent of the ideas, not 10 per cent. A decline in sample rate will lead to a removal of some frequencies and the lower the bit rate, the more we
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approach a distorted sounding style of sound akin to old telephones and children’s toys involving speech reproduction. This discussion of sampling adds to the verb rather than noun definition—that is sampling is either taking a fragment of our something and/ or capturing a sound source into an audio file. As part of composition, a musical creator could eschew sampling from others by sampling from sounds of their own which they may have accumulated. This takes us further into the idea of ‘loop based composition’ (LBC) as a method distinct from traditional formal writing of music or jamming on instruments. However, one could of course jam on traditional ‘real’ (as opposed to ‘virtual’ inside a computer) instruments and record this and use this as the basis of samples to be then used for composition. The idea that such methods began (in terms of lifting work from elsewhere) with hip hop is very historically misguided. Possibly the first example of the most basic type of loop based composition which is documented was in the mid-1960s British beat boom by the musician Mikki Dallon (n.d.) who was working with Chas Hodges (later of Chas‘n’Dave) who recalls: ‘One of the first things we demoed was a number I’d just written called “You Got What I Want”, the drum track of which we nicked and dubbed from an old Sandy Nelson LP. Chas took part of it and made a “loop” which just went round and round on one tape recorder which then served as a backing for the rest of the instruments to be overlaid’. The notion that one could ‘get away with nicking’ a drum track and composing over it fell foul of the original composer in the Edwyn Collins’ case in 1994 (see Appendix) BUT as we shall enumerate later, in the case of Amen Break the most famous instance of this became almost de facto public domain. ‘Voodoo Ray’ by A Guy Called Gerald is a good example of LBC in simple form without many adornments. A loop is something designed to be played on repeat if necessary but can also function in ‘one shot’ mode. In terms of older methods it is usually a phrase although it could be longer than this might suggest. Within hip hop and related genres the use of the term ‘break’ derived from ‘breakbeat’ has emerged as something of significant connotation and different from a mere ‘loop’. A loop could be anything—so I could sample, say a presidential speech, a TV theme tune, a child crying and a piano part from a Chopin prelude but the resulting piece is unlikely to contain the all-important ‘break’ or ‘beat’. The break or beat or ‘breakbeat’ in some usage originates in ‘turntablism’ where records playing on two vinyl decks would be intercut (see Brewster and Broughton 2006). The turntablist would isolate a break on one record
and manipulate it to repeat and use mixer fading to bring it in and out of the other record which is being played. Thus we have live ‘on the fly’ remixing. In legal and economic terms, the all-important ‘break’ occupies the same sort of position as the ‘riff’ in traditional composition. So, LBC could use loops of own work, or material sourced from others such as radio broadcasts or other musical recordings which the composer has physically created by doing the recording. A recording is not a literally replicative process as the sampling composer may add to the value by creative acts. In terms of the language used to defend the sampling practice in legal fora, such value added would be termed ‘transformative’. That is, the creator has mutated the source into something different which the original could not achieve in its raw state. ‘Firestarter’ by the Prodigy would seem to be a good case of this, as its final form and themes and ambience bear no resemblance to the parts used to make it notwithstanding one can clearly hear the presence of the sourced parts once one is alerted to them. So, from a simple-minded point of view, suing someone for use of a sample can be like a chicken suing a cake maker for putting eggs in the mix. The discussion above is rooted in the idea that composing is an inspirational and creative process rather than one with many mundane and workaday elements. In any occupation or cultural activity, it can be useful to have ‘ready-made’ inputs such as premixed cement or cooking sauce and the same applies to music. This was less so in the style of production covered in the previous chapter, as the toolbox argument is not quite the ready-made input situation. It is assumed that the individual played the toolbox elements themselves as opposed to literally using the original source. It is embodied in the category of library music in its modern form where the user has a library of short phrases, patterns, rhythms and melodies rather than whole compositions.The origins of library music are in the idea that it would be royalty-free to the end user. They would pay for the format delivery,for example it was originally usually on a vinyl LP but would proceed on the understanding that they do not have to pay thereafter. Before the emergence of widespread online circulation, the modern short form library music would be issued on CDs which would cost more than a consumer would pay for an audio CD. The high prices constituted the business model alternative to attempting to obtain money from a royalty rate on amount of usage. There are historical examples of royalty-free music due to the need for workaday use of music with a low authorial profile and low transaction
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costs in procurement. For example, in older television shows (but seldom in major films) so-called library music was used as scene-setting background and the same pieces could be used over and over again without any fear of reprisal from the previous user. This is because of the licensing arrangements. This type of music is now being lionised as a cult exemplar of high ‘accidental’ creativity (see e.g. Hollander 2018) due to the excellence of musicians involved (or at least in a certain era of UK production) and some kind of accidental genius generated by the context in which they were made. It would seem that plagiarism suits cannot be brought against reuse of library music given the risk-taking right of compositional ownership has been signed away for a guaranteed fixed sum. This does raise the spectre, in the criminal economy model, of a rational serial plagiarist using this source to avoid risk. From an economists point of view this might border on the fringes of being a hypothesis. Conversely, we might expect few cases of plagiarism in the reverse direction given the low expectation of pecuniary return from bringing such a case. The author, of library music, may be incensed in moral rights terms in not getting recognition for their original work but there is a significant financially motivated case. As with conventional composition, and sampling cases, the origin of the case is not actually from the composer. In this case it is from a business rival in the same sector. The ‘Lonely Girl’ (theme tune for the UK Callan TV show 1967–1972) also appeared as incidental music in cop and comedy shows prior to the case brought against it. It was challenged in a 1975 UK court action, withMood Music who had had the tune in its library since 1965. It was claimed to be sufficiently similar to an Italian song ‘Sogno Nostalgico’, composed in 1963 by Armando Sciascia. It was also claimed the lyrics of the sung version were an infringement as well. The case was settled with the assignment to Mood Music of the worldwide copyright of ‘Girl In The Dark’. More importantly for us the payment of certain royalties previously earned by the song and all future royalties worldwide were subject to an ad hoc formula. Money held at the time was to be released and allocated on the basis of Mood Music collecting half royalties earned in the UK by ‘Girl In The Dark’ and one quarter for ‘This Man Alone’. The case established a substantial precedent in UK law on substantial similarity, as Mood Music countered De Wolfe’s claim that any similarity was coincidental by presenting three other examples of music from De Wolf’s catalogue that bore close resemblance to music published by Mood Music. De Wolfe paid all costs, estimated to be about $70,000, but did not admit
liability. So they claimed they had done nothing wrong which means the settlement has to be on the grounds of limiting bad publicity and consequent damage to reputation capital. The clear ad hoc nature of the sums involved and the manner of payment show that there is no principle at work derived from economic theory. That is the settlement is not linked to the marginal revenue productivity gain from the infringement but is purely arbitrary or an outcome from a bilateral monopoly bargaining process. Modern short-form library music, which will contain breaks or beats including many versions of the ‘Amen Break’, is still using the EULA which were employed when it was distributed in CD format and printed in the booklets inserted in CD cases. The company Zero G is a significant long-term distributor of this kind of material. Its licence (consulted online in Zero G’s website, n.d.-a) has seven points to it.The first two cover the fundamental difference between sale and licensing, as with computer software that the user does NOT own the material hence they cannot transfer it to another user whether or not this is selling or giving it away. This means sale of the original CDs, such as on eBay as still goes on, is illegal EVEN IF the purchaser complies with all the other terms of the licence. There is some anomalous economics with such resale as (of 26th September 2019) Australasian eBay was listing ‘Jungle Warfare Volume 2’ from Zero-G (n.d.-b) as ‘an extremely rare cd’ for over twice the price of a download of the material from the original source. This is doubly or even triply perverse (as the download version is likely to be more efficient for the end user) as one would expect there to be less added value from nostalgia or the ‘involvement’ factor we get with end user ‘artist’ music on physical formats. Likewise it means sale of digitally downloaded samples or giving them away or recombining them with other samples in a ‘pack’ for sale or giveaway is also a violation. Section 3.2.1 allows that the licensee can modify the sounds ‘and MAY USE THE SOUNDS FOR COMMERCIAL PURPOSES WITHIN MUSICAL COMPOSITIONS, subject to Sect. 3.5’ (emphasis added to original). Section 3.5 is the part which will appear most unintuitive to the uninitiated. It says: ‘Use of the sound samples by relicensing to multiple third parties, is permitted PROVIDED that the samples are used within a musical context and are not presented isolated or “solo-ed”’. The sound samples must be used ‘in combination’ within musical compositions. For such usage, any rhythm loop samples (which Zero-G regards as being musical clips in themselves) must also be combined
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with other types of samples or sounds to effectively form a new composition, rather than simply being looped in isolation’ (emphasis added to original). I have added the emphases to this quote as the passage concerned shows a revocation of the idea that beats are some kind of public domain ‘folk’ source that cannot be owned. There is an ironic ‘poacher turned gamekeeper’ element here as Zero-G is thereby establishing ownership in a number of versions of the ‘Amen Break’, in its products, which the original proponent held no rights over. The remaining three Sects. (3.2.2, 3.3 and 3.4) to some extent repeat the above, in different language, for reasons of legal precision and add a standard consumer product provision that the provider is not liable if the user finds the items unsuitable or experiences any damage or loss as a result of using them. Section 3.4 is an explicit restatement of the principles for cases of Foley and sound FX in TV or movie soundtracks, video game soundtracks, gaming machines or toys. It goes on to intimate that it may be possible to negotiate a separate written licence so that the sounds can be soloed in the works contrary to the provision of Sect. 3.5. People pay for these samples but, as explained, if they give them away free to others they may still be in breach of the licence. Economics still struggles with free goods and we have to acknowledge that a huge volume of free samples are given away with varying licences. Many of these are solely online including recordings made of location sound of thunderstorms, trains and so on which are clearly not music although the water would be muddied if there is unidentified busking in a street scene. At the other end of the spectrum, the leading monthly music technology magazines distribute free samples online and they have also reverted to attaching a DVD to the front cover with glue with samples on the disks as an incentive to buy. These disks typically contain free ‘teaser’ sample packs,that is a sub-set of samples from a sample collection (reduced collections) from a prominent samplepack/soundware company such as Loopmasters but also specially commissioned sample collections for which the providers get paid a fixed commission fee. Like the composers of the vinyl LPs of the golden age of library music, they get no further income from usage. The licence stated on these packages has now become very brief and cryptic compared to the old-style one still used by Zero G. For example, issue 273 of ‘Computer Music’, in 2019, simply says (in the folders of samples which they have specially commissioned to give away free):
The samples in this folder are the property of Future Publishing Limited. Future hereby grants you a licence to use the samples for both non-commercial and commercial purposes, provided that the samples are not used as part of a sample library.
We may finally note that the sample library business has moved on to further integration with the community-oriented musical production and distribution business model into which we have moved. In practice, this means that many people now pay monthly subscription fees to sites such as splice.com where samples are obtained from various sources. Within such subscription services there are premium sales of individual tailored collections as per the older hardware business model.
3.2 Why Sample at All? Plunderphonics, Sound Collage and Bricolage We have just described the nuts and bolts of sampling as a method, combined with sequencing, of producing a ‘new’ musical work which is derivative of existing works in the form of recorded sound rather than the older practice of borrowing melodies or chord sequences as pure ideas. This means the timbre or texture of recorded sound is being re-used and transformed, unless of course it is simply repeated, more or less as was, in which case it takes the form of an unattributed quote in terms of the literary model. The timbre/texture proposition provides grounds for why this method of composition should be legitimately used at all as new creative possibilities arise from using and mixing existing sounds. These are enhanced by use of processing from effects which were increasingly found as an intrinsic part of sampling devices. These were initially long-established bread and butter sound change methods such as chorus and delay but these have been greatly expanded. The act of sampling itself allows transformation from chopping up samples into rhythmically aligned sections and storing these in a file with the chop point information (such as in ACIDised or REX files). However such transformation is, in commercial music, a tool of the trade rather than an end in itself. It is used to enhance and facilitate the work not to become the basis of the work itself. So it does not provide a compositional ethos within which to position sample-based genres as works of art and thereby defend the practice as creative and worthy of exemption from plagiarism charges. Historically, the act of sticking
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pre-existing components together in different orders and layering them is justified as a creative act in terms of ‘bricolage’. Typically the empirical interview-driven works on the practices of sampling-based composition (mainly in hip hop) refer to it as ‘collage’ or ‘sound collage’ to try to locate it in the readers’ familiar frames of reference. It is perhaps surprising not to find more use of the term ‘bricolage’ which has more cultural weight behind it. Long ago the practices of jazz musicians had been considered as examples of bricolage in the work of Hawkes (2003, p. 98). On p. 43, he says that: both music and mythology, as aural/oral, ‘nonliterate’ modes of art have the status, in Lévi-Strauss’s later work, of highly efficient ‘machines for the suppression of time’. That is, they function trans-historically as entities whose non-discursive forms give information above and beyond any discursive content. Indeed music (and perhaps myth) can perhaps be said to consist entirely of form.
The term ‘bricolage’ itself arises from the work of the noted anthropologist Levi-Strauss whose book of 1966 was translated into English as The Savage Mind. Currently there is no evidence of any reference to this concept in any of the economic work on music, however it is quite voguish in general management and organisation studies and work on entrepreneurs. In such work, it seems to have been drastically detached from its original moorings and used mainly as a new ‘flavour of the month’ to upscale the satisficing ideas of H.A.Simon on the theory of the firm. A discussion of the general relevance of bricolage in the modern world can be found in Altglas (2014) who seeks to reinstate the original Levi- Straussian concept against the newer misinterpretations. The source term is ‘bricoleur’ from the old French verb bricoler, which means do-it-yourself building or repairing things with the tools and materials on hand. This is contrasted to the methodical craftsman (engineer) who envisages what is needed and designs it as a more pre- conceived vision. The bricoleur is thus more the idiom of an outfit such as the Prodigy using samplers and sample libraries, whilst the composition type of Chap. 2, based on conventional traditional ideas of formal musicality (even though the training of the practitioner might be informal), is closer to the engineer. This conceptualisation is in no way a judgement on the quality or creativity of the two types of output. Levi-Strauss notes that, despite the differences in process, there are still similarities in the mental modality and problem-solving
involved. For our purposes, the importance of such distinctions is in identifying the degree of creative content in reworking prior materials in different ways that may absent it from formal and informal charges of plagiarism. Although surprisingly absent from the interviews with hip hop practitioners, bricolage has been linked to hip hop in more theoretical and discursive works. An article by Perchard (2011) entitled ‘Hip Hop Samples Jazz: Dynamics of Cultural Memory and Musical Tradition’, in the African American 1990s, explores the bricolage element from the specific ethnic perspective. Here the practitioners are seen as reinvigorating the traditional musical form rather than being barbaric philistine plunderers of it. This is also followed up in a substantial blog post by the revolution of hip hop in 2015 entitled ‘Bricolage: The Proliferation & Mobilization of Hip Hop’. 3.2.1 Plunderphonics Bricolage is an abstract academic pontification about the practices of creative workers and entrepreneurs. In the original or modified form it provides some insight into sample-based composition practices. However, as such it does not contain a manifesto or ethical foundation and therefore does not issue challenges to the established legal and normative order. In particular, its wish to be protected from plagiarism charges and costs reside within the normative order that they generate valuable commercial art that might otherwise be lost. In contrast, Plunderphonics, first proposed by Canadian composer John Oswald (1985) and more fully expounded in Jones (2001) seems to be a subversive use of samples that falls outside the traditional parody defence of plagiarism. It is not just a subversive use but extols the virtues of using only samples thereby eschewing the conventional ideas of composition and arrangement. Not just small phrases retextured and recombined but chunks of work juxtaposed against other works with no attempt to conceal what is going on. Despite the antiquity of Oswald’s manifesto he is clearly a pioneer of the ‘mash-up’ style of sampling often now rendered in the ‘A vs B’ format in its titling. His credo, is influenced by William Burroughs’ cut-up technique in compositions since the late 1960s. Burroughsian cut up has been an influence on such popular musicians as the Psychedelic Furs and David Bowie but only in attempt to produce more interesting words for a song. In 1988, Oswald said:
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A plunderphone is a recognizable sonic quote, using the actual sound of something familiar which has already been recorded. (…) Taking Madonna singing ‘Like a Virgin’ and rerecording it backwards or slower is plunderphonics, as long as you can reasonably recognize the source. The plundering has to be blatant though. There’s a lot of samplepocketing, parroting, plagiarism and tune thievery going on these days which is not what we’re doing. (Emphasis added to original)
To the outsider, Oswald would seem to make an unlikely bedfellow with the likes of Noel Gallagher and Laibach in the litany of disdain of plagiarism. There is however the possibility that unlike those mentioned, Oswald’s work actually does seems to fall into the parody category despite its high-minded mischievousness. One instance of this is shown in the anagram names used as his artist name for works sourced. For example, Jim Morrison is rendered as Sir Jim Moron. It also ties in to the older literary convention of citation, quotation and attribution as the Doors track just alluded to is credited as written by (medley of greatest hits) The Doors and edited by John Oswald. Practices vary as the track Power (released in 1985) credited to Deep Zen Pill (anagram of Led Zeppelin) is credited as written by Karl Heinz Stockhausen (for ‘Hymen’ sample with Led Zeppelin themselves credited as ‘backing band’). These reflect an attitude and are not the music itself as a final product but they have implications for copyright claims especially if the works ended up in court. In 1989, Oswald released an expanded version of his first Plunderphonics album containing 25 tracks, each using plundered source material from a different artist. In 1990 (Gans 1995), he was served notice, for infringement, from the Canadian Recording Industry Association on behalf of several of their clients, including Michael Jackson, whose song ‘Bad’ had been cut up, layered, and rearranged as ‘Dab’. They stated that all still undistributed copies of Plunderphonics be destroyed. An excerpt from a press release on the Plunderphonics website is repeated below: ‘I wasn’t selling the disc in the stores, so I let listeners tape it off the radio for free,’ explains Oswald, who paid for the production and manufacture of the CD out of his own pocket. He receives no royalties or financial compensation for airplay. Brian Robertson, president of CRIA says, ‘What this demonstrates is the vulnerability of the recording industry to new technology … All we see is just another example of theft’.
Oswald received notice from CRIA’s lawyers demanding that he cease distributing Plunderphonic as of Xmas eve 1989. Although Plunderphonics is not widely known to the general public, these setbacks did not finish off its existence as a subversive genre of sample-based music. Lists of subsequent significant Plunderphonics work contains many items from the hip hop canon but others are more obscure intellectual/academic exercises of less commercial orientation thus akin to Oswald’s own work. Holm-Hudson (1997) says: Although the music industry (not without inconsistency) has insisted that digital sampling is “theft,” it is perhaps better viewed in historical and theoretical context as timbral quotation. Often the sample functions as a quote that is recontextualized but that nevertheless bears the weight of its original context. Oswald’s work reveals an often overlooked aspect of contemporary popular music in the age of mechanical reproduction: his samples refer not only to specific songs (where they are recognizable), but also to the timbres associated with entire genres.
3.2.2 Vaporwave Hip hop and related sample-based musics originate from the commercial mainstream. Oswald’s Plunderphonics emerged from an alternative home- made or ‘cottage industry’ ethos in the pre-internet era. In contrast, the genre of Vaporwave (Whelan and Nowak 2018) is a manifestation of the new category of ‘online internet community’ music genres. According to the authors, Vaporware is easily the most popular online internet community genre on Bandcamp and other easy access distribution platforms. The word ‘vapor’ in digital contexts usually refers to something that does not really exist but has a presence as an idea having been put out to a community for consideration. For example, when a developer presents a GUI for a piece of music software that has not been created, this is called ‘Vaporware’. The vaporwave compositions might be seen in this light as an intimation of the existence of something that exists but does not actually exist. This is a re-imagined reality but different in nature from genre- hopping cover versions such as the acoustic/folk covers of ‘punk’ songs. The key vaporwave works such as Floral Shoppes are extensively viewed on You Tube. In a retrospective evaluation of this album, Bowe (2019) refers to it as ‘a touchstone of millennial art’. It concludes with the only track
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which does not contain samples of other recordings. Several tracks might be seen if one takes a literal view, as remixes or mash-ups, given that the original masters have not been used, of works by Diana Ross and Sade. They are not Plunderphonics style mash-ups as the methodology is entirely opposite given that those are extreme remixes not the enhancements of the traditional commercial tradition of the remixer. The use of sources may provide some rationale for the ‘critique of capitalism’ idea, as final products, from capitalist corporate music, are being used as factor inputs by those outside the sphere of capitalist control to make rival forms of music. This is, of course, the same claim that might be made about early hiphop. Vaporwave is not only online in its distribution but also in some of its source material, as the samples are often gleaned from internet searches such as old muzak from corporate videos. It represents a type of Bourdeian perching on the consumer-producer frontier as it uses consumer materials to make product for consumers. The underlying philosophy of the genre is inevitably more disparate and ambiguous than for the political or subversively motivated categories of hiphop and Plunderphonics. This is due to the fact that it emerged more spontaneously and accidentally with the genre rules being established within the evolving community which shares the work as Whelan and Nowak (2018) make clear. However, it is evident that there is a ‘mode of production’ philosophy involved,namely that it is legitimate and acceptable to construct a work which is deemed to be music (i.e. not just a sound collage but identifiable as a composition) from other pieces of music which are, in this case, not necessarily deemed aesthetically good in their own right. This contrasts with the tendencies of the ‘golden age’ of hip hop. There are some claims that Vaporwave embodies a ‘punk’ type of DIY attitude in that it is a further manifestation of the position that one does not need to be able to play an instrument, let alone play one well, in order to be a musician. It is not clear if such punk DIY is the same thing as the original idea of bricolage as DIY. Unlike the golden age of hip hop, which reveres the samples used for the most part, vaporwave deliberately uses material such as the corporate video work, old advertising jingles and so on which are demeaned. There is here an element of celebrating the ‘guilty pleasure’ as opposed to the celebration of highly esteemed jazz, soul and funk in hip hop. The philosophy here is that such recycled source material conveyed promises of a Utopian and wonderful life in a new digital world of computers that emerged from the 1980s onwards. Ironic juxtaposition of material could
of course be mildly amusing and merely diverting. However, the most prominent exegeses of any avowed intent, of Vaporwave, have led to the claim that this type of bricolage constitutes a ‘critique of capitalism’. The purpose of this (Whelan and Nowak 2018) is to provide a critique of this supposed critique and they quote some individuals, from within the vaporwave community, who claim that the sole purpose is to create something ‘beautiful’ from audio ‘junk’ by suitable transformative activity. This counter-view essentially takes us back to the rubbish theory approach to sampling as we have seen abandoned material of low value subject to upscaling. It is logically possible, one would assume, for something to strive to be both beautiful and a critique of capitalism but in the present case these are seen as diametrically opposed things. We may finally say that there are significant differences in the sampling ethos of vaporwave and hiphop or Plunderphonics. The most basic one is the types of samples are specific to a defined category not open-ended and are never greeted with reverence in Vaporwave. Many hip hop practitioners did not see cheesy ‘white music’ as rubbish to be revalued by transformation but felt that the portions they had borrowed were in fact ‘good’ music even if embedded in a whole which was not good music itself. On the matter of politics, there is an explicit agenda in the golden age of hip hop of anger against racial oppression (which is explicit because there are vocals and words) and, with Plunderphonics in its inception, Oswald clearly satirised the greed and hypocrisy of the original sources in both his derisory anagrammatic noms de plumeand his remarks about Michael Jackson’s own sampling plagiarism practices. Where hip hop used material of white origin (MOWO), it did not do so to make a point about oppression of black artists by white borrowers, using the music as such. The sampled music was used as music not as a vehicle to make a point even if the work, in which it was used, wished to make a point about racial exploitation. IF Vaporwave is a critique of capitalism then it is because it uses sources which implicitly extolled the virtues of capitalism from its most developed epoch. That is, music samples from a corporate video or ‘cheesy’ advertisement seem to be a clear affirmation of the goals and morals of the organisations even if it is only by association of memories in the listener. Of course, if this is deemed to be the case it makes a case for exemption from copyright under fair use rules if it is parody but not if it is merely satire. The point about memory association highlights that this is in fact ‘community’ music of some sort. In the history of popular music, the collective discourse has tended to be about fans rather than communities. But the
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emergence of digital production and consumption has allowed more instance of supposed community elements. There tends to be a lot of reference to the hip hop ‘community’ in literature on sampling and this reflects, in some cases, shared ethics about sources of samples and degrees and types of borrowing. That is, there are practitioners who state that there are things they would not do because they are ‘too lazy’ or ‘not right’. For example, after a certain point, use of the Amen Break or a James Brown sample would be seen as artistically weak in a similar way that a traditional musician with high ideals might frown on the use of ‘easy’ chord progressions. Vaporwave has been subject to a polemical spoof creation in the form of a follow-up ‘FLORAL SHOPPE 2’ made by a different artist to the original. The relevant community continues to be angered by this (e.g. in ranting negative reviews on Amazon) seemingly in ignorance of the explanation offered by the creator (Dark Pyramid) who sees the emergence of vaporwave as something more sinister than other semi-joke genre creations like Acid Jazz and Tropical House. It is, as follows: Vaporwave at its core is ultimately not a form of music, but the first true “post-music” genre that has grew (sic) from being more than the tiniest niche into something of its own scene. While there have been other forms of “post-music” in the past, even decades ago, vaporwave is the first scene of its kind to really take it to the next level to the point where someone like Vektroid receives high praise for slowing down a Diana Ross sample and creating weird sounding loops out of it. Just think—would anyone actually care about that if it was not. (Dark Pyramid 2014)
Thus the point of the satire is an attack on deluded community appreciation of work because of its provenance. The method of producing Floral Shoppe 2 is described in the same source where the author explains that it was done quickly and sloppily without meaningful compositional effort but that this required getting drunk first in order to repress inherent musicality that might interfere with the purpose of aping the ‘non music’ nature of the work it satirises. This view of collaged sampled music as ‘not music at all’ is, of course, one that has been felt many times before and it brings us back to the problems of plagiarism. If what I produce by cutting up, warping and assembling bits of things that are music is ‘not music’ then paradoxically I would seem to have grounds for exemptions from plagiarism as I have not attempted to ‘pass off’ my ‘music’ which I in fact stole from somebody else.
3.3 Sampling from an Economic Point of View One theme that floats about in scholarly work on hip hop (which we must recall is NOT by economists) is the implicit idea of class relations in production and the idea that such sampling democratised the market by enfranchising the poor allowing access to a market dominated by the hegemony of extremely rich performer/artists and corporations. If it was genuinely ‘free’ then the poor are indeed enfranchised by seemingly stealing from richer creators. This trope is dismissed by McLeod and DiCola (2014) given the obvious fact that the initial sampling hardware was prohibitively expensive as it was a long time before economies of scale brought down prices and software created access for everyone. On top of this, falling prices from increased adoption are always much less for a specialist production product versus a consumer good such as the CD player or mobile phone. Elsewhere they and Schloss (2014) emphasize that, in the age of hardware samplers with no ‘internet of everything’ access to raw audio production material, the desired vinyl records (needed to take breaks from) rose in price due to their revalued status and scarcity. Admittedly, it would have cost the hip hop producers even more to make their work if they had to pay clearance fees for all the samples they used. This is brought home in the elaborate but still somewhat back-of-an- envelope calculations in McLeod and DiCola (2014) based on the counterfactual of golden age of hip hop ‘classic’ albums paying realistic clearance fees from the later epoch of strict enforcement. This does indeed show that it would have been impossible to make these albums as the rate of return would have been negative (and that is assuming clearance would have been granted at the specified cost). Music sampling from an economic point of view is the use of outputs as inputs if we do not use third-party sample library material explicitly generated as intermediate inputs. The evolution of musical technology seems to mean that we move into a fullyfledged ‘Sraffian musical economy’ of production of commodities by the means of commodities. Thus this is a more mature form of industrial production that thead hoc‘learning by doing’ and borrowing in traditional musical composition of pop, rock, soul, country, metal and so on music. When music sampling became a relevant factor there were no economists interested in the phenomenon. If there had been, perhaps the most pertinent hypothesis they could generate might have been about the development of ancillary markets to support the activity. The form such markets take is structured by the problem of
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encountering sanctions due to the plagiarism charge. These impose risks and costs on the creative process (Ceulemans and Lowe 2018). So we might expect markets to emerge in three ways: 1. Use of purchased royalty-free samples (i.e. from the dedicated sample input creation industry) 2. Clearance of the right to use samples from outputs (existing recorded works) which may involve negotiation of a fee if done individually 3. Markets in evasion or avoidance-formal markets where there is a supply industry generally involve replication of the desired material and hence fall more directly into the category of ‘copying’ than other matters discussed here.
3.4 The Sample Clearance Problem The sample clearance problem can be nicely illustrated by ironic juxtaposition of some large numbers. ‘Since I Left You’ by the Avalanches from the year 2000 is a successful mainstream record which is allegedly based on around 3500 individual samples from commercial recordings. It is NOT hiphop as it is by a duo of Australian electronic musicians. The ultimate fate of ‘Since I Left You’ is that some of the source material has resulted in co-writer credits and others have led to the removal of those samples from the work in subsequent issues. ‘Since I Left You’ clearly resembles the essays of some students, as discussed in Chap. 1, which score very highly on plagiarism metrics due to simply adding up very small fragments in a literal manner in the detection algorithm. With ‘Since I Left You’, we have fragments of thousands of works funnelled into one work whilst with the Amen Break we have one small piece of work diffusing into thousands of others. This example towers above all others in terms of ubiquitous usage and there being little financial return to the original performer of the sample (see Bialik 2012). This is a drum break from the 1969 track ‘Amen, Brother’ by the Winstons which was theB-side of the single ‘Color Him Father’. It lasts about six or seven seconds (depending on who you are as different headlines about this story quote different sizes—Otzen (2015) calls it as six seconds whilst a piece in the Economist (2011) refers to it as ‘seven seconds of fire’) and is the work of the band’s drummer Gregory Coleman. It is the most widely sampled piece of officially released music of all time. Its usage started in the hip hop
of the 1980s and then spread to other developing urban music genres and went beyond this to the point where it could easily turn up in any work by mainstream rock and pop artists. The dispersal of the sample was accelerated when, in 1986, ‘Amen, Brother’ was included on Ultimate Breaks and Beats, a sample compilation of old funk and soul tracks with ‘clean’ (as in isolation from all other, sounds in the source material, drum breaks intended mainly for DJs) sound. ‘Amen, Brother’ is an instrumental interpretation of the gospel standard ‘Amen’. About 1 minute and 26 seconds into ‘Amen, Brother’, the other musicians stop playing and drummer Gregory Colemanperforms a four-bar drum break. For two bars, he plays the previous beat; in the third, he delays a snarehit; in the fourth, he leaves the first beat empty, following with a syncopatedpattern and early crash cymbal. (2)
The Amen Break did not generate any royalties from its use in artist records or from the numerous third-party sample libraries which recreated the break for use in artist records. An interview with the Winstons’ leader, Spencer (Economist 2011) related that he did in fact end up receiving payment, of a sort, for his work. Spencer was not aware of the ubiquity of the break, until 1996, when an executive contacted him asking for the master tape. In the modern era where, as depicted in Chap. 1, there is a cultural preoccupation with musical ‘rip offs’, the case of the Amen Break has captured the popular and journalistic imaginations. Spencer dismissed its widespread use as plagiarism, and said: ‘[Coleman’s] heart and soul went into that drum break. Now these guys copy and paste it and make millions’. An academic law paper by Townley (1993) appears to argue that cases like the Amen Break should have had an attribution on the grounds of labour effort and desert (as opposed to on marginal revenue productivity grounds) as she claims session musicians should have authorial compensation when their work is later used in a way that is transformative rather than just toolbox. A GoFundMecampaign was set up by British DJs Martyn Webster and Steve Theobald to raise money to compensate Spencer for the alleged breach of his rights. It ended on 14 November 2015, having raised £24,000 (see Savage 2015). Spencer posted a video of himself on Facebook holding a giant check. In October 2017, it might be
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said that Spencer also acquired some moral rights when he joined inductees in the North Carolina Music Hall of Fame. In the feature by Otzen (2015) he said, ‘It’s not the worst thing that can happen to you. I’m a black man in America and the fact that someone wants to use something I created—that’s flattering’. Surprisingly, the Amen Break is not discussed at all in the two key book- length works I consulted on hip hop sampling in preparing this work (McLeod and DiCola 2014; Schloss 2014). The acceptability of using the break seemed to rise (or fall depending on your point of view) to a void of copyright status akin to the brown envelope or use of the word ‘the’ in a sentence. We can see this in a lengthy discussion on the Ableton Forum (2006) initiated by queries from someone who wished to use it and wanted to be clear if they needed to seek some clearance. As with all such unstructured discussions, views are expressed at all points of the spectrum. However, it is significant that we find claims that it was, by 2006, believed to be public domain and thus free to use. This was probably enhanced by the fact that the term ‘Amen Break’ encompasses recreations of the sample typically sequenced by someone (not played and re-recorded on drums) using different sounds and different processing. Thus many uses of the Amen Break, whether bought or unpaid for, are not the original audio source, hence if a legal reparation had been made then a lengthy process of identifying who was liable for what would have been needed. Probably some radical form of class action would be needed on the ‘other side’ to allow a defence from over several thousand accused. Given the development of its usage, the Amen Break became more like a proverb than a quotation in that no one was very sure who said it, where they said it or when they said it nor did they care very much.
3.5 Conclusion We have now looked at the old and modern means of plagiarism in the form of theft in composition of music and the use of samples. It is clear that this is an even more complicated case than basic borrowing in traditional musical composition. It might then be argued that the sampling issues ‘nest’ the composition issues to the extent that new revolutionary umbrella legislation or policy is needed.
References Ableton Forum. (2006). Amen Break: Copyright? (Thread) Starts July 14. Retrieved June 2, 2019, from https://forum.ableton.com/viewtopic. php?f=1&t=42098. Aitken, S. (2005, May). I Raved with a Zombie. Mojo—The Music Magazine. Retrieved January 7, 2020, from https://www.stuartaitken.com/ post/43671661208/voodooray. Altglas, V. (2014). ‘Bricolage’: Reclaiming a Conceptual Tool. Culture and Religion, 15(4), 474–493. Arewa, O.B. (2006). From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context. North Carolina Law Review, 84(2), Article 5, 547–645. Bialik, K. (2012). Creativity Endures: The ‘Amen Break’ and Copyright Law, Huffpost at https://www.huffpost.com/entry/creativity-endures-the-am_b_1448382? Bowe, M. (2019, April 21). Macintosh Plus. Floral Shoppe. Pitchfork. Retrieved June 26, 2019, from https://pitchfork.com/reviews/albums/ macintosh-plus-floral-shoppe/. Brewster, B., & Broughton, F. (2006). Last Night a DJSaved My Life: The History of the Disc Jockey. Updated and Revised Edition. New York. Ceulemans, C., & Lowe, S. (2018). The Cost of Creation: Technology, Sampling and Lawsuits in Hip-Hop Music. Working Paper. Purchase College. State University of New York. Dallon, M. (n.d.). Biography. Retrieved October 11, 2019, from http://www. mikidallon.com/biography. Dark Pyramid. (2014). An Explanation of Floral Shoppe 2. Dream Catalogue website. Retrieved August 16, 2014, from http://dreamcatalogue.net/2014/08/16/ an-explanation-of-floralshoppe-2/. Economist. (2011, December 17). The ‘Seven Seconds of Fire’. Retrieved June 14, 2019, from https://www.economist.com/christmas-specials/2011/12/17/seven-seconds-of-fire. Evans, T. (2010). SAMPLING, LOOPING, AND MASHING … OH MY!: HOW HIP HOP MUSIC IS SCRATCHING MORE THAN THE SURFACE OF COPYRIGHT LAW. Unpublished (Authors note: The capitalisation and bold is in the original source title). Gans, D. (1995). The Man Who Stole Michael Jacksons face. Wired. 02.01.95 (usa dates) Retrieved June 11, 2019, from https://www.wired. com/1995/02/oswald/. Hawkes, T. (2003). Structuralism and Semiotics, 2nd ed. London and New York: Routledge. Originally Published 1977. Hein, E. (2011). Jay Z and Alan Lomax. The Ethan Hein Blog. Retrieved June 12, 2019, from http://www.ethanhein.com/wp/2011/jay-z-and-alan-lomax/.
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Hollander, D. (2018). Unusual Sounds: The Hidden History of Library Music. Anthology Editions. George Romero (Foreword). Holm-Hudson, K. (1997). Quotation and Context: Sampling and John Oswald’s Plunderphonics. Leonardo Music Journal, 7, 17–25. Hutter, M. (1992). Art Productivity in the Information Age. In R. Towse & A. Khakee (Eds.), Cultural Economics (pp. 115–124). Springer-Verlag. James, M. (1997). Adventures with the Voodoo Crew. Ebury Press. Jones, A. (2001). Plunderphonics, ‘Pataphysics and Pop Mechanics: An Introduction to Musique Actuelle’. SAF Publishing. Joo, W. T. (2012). A Contrarian View of Copyright: Hip-Hop, Sampling, and Semiotic Democracy. Connecticut Law Review, 44. McLeod, J. K., & DiCola, P. (with Toomoey, J. and Thompson, K.). (2014). Creative License: The Law and Culture of Digital Sampling. Durham and London: Duke University Press. Navas, E. (2012). Remix Theory: The Aesthetics of Sampling. Springer. Ogg, A. (2002). The Men Behind Def Jam. London: Omnibus Books. Oswald, J. (1985). Plunderphonics or Audio Piracy as a Compositional Prerogative. Paper Presented to Wired Society, Electro-Acoustic Conference, Toronto. Otzen, E. (2015, March 29). Six Seconds That Shaped 1,500 Song. BBC World Service. Retrieved June 14, 2019, from https://www.bbc.co.uk/news/ magazine-32087287. Paul, D. M. (2008). Sound Unbound: Sampling Digital Music and Culture. The MIT Press. Perchard, T. (2011). Hip Hop Samples Jazz: Dynamics of Cultural Memory and Musical Tradition in the African American 1990s. American Music, 29(3), 277–307. Roach, M. (2010). Prodigy. The Official Story. Electronic Punks: The Early Years 1988–1994.Independent Music Press. Said, A. (2015). The Art of Sampling: The Sampling Tradition of Hip Hop/Rap Music and Copyright Law. Superchamp Books. Savage, M. (2015, November 11). Amen Break Musician Finally Gets Paid. Retrieved June 2, 2019, from https://www.bbc.co.uk/news/ entertainment-arts-34785551. Schloss, J. G. (2014). Making Beats. The Art of Sample based Hip-Hop. Wesleyan University Press. The Revolution of Hip Hop (Blog). (2015). Bricolage: The Proliferation & Mobilization of HipHop.Posted on February 14, 2015. Retrieved June 8, 2019, from https://therevolutionofhiphop.wordpress.com/2015/02/14/ bricolage-the-proliferation-mobilization-of-hip-hop/. Thompson, M. (1979). Rubbish Theory: The Creation and Destruction of Value. Oxford: Oxford University Press.
Townley, H. (1993). Sampling. Weapon of the Copyright Pirate? University of Tasmania Law Review, 12(1), 102–118. Watson, J. (2017). Copyright and the Production of Hip-Hop Music. Semantic Scholar Website. Retrieved July 7, 2019, from https://pdfs. semanticscholar.org/7219/a09fa0a5b9b569ea9255088ab24bc8a2c7c4. pdf?_ga=2.117682305.907132683.1562585029-1907714462.1562585029. Whelan, A., & Nowak, R. (2018). Vaporwave Is (Not) a Critique of Capitalism. Genre Work in An Online Music Scene. Open Cultural Studies, 2(1). Retrieved June 14, 2019, from https://www.degruyter.com/view/j/ culture.2018.2.issue-1/culture-2018-0041/culture-2018-0041.xml. Zero-G. (n.d.-a). License Info. Retrieved June 25, 2019, from https://zero-g. co.uk/pages/license-info. Zero-G. (n.d.-b). About Copyright and Sampling. Retrieved June 25, 2019, from https://zero-g.co.uk/pages/about-copyright-and-sampling.
Abstract This chapter provides an appraisal of policy options in terms of the welfare economics of policy analysis. The role of technological change as necessitating changes in the law per se is critiqued with reference to the views of the originators of the much used concept of ‘disruptive innovation’. A variety of evidence is considered from those who claim current law is inefficient and requires a change to suitably accommodate the challenges of new technology. This evidence draws on academic legal papers, interview studies with practitioners in the field, and the two econometric papers concerned with the impact of the ‘Grand Upright’ and ‘Bridgeport’ decisionson the use of samples and the creativity with which they are used. The limitations of the whosampled.com data base used in these studies are highlighted. We move on to consider the case for radical ‘free for all’ approaches to policy on musical plagiarism. To this end, the work of digital libertarians Boldrin and Levine is expounded. Differences in the legal treatment of musical plagiarism, in different territories, are outlined. The chapter concludes with an in-depth case study of one particular recording—‘Bittersweet Symphony’ by The Verve and the provision of some discussion questions to stimulate further debate. Keywords International comparisons • Digital libertarians • Disruptive innovation
© The Author(s) 2020 S. Cameron, An Economic Approach to the Plagiarism of Music, Cultural Economics & the Creative Economy, https://doi.org/10.1007/978-3-030-42109-0_4
4.1 Recap and Agenda The previous chapters identified the nature of plagiarism of music. Differences from other areas do not necessarily mean that music would always require different legal and policy treatment. A case needs to be made for such different treatment rather than simply assuming that different things need different laws and policies. Ultimately we are dealing with a problem of when and how to authorise the derivative use of musical work, whether recorded or as an idea, and the implementation of such policies. Policies in this area are not ‘enforced’ as such, as plagiarism is not a criminal offence in the sense that state legal bodies are on the lookout for acts of it to punish. Nor does it have the regulatory punishments and detection of an overseeing body. In areas like sport, there are overseeing bodies which review and handle misdemeanours independently of state policing and these can even come to different conclusions from the state police which include issuing a punishment to those found innocent under the national law. None of this applies in music. There is no court of arbitration provided by songwriters associations or author copyright bodies. You cannot be struck off by any professional musical body on the grounds that you are a plagiarist of some sort. Those who feel themselves to be victims must resort to the general legal processes provided by society unless they can obtain a voluntary settlement with the alleged perpetrator. Even in this instance, this would still tend to involve some use of general legal processes as the agreement has to be ratified and enforceable. The core problem is whether copying has taken place and, if so, is it permissible. The word copying implies a direct one for one transfer of material from A to B. Such 100 per cent copying is involved in genuine plagiarism but of parts of the work NOT the whole work. In a case of product copying, such as the manufacture of perfume, the copy is 100 per cent in entirety the same as the original except for the packaging and branding unless it is a ‘counterfeit’ good. If society objects to counterfeit goods and wishes to control them, they are, by their very nature, quite unambiguous in detection. Musical outputs as ‘counterfeit goods’ (as opposed to copies of them as products such as the ‘pirated CD’) would very rarely consist of trying to pass off an actual recorded work, by someone else, as your own work. The stunning exception to this is the Joyce Hatto recordings (Duchen 2007) supposedly produced at home, by her husband, but in reality exactly the same recordings as well-known released works by others. Her husband claimed, in defence, that he had used a few
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passages from the sources to cover over places where she was too ill to complete the work but all investigation has concluded the works are pretty much 100 per cent fake. The most suitable source, on this case, is by Cook and Sapp (2007) which contains a brilliant use of diagrams and basic statistical correlation to indicate the fraud. The simple (Pearson) correlation with source is massive and far exceeds that for different recordings of the same classical work between each other. Unfortunately their methods have little applicability to the more mixed and muddy cases with which we are concerned. However ad hoc counting similarity metrics have tended to creep into the expert evidence given in recent cases and may increase as they seem to bring success to the attorney Thomas Busch. As the problem with plagiarism is not counterfeiting, the key economic issue becomes the contribution of the part copied to outcomes in terms of revenues and identification as an author. The issue of the relative quality of the part copied compared to the work resulting also creeps into deliberations about plagiarism though it is hard to see, in terms of pure economics or indeed law, why this should matter in itself. The case might be made that it is part of the social welfare function, hence some overarching community benefit might induce exceptions to charges against offenders. Laws, and custom and practice, have evolved to deal with the requirements of musical copying in terms of composition and sampling. Such change is ad hoc and piecemeal. Inevitably the structures in place may be seriously sub-optimal or even might be deemed ‘not fit for purpose’. The mismatch of policy problem is, as always, potentially much worse when there is rapid technical change (cp. Klang and Nolan 2012). Hence there is a case to be made for identifying how the ideal structure would work and determining what changes can be proposed to lead us towards it. Rather than propose an ideal structure, I present a set of provocative questions about policy change at the very end of this chapter. Not surprisingly, the focus of recent research on the economics of copyright in general, has been on the idea that digitisation and the global pervasiveness of the internet constitutes‘disruptive innovation’. The presumption is that earlier innovation was, as per Schumpeter (1942), a ‘gale of creative destruction’ which, in a relatively short time, would make us all better off via cheaper goods and improvements in range and quality. Inevitably some parties would suffer along the way due to the loss of entitlements. Schumpeter (2014) identified five types of relevant factors:
. Emergence of new products or of new product variations 1 2. The maturing to a reliable stage of new methods of production or marketing techniques specific to a product 3. Emergence of new markets for the existing products 4. Obtaining new sources of supply of raw material or other crucial factor inputs 5. New industry structures such as the creation of a new monopolistic dominance or the destruction of an old one It should be noted that factor 5 may well be an endogenous consequence of the other factors, rather than an item in its own right. Schumpeter’s view on what we now call disruptiveness did not pin the explanation exclusively on speeding up of technical progress. Much of the list can be due to the normal process of never ceasing competitiveness in markets which exists even in the nominal monopoly inferred from statistical dominance of few firms or one. Disruptive innovation leads to claims, such as those of Ceulemans and Lowe (2018) that we need to rethink copyright because of disorder due to technological change. In other words, changes in sampling, software and so on mean the existing framework is no longer able to cope. In this world view, the Bridgeport case, of 2005, marks a turning point for the modern era akin to the Arnstein cases in the 1940s and the introduction of copyright terms to recorded music in the 1970s in the USA. This is perhaps indicative of a dogmatic application and crude interpretation of the idea of ‘disruptive innovation’. A counterpoint is given to this by Christensen et al. (2015) in the organ (Harvard Business Review) which propagated the terminology, which has rocketed in usage since its emergence in the mid-1990s. They are opposed to the typical view, in economics works on media industries, as they claim that ‘understanding what drives the rate of disruption is helpful for predicting outcomes, but it doesn’t alter the way disruptions should be managed. Rapid disruptions are not fundamentally different from any others; they don’t have different causal mechanisms and don’t require conceptually different responses’ (emphasis added to original). The existing legal framework for handling creative output might have been seriously inadequate before the perception of intense disruptive innovation. Or at least, its manner of implementation may have been inadequate. So, the disruptive innovation may have shifted our focus to simply highlight problems that were already there but were overlooked. Besides
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the problem of sub-optimal piecemeal development of governance frameworks within one country (which may or may not be due to disruptive innovation depending on one’s view), there is the even more perplexing challenge of dealing with global regulation of activities. This is dealt with towards the end of this chapter. But first, what about evidence-based policy? How can we show that the misguided handling of the disruptive innovations has had a damaging effect, rather than merely claiming it is so?
4.2 The Thin Empirical Evidence There is no systematic programme of empirical (as in hypothesis testing) research on topic. That which does exist tends to be strongly inspired by concern over the Bridgeport decision. Ceulemans and Lowe (2018) look at the use and the technological cost of sampling for 600 songs appearing on the Billboard Hip-Hop/R‘n’B charts from 1980 and 2013. This covers substantial amounts of time before and after the ‘Bridgeport’ decision. The use of such data, to estimate structural equations, is premised on the idea of the creative musicians behaving ‘as if’ they were the expected utility maximising ideal typical agents of the neoclassical microeconomics textbook. They ‘analyze how the risk and the cost of clearing a sample affect the creative freedom of artists. Indeed, A musician faces the choice of using a sample or not and, if it applies, to clear it or not. These decisions will be a function of the risk of getting sued as well as the cost of clearing the sample’. They tend to focus heavily on costs, as expected returns have extreme nebulousness in such creative endeavours. Their empirical work seeks to test the hypothesis that sampling related costs have shifted from being technological costs in the 1980s (due to the initial high cost of use of new technology) to being chiefly legal costs. There is some surprisingly normative language used here in a standard piece of applied econometric positivism. I refer to the notion that artists might be entitled to ‘creative freedom’ which seems an untenable concept once the artist (musical or otherwise) enters into the process of selling their work in a marketplace. That is not the more common issue of censorship of the expression of points of view. The same slightly loose use of the term ‘creative’ and ‘creativity’ is to be found in the supplementary (to his investigation of the impact of change on volume and likelihood of sampling) empirical work found in Watson (2017). He attributes ‘creativity’ to the use of ‘new’ samples, that is use of a sample that has not previously been used, not one newly made. The music studied has tended to rely heavily on a set of
source materials such as James Brown and the Amen Break, thus these are the same ‘old’ samples over and over again, so use of a new sample, let us say, for example, a bass line from a despised UK-only minor pop hit of the 1970s is seen as an upsurge of creativity. Watson (2017) uses data from Billboard singles charts and from whosampled.com to examine the pre- and post- Bridgeport use of samples solely in hip hop works. We have to remind ourselves that the chart is not long-run sales, or revenue, data and that the relationship between it and sales data varies over time and also that who sampled it is not always accurate in its details as it is an unregulated unpoliced source (especially if the data is harvested from it by a research assistant using software with no individual scrutiny of cases). For example: 1. it includes (as of 23 October 2019) 200+ each of instances of sampling from loops from ‘Emu Systems’ and ‘Roland’ as if they were artists and not, as is the case, equipment manufacturers whose hardware has been used. 2. It also fails to identify obvious uses of external samples, for example Stardust (1998) in the ‘French touch’ genre (a good example of making a big hit from minimal and quick use of samples) lists only the well-known Chaka Khan part as an identifiable sample and gives the rest as ‘Multiple Elements used throughout’ with no attribution. 3. Quotations are mis-reported as samples, for example in one Laibach cover, there is a (possibly satirical) faux metal guitar part throughout, which at one point very briefly references ‘Smoke on the Water’ by Deep Purple. This is NOT a sample (it is not even a constructed recreation designed to evade the law). The practice of showing the video link of the source side by side with that for the Laibach track creates a sort of ‘salience delusion’ that it is a sample. The first quantitative index, used by Watson, is the number of samples used which forms the dependent variable in a regression equation with Bridgeport being treated in the form of a dummy variable (as is also the ‘Grand Upright’). The control variables relate to the label on which a song was issued and characteristics of the original artist. Watson also respecifies the model to look at the probability of using any sample at all, under change in licensing strictness, instead of the average number of samples used. The results show that Bridgeport appeared to have relatively little effect (i.e. not much sign of statistical significance) on sample usage in hip
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hop recordings and that most effects, on overall usage, had already been incorporated in behaviour change following the Grand Upright case which was 14 years earlier. Despite this, the Bridgeport case has widely been called a decision with ‘chilling effects’ thus implying it is both scary (for practitioners) and inclined to damp the ardour of creation. Here we may note that Watson’s supplementary work did claim that Bridgeport had a statistically significant impact on the measure of creativity, even though the overall sample use volume effects are deemed to be null. The implications, of Bridgeport, are discussed from a normative viewpoint in Reilly (2012) and Schipper (2014) and more neutrally in Morrison (2008). Mueller (2006) specifically focuses on how it has seemingly undermined the de minimis criterion traditionally applied in composition cases before sampling became a forceful problem. The case of Bridgeport Music, Inc. v. Dimension Films involved a two- second sample from ‘Get Off Your Ass and Jam’, by Funkadelic used, in an altered form, five times by N.W.A in ‘100 Miles and Running’. The sample was pitch changed and processed extending it to approximately seven seconds because sophisticated algorithmsof preserving time while changing pitch were not used.When the track was used in a film, Bridgeport Music brought legal action for infringement of the sound recording copyright of the source. The judge found in favour and explicitly rejected any arguments for there being sufficient creative transformation and/or de minimis grounds were rejected. The conclusion was made that, in future, all samples need to be cleared—a so-called bright line rule. This is the reason for it being identified as a ‘chilling effect’ on musical creativity which Watson’s empirical work appears to support if we were to accept the reliability of his measure of creativity. Unlike the Arnstein case, this seemingly landmark decision has encountered slippage in the circuit and district courts of the USA when it has been invoked as a precedent in other cases. We have ended up with disagreements between courts on its merits and appeals, in cases which had been settled using it as a precedent being successful. In 2016, the Ninth Circuit found fault with the reasoning, in Bridgeport, in deciding the VMG Salsoul v. Ciccone (Madonna) case. They said: We recognize that the Sixth Circuit held to the contrary in Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), but—like the leading copyright treatise and several district courts—we find Bridgeport’s reasoning unpersuasive.
District courts, in several territories have set aside the finding. The thrust of academic law papers has been very firm against the Bridgeport decision. Mispagel (2018) claims that the Ninth Circuit made the right decision to split from the Sixth Circuit and allow a de minimis exception for sampled sound recordings. She argues that the bright-line, ‘get a license or do not sample’ rule of Bridgeport is inefficient and an impediment to creativity. It is tempting to conclude that there is some kind of inefficiency, economic or judicial, given the transaction costs of having to pre-clear every individual sample. Badia (2017) goes further and offers three proposals regarding how courts should handle the circuit split. His proposals are, in fact, all revampings of the Arnstein-style criteria in traditional composition cases; that is in addition to Mispagel’s exhortations on the de minimis criterion, he argues for extension of the fair use provision and a modified use, in pre-trial hearings, of the ‘audience test’ to determine substantial similarity. The modified audience test is specifically offered for pre-trial hearings in order to increase efficiency by screening out trivial, vexatious and socially counter-productive cases. Badia says that if there is some evidence of use of sampling the question that should be asked is: does the allegedly copied music sample constitute a copying of constituent elements of the sampled work that are original, such that an average listener would be able to recognize it as being a part of the original work? (p. 185)
This implies that disguising the sample so that the ‘ordinary person’ cannot spot it is permissible on which one might look at the case against Madonna’s Vogue (see Appendix) where it is claimed that the samples were ‘secretly hidden’. The papers just reviewed are from legal scholars, hence the evidence is not empirical, as such, but derives from appeal to the intent of existing legislation. I turn now to some work containing original data collection and analysis of the non-econometric variety. A UK practitioner survey (Oliver and Ewald 2017) uses ‘survey monkey’ online data collection originally begun with students at one Scottish university and then snowballed through musical organisations to get a bigger sample. From the 66 respondents, the answers showed a generally favourable attitude towards ‘free’ use of sampling of work by others and of one’s own work (86 versus 80 per cent approval). There was some general concern about setting a limit on the amount used but it was not explored how one settles ‘size’ in terms
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of size from the work taken versus size in the work made (cp. the discussion earlier of The Cure and ‘Charlotte Sometimes’). Kim (2007), in a general work on creative commons licences, uses interviews the results of which can also be used to draw inferences that authors are favourable towards more wide-ranging use permissions. Whilst these results are interesting, it is not really possible to draw policy proposals from them, or make judgements about the efficiency of the system. The authors do not attempt to do so. However, the beginning of their paper says that ‘overall, it is determined throughout this paper that the current copyright laws do not reflect the technological changes that has enabled musicians to unfold their creativity through “new” methods’ (ibid., p.1). This presumably means this empirical work does support this popular claim. They go on to make the other popular claim that their work has shown the need to change the law so as not to damage freedom of expression. Similar claims are made, for Australia, based on free-form interviews with 29 creatives, from musical and other fields, in a study by Pappalardo and Bansai (2018) who conclude that copyright law is holding back ‘creativity’ because of the fear and threat costs of plagiarism actions. The book on sampling by McLeod and Di Cola (2014) has evidence drawn from numerous interviews with relevant people in many different roles in the music industry, chiefly in the USA. It is also premised on the notion that society has lost out due to the attenuation of the artistic freedom of sample-based composers and producers. These interviews appear to be mainly one-shot responses to set questions plus ‘any additional comments’ boxes rather than interactive interviews of an exploratory type. It would be difficult to use such interview material to test any hypotheses given that no structured elicitation methodology was deployed (as was also the case in Oliver and Ewald (2017). The overwhelming conclusion drawn is that the US system of handling sample clearance is ‘broken’ and may be deemed ‘inefficient’. This is a misuse of the term ‘inefficient’ as what they actually mean is ineffective. We cannot really call anything ‘inefficient’ without sticking an adjective in front of it first to denote from which point of view it is inefficient, for example ‘judicial efficiency’ is not the same thing as ‘social efficiency’ as used by economists. The most reasonable presumption to make about these qualitative empirical analyses is that the authors are talking about social inefficiency. It would be impossible to assess whether any regulatory system was efficient or inefficient from casual or anecdotal evidence of what seem like obvious anomalies, discrepancies and mistakes. Efficiency does not exist in
a vacuum. Any system has to be compared to another one and we need to fully specify the parameters of the supposedly inferior system. For example, the ‘clear everything’ rule may stimulate innovations, such as ‘efficient’ clearing-houses, which render the less preferred system ultimately superior. We also have the problem of ‘shooting at a moving target’ for those who believe disruptive innovation requires amendments to the legal/regulatory framework. That is, if we make a change now and the disruption is so intense and ongoing then the new framework may be significantly inefficient shortly after it has been implemented. This could be to the extent that it is even worse than the system it just replaced. Broadly speaking this is the sort of argument which would be given in Austrian economics. Further clarification of the efficiency and effectiveness distinction leads us back to the issue of neo-classical welfare economics. However valuable these interview-based studies may be in giving us insights into the views of practitioners, they can only be regarded as rhetorical quantification of qualitative material for the purposes of buttressing a personally held belief. Likewise the two econometric works mentioned, at the start of this chapter, mainly just show us changes in sample use as a result of incentive structure changes and cannot really be used to claim that there has been a loss of social inefficiency due to some key legal decisions. Even at the level of sectorial private efficiency, and group self-interest, they cannot really provide any solid argument for an impact on creativity as the proxy for creativity is incredibly arbitrary and unlikely to satisfy any idea of creativity held by a creativity researcher.
4.3 Standard Welfare Economics Economists’ appraisal of policy options is typically carried out in terms of neo-classical welfare economics, as for example in Cameron (2002) with reference to piracy of music and software end- product consumer goods. We consider the total social costs and benefits from the operation of a policy in order to arrive at the optimal outcome defined as that which maximises the net benefit to society as a whole. The purpose of policy is supposedly to maximise social welfare, that is produce the greatest sum of benefits to the whole society or community. Society/community is a very contentious and difficult term. At the basic mathematical level it requires aggregation of some kind of valuation or raking of the well-being of separate individuals into a single figure for the collective. This would usually be
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termed a social welfare function (SWF). The problems of establishing a valid SWF seem to be overlooked in the general thrust of the thin empirical work just reviewed given that is inclined to be a somewhat polemical reaction to Bridgeport. However, we might claim that discussions about the appropriateness of legal decisions, in the USA, infer in a crude sort of way that the American constitution embodies a rough social welfare function that represents the nation’s preferences as a whole. Some welfare economics discussion eschews the use of full-blown SWF in favour of establishing whether a configuration of a system is ‘Pareto optimal’. By its very nature, Pareto optimality is a very limited form of value judgement about the social desirability of the outcomes of the workings of an economic system. Under the set of assumptions that constitute perfect competition we can be sure that the equilibrium will be a Pareto optimal outcome given a very important assumption which rules out equity issues. The definition of Pareto optimality is based on the proposition that if we can make at least one person better off without making anyone else worse off, then we have a Pareto improvement. If we take advantage of all the available Pareto improvements until there are no more left, then the economy has settled into its ‘Pareto superior’ allocation of resources. The use of the Pareto optimum as a benchmark by which to judge ‘social efficiency’ indicates the use of a Paretian Welfare function rather than one which makes more allowance for distributive value judgements. Pareto optimality is a minimalist definition of social efficiency. That is, it is deemed to be one which would be upheld in all ‘reasonable’ value systems however much they differ from each other in other respects. The key unquestioned assumption is that we do not take into account distributional equity. Pareto optimality is established relative to a given set of resource distributions, among the economic agents. There will thus not be a unique Pareto optimum but a set where there is a unique one for each different possible distribution of resources. Thus if we could find the ‘best of the best’ from these it would be termed the ‘Optimum Optimorun’. But that requires us to make a strong normative judgement on which distribution is the best. Could any of the proposed policies for regulating plagiarism-related copyright be a Pareto optimum? This seems unlikely as we will be shackled to the status quo of the starting distribution. For example, if we took the easiest policy to understand, the ‘digital libertarianism’ of Boldrin and Levine (see below) of fairly liberal allowance for usage of samples, then it is obvious the rights holders with the existing monopoly advantages from their holdings will be worse off and so the move would be ruled out.
One strategy of trying to get more policy predictions out of the model than it might yield was to look at so-called compensation tests as a means of judging whether or not a policy, or project, should be enacted in spite of the impasse just described. The compensation tests of welfare economics are purely hypothetical and not to be confused with legal settlements. There is no implication that anyone should actually receive compensation. Nor is there a moral/normative element to the amount estimated as compensation that it is any way something that is ‘deserved’ to right a wrong in the way someone might get paid for injury due to corporate negligence. The compensation test is just a way of imagining that all relevant costs and benefits can be rendered in monetary terms. Then they can be used in a cost-benefit calculation as to whether a policy change is potentially desirable. Unfortunately, it transpired that there were many ways of measuring the amount of compensation to be used in a test and this led to an inability to reach a conclusion, unless income effects could be neglected which is a trivial case. Due to its unobjectionable nature, it is rare to find attacks on Pareto optimality from within the mainstream economics fold. A trenchant critique of its impotence in environmental areas was made by Bromley (1990). He claims that Pareto optimality has become something of a shibbolethwhich hinders economists from producing any policy proposals of note and hence they become useless as policy advocates. Clearly many of them do come up with striking and strident proposals which we may attribute to filling the Pareto optimality vacuum with purely personal value judgements which are not made explicit. Resolving such a dilemma takes us back to the difficult issue of whether a social welfare function can be constructed, even hypothetically, for contentious issues such as those under consideration. At the level of social efficiency the various problems which may get in the way are referred to as sources of market failure. A major one of these is information being of non-zero cost. Others are monopoly and externalities, both positive (beneficial) and negative (detrimental/costly). In the current context, there is a significant attack on monopolies as rent-seeking exploiters of a system that is in their favour, although we might note that there are individual enterprising entrepreneurs, like Allan Klein and Armen Boladian, who are the source of the outcomes that most vex and depress practitioners and commentators. The simple (Pigouvian) textbook treatment of externalities proposes the use of taxes and subsidies to ‘internalise’ the externalities. Internalisation forces the individual responsible for
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causing a negative externalisation to incur an additional cost such which drives them towards the socially optimum level activity. One position we could take is that some market failures may be self- solving via the emergence of firms which correct the problem or of ‘fourth sector’ non-profit or charitable organisations which may have clubbed good elements. In theory, the Bridgeport company itself could be conceptualised as a potentially socially efficient market failure correction device. This is on the grounds that it is a ‘clearing-house’ which acquires rights in existing works rather than the primary publisher which first institutes those rights. Thus it brings cases concerning the work of artists who themselves have not brought actions and were not likely to. Such an entity can provide the classic advantages of third-party provision of a service in terms of economies of scope and scale. The landmark case actually involves the work of George Clinton (as his work is held by Bridgeport), who is one of the most widely sampled artists (if we peruse the numbers in the whosampled.com website for his various recording entities) possibly because in a ‘cowboy’ property rights economy, his work seemed to be a very easy source to use without fear of reprisal. However the company has conversely been stigmatised as a property rights ‘Troll’ by Wu (2006) who relates the claim that Clinton’s signature was forged in the agreement of terms with Bridgeport. It thus takes on the hue of a venture capitalist firm, in its most loathed form as a ‘vulture capitalist’, such as those blamed for the plight of companies like Sears, Toys‘R’Us and The Denver Post. A spirited defence of vulture capitalists is offered by Devadiga (2018), pretty much on standard mainstream economics grounds à la Schumpeter’s ‘gales of creative destruction’ and unpicking the lazy use of the vulture metaphor. That is he reminds us that vultures can be very useful and their intentions are immaterial to the useful outcome. He does not specifically offer a defence in regard to creative industry output, or copyright in general, but one may reasonably assume that his laissez-faire attitude is a one- size-fits-all solution, so there would be no grounds for exceptions to the rule. Bridgeport is a for-profit countervailing body. That is it is not set up to create or produce anything but to impact upon the activities of those who do create and produce things. Whether its net effect is good or bad depends not solely on the profit motive but also on the nature of the governance of such activity. The crude, generally held, view that it is bad because it is driven by profit would lead us to look for signs of growth of pro-social non-profit bodies to correct ‘bad’ outcomes of copyright
protection due to its being unable to keep up with change in the digital economy. In this regard, the Electronic Frontier Foundation (EFF) was formed in 1990 to defend against the encroachment of (all not just creative) freedoms in the digital domain. Such encroachment may arise from selective use of existing copyright law to suppress or edit material or the emergence of new laws specifically for this purpose. Hence some accusations of plagiarism may be indicative of their use as a ‘Trojan Horse’ for an illiberal trend in the digital economy. The EFF lists eight pages of its notable legal victories (as of website access of 12 July 2019). Only two of these are musical, one concerns consumer online storage of digital music but the other from 2004 is the case of JibJab Media v. Ludlow Music (‘This Land’ Parody) (n.d.) where they won on a technicality of expiry of copyright holding on the original terms as Woody Guthrie sold his song to the suing publishers, Ludlow Music in 1945 and they failed to renew the copyright after it expired in 1973. If these loopholes were not exploited this case would be subject to the whims of ‘fair use’ becoming more of a problem in the digital age. EFF also list a pertinent non-musical case, Garcia v. Google, Inc. (n.d.) from 2014, concerning the ‘Innocence of Muslims’ video on You Tube. They say: this decision sends a message anyone who has contributed anything remotely creative to a work could have the power to collect royalties and even force the work offline. That message will be a considerable surprise to filmmakers, news organizations, vidders, etc. that make and share creative works online, and who have not made sure that every conceivable contribution was made subject to some kind of contract.
The wording here parallels the ‘bright line’ rules, of US law, emanating from the Bridgeport sampling case with its conclusion that those who sample simply have to clear everything in advance and be done with it.
4.4 The Digital Libertarians: Boldrin and Levine I now consider the case for a radical ‘free for all’ approach to the issue. That is, the complete opposite of the Bridgeport decision where instead of clearing every sample you have to clear none. To this end, the controversial work of Boldrin and Levine (2008) will be reviewed in terms of its applicability to the present topic. They may be termed digital libertarians
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to denote those who are not libertarians on society as a whole, in the manner of some Austrian economists, but who believe that the disruptive innovations of digital technology undermine the historically established pattern of ownership to the extent that it is welfare improving to abolish it and replace it with somewhat of a free for all. Comments on their work by Libertarian and Austrian economists are at pains to point out that Boldrin and Levine are not ‘actual’ libertarians. In their world, copyright would not be rethought but abolished, in large measure, for intellectual property, barring notable exceptions. Thus we have an inverted version of the current world, in the major economies, where protection, of intellectual property, is the exception instead of the rule. Further, this is by design not by the accident of laws not yet having been designed to meet unexpected efficiency problems. In the preface to the online version of their book they say, It is common to argue that intellectual property in the form of copyright and patent is necessary for the innovation and creation of ideas and inventions such as machines, drugs, computer software, books, music, literature and movies. In fact intellectual property is not like ordinary property at all, but constitutes a government grant of a costly and dangerous private monopoly over ideas. We show through theory and example that intellectual monopoly is not necessary for innovation and as a practical matter is damaging to growth, prosperity and liberty.
Music is specifically mentioned as akin to pharmaceutical drugs (drugs for health reasons, not hedonism, given that this is not a fully libertarian work), literature and software in terms of rights management and that it is regarded as a collection of ‘ideas’, that is intellectual property, hence the creation of exceptions to rules on the grounds of culture per se is bypassed. Pursuing parallels a bit further, we may note that a new piece of musical output is treated as an ‘innovation’, like a new anti-cancer drug, even if it is made entirely of sampled parts from pre-existing music or even if it is composed, in a traditional way using entirely predictable hackneyed content. They say on p.110 that with modern computers there are a great many creative innovators—lacking perhaps the physical skills and training to play an instrument—or even to read sheet music—who could modify, edit and create great new music on their home computers at trivial cost. The greatest bar to this outpouring of wonderful new innovative music … if you haven’t guessed already … is the
copyright system itself. We cannot create great new music by modifying wonderful old music because all the wonderful old music is under copyright.
Similar views are expressed in Schipper (2014), a legal music industry expert, who claims that sample-based music is now a mature art form which deserves to be encouraged and even goes so far as to say that current restrictive legal practices can wreck important careers. Boldrin and Levine’s book is highly rhetorical and designed to be attention-grabbing. For example, their critique of the film industry is contained in a chapter called ‘The Devil in Disney’. They also refer to ‘Evils of Intellectual Property’. However it still has a spine of economic theory and evidence garnered in support of the arguments and is often expounded and discussed for the benefit of business lawyers in the field. Still, to call something an ‘evil’ is a journey to a place far beyond calling it a socially inefficient practice or similar nomenclature. Boldrin and Levine’s theoretical aspects decree that monopoly outcomes created by patent and copyright law are socially inefficient due to rent-seeking by monopolists and the transfer of wealth away from society to rights holders/enforcers. Rent- seeking rights holders will divert resources into the parasitic activity of ensuring that they maximise the net take from third-party users instead of using their position to add net value to social output. They liken the use of digital rights management to price discrimination as an abusive means of enforcing monopoly power. As noted by Kennedy (2011), Boldrin and Levine rely on the idea that creative work is inspired by self-actualisation and higher ideals (the ‘love rather than money argument’) and the scope for first-mover advantages where a creator will reap high returns before copying, replication and usage spread (see Cameron (2015) for an example of this claimed by Skrillex). They believe that the individual creator, whether in scientific research or musical composition, is not driven by a marginal cost-benefit calculus revolving around financial returns from the activity. This does not mean they are not rational utility maximisers but rather that the equivalent value of the knowledge of great achievements may outweigh risk and periods of negative pecuniary return. On page 10, Boldrin and Levine say that ‘whatever a world without patents and copyrights would be like, it would not be a world devoid of great new music and beneficial new drugs’. Similar optimistic views on the impact of digital technology, on musical output, are given by Waldfogel (2014, 2017) and on the general resulting benefits of attenuated copyright by Takeyama (1994, 1997). Boldrin and Levine claim that demolition of the existing
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monopoly power of copyright will not lead to a significant decline in the collective output volume and value of creative works. The monopolistic gains from copyright will decrease with some loss of output but liberalisation of rights will lead to an expansion in the market. This cannot be taken for granted as the net outcome will be ambiguous. Their prediction of net social benefit is an assertion which is not firmly based on supporting evidence but rather on a smorgasbord of indicative evidence of different types. They give empirical evidence which is mainly from literature on research and development, outside the creative media industries. On the specifics of music, their attention is primarily on matters of licensing music for use in films and a heavy (acknowledged) reliance on work by Scherer (2008) on freelance composition over the period 1650–1900. So in terms of applicability to our current issues, the evidence is somewhat rhetorical as per the quote from p. 110 given above about the use of ‘wonderful old music’ by those who create in GarageBand, Ableton Live, Logic and other such software packages. To conclude this section on digital libertarianism, let me spell out the free market argument for laissez-faire in musical plagiarism regardless of any issues of technological change being involved. It is notable that plagiarism, along with creativity and ideas, in general are framed in policy discussion as if they were tangible physical goods. In addition, music is treated as if it was software or medical research patents. For example, in terms of the context of criminality—is having your ideas stolen the same as having income or material goods stolen? For an individual, there is similarity as there is direct or indirect loss of income. If moral rights notions are accepted, there is an extra private cost to the victim, over physical theft, as they experience reputational capital offset due to not getting credit. However, any supposed externalities which justify intervention are clearly different. Someone who lives in a high crime area may use up social resources on protection expenditure which is not additive as such to social well-being. There is no incentive for the author of a well-known song to do this in terms of stopping me copying it in a way that will reduce their existing income flow from the product as I have not literally stolen their song, just made use of their ideas in the song. They do not need to specifically alter their new songs to make it harder for me to copy in the way that software houses do to their titles. Nor should it make any material difference if we are talking about the use of samples. The socially wasteful costs here would fall on the secondary user, not the primary one if there is a policy in place of prosecuting them unless they can sufficiently ‘hide’ their
usage. The acid test for social gain, from the derivative use of samples or musical ideas, would be the generation of substantial income streams that would not have accrued to the originators of the used materials. There is no necessary economic logic to the need for extra compensation to the originators on ‘goose that lays the golden eggs’ grounds that the supply of original creative elements will decline due to the post-creation income accruing to others. That is, there is no clear argument that social welfare or output will fall if derivative use is not policed. In terms of free market economics, social regulation of plagiarised output can come from the consumers voting with their income, rather than legal intervention. Let us say you or I put out a totally effortless and worthless item where we simply looped two seconds seriatim obviously from a well-known work and recited a nursery rhyme or the phone book over it. Is there any need for copyright protection of the phone book, the nursery rhyme or the well-known source to protect society from a loss of welfare from this maverick usage? There is unlikely to be significant loss to the original source creators in any way. Nor to society unless by some means unfortunate people are literally forced into consumption of our sample-based work. What if this work were to become popular and generate revenue, for us, from its consumption, none of which goes back to the originator? Under the normal ethos of capitalism the income accruing to us represents proof that we have engaged in ‘transformative’ usage and such a decision should not be derogated to a Chinese government bureau or the caprices of a randomly chosen Belgian or American judge who may or may not like our music or us. What if we had used a work that is not well known? This makes no real difference to the structure of the argument that social valuation can be done via the market. We must be careful not to conflate concerns about distributional equity with aggregate considerations of social efficiency. If we are now rich and (as in many well-known cases) the originators of the allegedly plagiarised material are comparatively poor, this is not a relevant factor in deciding whether society benefits as a whole from our unfettered use. If there is a moral rights aspect in that we have imbued mainstream religious works with satanic content then we would have to enter into the more general public debate about censorship, satire and so on. The offended originator of content is free to pursue voluntary settlements with the target of their grievance and so we now come to look a bit more at the economics of voluntary settlements.
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4.5 Voluntary Settlement One thing which the music business surely illustrates is the problem of the law being a blunt instrument. Resources are used up bringing, contesting and deciding cases which could have been avoided. They are also used up in preventing cases which do not come to courts by paying off the participants. One method of avoidance is the use of voluntary settlement and we will come to the others later, most specifically in the set of questions for discussion at the very end of this chapter. Pre-case settlements are very common although we cannot gather data on them as many will not be disclosed. Also, the terms of those which are reported may not be disclosed (see the Appendix for some inferences of settlements which have taken place). The latter will particularly be the case where part of the settlement is a non-disclosure clause—the so-called gagging order. For example, there were many settlements of sampling cases out of court before ‘Grand Upright’ hit the USA caseload in 1991. However, these out-of- court settlements cannot really be guaranteed to be voluntary settlements in the sense of mutuality as there is usually profound differences in the relative power of parties in a bilateral monopoly bargaining game. One effect of technological change is that people likely to be charged of plagiarism, especially those who are doing it subconsciously, may often be in a position to be warned before problems arise. In the past this was very difficult as information was impacted. Presently many people get to hear work in progress as backing tracks are shopped around to many singers to add ‘top line’ melodies (see Lindvall 2011) too. Inevitably someone who adds to such a track, but is not the ultimate performer or co-composer, may have delivered something which is highly similar to a later effort by someone else which becomes the final published version. The earlier performer thus has an instant case as they have very good grounds to claim that the final version was made in the knowledge of their version. Overlaps are more likely the more restrictive the field of music is as there will be a narrower set of possible top-line additions that can be made. This creates scope for opportunistic blockage by the would-be plaintiff withholding from seeking a voluntary settlement on purpose. This takes us back to the issue of reasonable delay discussed in Chap. 2. There we found that delays of 40+ years have not prevented permission to bring plagiarism cases. Given this, it is likely that withholding can be delayed in such a way as to optimise expected profits from the action—that is not only wait until the item is released but delay bringing the case until a
certain critical level of success has been reached. Rapid movement to a voluntary settlement might result in no money as the work in question may simply be abandoned or changed to avoid trouble (like the university student who gets to submit their essay to metric software in a dummy run). In this regard, Leigh (2010) recalls in the case of ‘Another Day’ by Whigfield which was deemed to be based on ‘In the Summertime’ by Mungo Jerry that the songwriter Ray Dorset told him that when ‘Another Day’ was about to be released that he knew of the similarity and said ‘I don’t want to complain too early as they may withdraw it. Better to wait until it sells and then make a claim’. There have been similar instances, in the case of Ed Sheeran (see Appendix), where a recording was made in circumstances where a party to the action could have taken prior preventive action due to knowledge of the similarity risk. Such pro-active inaction constitutes rent-seeking, in this case by the composer rather than a corporation. It cannot necessarily be more morally correct or socially beneficial in aggregate just because it is brought by a creative individual worker rather than a rights holding corporation or clearing-house. The pre-emptive neglect of flagging similarity problems which gives rise to failure to reach voluntary agreement can be illustrated in terms of one of the most revered articles in welfare economics and the foundation of the law and economics field by Coase (1960). On p. 32, he ventures into his elaboration of an ancient case in English law which was an illustration in the then established Pigouvian approach to welfare economics. The Pigouvian approach was to fine the ‘offender’ who originates negative externalities (in this case a railway emitting sparks on to the land of a farmer) whilst Coase contended that in a situation of perfect competition (and hence zero transaction costs) we should look at the full range of rights assignments and so look at making the farmer pay to avoid the so- called external effect along with the more obvious converse. In the case of musical plagiarism, the farmer is the original songwriter and the railway engine owner is the accused plagiarist. The unwanted social outcome of poor arrangements, of property rights in this situation, is a fall in social output as society as the net monetary value of musical creation is less than it otherwise would be. This neutrality of assignation of rights in the so- called Coase Theorem hinges on two crucial assumptions. One being the absence of transactions costs, and the other, disregard for the income distribution aspects. Both of these factors are prominent in plagiarism. The usefulness of bringing the Coase theorem into this problem is that it
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highlights the tendency to apportion blame in terms of victims and perpetrators despite the frequent claims, from all sorts of commentators, that the policy we seek is one which maximises social welfare rather than simply furthers the claims of one side in the musical creation equation. Hence, it needs to be made explicit in all cases what normative assumptions about distribution are being subsumed into ostensibly objective criteria like de minimis and substantial similarity. For example, it might be argued that the Bridgeport finding is premised on the notion of ‘barbarians at the gate’ where uncreative predatory talentless parasites ransack the great works of the truly deserving (which of course the likes of Boldrin and Levine, Schippers and the authors of books on hiphop dispute). There is a corollary of this type of thinking that there might be long-term global decline in the ‘quality’ of appreciation capital for music so that we have a ‘Gresham’s Law’ situation where ‘bad’, diluted or non-music drives out ‘good’ music.
4.6 The International Dimension and the Berne Convention Music, as does other media products, operates in a mass global market made more so by digital innovations as any individual work can now very readily be widely dispersed and consumed geographically without even the necessity to physically transport the item across borders. It is also not necessary to cross the gates into a distribution corporation as individuals can now upload work to You Tube, Bandcamp, Soundcloud and other outlets with little expense. Given all this it would seem highly desirable to have a coherent global legal system. This is not the case, as nations seem to be pursuing their own path in terms of what interests us here. Supposedly there is an international umbrella of guidance which emanates from the Berne Convention (see Ricketson and Ginsburg 2005).The Berne Convention was adopted in 1886 to deal with the protection of literary works and the rights of their authors. It requires a signatory country to protect works from other signatory countries as if they had been produced within its own borders. It has a 70-year time limit lapse. This does not stop countries from enforcing a longer term within their own borders but their citizens would only be guaranteed the 50-year rule in a signatory country if it was inclined to use shorter terms. Berne gaverevenue protection and also moral rights in terms of means to control how
works is used, by whom and on what terms. The legacy of Berne was followed in several later ratifications and the creation of the Agreement on Trade-related Aspects of Intellectual Property Rights (the TRIPS Agreement) in 1994 along with the World Trade Organization (WTO). The agreement includes special provisions available to developing countries that want to make use of them. The logic of this is to allow transitional arrangements in countries where the property rights structure is too weak to facilitate operating at the level of the chief signatories in economically more advanced nations. The current agreement accepts the force of moral rights as well as economic rights and protects the fair use provision. It is supposed to promote the efficiency of protection of intellectual property within which music, literature and films are regarded as essentially similar types of thing. According to the website of copyrighthouse, there are currently 177 of 195 countries in the world who are signatories. Of the (traditionally predominantly) English speaking nations, the UK signed in 1887, Australia, Canada, South Africa and New Zealand signed in 1928, with the USA abstaining until 1989. There are some important things to be noted about the Berne Convention: 1. It is general for all originators of what is deemed to be creative content and was not specifically designed for musical work which perhaps increasingly drifts away from being characterised as ‘authorship’. 2. It is, as the name says, an international convention. Such arrangements even if referred to as treaties would seem to lack force. Even if they are not merely aspirational. Non-recognition, within one of the multilateral signatories, of Berne will be subject to the impact of precedent for other international conventions. So for example, in a case involving capital punishment and Mexican citizens, Medellin v. Texas, 552 U.S. 491 (2008), the U.S. Supreme Court held that even if the USA signs and agrees to be bound by an international convention, the convention is not actually binding law unless it is self- executing, or unless Congress passes legislationmaking the convention binding. So the global musical plagiarism governance umbrella seems to be significantly leaky. Current and recent literature, on music, seems to contain virtually no references at all to the Berne Convention whether to study its effects or to
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advocate changes. In 2003, Story (p.765) wrote a critical analysis of its negative effects on ‘countries of the South’and their citizens. Much of this concerns issues not relevant here but he does claim that the application of fair use and permission of quotation are inappropriate in such domains. One could argue that international agreements hardly matter anyway as all one really needs to do is ensure protection in the major markets. As the USA is the chief of these, for music, then perhaps it is only the US policy that matters. We may of course note that Madonna (Appendix) had stoppage of income, until 2014, in Belgium due to a case brought there and a case was brought against Michael Jackson, in Italy, under the normal criminal law rather than copyright specific legislation. Plus, the arrival of digital network distribution and streaming carries the revenue stream far beyond the borders of any single country, so it now seems anomalous for individual countries to decide given that the Berne treaty does not really function as intended. One reason for this is that the interpretation of terms used to decide case, and the manner of deciding based on them, vary significantly by territory. For example, in China, judging by Apollo Inc. v. Coca Cola (China) Inc., in 2004, and Rui Hua Wang v. Qi Gang Chen et al. in 2012, jury determination of substantial similarity is not allowed and the influence of expert testimony is weakened. Substantial similarity is usually decided by referring the task to a government agency (Copyright Research Centre of China). These features occur in the context where China has been fully integrated into the Berne umbrella and the various TRIPS agreements following from it (see Herlihy and Zhang 2017). A very cavalier attitude to plagiarism is evidenced in Indian film music as shown in the blogs on the ItwoFS website, where numerous instances are documented with an ad hoc grading system of the degree of similarity and, most notably of all, very little reference to any legal actions of any type. Thus we seem to have a sub-community, like heavy metal and country music where cases are seldom contemplated. In Poland, sampling has been relatively neglected in case law and legal and academic analyses leading Rychlicki and Zieliński (2009) to argue for a change in the law so that sampling does not constitute copyright infringement if the ‘right of quotation’ (approximately meaning ‘fair use’) is properly executed. It needs to be noted that there is a pertinent normative component in their argument as they use one specific artist to bolster the claim on the grounds that so much hard work went in to the use of multiple small elements to make the new creation that the usage should be allowed. Unfortunately this neo-labour theory of value argument would
not be accepted by economists and it is against the global trend of legal treatment. Other points of difference are found in Germany and the Netherlands. In 2008, Kraftwerk won a landmark case ‘Metall Auf Metall’ in the Federal Court of Justice of Germany which quotes Bridgeport as instancing that very small fragments can be protected (see Schipper 2014). In its ruling ‘Metall auf Metall’ the German Federal Court of Justice found that related rights override any issues of the quality and quantity of the work’s use of previous recordings. The possible economic benefit to the sampler is not relevant here. The German right of ‘freie Benutzung’ seems, at first, to be similar to the American principle of ‘fair use’ but it has very significant differencesas it is strongly coloured by the interest for continued cultural development. Adapted use of protected works should be possible under certain circumstances in order to move the culture as a whole further along. In addition, nearly every artist elaborates on the works of her/his predecessors and cultural expression will nearly automatically come to form part of the cultural public domain. The German right of ‘freie Benutzung’ is also similar to what is found in Dutch copyright law’s concepts of free adaptation or arrangement.Thus it seems unlikely that the 2 Live Crew ‘Oh Pretty Woman’ decision would be the same as it is in American as simple puerile humour is unlikely to be seen as significant cultural development. The closest thing to a work which takes a world perspective on plagiarism in music is the paper by Hurwitz (2015) which looks at sampling law in terms of a comparison of the USA and the rest of the world. This paper seems to hold up the more recent changes in Australian law as something which might be beneficial to other legislatures. The various national differences highlighted above reflect rough differences in the social welfare functions, in different nations, as their chief variations tend to reflect norms or judgements about what is good for the nation as a whole.
4.7 The Bitter Sweet Symphony Case To round off our illustrative content, and recap the issues covered, it may be useful to elucidate a case which is a veritable smorgasbord (or ‘greatest hits’ even) of composition and sampling plagiarism problems. I refer here to the saga of authorship and revenue dispute and restitution around ‘Bittersweet Symphony’, a hit record for The Verve in 1997, related to its dependence on the (1965) recording ‘The Last Time’ by the Rolling
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Stones. It is not true to say, as is sometimes done, that Jagger and Richards ‘sued’ for the rights. The most useful account of the details on this, before the new developments in 2019, can be found in Goodman (2016). Given the convoluted nature of this story, I have compiled a list of dramatis personae in Table 4.1 to help clarify things. These are listed in approximate time order with role in the second column and notes, in the final column, on events. For completeness, I also include a recording by the Staples Singers which may be claimed as a source for ‘The Last Time’ and antecedent sampled use (in rap records) of ‘Bittersweet Symphony’ which use the contentious part. The story begins with Richard Ashcroft writing the song. He believed it to be an original composition in all respects. Authorship was solely credited to him. He also held the publishing on the song and thus would have this additional source of income. During the arrangement of the work, it seems a five-note string phrase from the version of ‘The Last Time’ by the Andrew Loog Oldham Orchestra (not the Rolling Stones original) began to exert an influence. The Verve’s management proceeded in the correct (post-Upright decision) manner by concluding an agreement to use this sample with Decca records. At this point, the authorial credit would still be solely to Ashcroft as this was, in effect, payment for use of a quotation. However, Allan Klein owed the rights, not Decca. He opportunistically engineered additional diversion of income to himself. This resulted in the attribution of composing credits to Jagger and Richards. Klein employed the classic withholding strategy, in game theory, of refusing to comply unless he was given an additional side payment. This entailed Ashcroft giving up the publishing on the song to Klein for a derisory nominal sum. At this point, the authorial credit is still solely to Ashcroft. However, Klein forced the addition of Jagger and Richards on to the credits so that he could make additional money from his share of the revenue from owning the publishing rights to their song. Thus the sample case now becomes a plagiarism case resolved in the common manner of giving credit to the complainant. But, we must note Jagger and Richards did not bring the case and Klein was NOT representing them as they had bitterly separated with him over his handling of their funds. Richards was particularly unhappy about the enforcement of credit and the diversion of income. I have looked at a number of pieces of sheet music for Bittersweet Symphony, arranged by other people for different purposes, and the credit is given as simply jointly ‘Ashcroft/Jagger/Richards’ or ‘words by Ashcroft and music by Jagger/Richards’. Oldham is never credited. There is no,
Table 4.1 Dramatis personae in the ‘Bittersweet Symphony’ case Person(s)
The Staple Singers The Rolling Stones
Recorded ‘This May Be The Last Time’ released in 1961. Recorded ‘The Last Time’ released in 1965
Traditional song which actually has relatively few words in addition to the title. Some claim this plagiarised the above work. The opening words used also as a chorus are very similar. Whosampled.com wrongly alleges that the Rolling Stones song contains an actual sample of this song. No case has been brought. Keith Wrote ‘The Last Time’ and They received co-author credit on Richards/ performed on it with the ‘Bittersweet Symphony’ due to the actions Mick Jagger Rolling Stones. of Klein. Subsequently relinquished credits in 2019. Andrew Loog Rolling Stones Manager-1 in Oldham was not a musician. His orchestra Oldham this story. In 1966 released does not exist. This was a project to cash in The Rolling Stones on the work of his managerial clients using Songbook: Instrumental session musicians. The album he released Versions of the Rolling languished as a little known curio until the Stones Biggest Hits by the sampling and authorship controversy. In Andrew Loog Oldham 1999, he started claims for authorship Orchestra. rights in Bittersweet symphony. David Wrote the string Whittaker would have received a fixed Whittaker arrangement to the Andrew arranger’s fee to which he contractually Loog Oldham Orchestra agreed. Hence he had no entitlement to version. It is a part of his royalties. By implication, he would also string arrangement which have no entitlement in any future sample forms the crucial part of use (which was not envisaged at the time). ‘The Last Time’ which is His arrangements contain several elements used in Bittersweet not used in The Verve’s recording. Symphony. The Verve Released’ Bittersweet This song contains a repeating loop of what Symphony’ in 1997. sounds like a sample of Whittaker’s arrangement from the Oldham version of The Last Time. It only repeats seriatim a short section. This is generally accompanied by rhythmic parts from The Verve. The recording may be a mixture of additional string recreations and direct samples. It does not contain any sonic similarities to the Rolling Stones version. However most people concede that the lead melody of the song is substantially similar. The lyrical content is not similar. (continued)
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Table 4.1 (continued) Person(s)
Author of Bittersweet Symphony’
Wale feat Colin Munroe (2009) and A$AP Rocky (2011)
Agreed to very disadvantageous settlement with Allan Klein. In later years he has made belligerent comments about how money was ‘stolen’ from him in the cases brought and has lobbied for the reversal achieved in 2019. His claims maintained he has produced an original melody not copied one. Manager of The Verve Made the approach for sample clearance which then encountered the deals struck by Allan Klein. Producer of Bittersweet Told David Whittaker that Malone was Symphony’ using his arrangement on Bittersweet Symphony before the record was released. String arranger on Malone apparently liked Whittaker’s ‘Bittersweet Symphony’ arrangement and wrote it down for derivative use on the session. Recording credits list him as having provided ‘additional string parts’ to the Whittaker sample. Rolling Stones Manager-2 in Klein struck the deal which saw Jagger- this story Richards added. He was not the Rolling Stones manager at this time but he held their copyrights up to 1970. He induced Ashcroft to sell him his publishing on the song in order to clear the sample. Rolling Stones Manager-3 in Negotiated the reversal of the previous this story. arrangements so that Ashcroft would now Manager since 2011. have authorial and moral rights in Bittersweet Symphony’without the addition of Jagger and Richards. Released tracks with loop Adds fairly routine generic beats in sync to through sample of The the loop and personalised semi-spoken Verve’s recording which is words. Does not add additional melodic the Whittaker part which elements has caused all the problems.
and never has been any, credit or income accruing to David Whittaker, the string arranger of the part which generated the outcomes. Whittaker was not magnanimous like Penelope Farmer (regarding the Cure’s use of her novel) or Coleman in regard to the massive use of his ‘Amen’ drum break. This was made clear in the following quotes in an interview with Mike Senior (2001) where he says: it was my high string line from the arrangement of a song called ‘The Last Time’ that was pinched by The Verve for ‘Bittersweet Symphony’. …Youth said that he liked that tune, which Wil jotted down and used in the arrangement …Jagger and Richards (…) copped all the royalties from it, but there is still a long court case going on and on about it now with Andrew Oldham. The whole thing just makes one a bit sick, really.
Eighteen months after the song was released and highly successful, Andrew Loog Oldham began action to claim revenues from the song as well. He reportedly sued the Verve for 1.7 million dollars, in songwriting royalties, notwithstanding he had not written anything involved in any of the works concerned. He was also prone to derisory remarks about The Verve getting caught because they took too big a chunk out of the source. Thus he would reject a de minimis claim. He does not seem to have been given authorial credit on any version of the song by anyone in a recordings database nor on the aforementioned sheet music. His remarks about the size of part used raise a distinct problem in this case. That is, the recordings by the Staple Singers, the Rolling Stones and The Verve are all extremely repetitive, with little musical development taking place, so pretty much no new elements are added. We can point to the words, and some elements in the arrangement, as new additions but the basic composition is just a repeating riff in each case for the most part. However, Whittaker’s arrangement contains a number of diversions and elaborations required by the task set for him. It is more like incidental film music than a ‘rock meets classics’ reworking of the material. This means the part used by The Verve is smaller than it might have been in proportional terms but we then enter again into the difficult problem of how crucial it is to the success. A surprising new development took place in late 2019. After pressure from (Ashcroft) on the management of those in question (Jagger and Richards), the song credit was reverted to being solely to Ashcroft and royalty claims were also relinquished. Ashcroft had made several claims
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about money being ‘stolen’ from him and threats of legal action he might take. This new change leaves the string part, of Whittaker, as a quotation bought from ABCKO (Klein’s company) but not as an authorship share. It also leaves the income from Ashcroft surrendering publishing rights in the hands of ABCKO. So, as regards the issue of ‘stealing money’, it is the case that Ashcroft had been receiving a third of songwriting royalties (plus other performance income) all along but he is not now, back to the position he would have been without Klein opening this particular can of worms. This takes us into the moral rights issues. It could be argued neither Whittaker (who is now deceased) nor Ashcroft (from publishing) were entitled to any further income shares as they entered into normal business and employment contracts under free will without a gun held to their head. In terms of the right to be acknowledged as an author, this case was exaggerated by the existence of awards given to Bittersweet Symphony as Jagger and Richards received these awards. They would now seem to agree that they did not deserve such accolades. So, Ashcroft now says he feels appeased with recognition when the song is used and sung at football stadiums and so on but if you simply Google ‘BittersweetSymphony’ (as of 23 September 2019) the ‘People Also Ask Section’ has as its first question ‘Which Rolling Stones Song Did The Verve Steal?’ The reported answer (from 23 May 2019) says that ‘it famously samples an orchestral cover’ of ‘The Last Time’. This is of course not the same thing as stealing a song. This case highlights the problematic elision of sample use into compositional claims. Klein’s initial (22-year) success at exploiting this looks like it may have inspired other claims such as the Justin Bieber/White Hinterland case in the Appendix.
4.8 Finale. Eleven Final Questions and How to Use the Appendix For the benefit of anyone using this work in an educational context, or indeed, for general amusement, I now provide some questions to stimulate discussion. In regard to formulating and criticising proposals, it may also be useful to read Townley (1993), Broussard (1991), Kim (2007) and McDonagh (2012).
1. Should some protectors of work have resorted to trademark protection? In this case, would it be viable for the late James Brown to do this but not Coleman over his creation of the Amen Break? 2. Should publishing rights be attenuated so that more control over copyright is given to the ‘author’ independently of owning the work as property. That is, beyond the strengthening of moral rights as such—for example there could be a quite short term of ownership before rights revert and authors could negotiate terms of usage instead of holders. 3. Should the testimony of musicological experts be demoted on the grounds that media cases are different from other property cases? In fact, should they be removed altogether from proceedings because these are simply rhetorical bias-inducing devices employed by protagonists made irrelevant by the shift to more rigid quantitative judgements from the effect of Bridgeport? 4. Should all appeal to access to listening arguments be dismissed, outside of historic cases, because we now have such global access that it is futile to allow engagement in acts of inference about whether or not someone might possibly have heard something? 5. Should ‘failure to intervene in a case of prior knowledge’ lead to dismissal of cases or at least a capping of returns, at a set rate, due to complicity in creating the breach? 6. Should a set percentage of all legal costs incurred in proceedings be levied on top of this sum be paid by the winners (not the losers) to charities and organisations devoted to helping low-income and low-opportunity musicians enhance their careers? This is on the grounds of disincentivising cases and cross-subsidising actual creativity as opposed to spurious proxies of creativity based on counting changes in event type. 7. Should juries be used in all straightforward composition (i.e. non- sampling) cases with mandatory A-B listening to the works in question? 8. Is any type of de minimis criterion now doomed to failure meaning that we cannot adequately reboot this to encompass sampling and sound recording copyright usage as some have argued? 9. Would it be feasible, and desirable, to enforce a limited set of graded sample licences where the grades are degree of usage and payment is determined accordingly, say for example there are three set types of licence by amount of usage and the users and owners must have signed one of these within a set time AFTER usage as opposed to making ad hoc individual settlements on a case-by-case basis?
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10. Should we have a thorough overall of the copyright system for music which detaches it from other media, let alone other property, and integrates sampling permission, compositional derivativeness and cover versions of songs? 11. Should a voluntary court of arbitration be set up by collaboration between professional bodies, representative of musicians and composers (NOT publishing corporations and record companies), to engage in preliminary scoping of cases before they formally enter the legal system? The scoping would establish if there is a prima facie case to proceed to legal action.
4.8.1 How to Use the Appendix For any individual who wishes to evaluate such ideas, or propose new ones, it is vital to consult indicative music plagiarism cases rather than be swayed by the salience impact of well-known, new and half-digested events. To this end, the Appendix presents an alphabetical listing of cases, name of the artist who wrote and recorded the song in the accusation. There are co-authors in many of these cases but I desist from mentioning them except where it is especially relevant. Inevitably most of these cases take place in the USA and it should be possible to easily find the full judgement of some of these using the sources indicated in Chap. 1. The summaries are just a sketch of the relevant details giving the names of participants and pieces of music with some commentary on how they illustrate the various points that have been enumerated here. They do not attempt to say whether an outcome is right, wrong or even ridiculous. I have included some well-known cases but also some which were settled prior to formal legal processes including those where information on what actually happened is very sparse.
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Broussard, W. G. (1991). Current and Suggested Business Practices for the Licensing of Digital Samples. Loyola of Los Angeles Entertainment Law Review, 11(2), 479–503. Cameron, S. (2002). Digital Copying and the Economics of Crime: Potential Gains from Trade and the Problems of Enforcement. Economic Affairs, 22(3), 16–22. Cameron, S. (2015): Music in the marketplace: A social economics approach. Routledge. Ceulemans, C., & Lowe, S. (2018). The Cost of Creation: Technology, Sampling and Lawsuits in Hip-Hop Music. Working Paper. Purchase College. State University of New York. Christensen, C. M., Raynor, M. E., & McDonald, R. (2015). What Is Disruptive Innovation? Harvard Business Review, 93(12), 44–53. Coase, R. H. (1960). The Problem of Social Cost. Journal of Law and Economics., 3(1), 1–44. Cook, N., & Sapp, C. (2007). Purely Coincidental? Joyce Hatto and Chopin’s Mazurkas. Available on CHARM Website. Retrieved September 13, 2019, from https://www.charm.kcl.ac.uk/projects/p2_3_2.html. Devadiga. (2018). Without “Vulture” Capitalists, Our Economy Would Rot. Their role isn’t pretty, but it’s vital. Foundation for Economic Education. Retrieved September, 11, 2019, from https://fee.org/articles/ without-vulture-capitalists-our-economy-would-rot/. Duchen, J. (2007). Joyce Hatto: Notes on a Scandal. The Independent: Online Edition. 25 February. Pappalardo, K., & Bansai, K. (2018). How copyright law is holding back Australian creators. Published February 9th. Retrieved September, 23, 2018, from http://theconversation.com/how-copyright-law-is-holding-back-australiancreators91390. Wu, T. (2006). Jay-Z Versus the Sample Troll The shady one-man corporation that’s destroying hip-hop. Slate website. November 16. Retrieved September 9, 2019, from https://slate.com/culture/2006/11/the-shady-one-man-corporation-that-s-destroying-hip-hop.html.
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Garcia v. Google Inc. (n.d.). Retrieved July 12, 2019, from https://www.eff.org/ cases/garcia-v-google-inc. Goodman, F. (2016). Allen Klein. The Man Who Bailed Out the Beatles, Made the Stones and Transformed Rock & Roll. Mariner Books. An Eamon Dolan Book. Houghton, Miflin, Harcourt, Boston and New York. (Originally Published 2015).
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Herlihy, D., & Zhang, Y. (2017). Music Industry and Copyright Protection in the United States and China. Global Media and China, 1(4), 390–400. Hurwitz, L. (2015). Can’t Touch This: A Comparative Analysis of Sampling Law in the United States and Internationally. Michigan State International Law Review, 23(1), 231–264. JibJabMedia vs Ludlow Music. (n.d.). (This Land Parody) Retrieved July 12, 2019, from https://www.eff.org/cases/jibjab-media-inc-v-ludlow-music-inc. Kennedy, J. (2011). A Critical Review of ‘Against Intellectual Monopoly’. Review of Austrian Economics, 24(1), 81–84. Kim, M. (2007). The Creative Commons and Copyright Protection in the Digital Era: Uses of Creative Commons Licenses. Journal of Computer-Mediated Communication, 13(1), 187–209. Klang, M., & Nolan, J. (2012). Tolerance Is Law: Remixing Homage, Parodying Plagiarism. SCRIPTed, 9(2). Leigh, S. (2010, July 8). When It Comes to Songwriting, There’s a Fine Line Between Inspiration and Plagiarism. The Independent. Retrieved May 14, 2019, from https://www.independent.co.uk/arts-entertainment/musicfeatures/ when-it-comes-to-songwriting-theres-a-fine-line-between-inspiration-and-plagiarism2021199.html. Lindvall, H. (2011, August 26). Why Topline Melody Writing Creates Disputes between Artists And Songwriters. Behind the Music Blog. The Guardian Newspaper. Retrieved October 21, 2019, from https://www.theguardian.com/ music/musicblog/2011/aug/26/topline-melody-disputes-artistssongwriters. McDonagh, L. T. (2012). Is Creative Use of Musical Works Without a Licence Acceptable Under Copyright? International Review of Intellectual Property and Competition Law, 43(4), 401–426. McLeod, J. K., & DiCola, P. (with Toomoey, J. and Thompson, K.). (2014). Creative License. The Law and Culture of Digital Sampling. Durham and London: Duke University Press. Mispagel, C. (2018). Resolving a Copyright Law Circuit Split: The Importance of a de minimis Exception for Sampled Sound Recordings. Saint Louis University Law School, 62(2), 461–484. Morrison, D. (2008). Bridgeport Redux: Digital Sampling and Audience Recoding. Fordham Intellectual Property, Media & Entertainment Law Journal, 19(1). Available atSSRN. Retrieved from https://ssrn.com/ abstract=1334809. Mueller, J. (2006). All Mixed Up: Bridgeport Music v. Dimension Films and De Minimis Digital Sampling. Indiana Law Journal, 81(1), Article22, 435–463. Oliver, P., & Ewald, J. (2017).UK Copyright and the Limits of UK Music Sampling. SSRN Electronic Journal. Retrieved September 11, 2019, from https://www. researchgate.net/publication/313476275_UK_Copyright_and_the_Limits_ of_UK_Music_Sampling.
Reilly, T. (2012). Good Fences Make Good Neighboring Rights: The German Federal Supreme Court Rules on the Digital Sampling of Sound Recordings in Metall auf Metall. Minnesota Journal of Law, Science & Technology, 13(1), Article7, 153–209. Ricketson, S., & Ginsburg, J. (2005).International Copyright and Neighbouring Rights: The Berne Convention and Beyond, 2nd ed. Oxford University Press. Rychlicki, T., & Zieliński, A. (2009). Is Sampling Always Copyright Infringement? WIPO Magazine, 6, Article 7. Retrieved January 7, 2019, from https://www. wipo.int/wipo_magazine/en/2009/06/article_0007.html Scherer, F. M. (2008). The Emergence of Musical Copyright in Europe from 1709 to 1850. Review of Economic Research on Copyright Issues, 5(2), 3–18. Schipper, B. (2014). THE CHILLING EFFECT OF “KRAFTWERK I/II” ON SOUND SAMPLINGPLEA FOR SELF-REGULATION TO ADVANCE THE USE OF SAMPLING translated from original in Dutch Copyright, Media and Information Law Journal (AMI) July/August, 4, 105–112. Retrieved September 9, 2019, from http://www.schipperlegal.nl/ wp-content/uploads/2014/11/Kraftwerk-Decisions-Chilling-Effect-onSound-Sampling-US-1.pdf (note to editors the capitalisation of the title and use of bold is as in the original) Schumpeter, J. A. (2014). Originally Published. 1942. Capitalism, Socialism and Democracy, 2nd ed. Floyd, VA: Impact Books. Senior, M. (2001). Sweet Symphony. Interview with David Sinclair Whittaker. Sound on Sound. Issue 1, January. Takeyama, L. (1994). The Welfare Implications of Unauthorized Reproduction of Intellectual Property in the Presence of Demand Network Externalities. Journal of Industrial Economics, 42(2), 155–166. Takeyama, L. (1997). The Intertemporal Consequences of Unauthorized Reproduction of Intellectual Property. Journal of Law and Economics, 40(2), 511–522. Townley, H. (1993). Sampling. Weapon of the Copyright Pirate? University of Tasmania Law Review, 12(1), 102–118. Waldfogel, J. (2014). Digitization, Copyright, and the Flow of New Music Products, Ch. 12 in V. Ginsburgh, & D. Throsby (Eds.), Handbook of the Economics of Art and Culture (vol. 2, pp. 277–298). North-Holland: Elsevier. Waldfogel, J. (2017). How Digitization Has Created a Golden Age of Music, Movies, Books, and Television. Journal of Economic Perspectives, 31(3), 195–214. Watson, J. (2017). Copyright and the Production of Hip-Hop Music. Semantic Scholar Website. Retrieved July 7, 2019, from https://pdfs. semanticscholar.org/7219/a09fa0a5b9b569ea9255088ab24bc8a2c7c4. pdf?_ga=2.117682305.907132683.1562585029-1907714462.1562585029.
List of Those Accused 1. Adele 2. Beloved, The 3. Biz Markie 4. Bruno Mars 5. Coldplay 6. David Gilmour 7. Ed Sheeran 8. Edwyn Collins 9. Elastica 10. Justin Bieber 11. Katy Perry 12. Lady Gaga 13. Lana del Ray 14. Madonna 15. Mariah Carey 16. Michael Jackson 17. N.W.A 18. Pet Shop Boys, The 19. Rihanna 20. Rita Ora © The Author(s) 2020 S. Cameron, An Economic Approach to the Plagiarism of Music, Cultural Economics & the Creative Economy, https://doi.org/10.1007/978-3-030-42109-0
21. Robin Thicke 22. Rod Stewart 23. Steely Dan 24. Streets, The 25. UB40 26. Wet Wet Wet Details 1. Adele. ‘A Million Years Ago’ (2015) was claimed to be derivative of Ahmet Kaya (1985) ‘Clinging to Pain’. The claim was made by fans of Kaya (who had died before Adele produced her composition) largely on Twitter. No claim was brought and no evidence has been given that anyone involved with ‘A Million Years Ago’ had any historical connection to the preceding song. So no access argument has been made. This seems to be a case where an audience is impressed by passing similarity but forensic experts would not be. 2. Beloved, The. ‘The Sun Rising’ (1989). Uses a sample (also used in Belfast by Orbital) from ‘O Euchari’ composed by Abbess Hildegard of Bingen, in the thirteenth century and sung by Emily Van Evera of the vocal ensemble Gothic Voices in 1981. The ‘O Euchari’ sample was not credited on the original release. An out-of-court settlement was reached between the record labels concerned. A credit for the usage was added to subsequent releases. This case is purely for the copyright in the performance, not the music and illustrates how copyright in sound recordings has overridden the idea of old material being available for free usage. A recreation of the part using pitched library samples, with a royalty-free licence from another singer, would probably have avoided the costs incurred in this case due to original owner action. 3. Biz Markie. ‘Alone Again’ (1991) was found to have made unauthorised use of Gilbert O’Sullivan ‘Alone Again Naturally’ (1972) in the form of a sample. The case was between publishers Grand Upright Music, Ltd. v. Warner Bros. Records Inc. Warner Bros., the parent company of the releasing label had to withdraw the album containing the song. Markie responded in 1993 with a sarcastic commentary on his ‘sacrificial lamb’ status in the album—All Samples Cleared! His career seemed damaged by a prominent case due to lost market demand. This is the landmark sampling decision which sparked a need to seek prior clearance in all instances. Previous instances had not come to the court. This case also sent a
warning about rapping, using words in a similar title over a sample loop which may have led to a tendency to actually produce cover versions instead in urban and dance music although a cover version of the verbose bedroom anxiety of the original in this instance would not have suited Markie’s oeuvre. 4. Bruno Mars is an artist widely accused of being highly derivative in popular discussions. ‘Uptown Funk’ (2015) was subject to multiple claims mainly of sample use: (a) The Sequence—Funk You Up (1979) (b) The Gap Band—Oops Up Side Your Head (1979) (c) Viktorija—Ulice mračne nisu za devojke (1984 performed by Aska) (d) Collage—Young Girls (1983) (e) Zapp—More Bounce to the Ounce (1980) (f) The Really Wild Show—BBC television children’s show On the subject of (a), according to whosampled.com as of 29 October 2019, this had been sampled by 50 artists (starting from 1980 and widely spread by date), mainly in urban/rap/hip hop genres. A considerable number of these come after the ‘chilling’ Grand Upright and Bridgeport decisions. This might have led people to believe it had acquired public domain type status as there seemed to be no cases against the usage. However, in 2017, Sequence filed a Federal Copyright Infringement claim which led to the addition of co-writers and Uptown Funk receiving 17 per cent of the publishing royalties. For item (c) Viktorija made the claim in 2015, but did not sue. She was ambivalent about whether it was worth her while (in terms of human well- being not money) to bring a case. She claimed (see Shepherd (2015)) that 80 per cent of her work was used in Uptown Funk (which seems to imply she may have borrowed from some of the other contenders in the first instance). Items (d) and (e) were filed as lawsuits in 2016 and 2017 respectively but were dropped in 2018 which may mean out-of-court settlement. For item (f) comparisons were made with, but no action brought around, with the theme song of The Really Wild Show, a BBC children’s nature program which producer Mark Ronson agreed he could see the similarity of. Given the number of possible undisclosed settlements here, one is led to wonder what net revenue the creators of Uptown Funk will actually receive.
5. Coldplay. Viva La Vida (2008) Guitarist Joe Satriani—‘If I could fly’ (2004). Satriani sued Coldplay for copying ‘substantial original portions’ demanding damages and associated imputed copyright revenues. There was widespread popular opinion that his melody had been used. Coldplay claimed the resemblance was coincidental. They asked for a jury trial. The case was dismissed by the judge before this could happen and it is usually inferred that this marks an out-of-court settlement. We should note that a number of stories and discussions circulate about accusations against Coldplay which are actually cases where they obtained prior permission from the originators. Chris Martin is supposed to have said in Rolling Stone magazine that Coldplay are not very original but good plagiarists. This was neither an admission of guilt, nor a Noel Gallagher type bravado about being proud to copy, but rather an acceptance of the nature of similarity in popular music. 6. David Gilmour (of the Pink Floyd). Rattle That Lock (2015) accused by Michael Boumendil of unauthorised use of a sample in the song on which he is already a co-author. The co-authorship was given as a credit to get permission to use the four-note jingle from the French railway (SNCF). In 2016, Boumendil took a case on the grounds that he had only agreed use of the notes, not use of the sample form SNCF (who themselves had consented to the use). The claim was rejected in 2018 by a French court who ordered the payment of Gilmour’s legal fees. This seems like an opportunistic attempt to get extra income from recording copyright claims. This has been appealed. It is an unusual example of the situation where everything seemed to have been done properly and settled in the first instance (as in ‘Bittersweet Symphony’). It is also very notable for the dismissal grounds being that there had been undue delay. Given the delay is incredibly short by the standards of ‘Stairway to Heaven’ (and others as well as several successful ‘song theft’ cases), this is a remarkable decision. 7. Ed Sheeran. Multiple cases: ‘Shape of You’ (2017) versus TLC—‘No Scrubs’ (1999) + ‘Photograph’ (2015) versus Matt Cardle—‘Amazing’ (2012) + ‘Thinking Out Loud’ (2014) versus Marvin Gaye—‘Let’s Get It On’ (1973) + ‘The Rest of Our Life’ (2017) versus Jasmine Rae—When I found you (2015). These are the details and it may be noted the premises are quite different between some cases: SHAPE OF YOU The writers of ‘No Scrubs’ were awarded co-writing credits on ‘Shape of You’ based on rhythmic similarity. This case has something in common
with the Edwyn Collins/Len Barry case as there is not much notable melodic content which moves far from the rhythmic core of the piece. PHOTOGRAPH The writers of ‘Amazing’ accused Sheeran of copying their song ‘verbatim, note-for-note’. The case was privately settled in 2017 with no admission of guilt and hence no co-author credit and an undisclosed sum. Access arguments would be irrelevant here as the song is one well known in the UK by a television show competition artist. THINKING OUT LOUD In 2018, a 100-million lawsuit was brought by Structured Asset Sales owner of a third of the song (by purchase). The judge decided substantial similarity was sufficiently evidenced that this should go to court. Sheeran had already been sued, in 2016, by heirs of one of the authors Ed Townsend (died 2003) over the same song. The second case is almost a lock stock and barrel one as it claimed copying of ‘the melody, rhythms, harmonies, drums, bass line, backing chorus, tempo, syncopation and looping’. THE REST OF OUR LIFE Sheeran is co-author of this song by Faith Hill and Tim McGraw. The authors of ‘When I Found You’ filed a copyright infringement lawsuit against Hill and McGraw, also naming Sheeran. Sheeran called this accusation ‘baseless’. This is the case where someone involved in the production of the second song was aware of alleged similarities and did not call it to attention thus suggesting opportunistic restraint at work. Otherwise modifications could have been made. There are many reasons why Sheeran might have attracted so much accusation and the most obvious one is the potential money to be made. The visibility of such accusations will have a further snowball effect due to the imparting of cognitive bias against him by judges, juries and lay observers. One may also ask where was the pre-emptive shazaming and musicological screening by Sheeran’s publishers? 8. Edwyn Collins. ‘A Girl Like You’ (1994) uses a drum sample from ‘1-2-3’ by Len Barry (1965). In this case no prior clearance was sought and no writing credit is given to Barry or others but retrospective out-of- court settlement was made following threats from Barry. Curiously this story is sliding out of the internet as the entries for Collins or Barry, in Wikipedia, do not make any reference to any dispute or compensation choosing merely to note that the sample was used. Even more curious is the fact that Barry (and co-authors) had already been forced to grant co- author credits to the writers of ‘Ask Any Girl’ (1964) by the Supremes
after two years of denying any awareness of the latter song. Apparently Barry himself noticed the usage in Collins’ song when no one else had managed to do so. The drum part in question might be said to be not much more significant in magnitude than the Amen Break. However it is very closely tied to the melody used in ‘1-2-3’ and ‘Ask Any Girl’ yet there seems to be no record of knock on or domino claims by the authors of the latter. 9. Elastica. ‘Line Up’ (1995) from Wire—I Am the Fly (1978) (chorus) and Connection (1994)—‘Wire Three Girl Rumba’ (1977) (riff used on synth and guitar), ‘Waking Up’ (1995) Stranglers—‘No More Heroes’ (1978)—resemblance/riff. Reportedly the authors of the alleged sources both sued and the cases were settled out of court. This does look like a case of careless subconscious influence as the sources were acknowledged influences on the composers. The presence of transposition of the original source in some usage may reflect this rather than deliberate camouflage effort. It also instances a much more (Stranglers) and a much less (Wire) economically successful source creator taking action. 10. Justin Bieber. ‘Sorry’ (2015) alleged to be sampled from, and derivative of, White Hinterland (Casey Dienel)—‘Ring the Bell’ (2014). The case was brought in 2016 and dropped in late 2017. The initial suit demanded damages and withdrawal of the track. The accusations centred on the following: (a) Introductory vocal riff—which does not appear in the melody of ‘Sorry’. (b) Access—the deposition said that ‘Ring the Bell’ had approximately 800,000 uses on various platforms indicating widespread access and the parties involved in ‘Sorry’ had several further admitted connections to the work. (c) A ‘seed’ argument was made, to counter any de minimis defence, that the similar vocal riff is the basis from which the entire song grows. (d) That an ordinary lay listener would instantly recognise the sample and ALSO that there is general similarity between the songs. Some of this is of the ‘sound and feel’ type found in the Robin Thicke (Gaye family) case. (e) Use of metrics—the same four notes are used in the sampled female vocal riff with the same temporal spacing and they end on the same note ‘F’.
Bieber and Skrillex (producer) having rejected the initial approach from White Hinterland then posted a short video showing details of their production and arguing that the idea that a sample had been directly taken was misguided. The cessation of this case suggests an out-of-court settlement was reached. A very detailed third-party analysis by a musicologist argues that the claim would have been rejected (McBearty (2016)). 11. Katy Perry. (2008). ‘Dark Horse’ claimed to be from ‘Joyful Noise’ (2003) by Flame, based on the resemblance being disguised by slowing down the original source. Flame claimed in the original suit that ‘Joyful Noise’ has been ‘irreparably tarnished by its association with the witchcraft, paganism, black magic and Illuminati imagery evoked by the same music in ‘Dark Horse.’ A jury determined that $2.78 million was due for copyright infringement. Perry was ordered to pay $550,000, while the majority was from Capitol Records. The jury were allowed an a-b listening test in this instance with the conclusion that the singer stole a 16-second riff—which quantitatively exceeds usual de minimis volume benchmarks. Perry’s lawyers challenged the finding and in March 2020, a court of appeal in Los Angeles found in her favour. The decision appears to say that there is borrowing from the claimed source but enough unique elements are added to create a unique copyright for the Perry work (thus overriding the de minimis argument).There is also a very black-and-white moral rights case here, as the Perry track is inspired by teenage ‘black magic film’ The Craft and is thus a homage to it but ‘Joyful Noise’ is a Christian rap track. One presumes that it was doctrinally acceptable to take money resulting from the ‘Devil’s Music’. 12. Lady Gaga. Lady Gaga. ‘Judas’ (2011)—uncleared sample from Rebecca Francescatti—‘Juda’ (1999). The latter sued in 2011, and alleged that Lady Gaga used the same sample on J.Lo’s—‘Invading My Mind’ (2011). There were claimed to be text messages showing the loop from ‘Juda’ was stolen for both tracks. The lawsuit was dismissed without trial by a federal judge stating ‘The differences [between the songs “Juda” and “Judas”] so outweigh the purported similarities between the melodies that they cannot be said to be even remotely similar. We agree with Defendants that the songs do not have common lyrics, the themes are different, and they do not sound at all alike musically. Thus, we find the similarity of expression to be, quite clearly, “totally lacking.” The (two songs) are so utterly dissimilar that reasonable minds could not differ as to a lack of substantial similarity between them’. This conclusion is a good old- fashioned case of assessing similarity notwithstanding it hinges on a
sample. Once similarity is rejected all other matters of forensics and intention are irrelevant. 13. Lana del Ray. ‘Get Free’ (2017) claimed to be from ‘Creep’ by Radiohead (1993). A claim was brought by Radiohead’s publishers for substantial similarity. Del Ray tweeted that ‘Creep’ had played no inspirational part in her work but had offered 40 per cent of the publishing on it but they wanted 100 per cent. Radiohead’s publishers rebutted the 100 per cent claim and said they wanted affirmation and royalties as writers. Radiohead had themselves been sued over similarities between ‘Creep’ and The Hollies’ song ‘The Air That I Breathe’ (1974) which led to the writers Hammond and Hazelwood getting credit on ‘Creep’. It looks like the del Ray case has been settled out of court as many media outlets reported her saying that it was over in 2018 but no other details have been reported since. The Guardian newspaper (Kommenda (2018)) drafted in a composer Ed Newton-Rex to depict the similarity using the Hook theory online database to imply that it would be very unlikely that a popular song would use the chords used to hear on the premise of infrequent prior use. However small this probability might be, it cannot be conclusive evidence of plagiarism, from a statistical viewpoint. Del Ray denies intent to steal and denies ‘inspiration’ which seems to imply she denies access arguments that she knew the song. As no trial is forthcoming, we cannot see the forensics of this denial or assess the weight of any subconscious plagiarism argument. 14. Madonna. ‘Vogue’ (1990)—Salsoul Orchestra—‘Ohh I Love it! Love Break’ (1977) said to be the source of uncleared sample. Case brought in 2012. ‘Frozen’ (1998) was claimed to be derivative of ‘Ma vie fout le camp’ (‘My Life’s Getting Nowhere’), composed by Salvatore Acquaviva. The case was brought in 2005. ‘Vogue’ was claimed to have used a ‘secretly hidden’ sample from the source. The judge applied their own audience test, concluding that a ‘reasonable juror could not conclude that an average audience would recognize the appropriation of the horn hit which is less than a second. It only occurs a few times (seemingly twice) and could easily pass unnoticed nor do they sound identical’. This sample was used in prominent recordings since 1983 and has been treated as if it was a de facto library sample. The case is very curious for being based on a seemingly self-defeating purpose, that is that the borrowed material was secretly hidden. It is another obvious anti-Bridgeport case and in this instance this was made explicit. The Ninth Circuit said:
We recognize that the Sixth Circuit held to the contrary in Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), but—like the leading copyright treatise and several district courts—we find Bridgeport’s reasoning unpersuasive. (4)
In the Frozen case, Acquaviva put an access argument that Madonna heard ‘Ma vie foutl’ camp’ during a work trip to Belgium in the late 1970s. A Belgian judge found that the opening four-bar theme from the song was borrowed. He ordered withdrawal from sales of all remaining discs, and cessation of airplay on Belgian media. Warner Bros., EMI and Sony were ordered to spread the decision within 15 days to media outlets on pain of a penalty of €125,000 for non-compliance with the court order. Award damages were not granted. The song was omitted from the track listing on the Belgian releases of the Celebration album (from whence Vogue came) in 2009. The case was repealed in 2014, when a third song (from 1993) claimed that both derived from it and it was then deemed that the songs were ‘not sufficiently “original” to claim’ that any plagiarism had taken place. So the access arguments were now irrelevant. We may note, as with the Bieber case shown here that the alleged similarity being in the introduction may create a cognitive bias in the general audience versus a trained musicologist. 15. Mariah Carey. ‘Hero’ (1993) subject to two allegations Rhonda Dimmie—‘Be Your Own Hero’ (1990) and Christopher Selletti (unpublished poem). Dimmie said ‘Hero’ had used her music and theme but not words and Selletti’s claim only concerns the words. Put together this might attack the whole song but there was no collaboration or collusion in the cases. Selletti was unable to prove access, to the words of his poem, to the satisfaction of the judge given evidence that was provided on the alignment of dates between his evidence and those of Carey and co-workers on the song. He was ordered to pay her a fine and she was declared innocent implying any similarity of words was purely coincidental. A second attempt by Selletti to succeed on the basis of some additional evidence of possible access from date alignment being in his favour was also dismissed. He threatened further action using forensic evidence but this does not seem to have materialised. Dimmie’s claim of musical borrowing was also dismissed by a judge claiming insufficient evidence. These are clearly cases of relatively obscure people attacking a very high profile wealthy artist as noted by Cindy Berger speaking on Carey’s behalf. They are also cases which relied heavily on access arguments to show
deliberate use had taken place. Selletti’s access arguments are rather convoluted involving third parties and I shall desist from going into them further. 16. Michael Jackson In terms of actual cases, two songs have been disputed in European courts. ‘Will You Be There’ (1991) and ‘You Are Not Alone’ (1995). The first was claimed to be copied from Al Bano ‘I Cigni di Balaka’ (‘The Swans of Balaka’) (1991) and was first raised in 1992. Jackson did not appear to give evidence and was found against (in 1998) in an Italian court. However, the decision was swiftly reversed. He appeared this time and agreed there was similarity which was purely coincidental. Substantial similarity was still claimed to be present but the reversion was partly based on the argument (frequent in direct song theft cases) that both derived from a third song by The Ink Spots from 1939—‘Bless You for Being an Angel’. Thus denial of access does not seem to have loomed large as a reason for the change. This track also sparked a sampling case as a hefty chunk of Beethoven’s Ninth Symphony performed by the Cleveland Orchestra and Chorus was used. The Cleveland Orchestra filed a sevenmillion dollar case. This was settled out of court and credits (not authorship) were added to the subsequent issues of the recording. The claim also included the right for Beethoven to be acknowledged for his contribution. The specific case of ‘You Are Not Alone’ (1995) was not written by Jackson but by R. Kelly. It was claimed to be plagiarized from the unreleased ‘If We Could Start All Over’ by the Belgian songwriters Eddy and Danny van Passel. Michael Jackson is entering into the ranks of those condemned by the infosphere as a plagiarist but without much concrete for us to see, compared to the likes of Sheeran and Mars. He was criticised as a plagiarist by Oswald (due to the Beethoven sample) when he was threatened for using Jackson material in his Plunderphonics. Now Jackson is posthumously being shot by his own side in the form of Quincy Jones. Jones himself has not brought a case—his recent victory in court was over reputation defamation due to the poor quality of material issued in which he had previously been involved. However, in the Vulture section of the New York Times, in 2018, he said: I hate to get into this publicly, but Michael stole a lot of stuff. He stole a lot of songs.
The notes don’t lie, man. He was as Machiavellian as they come.
These remarks have had wide global circulation. He cites Billie Jean (1982) as derivative of Donna Summer—‘State of Independence’ (1982) and also accuses Jackson of (direct song theft) greed for not crediting contributors on other works as co-authors. Some things have to be said: (a) a claimed resemblance which no one else has commented on from 36 years earlier does not seem to fit the definition of Machiavellian. (b) nor is there any other indication of what Machiavellian tactics might have been employed. (c) given what Jones said why did he not intervene at the time by refraining he is imputing guilt on himself especially where he is a co-author on songs alleged to be heavily plagiarised? Jackson’s behaviour, as far as authorship goes, is not dissimilar to others in the era of his peak popularity (such as Rod Stewart) and is even possibly milder. The Dibango chant usage and settlement is discussed in the Rihanna case below. 17. N.W.A. ‘100 Miles and Runnin’ (1990) was deemed to have breached copyright in Funkadelic’s ‘Get Off Your Ass and Jam’ (1975) by sampling two seconds of guitar, lowering the pitch and looping it seriatim. Looking at who sampled.com, the source seems to have 63 usages prior to this case and thus would fall in the category of being seen as almost de facto public domain. Bridgeport brought the 2005 case as holder of the rights. A federal judge rejected it but it was reversed by The U.S. Court of Appeals for the Sixth Circuit. It found that any section of a recorded work, regardless of length, violates copyright if permission was not given. In its decision, the court wrote: ‘Get a license or do not sample. We do not see this as stifling creativity in any significant way’. This decision effectively obliterated any de minimis doctrine being applied for sample use. The court stated that the decision did not preclude the availability of other defences, such as fair use, even in the context of ‘sampling’. A number of district courts have rejected the decision explicitly or declined to apply it—the debate surrounding this is discussed in Chap. 4. Like the ‘Down Under’ case, this very delayed action was triggered by the use of the accused recording in another source (in this case a film).
18. Pet Shop Boys, The. ‘It’s a Sin’ (1987). Jonathan King claimed this was excessively derivative of Cat Steven’s ‘Wild World’ (1970) and released a polemical inverse cover version, that is the source arranged as per the alleged derivative song. He was sued by the accused and this was settled for undisclosed damages which they gave to charity. The author had no part in this case which arose during the period after he converted to Islam, withdrew from the business and changed his name to Yusuf Islam. Neil Tennant reports, in his diary, that Islam had written them a supportive letter indicating that he would mediate with King if asked. Tennant also reports that they would perform a medley of ‘It’s a Sin’ with ‘I Will Survive’ to show that the use of common logical chord changes could lead to accidental similarity. 19. Rihanna. ‘Please Don’t Stop the Music’ (2008) used samples from Michael Jackson’s‘Wanna be startin’ something’ (1982) for which permission had apparently been obtained. The Jackson sample was found to be from Manu Dibango—Soul Makossa (1972) Dibango sued in 2009 for copyright infringement in the French courts and had sued Jackson in 1983 resulting in a settlement (reportedly a million francs) out of court, with Dibango being given a credit. Rihanna’s credit to Jackson excluded Dibango from the composers. This case involves the vocal chant ‘mama- koo mama-sa maku ma-ku-sa’ which Jackson modified in his own use— that is he did NOT sample it. However, the passage had become a DJ favourite being played as an obscure gem at Loft parties. This led to several cover versions and whosampled.com lists over 50 sample uses of it (the information is a bit confusing on the exact number). Dibango sought around half a million euros in damages and blockage of income until settlement. The lack of follow-up information on this case suggests it has been settled with non-disclosure causes. This is a classic ‘domino’ effect case where sampling spurs an authorship claim. It also suggests surprising carelessness, given the date of Rihanna’s track, by major international corporations. 20. Rita Ora. ‘How We Do (Party)’ 2012—used a sample of the Last Poets—‘When the Revolution Comes’ (1968). The (late) Notorious B.I.G. (born Christopher Wallace)’s 1993 hit song ‘Party and Bullshit’ was also named in the case brought by Abiodun Oyewole, of the Last Poets. This is purely a spoken word case. It was for the use of a sample in Ora’s case and borrowing of the words in the Notorious B.I.G. usage. A U.S. district court judge dismissed the case as ‘fair use’. It should be noted (cp. the discussion of ‘Charlotte Sometimes’ in Chap. 1) that this
betokens it being a quote rather than drawing on themes and ideas original to the source work. Further, allowing the sample as fair use is counter to the anxiety about ‘chilling effects’ of Bridgeport discussed in Chap. 4. 21. Robin Thicke. ‘Blurred Lines’ (2013) accused of plagiarising Marvin Gaye—‘Gotto Give It Up (1977) and Funkadelic—‘Sexy Ways’ (1974). A case was brought by the authors against statements made by the Gaye family and ‘vulture capitalists’ Bridgeport as holders of Clinton copyrights. Gaye’s estate was awarded over $7million damages in 2015. The work was accused of copying the ‘feel’ and ‘sound’ of ‘Got to Give It Up’ (which Thicke personally admitted was an influence). Bridgeport claimed that the song used an unlicensed sample of the Funkadelic work. Pharrell Williams responded to the Gaye lawsuit by calling the two songs ‘completely different’ as far as compositional elements go even though a Marvin Gaye’ feel was being attempted. Thicke, in 2014, disowned his authorship, on the grounds of being high on drugs, claiming the compositional effort was by Williams which the latter pretty much agreed to. However he was found guilty in the damages award along with Williams. Williams and Thicke had filed a successful motion in limine to prevent a recording of ‘Got to Give It Up’ from being played during the trial. Thus, as per the ‘Stairway to Heaven’ case, the audience test of a-b listening was not used. Instead the anti-similarity argument was made on the basis of sheet music and not sonic elements in Gaye’s recording of the song. The decision was widely regretted by a range of musicians diverse in ethnicity, age and genre and by a substantial amount of academic legal opinion in the media rights area. Against this, Smokey Robinson claimed the work was a total off of Gaye’s melody (94). In so doing, he is making the traditional substantial similarity argument rather than the ‘look and feel’ precedent which has caused outrage and alarm in this decision. In August 2016, Thicke, Williams and T.I. appealed the judgment to the 9th Circuit Court of Appeals. More than 200 musicians from a diverse range of genres filed an amicus curiae brief in support of the appeal, stating that ‘the verdict in this case threatens to punish songwriters for creating new music that is inspired by prior works’. Notwithstanding this pressure, the Ninth Circuit affirmed the original decision and confirmed that Gaye’s estate is entitled to 50 per cent of all royalties from the song in perpetuity. Potentially this case is the new landmark incendiary precedent after Grand Upright and Bridgeport. This is because its use to support ‘sound and feel’ claims of being in the style of other music is tantamount to almost allowing trademark protection of non-compositional elements. This would
be a radical departure and would seem to have the potential to trigger a huge number of new cases with high transaction costs. 22. Rod Stewart. ‘Do Ya Think I’m Sexy’ (1979) chorus copied from Jorge Ben’s ‘Taj Mahal’ (1972 and in a new version in 1976). ‘Corinne Corinna’ (2003 bonus track for album) near identical to Bo Carter’s (real name Arementer Chatmon) ‘Corinna’ (1928—copyrighted in 1932). The Ben case was ‘settled amicably’ according to Jorge Ben Jor, in Ben’s favour. Stewart admitted in his 2012 autobiography to ‘unconscious plagiarism’ of the Ben song, heard while attending the Rio Carnival in 1978. Initially royalties from the song were donated to the United Nations Children’s Fund (UNICEF) and Stewart performed the song at the Music for UNICEF Concert at the United Nations General Assembly in January 1979. Stewart also admitted that he had consciously lifted the song’s signature synthesiser riff from the string arrangement on Bobby Womack’s ‘(If You Want My Love) Put Something Down on It’. Stewart contends that it is legal to lift a line from any song’s arrangement as long as the core melody line isn’t copied. No case was brought on the Womack aspect. The ‘Corinna Corinna’ case is curious as the two songs are effectively the same and many artists had covered it on the assumption that it was a non-copyright ‘traditional’ work without any reprisal. The heirs of the Carter estate filed a lawsuit in Georgia against Stewart and Universal Music in 2015 seeking statutory damages, actual damages and an injunction. Racial appropriation was implied as Carter was the son of an ex-slave seen as, now, subject to further exploitation. This falls into the category of ‘white theft’ as in accusations concerning other basic blues songs directed at Led Zeppelin and ZZ Top except there is a copyright. For what it is worth, Wikipedia makes no reference to the case in its page on Stewart’s album, or its page on the song, and whosampled.com gives the credit to Carter in at least one instance but chiefly thinks the cover versions by other artists are from a Bob Dylan song (1963), same titled song, which is not a cover, but borrows from the same titled song and other blues works (which is most likely where Stewart heard it). There are clear instances of it recorded with no credit, such as a ‘Taj Mahal’ track in 1968, where it is just called ‘Corinna’ and a version by (confusingly) Jon Stewart. The same accusers have brought a case against Eric Clapton as well as Rod Stewart. 23. Steely Dan. ‘Gaucho’ (1977) from Keith Jarrett’s ‘Long As You Know You’re Living Yours’ (1974), Jarrett was sued and was given
co-authorship. Prior to this, Steely Dan’s Donald Fagen said that he loved the Jarrett track and had been strongly influenced by it. However this is not prima facie legal evidence for a finding of plagiarism but it is clearly something which might impart cognitive bias (see Chap. 1) in audience tests or jury use. 24. Streets, The. ‘Dry Your Eyes’ (2004). Accusation by Michael Gagliano (using the artist name of Epic) that he wrote the lead melody in 2000 in ‘Yesterday and Today Part One’. Mike Skinner (who is The Streets) says he took the melody directly from a royalty-free sample library CD released in 1999. The case did not proceed and seems to have been dropped without any pre-settlement. Skinner and his management have not revealed which sample library the melody came from nor has there been a discussion over whether his usage infringes the licence given with the unnamed disc. 25. UB40. ‘Burden of Shame’ (1980). The main melody is said to be derived from Van Morrison—‘Moondance’ (1970). There has been no case for this, or reported claim, but Van Morrison’s name was later added to the many authors of the song suggesting an out-of-court agreement. However his name is now absent in the 2010 CD release. Members of UB40 had said that they had derived the song from ‘Moondance’ but thought they had got away with it. Whilst this shows access and intent, it would not necessarily demonstrate conclusively that there was substantial similarity as a musicologist might decide against on the toolbox argument. There is a direct a-b edit of the introduction of the two songs on: https:// www.jimcutler.com/is-this-the-same-riff-ub40-and-van-morrison-similarsounding-songs-10-of-a-series/accessed 10 November 2019. We may note that Morrison’s song is hardly original, in the first place, as it consists of lounge jazz type pastiche and we may once more note regarding the above link that the general audience may experience a cognitive bias, in favour of a claim, if the similarity is in the introduction. There could have been moral rights issue here as Morrison’s love song has no thematic resemblance to UB40’s work concerning British Imperialism in Syria. In the face of silence, we have to assume this aspect did not concern him when his name was added. 26. Wet Wet Wet. ‘Sweet Little Mystery’ (1987) had two claims—Van Morrison’s ‘Sense of Wonder’ (1985) and John Martyn’s ‘Sweet Little Mystery’ (1987). Morrison sued for copyright infringement, as the lyrics in the second verse were derived from his song. He received an out-ofcourt settlement and a co-writer’s credit, as did Martyn. Both credits are
based solely on direct use of two lines of lyrics from the source (despite the claim in Wikipedia that one of these is based on a song of the same title, there is no claimed or seeming musical resemblance). The lyrics in the second verse were changed (pretty much in the way a student would to avoid metric detection in an essay) for the single release, so there are versions in existence without the co-credits.
Reference Kommenda, N. (2018, March 26). Did Lana del Ray Plagiarise Radiohead? A Note-by-Note Analysis. The Guardian (Newspaper). Retrieved November 11, 2019, from https://www.theguardian.com/music/ng-interactive/2018/ mar/26/did-lana-del-rey-plagiarise-radiohead-note-by-note-analysis.
A A-B test/a-b listening, 7, 21, 119, 131, 137 AI metrics, 14 Akai MPC, 65 Amen Break, 24, 62, 69, 72, 73, 81, 83–85, 93, 118, 130 Arpeggio, 50 Audience test (listening test), 55, 96, 132, 137, 139 B Berne convention, 109–112 Bilateral monopoly, 72, 107 Bit rate, 68, 69 Break/breakbeat, 68–70, 72, 82–85, 116 Bricolage, Bricoleur, 74–82 Bridgeport, 26, 92–96, 99, 101, 102, 109, 112, 118, 127, 133, 135, 137, 138
C Camouflage effort, 12, 15, 67, 130 Cases, 2, 38, 62, 90, 126 Chilling effect (of Bridgeport decision on sample use), 95, 137 Chiptune music, 68 Clearance, of samples, 62, 67, 83–85, 97 Coase theorem, 108, 109 Cognitive bias, 17–22, 25, 44, 129, 133, 139 Community, 74, 78–81, 91, 98 hip hop community etc., 81 Compensation test, 100 Copycat, 9 Copyright, 2, 3, 5, 6, 8, 11, 14, 22, 24, 38–41, 44, 46–48, 51, 52, 57–59, 62, 64, 66, 71, 77, 80, 85, 90–92, 95, 97, 99, 101–106, 111, 112, 118, 119, 126–129, 131, 133, 135–139
© The Author(s) 2020 S. Cameron, An Economic Approach to the Plagiarism of Music, Cultural Economics & the Creative Economy, https://doi.org/10.1007/978-3-030-42109-0
Costs of samples, 82, 93, 96, 126 Counterfeit, 9 counterfeit goods, 90 Country music, plagiarism rare in, 111 Creative commons, 97 Creative destruction, gale of, 91, 101 Creativity, 4, 22, 25, 47–53, 63, 64, 66, 71, 75, 93–98, 105, 119, 135 Crime, 7, 11–13, 26, 29, 67, 105 Critique of capitalism, 5, 79, 80 Cryptomnesia, 7, 25 D Data limitations of, 89 sources of, 26–32 Death of the author (concept), 4 Delay, in bringing a claim, 48, 57–58, 107 de minimis criterion, 9, 11, 62, 95, 96, 119 Digital audio workstation (DAW), 50, 64 Digital libertarians, 47, 102–107 Disruptive innovation, 66, 91–93, 98, 103 E Econometrics, 26, 93, 98 Economics of crime, approach, 10, 12, 22 Efficiency, 58, 96–100, 103, 106, 110 Electronic Frontier Foundation (EFF), 102 Empirical evidence, 93–98, 105 Expert witness, 14 Externalities, 100, 101, 105, 108
F Fairlight, 63 Fair use, 2, 9, 10, 43–45, 66, 67, 80, 96, 102, 110–112, 135, 137 First-mover advantage, 104 Freie Benutzung, 112 G Gale of creative destruction (Schumpeter’s), 91 H Heavy metal music, plagiarism rare in, 64 I Interview studies uses as evidence, 98 J Jury, use of in cases, 7 L License, 11, 72, 96, 135 Loops, 45, 47, 69, 70, 81, 94, 126, 131 loop based composition (LBC), 48, 67, 69, 70 M Market failure, 100, 101 Metricisation, 41, 45 Moral rights, 10, 33, 39, 41, 71, 85, 105, 106, 110, 117, 118, 131, 139 Musicologist, use of, 15, 21, 22, 55, 56
N Neue Slovenische Kunst (NSK), 5 O Ordinary person test, 55 P Pareto optimality, 99, 100 Parody, 42–44, 77, 80, 102 Parody defence, 42–45, 76 Plunderphonics, 74–82, 134 Punishment, 13, 15, 16, 18, 22, 25, 26, 32, 45, 48, 90, 110 R Resemblance (passing), 16, 24, 70, 72, 128, 130, 131, 135, 139, 140 Revenue, 23, 26, 45–47, 50, 56, 62, 72, 84, 91, 94, 106, 110, 111, 113, 116, 127 Riff, 2, 8–10, 50, 52, 66, 70, 117, 130, 131, 138 Risk, 12, 13, 15, 17, 22, 41, 47, 67, 71, 83, 93, 104, 108 Risk aversion, 12–14, 56 Rubbish theory, 68, 80 S Sample, definition of, 69 Sample library, 74, 75, 82, 84, 139 Sampler, 63–66, 68, 75, 82, 112 Satire, 44, 80, 81, 106 Scenes a faire, 8 See also Toolbox argument Seed argument, 130 Self-plagiarism, 16, 17, 25, 38–40, 55 Sequencer, 64, 65
Shazam, use of to prevent accusations, 15 Side payment, 24, 113 Similarity, 2, 7, 8, 10, 13–19, 21, 32, 40, 41, 45, 49, 54–58, 71, 75, 91, 96, 105, 108, 109, 111, 126–129, 131–134, 136, 137, 139 doctrine of substantial similarity, 8 Social welfare function (SWF), 91, 99, 100, 112 Songs, number produced, 6, 28, 46 Song theft, 25, 45, 47, 128, 134, 135 Splice, 74 Spurious quantification, 17 See also Metricisation Subjective bias, 17 Subjective expected utility model, 56 Substantial similarity criterion, 8 T Toolbox argument, 70, 139 Transaction costs, 71, 96, 108, 138 Transformative, 67, 70, 80, 84, 106 Tribute band, 9 U Unconscious plagiarism, 7, 24–25, 40–42, 51, 138 V Vaporwave, 5, 78–82 Voluntary settlement, 90, 106–109 Vulture capitalism, 101 Y You Tube, 6, 7, 15, 49, 55, 67, 78, 102, 109