From Inspiration to Accusation: Law and Disputes over Plagiarism in Music

When listening to contemporary songs, one sometimes gets the impression that almost everything has already been done in music and that subsequent works are repetitive. After all, for centuries, music has been based on inspiration and has drawn on many well-known motifs and musical patterns. At the same time, it is often difficult to determine where the line between permissible inspiration and unfair appropriation of other people’s work lies. Legal disputes over plagiarism are becoming increasingly common around the world, and although some cases end in settlement, it is worth knowing how to create legally so as not to expose yourself to liability for plagiarism.

What is plagiarism anyway?

Plagiarism (Latin plagium – theft) is not defined in any normative act. It is most often assumed to be the unlawful appropriation of someone else’s work or fragment thereof.

However, not all cases are clear-cut, and sometimes it will be necessary to analyse extensive case law, which does not always dispel doubts. This is all the more so because the very concept of a work is often controversial, and plagiarism can only be committed on someone else’s work (i.e. on a manifestation of creative activity of an individual nature, established in any form, regardless of its value, purpose and manner of expression).

The matter is complicated by the fact that plagiarism does not always have to be overt, which one might sometimes call outright plagiarism, i.e. where the plagiarist has directly signed someone else’s work. Plagiarism is probably more often hidden in nature, characterised by the use of techniques aimed at masking the source work and “writing” it into the plagiarist’s work. It is then also difficult to assess whether the plagiarism was intentional. Some lawyers believe that plagiarism can only occur consciously, although case law shows that this is not always the case. One example is the case of George Harrison, who, after the break-up of The Beatles, recorded the song “My Sweet Lord” (1970), which was found to be an unintentional plagiarism of The Chiffons’ song “He’s So Fine” (1962).[1]

Musicians draw on the language of music, which consists of many different forms of expression and means of communication. In this sense, it is no different from other languages used by people. This language is common to all and cannot be monopolised. All harmonic arrangements and individual scales, on which most compositions are based, are common to all and have allowed music to be created for many years.

Given that creative processes draw on a common musical source, creative possibilities are, in a sense, finite and certainly derivative. This makes it sometimes difficult to distinguish whether the creator has committed plagiarism or simply used means of expression that cannot be appropriated.

In search of a kind of universal test to assess how much borrowed music constitutes plagiarism, attempts have been made in the past to enforce the concepts of four bars, five seconds or seven notes, up to which length copying a given fragment was to be permitted. However, none of these concepts analyses the complexity of a musical work or takes into account the specificity and uniqueness of music compared to other art forms.

And yet music is a language of emotions, in which the entire system of communication is schematised. The vast majority of musical works are created in specific harmonic arrangements, in which the sequence of sounds and chords is usually predetermined, and the creative possibilities – contrary to appearances – are limited. Instrumentalists in particular know very well how many exercises, études and simple pieces sound (almost) identical. Often, these pieces are similar to everything else, and thus to nothing. This is hardly surprising, given that the tonal system has been the basis of musical creativity for hundreds of years and has already been almost exhausted, and that this creativity is, unfortunately, derivative. And although the vast majority of pieces are based on similar patterns and tonal harmony and a not very complex structure, copyright also protects these manifestations of creativity.

So when does plagiarism occur?

It is assumed that plagiarism can be said to occur when three conditions are met (according to G. Mania, among others). First, it is necessary to take original elements from someone else’s work. Copyright protects works that are characterised by individual creativity. If it cannot be determined that a given work has this characteristic, then plagiarism of such a work will not constitute a violation of copyright law. However, it should be remembered that not every use of someone else’s musical work (e.g. adaptation for another instrument) must be considered a work within the meaning of Article 1 of the Copyright Act. In each case, it must be determined whether such an arrangement “enriches the original work with new creative elements in terms of melody, harmony or other elements of musical material” (as stated by the Court of Appeal in Poznań in its judgment of 20 December 2012, I AGa 89/22, LEX No. 3488150).

However, it will be permissible to quote specific fragments, but in such cases it will be necessary to indicate the authorship and source of the quoted (previously disseminated) work, and the purpose of the quotation must be to serve the purposes of explanation, critical analysis, teaching or be justified by the nature of the genre (e.g. parody). In addition, an appropriate relationship must be maintained between the quotation and the work for which we are quoting.

Secondly, the recognisability of the borrowed elements is essential. If a work or even a fragment thereof is borrowed, it must be examined whether the borrowed fragment has been modified to such an extent that it is still recognisable.

I believe that the recognisability of works and the ability to make associations are so subjective that they should not determine whether musical theft has occurred. I am opposed to the so-called average listener test, which involves checking whether the average listener, when comparing works, will be able to recognise plagiarism. This test is all the more useless when it is performed only by a judge who tries to empathise with the average perception of a larger group of people.

Much more valuable are musicological analyses, which allow songs to be compared and checked to see if they draw on any source that is not protected by copyright. This is particularly evident in the dispute between Ed Sheeran and Sami Chokri,[2] , which examined whether the song “Shape of You” (2017) plagiarised the song “Oh Why” (2015).

Both songs were composed on the same pentatonic scale, which consists of only five notes and has been the basis of musical compositions for many centuries. Nowadays, it is widely used in almost all genres of popular music. And although the disputed songs do sound similar, only a musicological analysis shows that there was no plagiarism. If the opposite were to be concluded, the artist would have to be granted a monopoly on the musical system of symbols, patterns and harmonic arrangements or scales, or other musical elements, over which no one has exclusive rights. It would be like banning the use of an entire dialect, or certain grammatical rules or idioms that have existed in the language for years.

Sometimes, however, even if certain elements are copied, their significant transformation can lead to the creation of a completely different work from which it is difficult to distinguish the original. In such cases, it cannot be considered plagiarism, especially if it is recognised that only the idea (which is not protected by copyright) has been borrowed.

Finally (as a third prerequisite), it is assumed that plagiarism requires the work to be marked with one’s own name. This marking does not have to be literal – it can manifest itself in the very behaviour of the plagiarist, who may create the false impression that the work belongs to them when they play it during a concert – without indicating that it is someone else’s work.

Polish case law has rarely ruled on cases of musical plagiarism. Most high-profile cases have been heard outside the country, particularly in the United States or the United Kingdom. Many of the disputes end in settlements, which usually result in the circumstances of the case being kept confidential.

Nevertheless, it is worth referring to the judgment of the Court of Appeal in Łódź of 30 July 2012 (ref. no. I ACa 483/12, unpublished), which stated that “a work inspired by the work of another creator uses a similar or even identical melody (chorus) and, moreover, most of the lyrics of individual verses. The essence of plagiarism is that it occurs when elements of someone else’s work are used to such an extent that there is no creative activity on the part of the plagiarist and their work does not bear the hallmarks of originality. It is therefore necessary for them to familiarise themselves with the content and form of the work that is the source of the material incorporated into their own work. (…) Moreover, the essence of plagiarism is expressed in the plagiarist’s unlawful creation of the appearance of authorship. This situation arises when the recipients of the work may be misled as to the actual authorship. It should therefore be assumed that in cases of plagiarism, these premises will be examined by the courts.

However, the line is thin

It is sometimes difficult to distinguish between the permitted use of someone else’s work and the unlawful infringement of the rights of other creators. Plagiarism may consist not only in the direct appropriation of a work or fragments thereof, but may also take the form of hidden plagiarism. In this case, the infringers appropriate someone else’s work (“sign their name to it”) or attempt to incorporate someone else’s work into their own and camouflage this action in some way. Sometimes, hidden plagiarism may also take the form of an unlawful adaptation, which was made without the creator’s consent and without disclosing the fact that the adaptation took place.

It should also be remembered that inspiration, ideas or drawing on ideas will generally be permitted, as copyright does not protect ideas as such. It will also be legal to take over non-creative elements, i.e. those that do not meet the criteria of a work (they are not sufficiently the result of human creativity of an individual nature).

As rightly noted in one of the rulings, “the use of someone else’s idea, or even names from someone else’s work, in the original content of a new work, does not constitute an adaptation of someone else’s work, but an original work of one’s own” (Supreme Court ruling of 16 February 1962, II CR 528/61, unpublished). Plagiarism can only occur when all of the above conditions are met, although even then the assessment may not be obvious. For this reason, it is worth consulting an expert musicologist who will be able to reliably compare the works and analyse their structure. After all, this is specialist knowledge that requires expert evidence to be presented in court.

Although legal disputes may be an attempt to gain publicity, it is important to remember the serious consequences of plagiarism and the perpetrator’s liability not only under civil law but also under criminal law, as the offence of appropriating someone else’s authorship is punishable by a fine, restriction of liberty or even imprisonment for up to 3 years.

With regard to civil disputes, monetary claims will most often be involved, although creators may additionally request, among other things, that further infringements be discontinued or that the effects of such infringements be removed (for example, by the infringer making a specific statement). Although the amounts awarded by Polish courts may differ from American standards, they can nevertheless provide significant compensation to the injured creator and deter potential infringers from similar actions in the future.

It is therefore worth consulting experts – musicologists and lawyers – who will be able to jointly assess whether an infringement has occurred. However, a proper assessment requires an analysis of the specific situation as a whole, because it is often the overall musical impression that counts. Evidence and formal issues may also sometimes be more important than the substantive grounds, but let’s leave that to the lawyers…

[1] Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (S.D.N.Y. 1976), U.S. District Court for the Southern District of New York – 420 F. Supp. 177 (S.D.N.Y. 1976), 1 September 1976. In this case, George Harrison was ultimately ordered to pay damages. Interestingly, Harrison subsequently purchased the rights to “He is so fine”. However, the dispute over the rights to the song continued and was one of the longest in history. Ultimately, the rights were granted to Harrison in the United Kingdom and the United States, and to Allen Klein (Harrison’s manager) in the rest of the world.

[2] Case reference: IL-2018-000095, The High Court of Justice Business and Property Courts of England and Wales, judgment of 6 April 2022.