The mythical 4 bars limit – an inquiry on music plagiarism

The recent judgment by thejury in the Federal District Court in Los Angeles , concerning the hit song “Blurred Lines,” did once again remind us that even musicians from newspaper front pages are likely to reach for someone else’s work, and by doing so – commit plagiarism.

The last year’s song by Robin Thicke and Pharrell Williams is plagiarism – ruled the American court, by awarding a verdict in favor of the heirs of Marvin Gaye. The soul music singer’s track from 1977 was considered to be lifted by the Thicke-Pharrell duet and the court set damages of 7.4 million dollars. This case however, is not the first of its kind. In the 80’s, the legendary group Led Zeppelin was accused of partially plagiarizing the blues jam “You need love” by Willie Dixon in their song “Whole Lotta Love.” The case went to court, but the parties eventually reached a settlement without further judicial intervention. Another plagiarism charge was directed towards the British group Coldplay and their song “Viva La Vida.” In 2008, the band was accused by Joe Satriani of illegally using his instrumental piece “If I Could Fly.” Similar to the Led Zeppelin case, a settlement was agreed upon and Joe Satriani withdrew his claim.

The verdict in the „Blurred Lines” case is nevertheless stands out from the above mentioned suits for two reasons. First, the amount of damages which were awarded to Marvin Gaye’s family is one of the highest in the history of music copyright. Second, it is essential to point out that the pivotal aspect of the case in the eyes of the court was the fact that it was the style, rhythm and musical nature which were plagiarized. Prior to this verdict, such actions were not considered to be a copyright infringement.

The following question arises – whether from now on, any time when two songs seem to be alike, will it constitute copyright infringement? The answer is definitely “no.” According to Polish law, a loose inspiration of a given song is not violating intellectual property rights.

In light of the Polish Copyright and Related Rights act , plagiarism is first defined as an illegal self-attribution of someone else’s work, whether done partially or as a whole. Second, plagiarism can be constituted by an act of deliberate misrepresentation about the authorship of the piece at hand. These two actions result in an infringement of moral copyright, as well as, in most cases, an infringement of proprietary copyright. Sometimes, the two forms of plagiarism are distinguished. The first is an open form, which consists in a direct self-attribution of a song or its part. The second form is a hidden, defined as an act of using, annexing someone else’s piece wholly or partially in one’s work (e.g. illegal sampling). This second form is nothing more than modifying a song in order to cover up the illegal attribution of this piece.

Then, where is the line between simple inspiration and illegal plagiarism (leaving aside for now the right to quote) ? A popular and false myth is that one can freely use four bars of someone else’s song without infringing the copyright. In light of the Polish law however, the duration of a track is not relevant. The only prerequisite for a piece being considered as legally protected is the condition that it forms a result of an artistic work while preserving an individual character. Certainly, the longer a song is, the easier it is to satisfy these criteria. In practice, regarding the courts’ rulings on music copyright infringement, a so-called “test of the average listener” remains useful. Following this test, if an average listener compares the two songs at issue and concludes that there is no similarity between them, then there is no copyright infringement (P.Piesiewicz, Utwór muzyczny i jego twórca, Oficyna 2009).

But what about a musical arrangement which uses someone else’s work, yet at the same time it introduces different instruments, changes the tempo or the rhythm? It is considered that such modifications do not constitute artistic work. This view is constantly presented by ZAiKS (Polish Society of Authors and Composers), which denies the right to some part of the royalties for exploitation of the arranged piece to its author, due to a lack of originality and individual character. This reasoning seems to have some rational basis as it avoids the paralysis associated with the requirement of obtaining permission to distribute a song performed in a new musical arrangement. Nevertheless, it is worth remembering, that an opposite opinion was delivered by the district court in Katowice (sygn. Akt II C 521/10/4), affirming that “the arrangements of these songs, despite the preservation of original form and harmonic flow, contain signs of individual artistic contribution of the arranger, which consists in the extension of the performing cast through an introduction of instruments from the main orchestra groups, as well as of melodic and harmonic counterpoints which enrich the substance of each song.” In other words, the court in this case admitted the legality of the so-called “creative arrangements,” which fall under the scope of copyright protection. It is worth considering this verdict dealt with rock songs being rearranged into symphonic performances. The rearrangements were of an excellent quality – the case was in fact about the album Perfect Symphonically (Perfect is a famous Polish rock band founded in 1977). The assumption under which an arrangement is generally not creative has the following consequences: By merely imitating someone’s arrangement, while preserving a different melody and lyrics, will not result in any plagiarism charges. Unless the author is unlucky and the arrangement at hand is… creative.

The absence of any clear boundaries or order in the discussed matter might have been funny or inspiring, if only it had not been dangerous. Plagiarism can lead to far-reaching legal repercussions in the form of civil law claims against the plagiarist, but also a threat of criminal responsibility (the offense of illegal appropriation of someone else’s work is sanctioned by three years in prison). Basically, when the law concerning this matter becomes unclear, the courts’ rulings serve as a source of help and interpretation. However, they can also totally reverse the previous understanding on what is permitted and what is forbidden. The verdict in the “Blurred Lines” case opens a new chapter of this discussion in the American music industry. Even though this does not directly influence the law in Poland, the powerful western entertainment industry will continue to spread all over the world, and therefore it would be naive to claim that this ruling should be treated merely as a tidbit…

More about this topic – “Blurred Lines” is plagiarism – discussion about this precedent setting verdict, Maciej Kubiak in conversation with Jakub Janiszewski on the TokFM radio – http://audycje.tokfm.pl/odcinek/23933 (13 of March 2015 – only in Polish)