You might say that it started to get out of control with “Blurred Lines” decision back in 2015. That’s when the estate of Marvin Gaye won the case and appeal that Robin Thicke’s “Blurred Lines” appropriated the feel of Gaye’s “Gotta Give It Up.” Yep, you’re not supposed to be able to copyright a feel of a song, but there you have it. Since then there’s been a line of copyright infringement lawsuits (Tom Petty vs Sam Smith, Ed Sheeran vs Marvin Gaye for starters), some seemingly legitimate and others not so much, as well as landmark cases like George Harrison vs The Chiffons, John Fogerty vs John Fogerty, the Rolling Stones vs The Verve and tons more.
We’ve run into a big problem in the songwriting and publishing business – there are only so many notes and chords that can be arranged in a pleasing way. Most of them have already been done, so nothing is truly new.
That latest high-profile case is being brought by Artikal Sound System against Dua Lipa saying that she copied their “Live Your Life” track for her huge multinational hit “Levitating.” Like most court cases there are plenty of nuances. Artikal Sound System has next to no distribution and not much exposure (the song wasn’t even on the various streaming sites or the CD available for sale until the lawsuit) and it only had a single radio station playing it. Ironically, that station was used as elevator music in a hotel that Dua Lipa stayed in on tour, but there’s no proof that she actually heard the song during her stay.
But as you’ll see in the excellent analysis by Adam Neely below, there are plenty of songs that predate both “Levitating” and “Live Your Life” going back to Outcast’s “Rosa Parks” in 1998.
But wait! There’s more.
It Goes Back Further
The rhythm used for all these songs and a host of others actually was originally created and copy-written way back in 1923. It’s called “The Charleston.” But that was actually appropriated by white musicians from a common rhythm used by black musicians even before 1923. Either way, it’s now in the public domain, so there should be no basis for this particular lawsuit.
The point here is that there are only 12 notes in scale for Western music, and there are only so many ways they can be arranged in a way that’s pleasing to our ears. Same with chord changes and rhythms. The point is, there’s been hundreds of years of music written previously, so anything written today is borrowing at least something from music of the past.
Understand that I’m not an attorney so you’re getting an educated layman’s opinion here, but it’s been obvious for years that copyright needs some serious reform. Since all the combinations have been written before, does that mean there should be no infringement? No, but wouldn’t it work better if infringement was based more on how much of a previous work was used, say like 8 bars?
If the feel of the song is truly subject to copyright, shouldn’t the length have a bearing on infringement as well? Or maybe a combination of all of the above.
However you look at it, there’s a lot of confusion being sown in the artist and songwriter community about what constitutes infringement, and even those supposedly in the know are just as confused. It’s time for some clarity.