Similarity, Access, and Fair Use in Music
Infringement cases in the music industry will not soon disappear.
The recently-settled Taurus v. Zeppelin case zeroed in once again highlighted the issue of artists borrowing phrases or otherwise possibly being inspired by existing music in the creation of their own works. In this particular instance, the case was decided by a jury who felt that the pieces in question were not substantially similar enough to point to infringement. Interestingly, the decision here ran counter to the last high-profile industry suit filed by the estate of Marvin Gaye against Robin Thicke and Pharrell Williams, wherein the jury found for Gaye's estate (previously discussed in the blog here).
To a musically-untrained ear, comparisons between one song and another can prove troublesome, especially when looking at the overall "vibe" of a piece versus the actual arrangement. It's possible to argue that ea
ch case could be decided differently depending upon the judge or the jury selected (as each decision-maker may have a different opinion over whether one song or another sounds similar). However, a music infringement case will also (at least in part) review the same factors that would be examined in an infringement case in nearly any other creative format (photo, art, literature, etc.): Fair Use
The doctrine of fair use was codified in the Copyright Act of 1976, and is meant as a way to promote creativity by allowing unlicensed reuse of existing copyrighted works under certain circumstances. It provides four "factors" which must be considered when reviewing an infringement claim:
Factor one: the purpose and character of the use. Here, the new work is examined to determine what the new work will provide to the market, especially whether the work is for non-profit educational use or whether the use is commercial. Note that the use of copyrighted material in a new work that is being sold will generally count against a fair use ruling.
Factor two: the nature of the copyrighted work. This factor examines the original work and its purpose in the marketplace, similar to the first factor.
Factor three: the amount and substantiality of the portion of the work used in relation to the copyrighted work. In this case, the new work is examined to see how much of the original copyrighted material is used in the new work, and whether that portion used might consist of the "heart" of the original work. For example, in a music dispute, this is where the "audience test" comes in (at least partly): would a reasonable person hear the similarities and consider that phrasing as originating somewhere else?
Factor four: the effect of the new work on the market for the original. Reviewed in conjunction with the first factor, this guideline will determine whether the new work will rob from the original.
Each case that looks at fair use will weigh these factors against the facts at hand, along with other items such as whether the infringing party had knowledge or access to the original material (this was particularly argued in the Taurus/Zeppelin case).
Note that fair use is not a defense against an infringement case. Rather, it provides guidelines for a judge or jury to use in determining when a piece is infringing or not. It is good practice to not simply assume that infringing material will not be caught by the rightsholders. To be truly "safe," permission should be sought or, if choosing to rely on fair use, then ensure your legal counsel is with you in your pursuit.