Copyright and Music: A History Told in MP3’s

by Madeleine Baran

“In truth, literature, in science and in art, there are, and can be, few, if any things, which in an abstract sense are strictly new and original throughout. Every book in literature, science, and art borrows, and must necessarily borrow, and use much which was well known and used before.” — Supreme Court Justice David Souter

Copyright lawsuits involving music have been based on the largely mythical concept of originality. The process of making music necessarily involves recycling notes, chords, and lyrics. The attempt to carve out areas of ownership (chord progressions, refrains, a riff) within the finite musical landscape immediately gets bogged down in murky distinctions. Does borrowing a one-line lyric constitute copyright infringement? How about two lines? What happens when the songwriter wasn’t even aware s/he was copying another song? Is sampling legally different than simple imitation?

In the courts, judges abide by the standards of “fair use,” a set of guidelines codified in section 107 of the Copyright Act. Traditionally used for resolving disputes about written, academic material, the standards of “fair use” state that reproduction of copyrighted work is only permissible “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Applying this to the music business has been a difficult and contradictory endeavor. Most judges focus on whether the song in question comments on or criticizes the original. If so–and only if so–the work is legally protected.

In the copyright cases below, originality, tradition, artistic creation, and the law collide in an often confusing manner. As these cases illustrate, copyright law is every bit as capricious as it is complicated.

Gilbert O’Sullivan v. Biz Markie

Is sampling theft? When rapper Biz Markie sampled the melody of Gilbert O’Sullivan’s 1972 hit “Alone Again, (Naturally)” for his song “Alone Again” on his 1991 album I Need a Haircut, he was only following in the footsteps of countless other rappers. Unlike the others, however, Markie went to court. After O’Sullivan denied Markie the right to use his song, Markie used the sample anyway, and O’Sullivan filed suit. Ignoring the nuances of copyright law and artistic creation, Judge Kevin Thomas Duffy likened Biz Markie to a common thief, stating, “Thou shalt not steal has been an admonition followed since the dawn of civilization.” Upon rendering his verdict, which included an injunction against the future distribution of the album and the song, Judge Duffy referred the case to a U.S. district attorney for possible criminal prosecution. Although Biz never served time for his alleged violation of the Seventh Commandment, the case did set the precedent for viewing unlicensed sampling as a crime.

Wire and the Stranglers v. Elastica

The British band Elastica, devotees of “77 English punk,” were sued for copyright infringement in 1995 by two of their idols. The art punk band Wire’s publisher sued Elastica for using the intro guitar riff from “Three Girl Rhumba” in the Elastica hit “Connection.”Elastica denied the charges. Shortly thereafter, the Stranglers’ publishers got into the action, claiming that Elastica used the riff from “No More Heroes” in the song “Waking Up.” Both cases were settled out of court for undisclosed sums.

Queen/David Bowie v. Vanilla Ice

Vanilla Ice used the main riff from David Bowie and Queen’s song “Under Pressure” for his 1990 hit “Ice Ice Baby.”Ice neglected to clear the sample or to credit Bowie/Queen on the album’s liner notes. Instead, he listed the song’s authors as himself, Earthquake, and Mr. Smooth. He was subsequently sued by the copyright holders of “Under Pressure,” and the case was settled out of court for an undisclosed sum.

Rolling Stones v. the Verve

After sampling a few bars of “The Last Time” by the Rolling Stones, the Verve learned the hard way that you can’t always get what you want. Though the Verve received permission to use the sample, lengthy negotiations with Stones publisher ABKCO forced the band to cede the song’s copyright to ABKCO owner Allan Klein, and to give all royalties to Mick Jagger and Keith Richards.

The sample that started the confusion is only a small piece of the Verve’s “Bittersweet Symphony.” Verve member Ashcroft explained, “We sampled four bars. That was on one track. Then we did 47 tracks of music beyond that little piece. We’ve got our own string players, our own percussion on it. Guitars. We’re talking about a four-bar sample turning into ‘Bitter Sweet Symphony’ and they’re still claiming it’s the same song.”

Incidentally, Allan Klein is known in the industry for his tough tactics. He forced Janet Jackson to give up a portion of the rights to her song “What’ll I Do” because she sings the “Satisfaction” lyric “hey hey hey, that’s what I say.” He also squeezed George Michael out of some of his royalties for quoting the Stones’ lyric “You can’t always get what you want” in the song “Waiting for the Day.”

The Chiffons v. George Harrison

George Harrison’s subconscious landed him in serious legal trouble in 1970, when he was sued for aping the Chiffons’ “He’s so Fine”with his song “My Sweet Lord.” Harrison acknowledged his familiarity with the Chiffons’ hit but claimed that he wrote his song without any attempt to copy it. Judge Owen decided against Harrison, ruling, “It is clear that ‘My Sweet Lord’ is the very same song as ‘He’s so Fine.’ Under the law, this is infringement of copyright, and is no less so even though it may have been subconsciously accomplished.” Although the album featuring “My Sweet Lord” was number one on the Billboard charts for seven weeks, Harrison never received any royalties. About the suit, Harrison remarked, “I still don’t understand how the courts aren’t filled with similar cases as 99 percent of the popular music that can be heard is reminiscent of something or other.”

Roy Orbison v. 2 Live Crew

When 2 Live Crew parodied the Roy Orbison classic “Oh, Pretty Woman” in 1989, the band ended up in a major legal dispute. The hip-hop group had offered to pay a licensing fee and credit the song’s writers but were refused by publisher Acuff-Rose Music. 2 Live Crew went ahead with their version of <“Pretty Woman”anyway, and Acuff-Rose sued. The case made it all the way to the U.S. Supreme Court and marked the first time the standards of “fair use” had been applied to sampling. At the heart of the debate, according to the Supreme Court, was whether 2 Live Crew’s song “reasonably could be perceived as commenting on the original or criticizing it to some degree.” Although sampling a small piece of a song to criticize or parody the original is generally legally permissible, musicians are not allowed to take the original and transform it into a new piece. So if 2 Live Crew had sampled “Pretty Woman” but had not made fun of it (or otherwise commented on it), the band wouldn’t have stood a chance in court. (See the Verve case for an example of the trouble artists get into when they create a new piece of music using samples.) In a landmark decision, the justices found in favor of 2 Live Crew. However, the Court ruled that parody should be viewed in only a very strict sense, giving 2 Live Crew the victory, but dissuading others from future unlicensed sampling.

Willie Dixon v. Led Zeppelin

When Shirley Dixon first heard Led Zeppelin’s “Whole Lotta Love,”she recognized it as a song by her father, famed blues musician Willie Dixon. Although Dixon’s song “You Need Love” was popularized by Muddy Waters’ cover in 1962, Dixon had never received money from either Waters or Zeppelin. In 1985, he filed suit against Zeppelin, charging copyright infringement. The case was eventually settled out of court in Dixon’s favor for a large, undisclosed sum. With a newfound understanding of the music industry, Dixon founded the Blues Heaven Foundation, an organization devoted to helping blues artists recover royalties.