Infringing on Musical Feel
An interview with Prof. Joseph Fishman
CLE Credit — Approved in 4 States
Within the ever-evolving sphere of musical copyright law, inspiration can easily tip into infringement, and even a song's unique 'feel' might be protected under intellectual property rights. Copyright law gives creators powerful legal rights to decide if and how others can use their work and, in some cases, whether they pay millions in compensation as a result of unauthorized use. Changes in the copyright law and interpretation by the courts over the past several years have led to a shift in the ways that music copyright is understood and enforced. Professor Joseph Fishman (Vanderbilt Law School) examines the elements of a music infringement case and guides listeners on a journey (replete with examples) to discover the current state of copyright law.
High-profile cases such as the "Blurred Lines" and "Stairway to Heaven" infringement lawsuits provide vivid examples of the modern landscape of music copyright law. In the "Blurred Lines" case, the estate of Marvin Gaye successfully sued Pharrell Williams and Robin Thicke for copyright infringement, claiming that their hit song "Blurred Lines" substantially copied Gaye's "Got to Give It Up". Conversely, in the "Stairway to Heaven" case, Led Zeppelin was accused of copying the opening riff of their iconic song from Spirit's "Taurus", but they successfully defended themselves, illustrating the complex and nuanced interpretations of the law. Prof. Fishman uses these cases, along with others involving artists including Taylor Swift, Puff Daddy, George Harrison, Michael Bolton, and others to demonstrate the intricacies of distinguishing between inspiration and infringement in navigating this challenging and fast-changing legal terrain.
Additional Resources
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The Copyright Act of 1976, provides the basic framework for the current copyright law.
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Petrella v. Metro-Goldwyn-Mayer, Inc. (2014) – Supreme Court ruled certain defendants in copyright claims cannot invoke the equitable defense of laches.
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Bright Tunes Music Corp. v. Harrisongs Music, Ltd. (1976) – U.S. District Court for the Southern District of New York denies summary judgment to George Harrison of The Beatles, allowing plaintiff’s plagiarism claim to go to trial.
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George Harrison – My Sweet Lord
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The Chiffons – He’s So Fine
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New Old Music v. Gottwald, et al. (2015) - U.S. District Court for the Southern District of New York denied the defendants’ motion for summary judgment because of possibility that jury could find that the compositions share ‘substantial similarities.”
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Jessie J - Price Tag ft. B.o.B (prod. Dr. Luke)
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Black Heat – Zimba Ku
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Pharrell Williams et al. v Bridgeport Music et al. (2018) – The Ninth Circuit Court of Appeals affirms the district court that found Thicke and Williams liable for copyright infringement.
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Robin Thicke - Blurred Lines ft. T.I., Pharrell
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Marvin Gaye – Got to Give It Up
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Three Boys Music v. Michael Bolton (2000) – The Ninth Circuit Court of Appeals affirms jury that found Michael Bolton liable for copyright infringement.
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Michael Bolton – Love Is A Wonderful Thing
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The Isley Brothers – Love Is A Wonderful Thing
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Skidmore v. Led Zeppelin (2020) – The Ninth Circuit Court of Appeals affirms the district court’s judgment after a jury trial in favor of Led Zeppelin.
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Led Zeppelin – Stairway to Heaven
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Spirit – Taurus
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Marcus Gray, et al v. Katheryn Hudson, et al. (2020) – U.S. District Court for the Central District of California vacates jury verdict against defendant and grants defendants Motion for Judgment as a Matter of Law because plaintiff failed to satisfy the extrinsic test for substantial similarity.
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Katy Perry – Dark Horse
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FLAME - Joyful Noise feat. Lecrae & John Reilly
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Hall et al v. Swift et al, (2022) – U.S. District Court for the Central District of California dismisses case against Taylor Swift.
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Taylor Swift – Shake It Off
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3LW - Playas Gon’ Play
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Bridgeport Music, Inc. v. Dimension Films (2005) - The Sixth Circuit Court of Appeals case standing for the proposition that there is no de minimis test for whether a sample is considered copyright infringement.
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VMG Salsoul, LLC v. Ciccone (2016) - The Ninth Circuit Court of Appeals disagrees with Sixth Circuit and says for there to be infringement the part copied from the old work cannot be a minimal and insubstantial part of the new work.
About Prof. Joseph Fishman
“There is no numerical litmus test. The ultimate question is going to be, "Is this a substantial similarity or not?"”
Joseph Fishman is a professor of law at Vanderbilt School of Law. His research focuses on intellectual property, particularly its relationship to creativity and the creative process. He is a recognized expert on music copyright matters. His recent scholarship has covered such legal issues as infringing similarity between songs, the role of expert witnesses in music copyright litigation, judges' definition of musical originality, and trademark issues related to sound recordings. His work has appeared in leading journals, including the Harvard Law Review, NYU Law Review, and the University of Pennsylvania Law Review.
