"What Is a Song?"

by Ben Sisario 

[Last year, a federal jury found that Ed Sheeran did not copy Marvin Gaye’s 1973 classic “Let’s Get It On” for his 2014 hit “Thinking Out Loud,” in the music industry’s highest-profile copyright case in years.  But the courtroom didn’t hear Gaye’s sensuously sung original recording.  Instead, the jury was played a bare, electronically recreated track with a robotic voice.  It brought up a curious question: “What is a song?”   

[This is the topic of Ben Sisario’s article in the New York Times “Arts” section of 6 May 2024, republished below.  I’m posting it on Rick On Theater because it harks back to my post of 5 May 2015, “What Constitutes Theft in the Arts?” (Rick On Theater: What Constitutes Theft in the Arts?), about some court cases and accusations concerning charges of plagiarism in the performing arts.]

One response is simply the music flowing out of your earphones. But legally, the answer is quite a bit more complicated.

For most music fans, a song is a simple thing to define: It’s the melodies, the lyrics, the grooves that come out of your speakers.

It’s a much thornier question when it comes to copyright law, one that has been tested in a series of high-profile lawsuits over the last decade, involving stars like Ed Sheeran, Led Zeppelin, Pharrell and Robin Thicke [the Williams-Thicke case, Pharrell Williams, et al. v. Bridgeport Music, et al. (decided on 22 March 2018), is mentioned in the above-referenced post]. Is songwriting defined by what you hear on a recording, or the notes inked long ago on a piece of sheet music? Where does a composer’s work end, and a performing artist’s begin?

In other words, what, exactly, is a song, in the eyes of the law?

In many music copyright disputes, one of the main issues is originality, or how the law sets a boundary between creative expression that is the property of a single artist versus material in the public domain. Last year, a federal jury in New York heard hours of expert testimony about whether a syncopated four-chord sequence in Marvin Gaye’s “Let’s Get It On” was distinctive enough that Sheeran’s song “Thinking Out Loud” infringed on it — or whether, as Sheeran’s lawyers contended, those parts are generic “building blocks” that no musician can own [Kathryn Townsend Griffin, et al. v. Edward Christopher Sheeran, et al. (decided 4 May 2023)]. The jury ruled in Sheeran’s favor, finding that he and a co-writer had created their song independently and not copied from Gaye’s 1973 classic.

But a key question running through that trial was about something even more fundamental: whether the core of “Let’s Get It On” — and what is protected by its copyright — is determined by the sounds we hear on its original recording, or the notes written on yellowing sheet music stored at the Library of Congress.

That issue was at the  center of an appeals court’s decision four years ago regarding Led Zeppelin’s “Stairway to Heaven” [Michael Skidmore v. Led Zeppelin, et al. (appeal decided on 9 March 2020)] and it is being considered in another appeal related to Sheeran and “Let’s Get It On.” Many experts believe it’s an underexplored question that gets to the heart of how copyright law intersects with music.

“This is the deep, existential, metaphysical question at the center of music copyright: We don’t even know what it is,” said Jennifer Jenkins, a law professor at Duke.

It is also an important question for an industry that in recent years has poured billions of dollars into deals for song catalogs, partly on the faith that their underlying copyrights offer robust protection against infringement. That may be challenging for older songs, because of a quirk in the law that can restrict how a song is defined and, therefore, just what its author owns.

Getting copyright protection

There is a key date related to this issue: Jan. 1, 1978, when the last major revision of United States copyright law [Duration of Copyright] took effect.

Since then, songwriters have been able to register a composition with the Copyright Office by submitting a recording; all the melodies, chords and lyrics on it are considered evidence of their work. But earlier songs were subject to the Copyright Act of 1909, which required that songwriters submit transcribed sheet music, known as deposit copies.

For a century, these deposit copies were little more than receipts in a copyright paper trail. But since the “Blurred Lines” case a decade ago, when Pharrell and Thicke were found to have copied Gaye’s “Got to Give It Up” and ordered to pay more than $5 million in damages [equivalent to $6.2 million today], these once-obscure documents have taken on a greater significance.

The judge in that case ruled that, under the 1909 law, the deposit copy for “Got to Give It Up” (1977) determined the “scope” of that song’s copyright. In other words, only the notes on its paper submission counted as representing Gaye’s songwriting creation, and any other elements that were on the song’s recording but not the deposit copy — like percussion and studio atmospherics — were not part of the underlying composition. (A separate copyright applies to the recording.) The jury, instructed to consider only what was on Gaye’s deposit copy, found that “Blurred Lines” had copied from it.

These deposit copies can be minimal, sometimes featuring just a vocal melody and indications of chords. The one for “Taurus,” a 1967 piece by the psychedelic rock band Spirit, which Led Zeppelin was accused of copying on “Stairway to Heaven,” is a single-page sketch of barely 100 notes, and a lawyer representing Michael Skidmore, a trustee of the trust that owns rights to “Taurus,” argued that it was not even an accurate transcription.

The deposit copy for “Let’s Get It On” is five pages but omits elements like piano, drums and guitar — including the wah-wah opening guitar lick that has been a Pavlovian call to the dance floor at many a wedding — that are part of the signature sound of Gaye’s original track.

The judge overseeing Sheeran’s trial, citing an appeals court’s detailed decision in the Led Zeppelin case, ruled that the absence of those elements from the “Let’s Get It On” deposit copy meant that lawyers for the plaintiffs — family members of Ed Townsend, Gaye’s co-writer and producer [Townsend had died in 2008; Gaye died in 1984] — had to restrict their arguments to the vocal melody and the chord pattern. That restriction likewise applied to Alexander Stewart, a music professor at the University of Vermont, who testified as an expert witness for the plaintiffs.

“Every time I opened my mouth and said the word ‘bass line,’ I was cut off,” Stewart said in an interview. “It was hard to make any cogent argument.”

Following a ruling by the judge, Gaye’s recording was never played for jurors. Instead, they heard an electronic realization of the deposit copy, submitted by the defense. It included bare piano chords and a robotic-sounding vocal — an oddly cold interpretation of one of pop music’s supreme erotic anthems. As the track played, quizzical expressions came over a few jurors’ faces.

Some scholars say the legal distinction between a composition in a deposit copy and what appears in a finished recording is a sign that the law has not kept up with how pop music has been made for decades. Very often, songs are created in the recording studio, and the line between composing, producing and performing can be fuzzy.

“It is completely divorced from actual music-making practice,” said Joseph P. Fishman, a professor at Vanderbilt Law School.

Jenkins, of Duke, said these cases point to one of the basic complexities of applying copyright — a concept originally made for books and other written material — to music.

“Music is first and foremost an auditory art form, but for most of copyright’s history it’s been defined as something you see,” Jenkins said. “There’s this disconnect, where the signifier — that written thing — is what a composer owns, but the signified is what the song actually is. It’s what we’re listening to.”

‘A Lousy Rule’

Exactly why deposit copies have gone from obscure legal formalities to hot topics in some of the biggest music lawsuits of the last decade is unclear. One theory is that historically, most accusations of infringement have involved the most prominent elements of a song, like the hook, vocal melody or lyrics — things that even the plainest sheet music would highlight.

But as pop music has evolved, and techniques like sampling have become standard, it has also become more common for background elements and secondary parts to be in dispute. many recent cases, like those over “Blurred Lines” and Katy Perry’s “Dark Horse” [Marcus Gray, et al. v. Katy Perry, et al. (decided 16 March 2020)], have focused on these aspects. (To some observers, the “Blurred Lines” verdict seemed to give the Gaye estate control over a loose rhythmic groove, though lawyers argued that it involved specific notes on a deposit copy.)

David Pullman, an investor whose company Structured Asset Sales is bringing the Sheeran appeal — he is best known for creating “Bowie bonds,” backed by David Bowie’s music royalties, in the 1990s — said he believes that many current artists borrow too much from popular old songs. “It’s easier to take a shortcut and infringe,” Pullman said in an interview, “than write a song that’s original.”

The history of the Sheeran case, now before the U.S. Court of Appeals for the Second Circuit, is complex. Structured Asset Sales, which owns an 11.11 percent interest in “Let’s Get It On,” filed its own suit over “Thinking Out Loud” after a judge blocked the company from joining the Townsend family’s original action.

Structured Asset Sales’ suit was dismissed by a district court judge shortly after Sheeran won at trial last year. In its appeal, the company argues that a deposit copy does not necessarily define the scope of a song’s copyright under the 1909 law, and that the material on the sheet music only needs to be sufficient to identify it, despite the law’s reference to a “complete” copy. In court papers, Hillel I. Parness, a lawyer for the company, argued that expert witnesses should be able to interpret deposit copies for the jury, as happened at a trial involving the singer Michael Bolton in 1994.

[In Three Boys Music v. Michael Bolton, the jury found on 25 April 1994 that Bolton’s “Love Is a Wonderful Thing” (1991) had infringed the Isley Brothers’ copyright for “Time, Love and Tenderness” (1991). On 9 May 1994, the court entered judgment for $5.4 million ($11.4 million in 2024) in favor of the Isley Brothers. The verdict withstood several appeals and survived as decided in 1994.]

Sheeran’s lawyers argue that the deposit copy rule is clear from the law, and is supported by longstanding guidance from the Copyright Office. At oral arguments last month, Donald S. Zakarin, a lawyer for Sheeran, also warned that straying from a deposit copy’s notation could lead to problems of “subjectivity” when defining a musical work that is in dispute.

“Future authors,” Zakarin said, “are going to be subjected to, ‘No, no, no, I intended to have that bass line. I know it’s not there, but I intended it.’”

In an informal survey of about a dozen intellectual-property experts, most said Sheeran’s side had the stronger argument about deposit copies under the 1909 law. “It’s a lousy rule,” said Fishman. “But that does seem to have been the rule at the time.”

But this rule, as set down in the Skidmore v. Led Zeppelin appeal, has at least one prominent skeptic in Paul Goldstein, a professor at Stanford Law School who is the author of a widely cited copyright treatise.

“Where I disagree with Skidmore,” Goldstein wrote in an email, “is in its assertion that the fact the copyright was secured by deposit of a copy of the musical work implies that the deposit copy defines the scope of copyright in the work to the exclusion of any other relevant evidence.” That evidence, he said, could include things like drafts and correspondence around a song’s creation.

Goldstein pointed to another possible source of evidence: sound recordings submitted to the Copyright Office as a supplemental registration. Under that theory, a songwriter with a deficient deposit copy of an old song could, since 1978, submit a recording of it to cover any additional elements — bass lines or guitar solos, for example — absent from the original registration.

This workaround was suggested by the Copyright Office and the Justice Department in an amicus brief filed in the Led Zeppelin appeal. It was apparently little known at the time, though Structured Asset Sales’ court papers note that in 1988, the music publisher for the Rolling Stones’ song “Sympathy for the Devil” submitted that track’s 1968 studio recording to cover a new “arrangement.”

Pullman, of Structured Asset Sales, said that discussion of this workaround during the Led Zeppelin appeal led him to submit the recording of “Let’s Get It On” as a new registration in 2020, to cover any compositional elements not on the deposit copy — which could be more ammunition in a dispute against Sheeran’s “Thinking Out Loud.”

Could it work? So far that issue has not been tested by the courts.

[Ben Sisario has been covering music and copyright for more than a decade, including trials involving Ed Sheeran, Led Zeppelin and the song “Blurred Lines.”  He’s reported on the music industry for the Times since 1998.]

Plagiarizing Oneself . . .

. . . And Other Courtroom Inanities

[Back in the 1980s and ’90s, I kept a collection of clippings and notes that I thought could be ideas for plays.  Since I’m not a playwright, though, I never followed up, so the notes and ideas sat accusingly in a folder. 

[Then along came Rick On Theater in March of 2009 and I repurposed several of the ideas into blog posts: “The Group of Hissed Authors” (7 May 2009), “Romeo Coates” (30 May, 31 May, and 2 June 2009), “Sailor on Horseback” (1 September 2009), “Akhzivland” (24 December 2010).  The posts aren’t as exciting as plays would have been, but at least the ideas didn’t die entirely.  And they made pretty good posts, I thought.

[Among the ideas was one represented by a number of clippings about lawsuits concerning the plagiarism of one artist’s work by another or the asserted ownership of the rights to the work or story of one party by another.  They all struck me as examples of “the arrogance of producers who push their ownership rights to absurd lengths.”  Some of the cases struck me as so absurd that I kept the clippings for future possibilities. 

[Now I wonder if the copyright stories could make a decent post.  All the fun of seeing a staged version of the hearings will be lost—I’d have to describe it rather than show it live on stage with singing, playing, and dancing.  (There was no dancing in the trials, but in my head, there’d have to be—raucous, even—in the plays.)  Here, then, is my attempt to capture the inanities of some of these absurd cases.]

In February of 1989, in an instance I labeled “the height of that arrogance” which I mentioned in my introduction above, the producer of Three Faces of Eve (1957) claimed that the release signed by the woman whose situation was the factual basis of the movie gave 20th Century Fox the rights to her entire life, permitting them to prevent her from selling the film rights to a new book she’d written.  

As reported in the 1-7 February 1989 Variety, Chris Costner Sizemore (1927-2016) sued Fox on the argument that the release she signed in 1956 didn’t permit the studio to prohibit her from selling the movie rights to her forthcoming book. 

Sizemore, even though Three Faces was a huge hit, earning $1.4 million in the U.S. when it was released, had received only $7,000.  Aside from that, she was still mentally ill when she signed the release in the office of Corbett H. Thigpen, who acted as her agent as well as his own agent, even though he was also her psychiatrist.

(The new book was published by William Morrow & Co. in September 1989 as A Mind of My Own, but at the time of Variety’s publication of this notice, it was called In Sickness & in Health . . . .  In 1958, under the name Evelyn Lancaster, Sizemore had written Strangers in My Body: The Final Face of Eve with James Poling and, in 1977, she published I’m Eve, written with a cousin, Elen Sain Pittillo.  The 1989 book recounts Sizemore’s life since her recovery from multiple-personality disorder.)

Fox claimed that the 1956 release did, in fact, give it the rights to Sizemore’s whole life, not just the years covered by the movie, which was based on the book of the same title (McGraw-Hill, 1957) by her psychiatrists, Thigpen (1919-99) and Hervey M. Cleckley (1903-84).

Sizemore ultimately accepted a settlement from the studio and no further movie was made.  The case, particularly Fox’s claim to ownership of Sizemore’s entire life story, including the part that hadn’t even happened yet, struck me as an example of the hubris of the rich and powerful—with deep pockets and scores of lawyers to fight through the courts till the individual is brought to heel.  Even when they lose in court, they manage to win on the bottom line.

My friend Kirk Woodward, who comes from a family of lawyers (see his post “A Lawyer and a Life,” posted on Rick On Theater on 11 November 2010), told me of another case that illustrates this same haughtiness.  

In a case litigated by his cousin on behalf of Dr. David Maurer (1906-81), a professor of linguistics at the University of Louisville who wrote a number of books about underworld argots, including The Big Con (originally published by Bobbs Merrill, 1940).  Maurer’s book was used as a source for Universal Pictures’ 1973 The Sting without permission.  In 1974, the author sued Universal for $10 million for plagiarism.

Kirk told me that while his cousin was chasing down evidence in the Sting case, Universal told him to feel free to look through their files.  He found a letter saying, essentially, “We’ve based the script on Maurer’s book, but we just won’t tell him.”  

“A smoking gun,” concluded Kirk.  Maurer settled the case with Universal in 1976 for $300,000, but the studio delayed paying restitution until Maurer died.

Back in the ’80s and ’90s, there were a number of lawsuits concerning the plagiarism of an artist’s work.  Some of the cases struck me as absurd, so I kept the clipping file for future possibilities.  

One case was against John Fogerty (b. 1945), former lead singer and guitarist, and principal songwriter of the rock band Creedence Clearwater Revival from 1967 to 1972.  Fogarty was sued by the group’s former music publisher, Fantasy Inc., who owned the rights to CCR’s old catalogue from 1967 to 1972.  

In 1988, Fantasy accused Fogerty of plagiarizing himself by using a chorus from his 1970 hit “Run Through the Jungle” in a 1984 song “Old Man Down the Road” (which the company didn’t own).  The record company asked for $140 million in damages.

I’m not even convinced that an artist can plagiarize him- or herself to start with, but in this case, the reappearance of elements from one song (or painting, poem, novel, play, or any artwork) to another, I argue, is what makes an artist’s “style”—the thing that makes him or her unique and recognizable.  It’s innate in his or her art, not a copy of something done before. 

Fogerty, himself, complained, “I was sued for sounding like myself”!  His lawyer, Kenneth I. Sidle, of the Los Angeles firm of Gipson, Hoffman & Pancione, explained it this way: “What similarities there were between the two songs were the result of Mr. Fogerty having written both of them.  Both of them came out of the same musical vocabulary.” 

At a press conference after the hearing, Fogerty said the importance of the case was that it raised the possibility that if he lost, artists could be forced to change their creative styles lest they be sued for stealing their own ideas. 

The press reported that Fogerty revealed: “I saw the specter of a nightmare looming.  I could see William Shakespeare, John Lennon, Bob Dylan and Bruce Springsteen saying, ‘John, don’t blow this.’”

The hearing turned into something of an ad hoc performance—an impromptu mini-concert, if you will.  (We’ll see this again in an even more elaborate presentation shortly.)  Musicologists, of course, appeared at the trial as expert witnesses for both the plaintiff and the defendant.  Then Fogerty took the stand with his guitar to make his point.  

Over a day-and-a-half, the defendant played, riffed, and sang from his works like ''Proud Mary'' and ''Fortunate Son'' to show the way the songs developed and told tales from rock history.  The six-member jury, Fogerty’s principal audience for this special performance, was entertained.

Fogerty won the case.  After just two hours of deliberation, the jury found that the two songs weren’t “substantially similar,” the legal standard that would have constituted copyright infringement.  

A later judge summarized the verdict as “tantamount to a finding that similarities between ‘Run Through the Jungle’ and ‘Old Man Down the Road’ were attributable to the uncopyrightable elements of the ‘Swamp Rock’ genre and Fogerty’s style of songwriting.”

(“I have had a lot of trouble with Fantasy Records,” Fogerty told Adam Sweeting of The Guardian newspaper.  Centerfield, the 1985 album that contained “The Old Man Down the Road,” also included the songs “Mr. Greed” and “Zanz Kant Danz.”  

(These songs were universally understood to be attacks on Saul Zaentz [1921-2014], the owner of Fantasy Records, who instituted a $144 million suit for defamation, claiming that Fogerty portrayed him as “a thief, robber, adulterer, and murderer.”  The two sides settled that suit out of court.  Fogarty did also eventually change to title of the second track to “Vanz Kant Danz” to avoid further legal charges.

(Then there was the matter of Fogerty’s court costs.  Following the lawsuit, the singer-songwriter turned around and sued Zaentz and Fantasy to recover his legal fees and his lost income.  Fogerty lost the first trial because the judge interpreted the law as limiting cost recovery to plaintiffs, not defendants; so Fogerty appealed the verdict.  

(The musician lost again, but decided to see the case all the way to the supreme court.  SCOTUS unanimously decided in 1994 that the standard interpretation of the law was wrong and that a victorious defendant should be allowed to recover; the case was returned to the trial court for reconsideration.  

(This time, Fogerty won and was awarded $1.3 million for attorney’s fees—but he didn’t recover anything for his claim of lost income from not being able to write or perform during the long period of the legal actions, which began in 1985.)

“‘Legal humor,’ wrote David Margolick in the New York Times, “may or may not be an oxymoron. But attempts at it can prove costly, as two comedy writers thrust into the generally unfunny world of litigation recently learned.” 

Margolick’s comment was his introduction to the account of an odd sort of suit in the Federal District Court in Manhattan against the television network NBC by comedy writers E. J. Novak and Debra Studer for copyright infringement.  

The writers contended in Novak v. National Broadcasting Co. that they’d written a series of comedy sketches in August 1985 for Video Vault on WOR-TV, an independent station (now WWOR) in Secaucus, New Jersey, and later had submitted videotapes of the performances to NBC’s late-night comedy sketch show Saturday Night Live for the purpose of seeking employment as writer-performers on the show.

Novak and Studer claimed that SNL appropriated the sketches and characters they’d created on the show without permission and without compensating them.  (For some details on the sketches, see my earlier post “What Constitutes Theft in the Arts?” [5 May 2015; http://rickontheater.blogspot.com/2015/05/what-constitutes-theft-in-arts.html].)

The case began in 1985 and after several dismissals and resubmissions of the claims, was finally adjudicated in 1990 with a summary judgment for the defendant (NBC).  Just to be sure the plaintiffs got his point, the judge added that the behavior of Novak and Studer was “not only unseemly and unfunny, but intended to harass” and sent them off with a fine of $3,500 in sanctions ($7,345 today).

From a legal standpoint, this Novak v. NBC would have been a straightforward copyright-infringement case, but what exercised the judge so much was that, while the network retained a mainstream Broadway law firm, the two writers (who were married) went, as they say in the courts, pro se—they represented themselves. 

By now I imagine we all know how the saying goes: The man who represents himself, has a fool for a client.  Well, that was certainly true for E. J. Novak and Debra Studer—at least in the eyes of Judge Robert W. Sweet.  The plaintiffs turned the courtroom into what Sweet called a “playground for comics.” 

After two years of polite exchanges between Novak and Studer and the defense attorneys, in 1989 they wrote the lawyers a note addressed to “Dear Laurel and Hardy” because of their physical appearances.  

When the attorneys complained to the judge, Novak countered, “Their inconsistency and lack of consideration, even by attorneys’ standards, transcends the boundaries of law and enters that funny little netherworld we call—the Rudeness Zone.” 

Novak then sent the defense team another note greeting them simply as “Stan” and “Ollie” (for those too young to know, that’s Laurel and Hardy, respectively).  In his turn, Novak complained to the judge, “The sight of Mr. Jones [one of the defense lawyers; he was Oliver Hardy, a short, very stout actor] rolling toward us in anger is a terrifying experience reminiscent of scenes from either ‘The Honeymooners’ or ‘Mutual of Omaha’s Wild Kingdom.’”  

Margolick (who was the Times’ legal reporter at the time and had a degree from Stanford Law School) reported that Novak alleged in an interview that he and his partner “were victims of pernicious linguistic discrimination.” 

“We could have said, ‘Your Honor, according to habeas corpus writ dictum, this was dilatory and deceitful,’ but I’m not a lawyer,” said Novak. “We used humor where they used legalese.”  He added that the only people who were actually hurt by his language were Stan Laurel and Oliver Hardy, “because they were compared to these lawyers.” 

However amusing and clever Novak and Studer were, they essentially scuttled their own legal boat when they took their comedic tactics into the courtroom.

By far the most theatrically outrageous court hearing that I’ve read about was Patrick Alley v. Mick Jagger, a 1986 suit for $7 million by a Reggae singer-songwriter who charged that the Rolling Stones’ Mick Jagger (b. 1943) had stolen Alley’s 1979 song “Just Another Night” (released in 1982) to make Jagger’s 1985 song of the same title.

The charge in this case was simple plagiarism: one artist contending that another had appropriated his work.  What made this suit noteworthy here was the trial itself.  This is the case that gave me the idea that there was performable material in the scenario. 

The presentation of the evidence offered in court was . . . I’d say it was unique.  In addition to the introduction of transcriptions of the lyrics of both songs (by dueling experts, of course), as you would expect, the New York Times reported that the testimony consisted of music, both live and recorded. 

During the weeklong trial, a Juilliard instructor played the piano; Sly Dunbar, a Jamaican studio musician, performed on drums; and Jagger sang from the witness stand bits of his recordings “Jumpin’ Jack Flash,” “Brown Sugar,” and “Miss You.” 

Predictably, taped recordings of the “Just Another Night” by Alley (b. 1951), a minor-key reggae ballad, and Jagger’s identically-titled up-tempo rock song were played in court as well.  Jagger also played homemade and studio work tapes to show the development of the song, and attorneys on both sides sang snippets of the two compositions. 

Jagger signed autographs during breaks in the trial, and on the day before the verdict was rendered, when the jury deliberated for 3½ hours, fans broke through a courtroom door and tried to reach the Stones singer-guitarist. 

The decision rested on whether the songs’ choruses were substantially the same.  Both versions included the phrase “just another night with you”—five words.  The judge explained the law on copyright infringement to the six jurors and told them “The use of the phrase ‘Just another night with you’ is not enough, standing alone, to constitute infringement.”  Coincidental similarities, he also affirmed, weren’t sufficient to prove plagiarism.

After the seven-day trial, the jury found that Jagger’s “Just Another Night” didn’t infringe on Alley’s earlier song with the same title.  Alley appealed the verdict, but I couldn’t find any record of the outcome of that action.  After the verdict, however, Jagger proclaimed, “My reputation is really cleared.”

While the rest of the case was just what you’d expect in a copyright-infringement trial for a piece of music, the proceedings in court have always made me feel that the Jagger trial should be staged as a theatrical performance.  I mean, really: singing lawyers!  (Not to mention reggae and rock ’n’ roll music—add a little dancing and it’s got hit written all over it!)  Can’t you just picture it?

What Constitutes Theft in the Arts?

When I was in college, Lee Kahn, the school’s theater director, used to like to tell us, “The first rule of theater is theft.”  He said that so often that when I began to teach acting and theater myself, I passed his bit of wisdom on to my own students.  What Lee meant, of course, was that as theater artists (the rule didn’t apply just to actors), we should carefully watch other artists, especially the good and great ones (another actor’s admonition, though not one that Lee inculcated, is “Only steal from the best”), and take from them what we find useful and effective (or, maybe, just neat!)—a kind of surreptitious apprenticeship.  Painters do that, too, of course.  You can sometimes see young artists in museums copying the great masters to learn their techniques. 

When I was trying to teach myself how to write, I emulated the styles of writers I admired.  Of course, I didn’t really sound like myself when I did that consciously: I was a poor imitation of good writers, not a genuine writer myself.  I probably still do that—less consciously, I hope—but I think, at least to some extent, I’ve absorbed what I’ve picked up so that, as one of my acting teachers put it, my technique has simply become part of my way of working, no longer artificial and assumed, but an innate part of me.  It’s like the way someone takes on an affectation, a bit of artificially assumed manner—such as an accent with which he wasn’t born or a level of diction he never learned in school—until slowly it actually becomes part of his habitual make-up.  It’s not an affectation anymore, it’s just behavior. 

Musicians, songwriters, and composers follow a path not unlike actors and writers.  Somewhere there’s a line that demarcates emulation, tribute, or homage from outright theft—permanent “borrowing.”  Now, Milton Berle, always accused of recycling other comedians’ jokes, notwithstanding, however, I’ve never heard of an actor actually being accused of (much less charged with) plagiarism.  But writers (remember Doris Kearns Goodwin?) and composer-lyricists can fall prey to the P word and its often very hard to tell where “fair use” leaves off and misappropriation begins.  (I’ve worked for one editor who prohibits any but the most necessary quotations because his publishers won’t pay for them and he doesn’t want to cross the line into improper use.  I couldn’t even quote from the Hart Crane poem from which Tennessee Williams took his title Summer and Smoke, although I’ve always understood that in literary criticism, “fair use” meant writers could quote, with proper attribution, any pertinent statement.)  Sometimes, in a courtroom where the dividing line is under question, the search for it can be downright ludicrous. 

In the most recent prominent case of a charge of plagiarism, the family of Marvin Gaye, who died in 1984 (shot to death by his father), claimed in 2013 that songwriters Robin Thicke and Pharrell Williams copied portions of Gaye’s 1977 pop hit “Got to Give It Up” in their release “Blurred Lines.”  The Gaye family sued Thicke, Pharrell, and rapper Clifford Joseph Harris, Jr. (known as T.I.) who’s featured on the song, for over $25 million in damages for copyright infringement.  On 10 March, the court ruled that Thicke and Pharrell, but not Harris, were guilty of improperly using parts of Gaye’s song and the judge ordered them to pay $7.4 million in damages. 

The verdict has raised many questions and generated vocal responses on both sides of the issue, from those who praise the ruling and those who vehemently disagree.  The Washington Post ran a compilation of short comments by members of its arts and culture staff on plagiarism in fields other than pop music (visual art, fiction writing, stand-up comedy, classical music, and theater) in response to the “Blurred Lines” verdict.  As Peggy McGlone writes in her introduction to the collection, “The recent verdict by a federal jury in Los Angeles may have settled one case, but it has ignited a larger debate about creativity and ownership and how to sort out the co-opted from the copied.”  McGlone, the Post’s local arts reporter, wryly remarks, “Blurred lines indeed,” and observes in the end, “While artists borrow, sample and appropriate frequently, the answer to the question ‘Did they steal?’ is usually no.” 

It can be a prickly question, even when reduced to the simpler-seeming legal issue of copyright infringement.  “There’s no history of art without borrowing, appropriation and in some cases theft,” says Washington Post art and architecture critic Philip Kennicott.  (He was writing about visual art, but his comment is applicable to all the arts.)  Some aspects of a performer’s art can’t be copyrighted.  Lyrics, tunes, even distinctive looks (with respect to costumes, hair and makeup, and even physical appearance; Jackie Onassis successfully sued Christian Dior in 1984 for making a commercial with a look-alike when Onassis refused), but not style—whatever that is.  Take, for example, the 1989 case of Bette Midler against the ad agency Young & Rubicam and the Ford Motor Company. 

In the 1970s, Ford started a TV commercial campaign which featured the singing of well-known singers.  If the original artists didn’t want to make the ad, Young & Rubicam hired a sound-alike to duplicate the song and the singer’s style for the commercial.  When the ad company approached Midler to sing her distinctive cover of “Do You Want to Dance” (from Midler’s 1973 début album, The Divine Miss M), she declined and Young & Rubicam brought in an imitator.  Midler, who (like Jackie Onassis) never makes commercials, took Ford and the ad agency to court in Midler v. Ford Motor Co., but she didn’t sue for copyright infringement because, while copyright law protects the song and her actual recording itself, it doesn’t protect imitations.  (Ford had obtained a license to use the song, so they were on legal grounds there.)  The singer claimed, however, that the imitation was a misappropriation of her identity because the version of the song as she recorded it was unmistakably identified with her, giving a different meaning to “identity theft.”  (The legal issues of this case are complex, but this is not the forum, nor am I competent, to discus them.)  Though Nancy Sinatra had lost a similar suit against Goodyear Tire & Rubber Co. in 1970 for their use in a tire commercial of “These Boots Were Made For Walkin’,” a song strongly connected to her, Midler won her case on appeal (the original trial court had denied her claim).  She had sued for $10 million but was awarded $400,000; however, Madison Avenue was put on notice. 

Because these cases often concern plaintiffs or defendants who are performers, the court cases can get . . . well, interesting is a neutral way of describing them.  (“Bizarre” would probably be more accurate.)  For instance, in a 1989 case, comedy writers E. J. Novak and Debra Studer, a husband-and-wife team, sued NBC, the producers of Saturday Night Live, for copyright infringement in Novak v. National Broadcasting Co., Inc., claiming the network and SNL had taken material the duo had written in 1985 for a local program called Video Vault on independent station WOR-TV (New York City channel 9 and now known as WWOR) and reused it in six 1985 and ’87 sketches about, among other topics, the mobster Lucky Luciano, Attila the Hun, Frankenstein, and “The Fifth Beatle” (fictional oboist Wingo Murray).  Novak and Studer, who pursued NBC on this issue for over four years, ultimately lost their suit—but not so much on the merits themselves (although the judge found legal reasons to dismiss their cause), as the fact that the comedy writers pissed the judge off in court and in documents they filed. 

Novak and Studer’s principal error was that unlike most plaintiffs and defendants in plagiarism cases, they didn’t hire lawyers to represent them: they pleaded their own case at trial.  (NBC was represented by a white-shoe Manhattan firm.)  This decision led the plaintiffs to turn the courtroom into what the judge called a “playground for comics.”  After two years of polite exchanges between Novak and Studer and the defense attorneys, in 1989 they wrote the lawyers a note addressed to “Dear Laurel and Hardy” because of their physical appearances.  When the attorneys complained to the judge, Novak countered, “Their inconsistency and lack of consideration, even by attorneys’ standards, transcends the boundaries of law and enters that funny little netherworld we call—the Rudeness Zone.”  He then sent the defense team another note greeting them simply as “Stan” and “Ollie.”  In his turn, Novak complained to the judge, “The sight of Mr. Jones [one of the defense lawyers] rolling toward us in anger is a terrifying experience reminiscent of scenes from either ‘The Honeymooners’ or ‘Mutual of Omaha’s Wild Kingdom.’”  “‘Legal humor’ may or may not be an oxymoron,” observed the New York Times.  “But attempts at it can prove costly.” 

The judge took such exception to Novak and Studer’s verbal antics, he not only decided against them in the lawsuit, but assessed them $3500 in court costs (over $6800 today).  The Times reported that Novak alleged in an interview that he and his partner “were victims of pernicious linguistic discrimination.”  “We could have said, ‘Your Honor, according to habeas corpus writ dictum, this was dilatory and deceitful,’ but I’m not a lawyer,” said Novak. “We used humor where they used legalese.”  He added that the only people who were actually hurt by his language were Stan Laurel and Oliver Hardy, “because they were compared to these lawyers.”  However amusing and clever Novak and Studer were, they essentially scuttled their own legal boat when they took their professional tactics into what the Times labeled “the generally unfunny world of litigation.”

Possibly the strangest case with respect to courtroom demeanor was the 1985 copyright infringement suit brought against Mick Jagger of the Rolling Stones.  Reggae singer-songwriter Patrick Alley sued Jagger for copying his song “Just Another Night,” which he said he’d recorded in 1979 and released on his 1982 album, A Touch of Patrick Alley, for Jagger’s own song of the same title (titles aren’t copyrightable) from the Stones frontman’s first solo album, 1985’s She’s the Boss.  The court in White Plains, New York, decided in 1988 that Jagger hadn’t stolen Alley’s song.

Patrick Alley v. Mick Jagger itself was relatively straightforward, but the presentation of the evidence offered in court was . . . I’d say it was unique.  In addition to presentation of transcriptions of the lyrics of both songs (by dueling experts, of course), as you would expect, according to the report in the New York Times, the testimony consisted of music, both live and recorded.  During the weeklong trial, a Juilliard instructor played the piano; Sly Dunbar, a Jamaican studio musician, performed on drums; and Jagger sang from the witness stand bits of his recordings “Jumpin’ Jack Flash,” “Brown Sugar” and “Miss You.”  Predictably, taped recordings of Alley’s “Just Another Night,” a minor-key reggae ballad, and Jagger’s identically-titled up-tempo rock song were played in court as well.  Jagger also played work tapes to show the development of the song, and attorneys on both sides sang snippets of the two compositions.  Jagger signed autographs during breaks in the trial, and on the day before the verdict was rendered, when the jury deliberated for 3½ hours, fans broke through a courtroom door and tried to reach the Stones singer-guitarist. 

While the rest of the case was just what you’d expect in a copyright infringement trial for a piece of music—similar in most ways to other musical plagiarism cases such as the 1971 suit against Beatle George Harrison alleging that he copied the Chiffons’ 1962 charter “He’s So Fine” for his own 1970 hit “My Sweet Lord” (Harrison lost, but the judgment was small); Michael Jackson’s successful 1984 and 1993 defenses of his song “The Girl Is Mine” (recorded in 1982 in a duet with another former Beatle, Paul McCartney), first against Fred Sanford, writer of the song “Please Love Me Now,” and the second against songwriters Reynaud Jones and Robert Smith; and the case against the Bee Gees, also in 1983, charging that they’d stolen 1977’s “How Deep Is Your Love” from Chicago songwriter Ronald Selle’s 1975 song, “Let It End,” a suit which the group initially lost in the jury trial before the judge overturned the verdict and found for the Gibbs—the proceedings in court have always made me feel that the Jagger trial should be staged as a theatrical performance.  I mean, really: singing lawyers!  (Not to mention reggae and rock ’n’ roll music—it’s got hit written all over it!)  Can’t you just picture it?

The most absurd case of alleged plagiarism in the pop-music world, however, has to be the suit brought against John Fogerty, the principal songwriter of Creedence Clearwater Revival, in San Francisco in 1988.  As we can see, most cases of artistic theft are brought by one artist (or sometimes just a rights-holder) against another and the charge is invariably that the defendant has stolen intellectual property from the plaintiff.  In the Fogerty suit, the plaintiff was Fantasy, Inc., a company that owned the rights to Fogerty’s compositions for CCR from 1967 to 1972; the defendant was, of course, Fogerty.  But the charge was that the songwriter had stolen not from another songwriter, but . . . from himself.  Really?  Can you even do that?  How the hell can someone rationalize a charge like that?

But that’s what Saul Zaentz, owner of Fantasy Records (a division of Fantasy, Inc.), did.  He charged in Fantasy, Inc. v. Fogerty that Fogerty had plagiarized his own 1970 CCR hit “Run Through the Jungle” to produce his 1985 composition “Old Man Down the Road,” released on his 1985 comeback solo album, Centerfield.  Since Fantasy owned the rights to “Run Through the Jungle,” but not “Old Man,” written after CCR broke up in 1972, Zaentz could claim Fantasy’s copyright to the older song had been infringed—if he could, in fact, prove that Fogerty used the CCR hit to create his comeback number.  If the court bought Zaentz’s argument, it would mean that Fogerty had plagiarized himself.  Now, I have no legal training (despite the fact that I have lawyers all over both sides of my family, from uncles to cousins and now to those cousins’ children), so maybe it’s even possible for a court to entertain such a charge.  But in the rational world outside the courthouse, the one I live in, this is an absurd concept. 

One of Fogerty’s lawyers pointed out, “What similarities there were between the two songs were the result of Mr. Fogerty having written both of them,” which seems a no-brainer to me.  The attorney added, “Both of them came out of the same musical vocabulary,” and the songwriter pointed out at a news conference after the court case that the work of composers, writers, and singers exhibits the hallmarks of the artists’ individual styles.  In fact, I’d assert, that very similarity among an artist’s works is what constitutes her or his “style.”  It’s what we recognize immediately when we hear a song by a composer or singer we know, read a passage from a writer with whose books we’re familiar, or see a performance by an actor whose movies, TV shows, or plays we’ve seen before.  (In fact, it’s what analysts who do computer comparisons with a newly-discovered work and a known piece of writing rely on to determine if the new discovery is the product of the known writer, like, say, Shakespeare or Dickens.  It’s those similarities that make up the style the scientists line up to measure the degree of match.)  It’s not copying, at least not in a conscious way, it’s the innate characteristic of one artist’s art.  We recognize a van Gogh painting at a single glance because of the similarities it reveals to all the previous van Gogh paintings we’ve seen.  If artists are barred from using this stylistic attribute of their creativity, then that creativity will be severely impaired—if not destroyed entirely.  (Perhaps Zaentz and Fantasy had this in mind as a consequence of their action: to prevent Fogerty from creating new songs that would compete with the CCR catalogue they owned.)

In the end, the jury found that Fogerty hadn’t stolen from himself and Fantasy lost the suit.  I’d insist that Fogerty, or any artist, can’t steal from himself: it’s a metaphysical impossibility.  Fantasy appealed and lost again.  Fogerty sued the company for payment of legal costs in the suit, and after the trial court denied his claim and the Court of Appeals upheld that ruling, the singer-songwriter pursued Fogerty v. Fantasy, Inc. to the Supreme Court and won in 1994—almost a decade after Fantasy, Inc. v. Fogerty was brought.  Fogerty v. Fantasy, Inc. was a precedent for awarding court costs to the winner in a copyright litigation, whether the plaintiff or the defendant, especially where the suit had been brought or defended frivolously or in bad faith.

The fact, whether recognized by the courts or not, is that emulation in the arts is not just common, but necessary.  Kennicott writes in the Washington Post, for instance, that without appropriation, “there’s almost no art to talk about.”  Shakespeare and Chaucer, observes Ron Charles, a Post book reviewer, both borrowed material for their literary masterpieces.  Artist Fernando Botero created his own Mona Lisa in 1977, derived from Leonardo da Vinci’s portrait, painted in the early 16th century.  Pyotr Tchaikovsky appropriated  “La Marseillaise,” written and composed in 1792 by Claude Joseph Rouget de Lisle, for his 1812 Overture in 1882.  “Good artists borrow,” writes Post classical music critic Anne Midgette, attributing the line to Igor Stravinsky, “great ones steal.”  Copyright law, however, only protects exact words, musical phrasing, and images, so none of these examples would fall if haled into court.  What Post theater reviewer Nelson Pressley calls “the magpie culture of borrowing and re-appropriation” is a cornerstone of most artistic creation, whether it’s done to make a point, a comment, or an homage. 

Sometimes, the borrowing is part of a lengthy, attenuated conversation: Midgette describes how Dmitri Shostakovich quoted a passage from Franz Lehar’s The Merry Widow (1905) in his own Seventh Symphony (c. 1939-40) and then Béla Bartók picked it up and used the line again in Concerto for Orchestra (1943), each use a comment on the previous incarnations.  In theater, where Pressley says outright appropriation is rare, Lorraine Hansberry’s A Raisin in the Sun (1959) gave birth to Bruce Norris’s 2011 Pulitzer Prize-winning Clybourne Park, which picks up where Raisin left off and focuses on new issues and situations; Clybourne and Raisin then generated Kwame Kwei-Armah’s 2013 Beneatha’s Place, both a sequel to Raisin and a reply to Clybourne.  No matter how or why these and other creations are developed, they’re wholly independent works of art that have never been—nor should be—labeled plagiarism. 

Let me amend Lee Kahn’s admonition to his theater students: “The first rule of art is theft.”