"SUE ME, SUE YOU:
MUSICAL 'PLAGIARISM' IN COURT"
Carl F. Horowitz

"Talent borrows. Genius Steals." -- Oscar Wilde

For the past month, better radio stations around the country have been giving airplay to the new Bruce Springsteen single, "Radio Nowhere." A tight, expansive furious rocker, the track also appears on his just-released CD, "Magic," maybe his best since 1987's "Tunnel of Love." Though I've always found the man's ongoing promotion of left-populist agitprop more than a little irritating, I give credit where due: It's a great record.

But hanging over this, at least for a while, was a potential legal matter. A portion of the single sounds similar to Tommy Tutone's 1982 hit, "867-5309/Jenny." That hadn't escaped the notice of the still-active Northern California band's lead singer, Tommy Heath, who owns 12 percent of the song's publishing rights. "Everybody's calling me about it," he said several weeks ago. "I think it's close enough that if I wanted to, I could work with it. I don't really get into that sort of thing, but the kids do need braces so maybe I will."
Fortunately, he didn't. Heath's comment rocketed around the Internet, prompting Springsteen fans to ask: Where does this one-hit wonder get off jump-starting his career like this? And why would Springsteen have a need to copy anyone? By late September, Heath reversed himself. "I'm really honored at a similarity, if any," he remarked. "I think there's too much suing in the world now, and I'm writing Bruce's manager (Jon Landau) now a letter to assure him that I'm not taking any action."

Well, thank God for the Internet and Heath's attack of good sense. But had a suit been filed, it might have succeeded, or at the very least, saddled Springsteen with needless aggravation and legal expenses. Such a possibility suggests that the courts have been excessively creative in interpreting copyright infringement law.
Objectively, there wouldn't have been much of a case. It's true that the main melody of the two songs share an Em-C-G-D chord sequence. But so do Bon Jovi's "Misunderstood" and any number of other songs. What's more, the counter-melody and the bridge in Springsteen's song bear no resemblance to those of "867-5309." And the lyrics are utterly different both in content and context.

The beauty of "Radio Nowhere," like that of all great rock n' roll, is that it "steals" from a variety of sources and creates something new in the process. The basic melody, if anything, sounds like a hybrid of the Clash's "Clampdown" and Warren Zevon's "Splendid Isolation." The snare drum is straight out of the Bobby Fuller Four's "I Fought the Law." Should these musicians (or their estates) sue? And if victorious, what percentage of the total award would accrue to each plaintiff? These are questions for obsessive lawyers and judges.
The legal profession, unfortunately, does obsess over plagiarism complaints, a legacy of a nearly-forgotten Tin Pan Alley eccentric named Ira Arnstein. During the mid-1930s, Arnstein had become convinced that major pop songwriters, including Cole Porter, George Gershwin, Irving Berlin and Jerome Kern, had been ripping off his work. During 1936-46 he brought forth not less than five plagiarism lawsuits. None proved successful, but they managed to alter the course of legal history.

Arnstein v. Edward B. Marks Music Corp. (82 F.2d 275 [2d Cir. 1936]), established the basic pattern. The plaintiff paired a song of his own with someone else's, and by matching pitch, notes and rhythm from selected song fragments, he could "prove" theft. One of the defendant co-writers, Jack Lawrence, recalled:

Arnstein's lawyer had a piano and fiddle player in court plus huge music charts, an intriguing presentation. The melody line of a song consists of single notes in the clef treble. Arnstein's chart highlighted notes in both the clef and bass and when the fiddler played only the highlighted notes...lo and behold! -- it sounded exactly like our song! Our attorneys spent hours trying to explain this to the judge, but he would only accept what he was hearing.

For personal instability, this guy was almost enough to make you forget about Phil Spector. Arnstein, who admitted to threatening defendants, stated in testimony: "I was desperate. I heard my song being played everywhere, and I was starving. I was out of my mind and might have committed murder." The suit eventually was dismissed by the Second Circuit Court of Appeals, where Judge Learned Hand -- a prig, regrettably, as well as a genius -- used the occasion to chasten pop music songwriters as being incapable of sophistication.
Arnstein over the years brought forth more suits, including one each against the two rival nonprofit music copyright licensing services, ASCAP and BMI. Nobody wanted to deal with him. Defendants in the former case (Arnstein v. ASCAP, 29 F.Supp. 388 [S.D.N.Y. 1939]) gave roughly two dozen musicians jobs with a Russian ballet company so they wouldn't testify on behalf of Arnstein. The final suit, filed against Cole Porter (Arnstein v. Porter, 154 F.2d 464 [2d Cir. 1946]), made it to trial. The defendant won, testifying that he neither knew Arnstein nor was familiar with his work. After two hours of deliberation, the jury dismissed the case as without merit. The Columbia Law School Library's Music Plagiarism Project provides information on dozens of cases over the decades, a few dating back to the 19th century.

Ira Arnstein never won a case, and seems to have disappeared after 1946. But in the larger sense he had the last laugh. The effect of all those court actions, especially in the Cole Porter case, was to raise the bar for dismissal of nuisance suits. The Arnstein test, as it came to be known, remains to this day the basis for musical plagiarism cases. It has two components. First, the plaintiff needs to show that the defendant had access to the pirated material. And second, the defendant had to have improperly appropriated the material. Even without proof of "access," however, a plaintiff may prevail if the similarities between songs are "so striking as to preclude the possibility that the plaintiff and the defendant independently arrived at the same result."
This doctrine raises more questions than it resolves. What is an "improper" appropriation? As the Arnstein test framed the issue, the original piece must sound distinct and memorable to "the ordinary lay hearer." In other words, the song cannot be confused with any subsequent songs. A 12-bar blues piece with a standard I-IV-V chord progression, for example, is so common that it's hard to imagine any song in that idiom claiming unique distinction. But what cases in which one song partially overlaps with a song with a highly complex structure?
Let's face it. The odds are pretty high that any songwriter who practices his craft long enough eventually will come up with material that sounds borrowed. Though plagiarism might not be intended, such songs, if only for a few bars, could serve as the basis of a lawsuit. So who gets to sue whom and for how much? To understand the difficulty in arriving at a fair decision and settlement, consider the following scenario.

Assume that Michael Jackson and Sony/ATV Music, who jointly own most of the Lennon & McCartney catalog, sue various "imitators" of the Beatles' "Tomorrow Never Knows." After all, that 1966 classic, with its psychedelic drone and recurring flatted-7th, provided a rough archetype for countless songs, including Love & Rockets' "Yin and Yang (the Flowerpot Man)," Echo & the Bunnymen's "Lips Like Sugar" and Kasabian's "Sun Rise Light Flies." But wait a minute. That Beatles tune resembles bits of the Kinks' "See My Friends," released a year earlier. And the Kinks' Ray Davies admits to having been influenced in that instance by an Indian fishermen's chant during a band tour stop in Bombay. So the Kinks sue the Beatles, and a group of Indian fishermen in turn sue the Kinks, and everyone who is sued in turn files a countersuit.

It's an insane scenario, right? Yet a good many real-world plagiarism suits have been based on claims only somewhat less far-fetched. Bringing in experts to testify can do only so much to clear the air. Even the most knowledgeable witnesses in the end can make only an educated guess as to how a song will affect an "ordinary" lay hearer. Maybe such a listener has heard the songs in question before, but then again he's not certain. And if he has, can he match the tune with the composer/artist? And even given this level of knowledge, would that dissuade him from buying the "original" record, thus depriving its artist(s) of royalties? The difficulty in assigning to a court the role of musicologist explains why plagiarism lawsuits, whatever their outcome, tend to have unsatisfying outcomes and comic undertones.

Perhaps the best-known case involved George Harrison's putative lifting of the melody of the Chiffons' 1963 hit, "He's So Fine," for his own late 1970 single, "My Sweet Lord." Early in 1971, Harrison suddenly found his royalty payments halted by court order. A U.S. District Court eventually ruled in Bright Tunes Music v. Harrisongs Music (420 F. Supp. 177 [S.D.N.Y. 1976]), that George had unintentionally copied the Chiffons' hit, but was liable for damages, though he publicly had stated his inspiration for the song was the Edwin Hawkins Singers' 1969 hit, "Oh Happy Day." The court ordered Harrison to forfeit most of the royalties from "My Sweet Lord," plus a portion of the royalties from the triple-LP on which it appeared, All Things Must Pass.

Don't think that frivolous plaintiffs' suits can't happen in foreign countries -- or that American artists can't be targets. In 2005, Belgian songwriter Salvatore Acquaviva won a judgment against Madonna, claiming that her 1998 hit, "Frozen" (co-written by Madonna and Patrick Leonard), had been lifted from his early-80s song, "Ma View Fout L'camp" ("My Life's Getting Nowhere"). The Mons-based judge declined to award damages, but did order the withdrawal of all remaining discs for sale and barred the song from Belgian TV and radio airplay. The "plagiarism" in question consisted of the song's opening four-bar theme. Welcome to justice, Walloon-style.

Even unsuccessful suits impose burdens on a defendant. In Selle v. Gibb (741 F.2d 896 [7th Cir. 1984]), the plaintiff, a Chicago-based songwriter named Ronald H. Selle, sued the Bee Gees' Maurice, Robin and Barry Gibb, alleging their 1977 hit, "How Deep Is Your Love," stole the melody of his own never-released 1975 song, "Let It End." Having seen the movie ("Saturday Night Fever") whose soundtrack contained the Bee Gees' song, he sued the band, Paramount Pictures, and Polygram Records. The Bee Gees eventually prevailed in a cross-appeal after an initial defeat. The judge ruled that the plaintiff failed to establish proof of plagiarism, but ordered each party to pay its legal bills anyway.

Such lawsuits, unfortunately, are a fact of life. Check out the files of the Columbia Law School Music Plagiarism Project for some unintentional humor as well as lessons in copyright law. But also consider the larger issue.
The state of music, and for that matter, novels, drama, cinema, painting and other art forms, would be far poorer if their creators had to live in constant fear of frivolous copyright suits. The creative process, even among the most original artists, inevitably involves a certain amount of building on others' ideas. Rendering artists liable for even fleeting, unintended similarities would stifle spontaneity, the seed of all creative work, and the commercial enterprises supporting it. This is entirely different from situations in which someone, without authorization, downloads or otherwise copies intellectual property and sells it on the black market.
The bar for plagiarism should be set higher to ward off suits in search of a quick buck. To be sure, even in a post-Arnstein environment, the lawsuit should be a final option. But courts have to display more skepticism in reviewing plaintiffs' claims.

In the meantime, forget the lawyers and crank up the radio. The Boss is back.

Carl F. Horowitz is director of the Organized Labor Accountability Project of the National Legal and Policy Center, a Town Hall.com Gold Partner organization dedicated to promoting ethics in American public life.



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