Want to solve the songwriting legal crisis? Here are 6 urgent steps.
It’s a dark future for songwriting. Cases involving Ed Sheeran, Led Zeppelin, Sam Smith, and Pharrell are just the beginning of a vicious Pandora’s box, one that could cripple songwriting as we know it. Indeed, what started with a few cases is becoming a downward spiral, with potentially dozens of superstars under attack in the coming years for supposed copyright infringement.
If you know anything about music composition, you know that it’s all about building blocks. A very limited amount of building blocks. There are only so many notes and so many rhythms to play with, and everything — everything — borrows from something else. Which means, almost everyone is vulnerable to a predatory, money-draining, frivolous lawsuit based on trumped-up plagiarism charges.
Inside nervous labels and publishing houses, the fear is that the entire songwriting, recording and publishing industries are about to be consumed by an army of cockroach lawyers, all trying to wrestle awards for copyright infringement and song plagiarism. Even if those cases are, basically, bullshit, they’re very costly to defend against. Led Zeppelin may have won a frivolous challenge involving ‘Stairway to Heaven,’ but it costed them $800,000 to win! Not to mention all the schedule disruption, legal preparation, and general distraction that a case like this creates.
This is your chaotic future, with destitute heirs easily plucked as litigants against high-flying superstars, with half-a-million dollar settlements the ultimate prize. And without concerted, coordinated action by the music industry, especially publishers, this will become the problem consuming the music industry.
So what should the industry be doing about this?
Sadly, very little is being done to protect the future of songwriting against this threat. ASCAP and big publishers are kvetching about 100% DOJ licensing while inking insider Spotify agreements, all the while ignoring the giant tidal wave that’s about the wipe out the village. But urgent action is required, right now, starting with the following steps:
Step #1: The industry — not the courts — need to define exactly what song plagiarism is.
There’s no standard for what constitutes song plagiarism!
Right now, judges are looking at murky legal precedents and laws (state and federal) to figure out whether a song was copied. Juries, which are typically composed of John and Jane Does, often vote out of emotion, and right now, there’s abosutely no standard rule for what defines ‘plagiarism’ or copyright infringement.
Ed Sheeran used the same bass line as ‘Let’s Get It On’. Is that stealing, or just a bass line? Nobody knows! Which means, the industry doesn’t have any control over their most important asset: copyrights.
Instead, the industry — right now — needs to firmly declare what defines copyright infringement and plagiarism, and what doesn’t. It should be a quantitative, detailed test that can traverse many difference cases, involving mathematical similarities. We can break down every component of a song; let’s figure out what percentage is mere influence and ‘borrowing,’ and what constitutes actual, illegal plagiarism.
It doesn’t need to be a law. That takes too long. And judges won’t have to use it. But a firm industry code will go a long way towards guiding decisions. It will also offer some insurance against wildly unpredictable and idiotic decisions. It’s a good first step.
Step #2: Stop bitching about 100% DOJ licensing.
This is actually a very complicated issue, but publishers and PROs have lost this battle against the Department of Justice in the US. It’s over, and it’s time to move on.
But it’s not even clear that 100% licensing is actually harming songwriters overall, and in fact, there’s plenty of argument that the DOJ is actually protecting songwriters against their publishers. This is really for another article, and there are plenty of arguments to consider here, but remember: PROs and publishers care about PROs and publishers first. Songwriters should weigh all sides of this debate.
That said, it’s not the most important issue when songwriters (and their publishers) suddenly lack serious protection against their copyrights! Any lawyer can swoop in on a hit and find a violation, and moving forward, these cockroaches will definitely arrive right when you’ve got a chart-topper.
Shift the focus. Defending against predatory infringement lawsuits is about 100 times more important, both for the future of songwriters and for publishers.
Step #3: Start a legal defense fund for frivolous lawsuits.
Where’s the industry right now? The answer: nowhere. Writers are on their own, and that’s bad. Sure, Led Zeppelin can pay $800,000 and win, but very few others have that level of return firepower. Which is why the industry needs to build a legal defense war chest to fight smarmy lawyers looking for a score. Genuine lawsuits involving clear cases of plagiarism should proceed; frivolous suits should be shot down with experienced attorneys that are routinely trying these cases.
But this goes even further than that, because a concerted defense group will help to inject clarity into the decision-making processes. They will help to better educate judges and juries on what’s going on; they’ll even start applying tests created by the industry itself (see #1).
But even more importantly, a defense group can fight cases instead of settling them, all of which raises the financial and logistical bar involved in bringing a case. It makes it harder to start some frivolous, predatory case.
That’s how to you start to discourage this type of legal abuse.
Step #4: Change the laws involving royalties for heirs.
Many of these suits are coming from financially desperate heirs, who are simply looking for a cheap payday. These are people that had nothing to do with the original songwriting process, and are just milking a free royalty check. That’s called welfare, and these heirs will gladly go along with some ethically-bankrupt lawsuit.
But why are these ancient copyrights passing to great grandchildren and other distant decedents in the first place? Is that helping anyone in society besides those people?
Not at all. Maybe copyright law is simply too long and far-reaching, while benefiting too many undeserving people.
Step #5: Make lawyers pay for pursuing predatory lawsuits against songwriters.
Lawyers will think twice if they get hit really hard for trying frivolous and predatory lawsuits. This goes back to the collective idea, but aggressively pursuing legal fees — like Led Zeppelin — is critical after victory. So is fighting every challenge in court, instead of settling. These types of cockroach attorneys are driven by money, and the harder (and riskier) it is to get that money, the less motivated they’ll be to pursue these cases.
Step #6: Start mining the public domain. It’s probably already written.
What happened in the ‘Stairway to Heaven’ case? The same exact melody and progression was found in an early 17th century baroque composition. It was by some obscure Italian composer (but maybe a rock star back then!) Subsequently, other versions of the exact same progression appeared, with stunning similarity.
I’ve had attorneys explain to me why that doesn’t close a case. That even if a melody is in the public domain, it can somehow be plagiarized. But why is that? It should be a simple test: if it existed several hundred years ago, it’s in the public domain. That makes sense, and should be injected into the legal process.
Now, here’s where this gets really simple: almost every melody, and even every rhythm tied to that melody, exists in the public domain. In fact, I’ve even heard about a startup in Germany that started mining the entire history of recorded music with that exact purpose in mind.
It’s all been written before, and that alone should defeat 90% of these cases.
Sadly, the price of inaction is a completely demoralized songwriting industry, with top writers deciding to do something else. Or worse, losing their entire wellbeing because of some predatory legal attack that shouldn’t have happened in the first place. Is that the future we want?
This is your industry. So stop feeding it to the cockroaches!
Image snapped in Manila Bay (they’re eating a mango) by ric_k, licensed under Creative Commons Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0). Written while listening to ODESZA.