How to Stop Cockroach Lawyers from Eating the Songwriting Industry

Cockroaches Attack Songwriting!

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.

+ Exclusive: ‘Stairway to Heaven’ Is Actually In the Public Domain.

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.

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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.

9 Responses

  1. Anonymous

    Really, really great and important article!

    One little thing, this is not correct:

    “almost every melody, and even every rhythm tied to that melody, exists in the public domain”

    Finding exact note sequences longer than 8-10-12 notes is very, very rare. I’ll go so far as to say that cases of 14 notes don’t exist.

    There’s a reason for the old non-existing non-rule of 8 consecutive notes, or approx two bars.

    Reply
    • Paul Resnikoff
      Paul Resnikoff

      Good point, of course after a certain level of complexity the math changes; public domain matching is far less likely. But, I wonder if I started digging through several hundred years of works between 1500 and 1800 if I’d find that ‘Let’s Get It On’ bassline? I bet there’s a match.

      Reply
  2. Anonymous

    “if it existed several hundred years ago, it’s in the public domain”

    Well, that is indeed true — if you find the melody to McCartney’s YESTERDAY in a 15th century hymn, then you can use and monetize it as you please — and so can everybody else (provided the resulting song doesn’t have any other similarity to Yesterday). This is the one proven bullet proof defense that made various music dictionaries and melody search engines popular.

    Any lawyer saying otherwise is literally not worth their fee.

    Reply
  3. Faza (TCM)

    Oh God, there’s so much wrong here I don’t know where to begin, nor do I have a lot of time. Let’s take it in turn, shall we?

    Step 1: It’s the US, yo! The only way the question of plagiarism might get settled is through the courts. The industry can deliberate the matter all they want, but until there’s a binding precedent it ain’t worth jack.

    Step 2: If you think the lawsuits are bad now, just wait for what it’s going to be like when decades-old split agreements have to be renegotiated (quite possibly with the same estates that are bringing these lawsuits) in order to allow for 100% licensing.

    Step 3: Just about the only sensible suggestion of the lot.

    Step 4: I’ve got an even better idea: if we throw out copyright altogether, there won’t be a cause of action at all! I mean, Paul, WTF?

    Step 5: This is a bit of a no-brainer. Unfortunately, it does rather depend on the courts again, don’t it?

    Step 6: And what good will that do, exactly? The best you can do with that is to show that an element in dispute is not protectable, but that doesn’t mean the plaintiff has no other cause of action. If a lawyer tells you something is a dumb idea, from a legal perspective, listen to the lawyer.

    Reply
    • Anonymous

      “The best you can do with that is to show that an element in dispute is not protectable, but that doesn’t mean the plaintiff has no other cause of action”

      Um yes, that’s exactly what it means.

      Reply
  4. Ari Herstand
    Ari Herstand

    AMEN! The ones bringing the lawsuits are desperate heirs (and greedy attorneys). They are not righting a wrong. They are looking for a payday. “Blurred Lines” case was a horrible precedent which opened the flood gates. I agree, let’s penalize attorney’s for taking on these kinds of cases. Let’s setup an organization and legal defense fund for which any songwriter can tap into if they are hit with a frivolous lawsuit.

    This needs to stop now!

    Reply
  5. Jody Dunitz

    If heirs are the driving force now behind increased litigation, it’s because they lie outside the bubble that discourages claims and incentivizes settlements. Active writers hesitate to sue potential future co-writers or bands that might cover their songs. Further, in the new world order of giant consolidation where three publishers control 70% of revenue-earning songs in the US, the plaintiff and defendant songs are likely owned or controlled by the same publisher who surely seeks to avoid disputes. Heirs are not constrained by these business interests; but that does not make them all predators.

    The proposal for an industry-divined standard for plagiarism is a really timely idea – for additional reason not highlighted in your piece. The legal rules of plagiarism are difficult to apply to the structure of the pop song of the 21st century. Legal precedents derive from cases that analyzed the traditional pop songs constructed from melody and lyrics. But, so many of today’s songs are track-and-hook based and borrow a lot from other songs. John Seabrook’s book “The Song Machine” contains an excellent discussion of this trend. As he says, similar sounding records have proliferated. Do these new creations fall outside of copyright protection?

    Copyright laws are the only way to ensure compensation for creators. So, as you argue, a shared consensus among stakeholders would go a long way to preserve legitimate copyright interests.

    Reply
  6. Nicky Knight's thoughts

    It’s a complete nonsense – especially when they refer to “feel” as in the Blurred Lines case..

    There is a way out of it and that is to record an arrangement version where you replace the funky bassline with a standard eights or octave down/up bassline and change the drums to a more programmed drum machine pattern .. the song still sits comfortably on top of this and can still be just as appealing..

    Max Martin has written a million hits and if you listen to his bass and drums you’ll notice generally that they’re pretty simple.. the hooks all reside on top..

    Imagine “Blurred Lines” done like this, well it has.. I found a cover on iTunes that’s applied these principles and same with “Uptown Funk”.

    Reply

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