What makes a song unique? Recently we’ve come across a number of articles about various artists being sued for copyright infringement of popular songs, two of the most notable examples in recent weeks have been U2 and Shakira.
Irish rock group U2 are in the news for allegedly plagiarising elements of their 1991 hit ‘The Fly’ from a track called ‘Nae Slappin’ by British Guitarist Paul Rose. They are being sued to the tune of AUD 6.5 million. In ‘The Fly’ Bono sings: “Every artist is a cannibal, every poet is a thief”, and that very concept is now being put to the test.
In the case of pop-star Shakira, she, her label Sony Music, Carlos Vives and a number of other defendants are accused by Cuban artist Livam Castellanos of plagiarising elements of Castellanos’ song 'Te Quiero Tanto’ in Shakira and Vive’s 2016 hit ‘La Bicicleta’, a Latin grammy winning song with over 800 million views on YouTube.
In the case of Paul Rose’s suit against U2, Mr Rose’s piece is instrumental, so the suit focuses on the melody. In the case of Shakira's ‘La Bicicleta’, the infringement is alleged to centre around similarities in the melody as well as a similar lyric.
Allegations of copyright infringement within the music industry pop up from time to time, and indeed, many big name artists can find themselves accused of infringing someone’s copyright, Ed Sheeran for example, was sued twice recently.
So what does it take to make out a case of copyright infringement?
In Australia, music, like any other work, is copyrighted when it is created. A song can be composed of multiple elements that contain copyright, namely: the melody, the lyrics and the way it is performed. There are also ownership rights, typically owned by a record company in a sound recording of a song.
So there are a number of areas where copyright can be breached. To establish that an infringement has occurred there must be an unauthorised use of a substantial part of the work (a substantial part being a vital or important part of the work, but not necessarily a large quantity of the work). In 2011 in Australia, for instance, in a controversial decision, the group Men at Work were found after appeal to have copied the melody of an old children’s campfire song in part of their 1980’s hit ‘Down Under’ though the infringed melody in question only appeared briefly in the song on a flute.
Copyright infringement cases in music can be an inexact science, the specifics, for instance, of whether a melody is copied will invariably require a comparison of the chords and notes of songs and expert testimony will be needed as a result to establish if substantial similarities exist.
The penalties can be significant when a case is made out. A good recent example being Robin Thicke and Pharrell Williams AUD 7 million payment to Marvin Gaye’s family for infringing Gaye’s 1977 hit ‘Got to Give it Up’ in Thicke and William's 2013 hit 'Blurred Lines'. That decision was not, however, without disagreement amongst experts, some of whom questioned the extent of the similarity.
We’ve posted links to the relevant videos of the U2 dispute below. Do the songs sound the same? Have a listen and decide for yourself and be sure leave your thoughts in the comments section!
U2’s 'The Fly’:
...compared to Paul Rose’s ‘Nae Slappin’:
This information is intended for guidance purposes only and does not constitute legal advice. If you do need legal advice, however, get in touch with us!