Paul Heald is the Richard W. and Marie L. Corman Professor of Law at the University of Illinois and an expert in patent, copyright and international intellectual property law. He spoke withNews Bureau business and law editor Phil Ciciora about copyright infringement lawsuits in popular music, including a recent lawsuit brought by the estate of the late Randy Wolfe, aka Spirit guitarist “Randy California,” who is suing Led Zeppelin’s Jimmy Page and Robert Plant for allegedly stealing the intro of “Stairway to Heaven” from Spirit’s “Taurus.”
Why has there been a proliferation of lawsuits alleging copyright infringement of popular music?
I held a roundtable with musicians and musicologists in England last summer to talk about this issue. What struck me is that every single musician I met thinks every single one of these music copyright infringement cases is wrong. Which is counterintuitive, because the only reason we have music copyright is to protect composers and arrangers. The whole idea is to provide an incentive for them to write music, but they think the law generates wrong results.
What musicians say is that they borrow from each other all the time. Musicians have been working and composing together for hundreds of years and have really well-established norms of what you can and can’t take. And those norms don’t match up with the law at all.
So the law is really out of step with music-borrowing norms, and this scares musicians.
Why is there this disconnect between music composition and the law?
It has to do with the jury instructions given in music copyright infringement cases. The test for infringement is derived from a Cole Porter case from 1947, and it has to do with the defendant wrongfully appropriating what is “pleasing to the ears of lay listeners.”
There are a couple of real problems with that. For starters, it gives no guidance as to what is a “wrongful appropriation” – how do we determine what is “wrong,” and how much is too much?
But the biggest problem is this focus on what is pleasing to the ears of lay listeners. Who cares what lay listeners hear? Music copyright isn’t about protecting the audience. It’s about protecting composers. It gives one composer the right to sue another composer. What an audience hears is irrelevant and affirmatively misleading because lay listeners hear all sorts of similarities in music. Those similarities can be because it’s in the same genre, has the same rhythm, or both songs share a common public domain root. Most pop songs have virtually the same chord progressions and, thus, all sound alike. So, sure, there’s borrowing, but it’s the exact kind of borrowing that’s been going on for a hundred years, and music works only because musicians can do this kind of borrowing.
So this bizarre focus on the audience prevents judges from listening to musicians and deciding cases the way musicians would like them decided. It’s no coincidence that the “Blurred Lines” case was brought by the estate of Marvin Gaye, who would have never sued Robin Thicke in a million years because Thicke did exactly what Marvin Gaye did many times before.
What is your take on the “Stairway to Heaven” case?
Through my lay-listener ears, it’s not even a close case for the estate of Randy California, and it looks more like a cash grab by the estate than anything else.
All of these lawsuits revolve around the infringement of the written musical composition. It doesn’t matter how Randy California played “Taurus.” The only way you can infringe on a sound recording is to make a counterfeit copy. So the jury should never be allowed to hear the sound recording of “Taurus.” The only protectable work in the lawsuit is the sheet music that Randy California wrote. So what we’re analyzing is what Led Zeppelin did against the Spirit sheet music.
Ironically, other research indicates that juries can be misled by playing two sound recordings side-by-side. When a computer program played two songs, a mock jury found infringement in less than 30 percent of the cases. But then the researcher had jurors listen to performances of the exact same notes but played in a different genre or style. Say, reggae or country style. The infringement findings went up to 70 percent. So juries can be hoodwinked by similarities in unprotectable musical elements like style, which is why courts should be confining their focus to the similarities that are on the page.
Will this litigation have a chilling effect on musicians?
To the extent that it raises anxiety among musicians about borrowing, yes. It may lead to musicians documenting their musical process more than they would otherwise, which adds time and money. So it’s either going to chill or add costs to composing. Just in the same way that firms jump through hoops to prove that their software programmers aren’t copying anyone else’s code.
And it’s not a defense for a musician to say, “I’m observing the normal borrowing norms of my trade.” Which is weird, because that’s the defense in almost every kind of damage action. If your doctor operates on you and you die on the table, he’s not automatically liable. He’s only liable if he violated the professional norms for surgeons. Same thing with architects, engineers and hairdressers. It’s almost always a complete defense to behave reasonably and observe the rules that govern your professions.
Except for composers. Composers can do all that and still be held liable. It’s very strange to me, and it’s a historical anomaly.
What changes would you make?
The American Society of Composers, Authors and Publishers should include in their standard membership agreement that musicians arbitrate, not litigate, infringement cases before a panel of musicologists or professional musicians. There’s no musician who wouldn’t be thrilled to have a panel of musicians judging their case rather than a jury. It’s easier to make reforms in that direction rather than trying to have the courts do anything.