Plagiarism & Counterfeiting

Just like the Highway Code or the Tax Code, the Intellectual Property Code contains an invisible article that is worth remembering: article zero. This essential article says ‘not seen, not taken’. The disadvantage is that it is followed by article zéro bis, which stipulates: ‘vu… pris’ (seen… taken). There’s also the well-known adage in the music world: ‘where there’s a hit, there’s a lawsuit’. But enough jokes. In art and literature, a plagiarist is someone who has abusively borrowed from an original work. In other words, someone who has made a copy. In the field of music, counterfeiting is the usurpation of intellectual property rights. By copying an original work, the plagiarist is guilty of counterfeiting. They are stealing someone else’s work. But the word ‘original’, when used in conjunction with ‘work’, has a very specific meaning in law.

The original work and the new work

An original work is one for which there is no known predecessor. In music, this means a work whose melody does not resemble a pre-existing one. While the originality of a novel or a play lies in the story, which is relatively easy to identify, it is much more difficult to demonstrate borrowing in music. When copyright first came into being in the first half of the 19th century, legal experts struggled to define what constituted originality in a musical work. Neither the rhythm, common to many works, nor the harmony, whose sequences are recurrent, could be taken into consideration when deciding whether or not a musical work could be considered original. Consequently, the melody was retained as the main tangible element defining originality. However, in the event of a conflict between two composers, similarities in harmony and rhythm will be elements likely to be taken into account to demonstrate the intention of the alleged plagiarist. For example: in 1966, Franck Sinatra sang Strangers in the Night by Bert Kaempfert – music by Charles Singleton and lyrics by Eddie Snyder. It was a worldwide hit. A French composer, Philippe Gérard, sued the authors and publishers of Stangers in the Night for plagiarism of the melody of his song Magic Tango. Although the two melodies were similar, Philippe Gérard was unsuccessful because his song Magic Tango itself bore similarities to other pre-existing melodies. About a hundred, it seems. Strangers in the Night is therefore an original work in terms of the lyrics and the music, but the melody alone is not. In this case, the melody that is not original—since other more or less similar ones existed beforehand—is referred to as a new work. When disputes arise regarding the ownership of a work, it is therefore up to the accused composers to demonstrate that their melody is not original by searching for precedents. Paradoxical, isn’t it? A new work, or partially new work, is, for example, one that borrows a melody belonging to the public domain but presents it in a new arrangement or with new lyrics. “Lemon Incest” by Serge Gainsbourg, which borrows the melody from Chopin’s Etude No. 3 in E Major, Op. 10, titled “Tristesse,” is a typical example of a partially new work; even if the lyrics are original. Serge Gainsbourg, to name just one, has extensively borrowed classical themes in his songs. This is notably the case with “Baby Alone in Babylone,” which is based on the first movement of Brahms’ Symphony No. 3, and “Initials BB,” which draws on motifs from Dvořák’s “New World Symphony.” While Serge Gainsbourg did indeed use these melodies to create new works, he did not unjustly appropriate someone else’s property, as these works belong to the public domain. It should be noted that, in the case of new works such as those whose melodies are borrowed from the public domain, folklore, or classical sources, SACEM has decided since 2020 to distribute the rights as if they were works without borrowing from the public domain.

How to Demonstrate Plagiarism?

A common way to demonstrate the similarity between two works is to transcribe their melodies in the same key on two separate sheets of tracing paper and then overlay them. Only the comparison of the pitches and intervals should be considered. The superposition of the two staves will reveal the similarities that may exist between the two melodies. Courts may also call upon accredited experts whose role is to provide the judge with assessments that allow for a decision to be made.

Cases of Similarity, or So-called Fortuitous Encounters

One of the most well-known cases of fortuitous resemblance is certainly that of the song “Feelings” by Morris Albert, a Brazilian composer and singer born in 1951. His birthdate is significant in the case that pitted him against the singer and actress Line Renaud for many years. Line Renaud’s husband, Louis Gasté, had composed a song titled “Pour Toi” in 1956. After the global success of “Feelings” in 1974, whose French adaptation “Dis Lui” became one of Mike Brandt’s biggest hits, Louis Gasté sued Morris Albert and his publishers due to the melodic similarities between the two works. In 1956, the year “Pour Toi” by Louis Gasté was published, Morris Albert was 5 years old. Since “Pour Toi” did not achieve success, neither in France nor, a fortiori, in Brazil, it is unlikely that Morris Albert would have heard it, and especially remembered that melody. However, “Pour Toi” had been introduced in Brazil in a film that young Morris Albert might have seen. This argument was put forward by Louis Gasté’s lawyers. It is certainly insufficient, but another element supported the lawyers’ case: “Pour Toi” had been under-published in Brazil by the same company that owned the publishing rights to “Feelings.” Thus, a link could be established between the two works, and after a long legal battle, the authors of “Feelings” are now Morris Albert and Louis Gasté. Despite the compromise establishing the co-ownership of “Feelings,” it seems quite unlikely that in 1974, Morris Albert, who was 23 years old at the time, could have consciously plagiarized an unknown French melody that was supposedly broadcast in his country when he was no more than 5 to 10 years old. If that were the case, it would be a disturbing reminiscence.

The Musical Services of SACEM

A Common Misconception

As we have seen, the SACEM’s musical dictionary takes into account the first 8 measures of the melodies referenced. This is probably the reason why a rumor persists that it is possible to plagiarize or use 7 measures as long as the 8th is different! This urban legend needs to be debunked. To illustrate this, just hum “Yesterday” while keeping the beat. You will immediately realize, starting from the second measure, the absurdity and danger of this rumor.

In the Style of…

Any composer can draw inspiration from the manner or style of another composer, but only on the condition that they do not plagiarize a specific work. There are numerous cases of songs written in the style of various well-known artists. The Beatles had, and still have, many imitators. Borrowing compositional quirks is not condemnable. Maurice Ravel, for example, composed pieces in the style of Borodin and Chabrier while their works were still protected. It is evident that when a musician establishes a style that becomes a reference, it spreads among their admirers, who can only compose in that manner. In France, the revival of gypsy jazz has given rise to compositions in the style of those by Django Reinhardt and Stéphane Grappelli without considering these works born from the gypsy jazz genre as acts of plagiarism.

Sampling

Sampling a recording without permission from its owners is obviously a form of infringement. Even though, in this specific domain, the “no harm, no foul” mentality often prevails. Sampling without authorization is both reprehensible from a copyright perspective and in terms of protection on recordings, or neighboring rights. A well-known case in this regard is that of The Verve vs. the Rolling Stones. Although The Verve obtained permission to borrow part of the strings from an orchestral version of The Last Time, they were accused by the Rolling Stones of having abused that borrowing in their song Bitter Sweet Symphony. After the case was taken to court, all rights to that song reverted to the Rolling Stones.

The Evolution of the Notion of Plagiarism

The evolution of the notion of plagiarism now touches on recording rights. Since the early 1980s, and in many places around the world, neighboring rights that protect recordings prevent the production and exploitation of sound-alikes. For reference, a sound-alike is a copy of an existing recording. However, there is a difference between a sound-alike and a cover, or cover version. Ray Charles singing Yesterday does not create a sound-alike. He offers his interpretation of the song by Lennon and McCartney. Reinterpretation has always existed and is even customary in popular song. All jazz musicians have recorded cover versions of major standards, most of which are from American musicals; for example, Summertime from Porgy & Bess. Unlike a cover, a sound-alike is more about imitating the reference recording for strictly commercial purposes. For instance, an advertiser who acquires the synchronization rights of a song for a film can legally create a cover of that song if they cannot acquire the rights to the original recording. However, this cover must differ from the reference recording; for example, in its arrangement. But if that advertiser seeks to create a sound-alike, meaning they deliberately copy the reference recording, they then commit an act of infringement: a form of plagiarism regarding a recording. The infringement of recordings was a common phenomenon and difficult to penalize before the establishment of neighboring rights in the 1980s. Recently, this relatively new form of plagiarism has likely been considered by judges in the Blurred Lines case.

The Blurred Lines Case

Blurred Lines by Robin Thicke and Pharrell Williams presents, in purely melodic terms, similarities to Got to Give it Up by Marvin Gaye. However, for any informed musician, especially if we overlay the transcriptions using layering, the two melodic lines are significantly different. There are certainly thousands of melodies in funk or soul music that are similar to those of these two songs. It is also likely that the lawyers for Robin Thicke and Pharrell Williams had to present this argument. But clearly, what the judges considered in favor of Marvin Gaye’s heirs was the overall vibe emanating from both recordings. In this case, the melodic element of plagiarism is certainly important but not decisive. It would have been very different if Robin Thicke and Pharrell Williams had not borrowed elements from the arrangement, or even the production, of Marvin Gaye’s recording. This case sets a precedent that could establish case law in cases of arrangement plagiarism and, beyond that, in recording production. The subject is vast and inexhaustible. We will conclude with a quote attributed to Igor Stravinsky: “A good composer doesn’t imitate… He steals.” Frédéric Leibovitz – December 2018