Contrary to popular opinion, plagiarism is no more popular today than in the past. It is easier to find, with software that can analyse entire databases of songs for similarities, but it still needs to be proven. The U.S. Copyright Act says “The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”
Leslie West said a number of times that he liked using the opening to Also Sprach Zarathustra, because he thought that less than six notes didn’t constitute plagiarism, but cases have successfully found the use of as few as three notes to be interpreted as going beyond “fair use” standards.
Plagiarism in writing is fairly obvious. Simply changing a name does not create a new story. Plagiarism in music is much the same, but the majority of people are tone deaf so it is less easily recognized. There are, after all, only seven notes, and concepts such as chords and progressions limit the melodic possibilities. The formulas of counterpoint are mathematical in nature, certain genres follow specific patterns, so the definition is less artistic than legal in some cases.
The point of litigation is usually money, the root of all legal, but the motivation for plagiarism is usually ego (lack of talent is a close second).
Consider the Beach Boys, who listed Brian Wilson as the sole composer of “Surfin’ U.S.A.”, even while acknowledging Arc Music, Chuck Berry’s publisher, as owning the copyright. Later Chuck Berry was listed as the songwriter, and some releases list both writers, although the copyright has always been owned by Arc Music. Will you ever hear Surfin U.S.A again without hearing the obvious Chuck Berry riffs?
I can hear The Chiffon’s influence in George Harrison’s “My Sweet Lord”, but it really didn’t seem like plagiarism to me. Bright publishing certainly heard it, or perhaps they heard the jingling of coins from suing a Beatle. George’s response above, “This Song”, takes a number of jabs at the testimony, my favorite is “This song has nothing Bright about it”.
When Men at Work were sued for using a riff from “Kookaburra sits in the old gum tree” (a popular children’s song from 1932) in the song “Down Under”, money was the obvious motivation. By 2009 sampling was de rigueur, but the important point of checking licenses was made. Which is how many rap “artists” made their living. Simply talking over someone else’s music doesn’t require as much talent as obtaining the right to talk over someone else’s music. Which might explain why Coolio got over his initial issues over Weird Al’s “Amish Paradise”, a parody of Coolio’s “Gansta’s Paradise” which was itself a “reworking” of Stevie Wonder’s “Pastime Paradise”.
Song parodies, the use of a song while changing the lyrics, can be an odd forum. The firm Goldieblox recently parodied the Beastie Boys song “Girls“, essentially turning the lyrics one hundred and eighty degrees, from abusive to empowering. In a blinding flash of irony, the late Adam Yauch, writer of the song, was a Buddhist and defender of feminism, but had made specific in his will that none of his work be used for commercial advertising. Plagiarism and irony often walk hand in hand, as in the time John Fogerty essentially sued himself for plagiarism. After he left Creedence Clearwater Revival to embark on a solo career, Fantasy records, the owner of the rights to “Run through the Jungle” sued on the grounds that “The Old Man Down the Road” was too similar. Fantasy lost, and John was allowed to continue being John.
Compensation for plagiarism can be as creative as the artists involved. Sometimes just a listing as a songwriter (which infers a percentage of royalties) as in the Chuck Berry v Brian Wilson case and The Hollies v Radiohead over “Creep” v “The air That I Breathe”. Oasis ran into a number of issues (that lack of talent thing), awarding credit to Neil Innes for “Whatever”, cash to The New Seekers for “Shakermaker”, and after initially pulling release to avoid prosecution over “Step Out”, released it as a B Side and gave writing credit to Stevie Wonder. Belgian songwriter Salvatore Acquaviva won a judgement against Madonna, claiming that her 1998 hit “Frozen” had been lifted from his early-1980s song, “Ma Vie Fout le camp.” The judge declined to award damages, but did order the withdrawal of all remaining discs for sale and barred the song from airplay on Belgian TV and radio. John Lennon agreed to record covers on upcoming albums as settlement for using Chuck Berry’s lyric “Here come up flat top / He was groovin’ up slowly” from “You can’t catch me” in the song “Come Together”. John didn’t quite fulfill his obligation (you may remember “Ya Ya” on “Walls and Bridges”, featuring nine year old Julian on drums) and had to pay $6,795. Absolutely worth it.
You don’t even need to claim to write a song to be sued for plagiarism. Ariana Grande, who has emulated Mariah Carey to the point that some people have asked why she hasn’t been sued for copyright infringement (oddly, Mariah never copyrighted herself) has been sued for plagiarism over her latest song, “The Way”. The problem is, Ariana isn’t listed as a writer of the song, which leans very heavily on Big Punisher’s “Still not a Player”. She’s just the vocalist.
Which brings me back to the question of assigning a value to plagiarism. Imitation is often considered to be the highest form of flattery, so being seen worthy of homage is payment enough to an artist who is happy with his place in the universe. When the fact Bruce Springsteen’s “Radio Nowhere” is amazingly similar to “867-5309/Jenny” was brought up to Tommy Heath, he said “I’m really honored at a similarity, if any, I think there’s too much suing in the world now”.
For my part, every fax machine I ever installed has a speed dial button marked Jenny, with the number 867-5309. I used it as a way of training users how to program speed dial buttons, every now and then there would be a smile from someone who made the connection.