A run of recent copyright infringement lawsuits in favor of the plaintiffs has led Mike Levine to question how far such efforts can go, and what constitutes a song

A couple of weeks ago, Katy Perry and some members of her production team were hit with a $2.8 million copyright-infringement verdict, which stated that her song “Dark Horse” copied significant parts of an 11-year-old Christian rap song called “Joyful Noise.”

Meanwhile, Lady Gaga was recently sued over her song “Shallow,” for which a songwriter named Steve Ronsen claims she stole a chord progression from his song “Almost.”

The successful lawsuit last year by Marvin Gaye’s estate against singers Robin Thicke and Pharrell Williams over the song “Blurred Lines” is considered by many as a legal turning point in the field of music copyright. The estate claimed that Thicke infringed on Gaye's “Got to Give It Up” by using a similar feel and groove, which the defendants say is tantamount to copyrighting a musical style. If you listen to the songs back to back, they are dissimilar in melody and chords, while having a similar groove. But so do countless other songs.

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In the cases of Lady Gaga and Katy Perry, their songs hardly sounded like blatant rip-offs, either. They have some similar elements, but, at least from a common-sense musical perspective, they're not close enough to entitle the plaintiffs to a share of the proceeds.

A lot of songs have similar elements. In the case of Lady Gaga’s “Shallow,” the plaintiff’s complaint centered around the extremely standard Em-D-G chord progression. I mean, c’mon. If chord progressions, feels and grooves can be copyrighted, we might as well stop writing music.

I always thought copyright infringement had to be more on the level of the George Harrison “My Sweet Lord” case, where the similarities with the Chiffon’s “He’s So Fine” were much more substantial.

In case you’re wondering, like I was, what legally constitutes copyright infringement in music, here’s a good explanation from the website of intellectual property attorneys Paul and Paul:

If a composer feels a song has been infringed upon, she (the plaintiff) will have to prove two things before a court of law: “access” and “substantial similarity.” Music plagiarism law is a “strict liability tort” that means that if the plaintiff is able to prove that the accused (defendant) had access to her composition and the two songs have substantial similarity, it amounts to copyright infringement.

Access refers to the defendant’s ability to access the composition that was allegedly infringed. With so much old music now available on streaming services like Spotify, it’s much harder for defendants to claim that they haven’t been exposed to the song.

That same Paul and Paul article explains the steps taken during a trial to determine whether there is infringement:

To prove substantial similarity between the two songs, “the ordinary observer test” is carried out where a layperson can identify any common elements between the compositions. Since average jurors cannot read music, experts (musicologists) are called upon by both parties to give their opinion and plagiarism cases often end up being a battle of the experts.

But as these recent cases show, judges and juries seem to be accepting a looser definition of infringement. I’m afraid that unless the law is amended somehow, we’re going to see a lot more of these suits.

Let’s be real. All music has significant elements that are copied from what came before—how could it not? There are plenty of songs with extremely similar grooves, but that shouldn’t constitute copyright infringement. I mean, jeez, what is a “genre,” but a bunch of songs with similar feels, instrumentation and so forth. Something’s got to give on the legal side of this, or songwriters and composers are going to be severely handcuffed in the future when trying to write.