August 10, 2022 Musicology No Comments

I’m a musicologist, and I’ll explain it in just a few steps.

Let’s begin with…

Know what infringement is in the first place.

How succinctly can we define music copyright infringement?

Music copyright infringement is, “copying a sufficient amount of music that’s original to and protectable by another copyright holder such that the law should be bothered with it.”

First, infringement requires copying. It doesn’t need to be intentional, or conscious, but copying does require having had access to the prior work. You can’t copy something you’ve never been exposed to at all. You might coincidently compose something that’s the same, but that’s not infringement.

If indeed you have consciously or subconsciously copied something from a prior work, then we ask, first, “are the copied elements original to the other work?” and “are the copied elements substantial enough to be protected by copyright?”

To not infringe, don’t do that. But we can expand upon this.

Keep a diary.

One way to keep yourself on track, and perhaps one day demonstrate that you aren’t an infringer, is to have a diary of how your song was created. When you come up with a guitar riff, what were you thinking? When you come up with a lyric, what were you thinking? When you wrote that melody, what were you thinking?

Don’t start with the other work.

I do a lot of work with composers who’ve been asked to do a soundalike. In that case there is IN FACT another work that they’ve been asked to emulate, but in a fashion that will not constitute infringement. The unfortunate expression is too often, “Be close, but not too close.”

And that can be done, even ethically. But there’s a way to approach it, and starting with the prior work’s notes and changing them is definitely not it. If you’re asked to compose a soundalike, write; don’t edit.

I’m asked all the time, ‘how do I change it so it doesn’t infringe?” And I answer, “Don’t change music. Write music.” And then I have to explain what it means.

You wouldn’t start with Michelangelo’s David and then start making changes. Far better to write your own piece and then pull it in the direction of the work you were asked to emulate.

Musicologist Reports

Advertising agencies don’t take unnecessary risks with copyright infringement. They get a musicologist to look at the music and if there’s evidence of copying or even the impression of it, the musicologist recommends musical alterations to mitigate the risk.

For advertisers, that’s just good business. It’s a function of their exposure.

And often advertisers would prefer that the composer engage the musicologist, and build it into their fee.

But again, I would never recommend that a songwriter pay for musicologists reports as a matter of course. Unless your song is foresseably going to be a big hit, or is going into a Tide commercial, chances are nobody is coming for you.

Know what is and is not protectable.

I don’t want to oversimplify it at all. The question of what does and does not infringe is complex, nuanced, and not terribly intuitive in my experience. But there are some broad guidelines to keep top of mind.

Copyright in music remains fairly “melocentric.” It’s a term I associate with Katherine Leo’s excellent book, Forensic Musicology and the Blurred Lines of Federal Copyright History, and a concept that I think makes perfect sense. While melody, harmony, and rhythm are all important basic musical elements, and the relative importance of each (and perhaps a few others) may ebb and flow, melody and lyrics remain what I call the “blue chips” of musicological analysis. Musicologists and musicians in general are fond of making generalizations like, “you can’t copyright a groove, or a chord progression, or a beat,” but there are few hard and fast rules about such things. Still, there’s little question that a melody and especially one paired with a lyric is a more readily original and protectable musical element than a rhythm.

So don’t copy melodies. And don’t copy lyrics.

If you find yourself using a certain chord progression, and it reminds you of something, ask yourself what else it reminds you of. One of the main tools in a musicologist’s bag is prior art research. If ten other songs have that same chord progression (perhaps you’ve heard of the Axis of Awesome video?) then you’re fine. While I’m reluctant to say no chord progression can be protectable, I’m comfortable saying most can’t.

If you find yourself writing a lyric that is a lot like one you know from another work, ask yourself a similar question. Is the lyric at all unique to one prior work or is it a commonly used phrase or idea that no single creator should be able to claim a monopoly on?

Consider Your Moat

Your moat is your margin of safety, and your comfort. As we mentioned earlier, for an advertising campaign, you might want to take a wide berth, and not invite trouble. All risk is risk, including the risk of some tone-deaf accuser’s opportunistic claim. You need to defend against those too.

But for most creatives, unless your song is going to reach a broad audience, and make a lot of money, or your theft is brazen and blatent, your risk of Taylor Swift coming after you is probably modest. She’s pretty nice.

Questions? By all means ask!

Written by Brian McBrearty