Luna's Lexicon

In its early days, copyright law focused on safeguarding tangible expressions of a creator’s original ideas, such as books or paintings. Advancements in technology have made it easier for creators to combine existing works in ways that may go undetected. Music, with its various components like melody, lyrics, and rhythm, is particularly susceptible to what is known as “subconscious plagiarism” or “cryptomnesia.” This occurs when creators unknowingly incorporate elements from previous works into their own. Determining whether infringement has occurred can be challenging due to the nuanced and subtle nature of the similarities. The legal implications of subconscious plagiarism are complex, raising questions about the extent of copyright protection and its impact on creative expression. Examining the historical context of copyright law and the development of subconscious plagiarism in the music industry is essential to explore this further.

Copyright as an Engine for Free Expression

In the world of intellectual property, copyright plays a vital role in protecting an individual’s creative works that have been fixed in a tangible form of expression. Creators are granted exclusive rights to control, distribute, and profit from their creations, enabling them to potentially generate revenue that covers their investments and yields a profit. However, granting exclusive control to a single person takes a degree of freedom from the public from being able to use that work without authorization.

The Copyright and Patent Clause in the Constitution empowers Congress to “promote the progress of science and useful arts” by granting limited times of exclusive rights to authors and inventors. Thus, copyright’s primary purpose is to encourage the creation of new works, foster innovation, and cultivate diverse creativity in science and art.

While copyright provides creators with substantial control, there are exceptions and limitations. Fair use allows using copyrighted works for criticism, commentary, education, news reporting, library archiving, and parody. Determining fair use involves considering four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the use, and the effect on the market value of the copyright.

The framers of the Constitution envisioned copyright as a means to promote free expression fueled by public access to artistic creations. Thus, exceptions and limitations in copyright law require a delicate balance between the rights of creators and the interests of the public in accessing and utilizing creative works.

Copyrights in the Hands of Big Music

In music, fair use principles have fostered creative expression and allowed the industry to flourish. Musical genres evolve through the passage of common musical elements across generations. Genres serve as frameworks that enable musicians to build entire styles by drawing influence from other creators’ works. While utilizing similar musical elements, musicians add their own spin and interpretation, developing unique sounds and styles, such as jazz, blues, and hip-hop. Covers and sampling are common practices in the music industry, creating new derivative works that draw on specific influences and inspirations.

The music industry heavily relies on the ability to copyright musical compositions and sound recordings to profit from the significant investments involved in music production and distribution. However, there are concerns that the current structure allows large entertainment corporations to exert control over vast collections of content. Often benefiting big companies at the expense of small businesses and individual creators, as these corporations amass extensive catalogs of copyrighted music and possess the financial means to enforce their legal protections.

Referred to as “Big Music,” the industry’s largest players include production companies, streaming services, and other major entities. This concentration of power raises concerns about fair competition and access for smaller stakeholders. Striking a balance between the rights of individual creators and the dominance of big corporations is crucial to promoting fairness within the industry.

The Swift Effect

Taylor Swift is a notable example when discussing the major concerns surrounding copyright and Big Music. One concern is the potential stifling of creativity if a few major players restrict others from building on their IP. Swift’s 206 active or pending trademarks, cease-and-desist letters, royalty disputes, unauthorized use lawsuits, and copyright claims show Swift’s litigious attitude when protecting her intellectual property rights.

Another concern is the dispute between authorship and ownership in copyright law. Swift faced challenges in performing her creations because her publishing company owned the rights to her entire catalog and prevented her from performing those songs. However, after a public outcry, Swift was able to purchase the copyrights to her works, gaining control over her catalog and releasing songs from “The Vault” — a collection of previously unreleased and alternative versions of her songs that her previous production company initially withheld due to profit considerations.

This situation highlights the third concern: the potential limitation of innovation and accessibility to the public. The public was deprived of access to Swift’s unreleased works because they were not deemed profitable by the music industry. However, copyright law’s primary purpose in the United States is to promote innovation and benefit the public rather than withholding creative works based solely on their profit potential.

Coincidence or Copying: Legal Consequences of Subconscious Plagiarism

In the realm of music, proving copyright infringement requires demonstrating ownership of a valid copyright and the act of copying a copyrighted work. A mere similarity is insufficient, as two artists can independently create similar works. The courts found no infringement in Selle v Gibb after determining that the Bee Gees, who could not read or write music, could create a similar piece through independent creation without infringing on another’s copyright.

Copying can be proven through direct or indirect evidence, with direct evidence being rare and indirect evidence being more common. Indirect evidence typically involves establishing access and substantial or striking similarity. Access can be demonstrated through circumstantial evidence, such as prior relationships or the public availability and mass distribution of the original work. However, mere access to a sample does not always lead to a valid infringement claim, as licensing agreements can grant permission for its use in other works.

In the case of Bright Tunes Music v Harrisongs Music, George Harrison’s song “My Sweet Lord” was found to infringe upon the Chiffons’ song “He’s So Fine.” Harrison admitted to being familiar with and enjoying “He’s So Fine” before writing his song but claimed any similarity was coincidental. Indirect evidence indicated access, such as the chart-topping status of “He’s So Fine” while Harrison was listening to the radio. The court concluded that Harrison had subconsciously copied the song, highlighting the concept of subconscious plagiarism. Lack of intent does not absolve liability, as an artist can be considered to have access to widely known works through societal exposure.

This case exemplifies how subconscious plagiarism can be applied in copyright litigation, highlighting the potential legal consequences of unintentional copying.

The Evolution of a Riff

In the case of Olivia Rodrigo, the release of her debut album “Sour” led fans to notice similarities between her songs and those of artists like Paramore, Taylor Swift, and Elvis Costello. Social media became a platform for discussions on intellectual property, with fans sharing theories and opinions; one fan even created a viral mash-up of “Good 4 U “and Paramore’s “Misery Business.” Rodrigo, a vocal “Swiftie,” acted swiftly by applying retroactive credits to address potential intellectual property claims.

Copyright concerns resulted in significant financial consequences, as royalties were redistributed to the credited artists. Royalties in addition to the credit she had already given to her collaborator Nigro, which was half of her earnings. Rodrigo credited Hayley Williams and Joshua Farro from Paramore with a combined 50% of the royalties from “Good 4 U”. Swift, Jack Antonoff, and St. Vincent shared 50% royalties for the song “Déjà Vu.” Swift and Antonoff were each allocated a third of “1 Step forward, 3 Steps Back” royalties.

The retroactive credits resulted in a major financial win for those credited and a loss for Rodrigo. “Good 4 U” is estimated to have generated $2.4 million in publishing royalties globally just a few months after the album’s release in the fall of 2021. retroactive credits total over $2 million and a growing loss of publishing royalties for Rodrigo and her co-writer Nigro. On the bright side, she likely avoided much more expensive copyright infringement lawsuits.

However, not all the similarities resulted in Rodrigo sharing credit and profits. addressed the use of a similar guitar riff in the song “Brutal” that he used in his song “Pump it up” when a fan called it a “direct rip off” by tweeting, “This is fine by me… It’s how rock and roll works. You take the broken pieces of another thrill and make a brand-new toy. That’s what I did. #subterreaneanhomesickblues #toomuchmonkeybusiness.” Costello’s comment shed light on the nature of rock and roll and its culture of borrowing and reinterpreting. Costello acknowledged that the riff had its roots in earlier songs, such as Bob Dylan’s “Subterranean Homesick Blues” and Chuck Berry’s “Too much monkey business.” Costello possibly took this stance because he knew he had no room to criticize, considering he and Dylan could also joke about how he had lifted musical components from Dylan. Looking at all four songs together exemplifies the evolution of how artists can appropriate a unique sound to create their own creative works.

The riff in question derives from traditional blues incorporated into rock and roll blues. It begins with a rhythmic pattern repeated on the same pitch, usually descending by half steps or glissando down to no more than a minor third. The iconic descending phrase has evolved from swung eighth notes to straight rock and roll. “Pump it up” is inspired by “Too much monkey business” and “Subterranean Homesick Blues,” its recognizable riff is most like the riff in “Brutal.” Rodrigo and Costello each chose to layer the descending phrase over a strong bass beat that leans into the agitated punk rock sound. Both songs use the same sequence of notes: B-Bb-A; however, the rhythm varies slightly. The “Pump it up” riff starts with two-quarter notes moving into a syncopated eighth note pattern, while the riff in “Brutal” consists of consecutive eight notes ending with a quarter note.

Nonetheless, the songs still differ in many ways. Costello’s bandmate Steve Nieve used a Vox Continental Organ to help create a distinctive sound representative of the era. Rodrigo also used uncommon instrumentation in the punk rock genre; the piece begins with a string orchestra to help with the ascending feeling that leads to her drop in lyrics and throughout the song. She also creates various synth and string noises with her modern production technology, adding different creative sounds to capture her coming-of-age theme. Rodrigo adds her own form of teenage angst with her brutally honest lyrics about her experience being a teenage girl moving through the entertainment industry, including “and I’m so tired that I might quit my job, start a new life, and they’d all be so disappointed; “Cause who am I, if not exploited?”

Rodrigo doubles down on her Y2K (Year 2000) theme with her innovative music video for “Brutal,” directed by Petra Collins. Leading into the video, viewers see an older TV and hear the whispers of the song as an 8-bit track in the background. The video emulates a time when adobe flash player games were being played in a web browser to match the lyrics representing an anti-teenage dream.

Through appropriation and artistic reinterpretation, Rodrigo took a simple riff with a long history and transformed it into something beautiful and distinct. The prevalence of subconscious plagiarism in the music industry emphasizes that while Rodrigo may have unintentionally borrowed from earlier works, her artistic expression and reinterpretation of the riff resulted in a new and valuable creation. With platinum certifications and international recognition, “Brutal” has found its place in the evolution of music.

This post was adapted from a research paper collaboration with Trent M.C. McBride & Lexi Doremus-Wessels. Thank you!