GMPU 06.11.

2023

Das Plagiat
(Dieses Dokument ist nur für die interne Verwendung vorgesehen.)

"Blurred Lines" - Robin Thicke & Pharrell Williams

The song "Blurred Lines" by Robin Thicke & Pharrell Williams was a big hit in 2013. But Marvin
Gaye's family thought it was similar to Marvin Gaye's song "Got to Give It Up" from 1977. They
went to court, and Marvin Gaye's family was awarded more than seven million dollars.

"Stay With Me" - Sam Smith

Sam Smith's song "Stay with Me" was said to be similar to Tom Petty And The Heartbreakers' song
"I Won't Back Down." They reached an agreement later, and Tom Petty and Jeff Lynne got a share
of the money.

"Ice Ice Baby" - Vanilla Ice

"Ice Ice Baby" by Vanilla Ice was a big '90s hit. However, it used part of the music from Queen and
David Bowie's song "Under Pressure" (1981) without giving them credit. Vanilla Ice and Queen and
Bowie reached an agreement outside of court.

"Viva la Vida" - Coldplay

Coldplay was accused of copying several artists in their song "Viva la Vida." Guitarist Joe Satriani
claimed the song was like his song "If I Could Fly." Another songwriter, Andrew Hoepfner, said it
was like his song. Cat Stevens also said Coldplay borrowed from his song "Foreigner Suite." They
settled with Joe Satriani in 2009. The other claims were dropped.

"Happy" - Pharrell Williams

Pharrell Williams was accused of copying Marvin Gaye again for his song "Happy." This time, it
was Marvin Gaye's "Ain't That Peculiar." But there was no lawsuit this time.

"Uptown Funk" - Bruno Mars and Mark Ronson

When Bruno Mars and Mark Ronson released "Uptown Funk" in 2014, they were accused of
copying The Gap Band's "Oops Upside Your Head" from 1979. They settled in 2015, and The Gap
Band's songwriters got credit and a share of the money.

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"Come Together" - The Beatles

John Lennon used parts of Chuck Berry's song "You Can't Catch Me" in the Beatles' "Come
Together." Instead of going to court, they agreed that Lennon would sing and release three of
Berry's songs on his own album.

1 The Concept of Plagiarism

In copyright and other laws, there is no legal definition of the concept of plagiarism. Plagiarism is
intellectual theft, which is committed when someone presents another person's intellectual creation
as their own. In practice, this is done by falsely attributing a source. The plagiarizer portrays
themselves as the author without actually being the creator of the work. A definition of plagiarism is
"the deliberate appropriation of another person's intellectual creation, combined with the
presumption of authorship of the foreign work."

2 Inspiration

Of course, creative musicians can draw inspiration from existing works. Pop music is in a constant
state of evolution, which means that works build upon the ideas and creations of other music
creators. It is unreasonable to expect anyone to isolate themselves entirely from the outside world to
ensure that no external influences enter their work. If, in every single case, it depended on the
consent of the "influential musician" from whose works one draws inspiration, to continue or adopt
individual elements, the development of popular music would be greatly hindered. Therefore, it is
clear that certain basic elements, such as the rights to individual chords, cannot be attributed to a
single author but rather belong to the public and can be used by anyone without requiring approval.

If a stylistic element is "common" or "generally accepted," anyone is allowed to use it in their

works. If the extremely successful and common chord progression "C - Am - F - G" were
copyrighted, many pop songs would have never been written. However, in practice, the difficult
question arises of what is considered "common." The mentioned chord progression was not
"common" at all times. It, too, was originally created and, therefore, enjoyed copyright protection.
To meet the criterion of being "common," it requires repeated use in various works.

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3 Objects of Protection

Musical compositions in popular music generally consist of melodies, harmonies, rhythms, sound
design, and structure. According to prevailing opinion, the exact object of copyright protection for
musical works is the interplay of all these listed elements as a whole. This includes the structure of
the note sequences, rhythm, and instrumentation. The concept of music also encompasses the use of
instruments and the increasingly common use of electronic tools in the world of music. In addition
to these audibly perceivable elements, notation also enjoys copyright protection when it enables the
musical reproduction.

3.1 Melody

Musicology defines melody as "a self-contained tonal movement unfolding in time, which usually
distinguishes itself from less self-contained tone sequences (secondary, accompanying, filler voices)
by internal coherence, melodiousness, ease of comprehension, or the solidity and completeness of
its form." However, this definition is not suitable as a legal concept because it is too vague. The
Higher Regional Court of Dresden has considered a melody as a "sound structure that can be
extracted from the work independently and is accessible to exploitation by paraphrase and
paraphrasing, retaining its original individual character even after removal from the foreign musical
work." Consequently, a melody can be considered as such when it represents an independent, self-
contained theme. A melody generally includes a rhythm, which is inherently part of the melody.

The presence of "individual characteristics" alone is the prerequisite for copyright protection of a
melody as part of a work.

According to Hans-Stecker, there are only 4050 different hit melodies, according to one calculation.
The possibilities to compose different melodies are, in reality, limited in number. According to
Hanser-Stecker's view, it is highly likely that many similarities in melodies in different works are
the result of this numerical limitation rather than intentional plagiarism (Jörger, "Plagiarism in
Popular Music," 153).

3.2 Theme and Motif

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The motif is the smallest element of a melody. Since themes and motifs also represent parts of
works, copyright protection is possible if the required uniqueness is present. Motifs play a
significant role in jazz and rock music in the form of "riffs." Riffs are a mixture of melody and
rhythm, repeated to form the basis of a song. Another stylistic element in popular music is the "lick"
(often identical to the concept of the motif).

3.3 Chord Progression

Musicology defines harmony as "the totality of musical relationships and phenomena resulting from
the consonance (chord) of several notes." It is understandable that a single chord does not enjoy
copyright protection; otherwise, the possibilities for musical innovation would quickly reach their
limits. This so-called "need to keep things free" enables artists to create individual intellectual
creations. The theoretical possibility of creating a "unique" chord seems unrealistic because it is
challenging to imagine a single chord meeting the strict requirement of individuality. An exception
to this is the so-called "Tristan chord." The "Tristan chord" consists of the chord tones "F - B - D# -
Ab" and was first performed by Richard Wagner in the music drama "Tristan und Isolde" in 1865 (a
unity of poetry and music).

The situation is different for chord progressions. Chord progressions offer far more diverse
combinations than individual chords and can thus represent more individual and unique creations.
Not every chord progression is subject to copyright protection. If it is common, it lacks the
necessary uniqueness. The same applies to stylistic elements that are commonplace in specific
music genres, such as the well-known "circle of fifths" sequence in classical music. If the first
composer of this chord progression were considered the author, the progress of music would be
severely hampered. Another example is the frequently used chord progression known in jazz music
as "Rhythm Changes," which, however, originates from George Gershwin's song "I Got Rhythm." It
also raises questions about whether it is even possible to create a new, never-before-seen chord
progression in the meantime.

3.4 Rhythm

Rhythm is "the organization, structure, and meaningful design of the temporal course of sound
events" or, in other words, "the temporal design and organization of music." The concept of rhythm
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consists of rhythm in the narrow sense, meter, and tempo. The prevailing opinion qualifies rhythm
as a non-protectable element. An example of a protected rhythm composition would be Queen's
song "Another One Bites the Dust." The bassline is the central character-forming element of the pop
song. Using this bassline in another song would, therefore, be considered copyright infringement.
Queen's song "Under Pressure," recorded with David Bowie, establishes associations with another
worldwide hit right at the beginning. Although the bassline of the song consists of a series of simple
melodic fourths, the unique rhythm becomes evident after a few seconds, as this exact bassline was
used as a 1-to-1 copy in Vanilla Ice's song "Ice Ice Baby." If a rhythm is sufficiently individual, it
can be subject to copyright protection. The prerequisite is that the rhythm is so distinctive that it
constitutes the work itself or at least a significant part of it.

3.5 Sound Design and Sound Character

It is generally believed that sound color alone does not constitute a protectable part of a work. If the
need for protection were affirmed, it would open the possibility to protect entire instrumentations or
orchestral arrangements under the "first come, first served" principle.

Happy Birthday

In Austrian law, there is very little case law on the topic of "plagiarism in music." In the decision
"Happy Birthday II," which we will examine below, the Austrian Supreme Court (OGH) recognized
that the refrain of Stevie Wonder's song "Happy Birthday" is granted copyright protection as a part
of the work. Briefly, the case involves an Austrian advertising agency that reproduced Stevie
Wonder's song "Happy Birthday," copying all the known elements of the original song. This version
was actually used in a commercial. The decision clarifies that the song, in its entirety, and especially
the refrain, differs from the ordinary and commonplace, thus "expressing the personal
characteristics of the plaintiff." The refrain of the pop song is unique and distinctive because the
lyrics, combined with the melody, create an uncommon rhythmic phase shift for popular music. To
a layperson, the "individual aesthetic expressive power" is demonstrated by creating an association
with the work and the artist upon repeated listening. This wouldn't be the case if the advertising
agency had used common musical elements. The decision also provides an essential answer to what
is crucial for determining copyright infringement in the form of plagiarism: "In a plagiarism
dispute, the only factor deciding is the correspondence between the original and the infringing
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subject in the creative part of the original that gives it uniqueness." Plagiarism is undoubtedly a
wrongful copyright infringement. The OGH also addresses the question of whether the supposed
plagiarism might be considered a "free use." However, it's a fact that for something to be considered
free use, "despite its connection to another work, it must be a different, independent work in which
the work it's based on completely recedes into the background." In this particular case, since the
foreign work was only minimally altered, independence is denied. Due to the presence of a risk of
recurrence, an injunction was granted.

Four Arguments Against an Accusation of Plagiarism

When an accusation of copyright infringement in the form of plagiarism is made, the alleged
plagiarist has various options to prove that their work is not a plagiarism. Presumption of evidence
occurs when an outsider hears the work and immediately associates it with an existing one. The
consequence of a presumption of evidence is that the author of the newer work must demonstrate
that they did not rely on the intellectual property of the author of the older work. It can also be
proven that the unique, individualizing elements were only incorporated to a minimal extent,
making the newer work a copyright-protected creation independent of the older author's consent.
The more individual and extraordinary a work is, the stronger its protection against imitation.

The Right to Quote

A musical quote is when a part of an existing work is used by a music creator in their own work,
and it is clear that a foreign excerpt is being used. According to § 42f of the Copyright Act (UrhG),
the right to quote includes reproduction, distribution, broadcasting, public provision, public
presentation, public performance, and recitation. According to § 42f UrhG, there is no need for
permission to quote a foreign work in your own work, "provided that the extent of use is justified by
the particular purpose." A well-known example of a musical quote is the use of the French national
anthem, "La Marseillaise," at the beginning of The Beatles' song "All You Need Is Love."

The concept of musical quoting is closely related to plagiarism. A quote occurs "when by
completely or partially adopting a copyrighted work into another work, the purpose is to refer to the
adopted work and its author within the context of the other work." If the "quote" is so long that
ultimately the used excerpt becomes the most distinctive element of the new work, and the new
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work sounds too similar to the "quoted" work, it can no longer be considered a musical quote. Also,
if the fame of an existing work is used to increase the notoriety of one's own work by creating an
association between the two, the legal definition of a quote is no longer met.

Sampling

Sampling refers to a popular technique in modern music production where individual excerpts of
existing songs are incorporated into new works. The advancement of technology has led to the
establishment of digital recording and the rise of sampling. What was once a complex process is
now done in seconds thanks to appropriate software. Originally, sampling was only used to imitate
acoustic sound elements. Over time, it has become an independent technique. In a recent decision
by the German Federal Constitutional Court, it was determined that sampling, as such, is "protected
by artistic freedom" when used "for sound design purposes." It is not reasonable to require artists to
seek "sample licensing from the phonogram manufacturer" or record the source themselves.

The predominantly non-infringing nature of sampling is justified by the fact that very short
sequences (individual sounds) typically get lost in the overall comparison with the newly created
work. However, the creator of the work from which a music creator obtains samples and the record
company that released the title can still defend themselves by filing an injunction against the use of
their samples. If a section of a work is taken as a sample in a new work, it may also constitute a
violation of competition law, as using it without consent may be considered "parasitic exploitation."
There is no regulation specifying that samples are only allowed up to a certain duration (e.g., no
more than 4 seconds). The decisive factor is whether a listener recognizes that excerpts are taken
from another work. Consequently, an especially distinctive melody is easier to associate with a
specific piece of music than a work that relies on widely known clichés. The individuality of a
creation is the crucial element here.

Sampling is frequently used in rap music to produce beats. For example, the rappers Eric B. &
Rakim used a refrain from the artist James Brown and incorporated the samples into their song "I
Know You've Got Soul.“

Handling Copyrights in Practice

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Identifying a copyright infringement: When an artist becomes aware that someone has released a
song that is clearly copied from their own work, they may initiate legal proceedings against the
plagiarist. It is not a requirement for the act to be intentional or even negligent since culpability is
not a condition for the illegitimacy of using or claiming someone else's intellectual property, and
thus, unintentional actions are sufficient to constitute a copyright infringement. The German legal
system assumes that a plagiarist has at least subconsciously been influenced by an existing piece of
music, provided it is published or in any other way has come into the plagiarist's sphere. This could
be the case, for instance, if a fellow musician shows or plays a composition draft. The consequence
is a shift of the burden of proof, with the plagiarist having to prove that they created an identical
work unknowingly of the other work.

Copyright violations in the form of plagiarism are traditionally identified by comparing the music
transcriptions of both works to find similarities. In a decision, the Munich Higher Regional Court
(OLG Munich) identified plagiarism because it appeared "at least audibly" and "in terms of sound"
to be related to the original work.

Collecting societies, austro mechana, and AKM: Typically, authors themselves will not be able to
personally pursue every copyright violation. In practice, an author's rights are transferred to a
collecting society, which handles the legal tasks.

References

Jörger, Das Plagiat der Popularmusik (1991)

Rehbinder/Peukert, Urheberrecht (2015)
Höhne/Jung/Koukal/Streit, Urheberrecht für die Praxis (2011)
Ciresa (Herausgeber), Kommentar zum österreichischen Urheberrecht (2015)

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