Do You Get Deja Vu? A Saga of Plagiarism in Pop Music

Image credit: CENTENNIAL BEAUTY.

‘Plagiarus’ (kidnapper) thundered Martial in 80 AD Rome when he caught Fidentinus was reciting his poems and taking credit for them and thus, we find our first recorded instance of plagiarism. The Age of Enlightenment and its focus on the individual saw this concept aided by the recognition of intellectual property law. Today copying and passing off is heavily frowned upon, may that mean, having your record muddied for plagiarising in your university summative or Drake being called out for having ghost-writers. This shows that regardless of the law, society today has placed a lot of significance on the Moral rights of an author to be recognised and compensated for their work and any subsequent work that takes from their original work.

Thus regarded, Copyright law seems morally justified for not letting someone else benefit from another’s hard work. More so, why would people bother creating anything if they knew that it would ultimately be stolen? But with Pop Music, things get a little harder, assailed by similar chord progressions, beats per minute, greedy estates, and confusing case-law.

This is best shown by looking at Olivia Rodrigo’s career thus, far. Last January saw Olivia Rodrigo being catapulted to pop music superstardom. All her singles from her debut album have been glued atop the Billboard Charts, since. But her success also came with backlash from the public and older artists who accused her of copying tunes, melodies, and album cover art ideas.

After a fan-created mashup showcasing their similarities racked up over three million views on YouTube, Paramore's Hayley Williams and Josh Farro were credited on "Good 4 U" to acknowledge an interpolation of their 2007 song "Misery Business." Similarly, Rodrigo gave songwriting nods for "Deja Vu" to Taylor Swift, Jack Antonoff, and St. Vincent.

Billboard reports that Williams and Farro (9S0ngwriters for Paramore’s Misery Business) get 50 percent of the royalties from "Good 4 U," while Rodrigo and her songwriting partner Daniel Nigro split the other 50 percent.  It is estimated that the band may be pocketing about $1.2 million off the success of "Good 4 U." Meanwhile for ‘Deja Vu, Taylor Swift, Jack Antonoff and Clark (Songwriters of Cruel Summer) pocket a combined 50 percent royalties," with Rodrigo and Nigro again splitting the other half. It is believed that Swift has received $325,678 in royalties, Antonoff has gotten $260,542 and Clark has earned $65,135.

All these instances can at best be classified as interpolation, which means incorporating an element of an earlier song into a new composition, rerecording it, and making something new. This is different from sampling, where an artist inserts another recording wholesale into their track. A lot of artists view interpolation as an organic, essential part of songwriting. Like Elvis Costello, an artist Rodrigo was accused of ripping off on her track "Brutal," explains, "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." And although the credit towards Paramore may seem a bit more justified, the credits to Swift for Deja Vu seem a bit more far-fetched since the only similarity may be a shouty bridge.  

But in the hindsight, Rodrigo’s team’s measures start making more sense when one looks at the statistics. Chances are if a song has hit no. 1 on Billboard, it has been sued for copyright infringement, Coldplay’s “Viva la Vida, Ed’ Sheeran’s ‘Shape of You’, Taylor Swift’s ‘Shake it off, Katy Perry’s ‘Dark Horse’, Bee Gees’ ‘How deep is your love’. In all these cases the suit was brought after the Song’s commercial success.

This concern isn’t eased by the existing caselaw. In December 2018 the long-running and highly controversial case involving the song Blurred Lines came to a close, when Robin Thicke and Pharrell Williams, two of the song’s writers, were ordered to pay just short of $5m to the estate of Marvin Gaye, for Blurred Lines’ similarity to Gaye’s 1977 song Got To Give It Up.

As Joe, Bennet, a forensic musicologist at Berklee College of Music explains “Blurred Lines certainly stirred up the music community, the reason it had so many musicians concerned is that the two songs are demonstrably different in their melodies, lyrics, and underlying chords. It hasn’t set a legal precedent exactly, because every plagiarism case is judged on its merits, and every comparison is different, but it certainly has shifted the culture among songwriters and made many worried about unintentional similarity leading to unfair accusations of copyright infringement.”

This case for the very first time held the notion that a “feel” of a record to be copyrighted material. It's nearly impossible to find a musician that doesn’t mostly replicate the feel of a beloved record, if not its chords and melody, thus the verdict sent shudders through the industry.

Peter Mason at Wiggin LLP explains the significance of this case, “Much of the feel of a song is created by instrumentation, production techniques and other elements that many people consider to not be part of the ‘song’ itself, the difference is starkly demonstrated by comparing Blurred Lines to the Stairway to Heaven case, in which the jury was limited to considering only the notes of the composition, as registered at the US copyright office.

But the Blurred lines verdict was clouded by this March when two important judgments about similar music theft in appeals courts in California were decided. First, the ninth circuit court of appeals ruled that Led Zeppelin’s Stairway to Heaven did not crib from Taurus by Spirit. Then a federal court overturned last year’s jury verdict that Katy Perry’s Dark Horse had stolen from the song Joyful Noise by the Christian rapper Flame. This has just added to the confusion and the mayhem.

Industry insiders report that musicians are increasingly being instructed to never cite the source of their inspiration in public or print. In many ways, this has resulted in the stifling of creativity to the extent that inspiration is now being confused with appropriation. Conversely, firms explain that they are seeing a growing number of instructions from clients who wish to pursue claims for infringement of copyright based on the use of nothing more than similar musical or lyrical ‘ideas. This trend has been more so fuelled since the Blurred Lines verdict and Rodrigo’s recent decision to retrospectively give up her publishing rights has only added to the problem

It could be argued that with her latest move, Rodrigo has established a dangerous precedent for upcoming artists. Either shell out royalties for the faintest similarities with an older song or risk a lawsuit. And although, it’s hard to feel bad for Rodrigo for losing out on a few million, owing to her long with-standing career as an actress along with her being signed to one of the biggest music labels. The pattern becomes concerning when one thinks about a new upcoming act that might chance upon some success, without label support to ward off the lawsuits.