American artist, Casey Dienel (aka White Hinterland) has filed a lawsuit against Justin Beiber and Skrillex – the unlikely pair who produced the 2015 smash, ‘Sorry’. Dienel alleges that Biebs took the vocal riff for ‘Sorry’ directly from her song, ‘Ring the Bell’. She states on her Facebook page that the song prominently features the vocal riff and that the writers, producers and performers of ‘Sorry’ did not obtain her permission, or a license, to use that composition.

The lawsuit relies on the statement that an ‘ordinary lay listener would instantly recognise the sample and similarity between the songs’. Although the litigation is taking place in the US, it is a sorry (pun intended) reminder as to how easy it is for artists to copy each other’s music. But when does this become copyright infringement, and how would Australian courts assess such a matter?

What is Copyright?

First, let’s return to first principles and set out what the law is in Australia regarding copyright. Copyright protects the expression of an idea as something original and created distinctly by that individual. For example, it can protect a piece of text (e.g. a novel, photo, film, song) among artistic works.

In regards to music, there can be multiple owners of the copyright in the song. The composer is likely to own the copyright in the melody, and the lyricist owns the copyright in the words of the song. In Australia, recordings attract 70 years of protection after its first commercial lease.

In the US, copyright does have inherent protection, however, if you wish to bring an action for infringement of a work created in the US, you will need to register the work on the Copyright Register. This system differs from Australian law whereby we have no formal copyright registration process.

How do I Know if I Have Infringed Copyright?

If you are going to copy or distribute the music of other individuals without their permission, you are likely to infringe their copyright. It doesn’t matter whether or not you are doing so to make money, or if it is purely for information or charitable purposes. If you have taken someone else’s work without their permission, it is still a breach of copyright. There are qualifications to this, however, which we will discuss in more detail below.

You will require permission when:

  • You have taken a ‘substantial part’ of the copyright material;
  • Copyright protects the material;
  • Protection has not expired or is covered by a special exception; and
  • The copyright owner has the exclusive right to the use of that material.

It can be hard to determine a few of these factors, particularly when considering what is a ‘substantial’ part of the content. This can be something that is important or distinctive but is not necessarily a large part. For example, Casey Dienel alleges that Justin Bieber and Skrillex have taken a ‘vocal riff’. Effectively, a four-note progression repeated before her vocals begin, with the notes moving from B-flat to C to E-flat to F. You might think that this is in reality, a very small part for Bieber and Skrillex to have copied, however, because of its distinctiveness to the song, size really doesn’t matter.

In a recent UK case, the record label the Ministry of Sound brought proceedings against Spotify because users on Spotify could copy the exact playlists of Ministry of Sound albums, without permission and for free. If you have heard of the Ministry of Sound albums before, they compile a range of music from that year and release as a compilation, in whichever genre is relevant. Consequently, the track listing itself, not the music (which others have created) could be considered as the ‘substantial’ part of Ministry of Sound’s material. Australian courts have not yet heard this type of case, but it makes it clear that there could be a range of aspects of what is considered ‘substantial’ enough to receive copyright protection.

Another aspect of copyright law is the concept of ‘fair dealing’ which permits you to use someone else’s material if you are either:

  • Using less than a ‘substantial’ part of it; or
  • Their copyright has expired (remember, 70 years in Australia); or
  • You meet one of the excepted categories (the excepted categories apply to educational institutions, libraries, governments, some private use and other special cases).

This concept of ‘fair dealing’ applies only if one of your purposes is research, criticism, satire, reporting news or professional advice from a lawyer. As you can see, this is quite a narrow range of purposes and will only be legal if it fits within one of these and remains ‘fair’. What is considered ‘fair’ depends on the facts of the case, but the courts have considered whether the person is doing so to make money and whether the copyright owner will be out of pocket because of the actions of the individual wishing to use the material.

What Happens if I Breach Copyright?

There are clear penalties for violating the copyright of others in using or distributing music. The Copyright Act and the Trade Marks Act, among other legislation, contain these consequences. For example, a copyright owner may be able to claim damages as a way of seeking compensation for the money the individual has made off of using their work. An individual can also be issued with fines up to $60,500 and up to $302,500 for organisations. There is also a maximum penalty of five years jail time. This criminal penalty, however, usually applies to higher-level copyright infringement such as commercial piracy.

An example of the penalties that someone can incur in the US for copyright infringement took place in the recent case of Marvin Gaye’s family against Robin Thicke and Pharrell over the song ‘Blurred Lines.’ In that case, the family was awarded $5.3 million and 50% of the song’s royalties. This was a particularly unusual case, as the song did not copy any particular melody, vocal riffs or lyrics, but instead, had a very similar ‘vibe,’ based on a rhythm pattern and production. This matter is waiting to be heard on appeal. However, it certainly shows the range of consequences that can happen when a breach occurs, and what a copyright breach can look like in an age where material is so easily accessible.

Key Takeaways

If you are creating music and are concerned about breaching another artist’s copyright, or feel like someone else has breached yours, it is important to seek legal advice. As you can see from the above examples, it is a delicate balance between having another artist influence your music and creating something completely new and original compared to copying another’s vocal riff, lyrics or even a ‘vibe’. Although the above examples are US cases, it certainly highlights issues for Australian creators and rightsholders to think about, and how copyright will likely change in the future. Questions? Get in touch with our IP lawyers on 1300 544 755.

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