I appeared on Voice Of Russia radio this week (the Brendan Cole show), talking about the Stairway to Heaven/Taurus allegations of plagiarism. It was a long and wide-ranging panel discussion, also covering Oasis, Deep Purple, Coldplay, Gershwin and others. The panelists were:
- Johnny Sharp, music writer for Mojo and Q magazine,
- Andy Millmore, head of Litigation at Harbottle & Lewis, and has acted for music companies, book publishers, as well as other clients.
- Chris Fielden, writer
- Joe Bennett, dean of the School of Music and the Performing Arts at Bath Spa University and head of the annual UK Songwriting Festival.
Below are some quotations from the full 30-minute discussion. The podcast can be downloaded here (28MB) or press play below to hear it in your browser.
JB: “The whole issue basically hinges around a four-bar piece of music played using a descending minor chord pattern…
“Yes, I believe he [Jimmy Page] copied it. […] It’s a riff he had access to, it’s a riff he heard recently and it’s not the kind of thing that would be terribly similar through coincidence. The issue is whether the thing being copied was in fact owned by Randy California in the first place. Can you copyright a minor descending chromatically in half bars?”
AM: “Actually, I’m not sure that I completely agree with the way Joe has characterised the question here because I think it’s pretty clear that any musical work, any literal work which it’s a fairly low threshold of originality does belong as a matter of copyright to whoever created it. If it is entirely commonplace and standard and gone before then there’s nothing knew and original. But once you hit that low threshold you’re the copyright owner in that work…
“And then the two questions become – one is, was there as a matter of fact copying? From what we know of the evidence in this case is suggestive of the fact that there could have been copying or maybe subconscious copying – a concept that was recognised in the George Harrison ‘My Sweet Lord’ case where it was found that Harrison didn’t know that he was copying but nonetheless he was subconsciously…
“So let’s assume that Randy California gets them on that, and then the question is – is it a substantial copy? And that’s the legal test – is there a substantial reproduction here? And then you start getting into quality questions about what has been taken, what has been saved and what’s been reproduced.
“This is actually a very difficult question… I think the original could well be owned by Randy California notwithstanding that is a descending minor chord pattern because it’s the particular minor chord pattern in which his copyright subsists. Has that substantially been taken by somebody else?”
CF: “With the Led Zeppelin example, to me it sounds way too similar to be regarded as just gaining inspiration. The Randy California version actually sounds like a Led Zeppelin song played wrong and I know it’s Jimmy Page that’s supposed to have copied it – I think the line should be drawn where getting inspiration is a theme or a feeling, but when you actually take the riff of the song I think that should be regarded as plagiarism.”
JS: “The only people that have really been open about it [plagiarism] is someone like Noel Gallagher – he’s always been like ‘oh I like that’, ‘I love that’… And he got nailed for it for a song which was left off their second album, which was very similar to ‘Uptight’ by Stevie Wonder. It was originally included on ‘What’s The Story Morning Glory’ and had to be taken out…”
“…There are not a lot of musicians who do it. It’s incredibly common for musicians to be accused it [plagiarism].
“You look at any Amazon review of an album and someone will say – ‘I can’t believe that they get away with this track, it must be obvious to anyone with ears that this is a complete rip-off!’ Everyone thinks they hear echoes of another track… And a lot of the time musicians hear that.”
“A few years ago Joe Satriani – the rock guitarist, had sued Coldplay because he claimed that they had taken a little snippet of melody from one of his endless self-indulgent guitar noodles. You listen to it and really it was like ‘mate, you’re dreaming.’
“This is a man who like a lot of musicians has a very large ego and believes he doesn’t get the credit he deserves. He sees a band like Coldplay who get a certain amount of critical acclaim, although not everywhere, But Satriani obviously looked at that and thought – ‘I see my influence everywhere, they’re all ripping me off!’ It’s amore in his head that reality.”
“In regards to Led Zeppelin doing this – if hadn’t been Jimmy Page I might have been prepared to say – well yeah, it’s just a minor chord pattern. It’s not an uncommon pattern of chords – the descending pattern of chords, and even the fingerpicking – the sort of 1-2-3-4 is hardly uncommon in the folk tradition. The fact is, Jimmy Page has form – a lot of form, when it comes appropriating other people’s work. Now whether that would count in the court of law is highly debatable, no doubt.”
JB: “Well coincidences can take place and in the case of the Joe Satriani track I think that idea starting on a minor ninth chord with the melody and then over the C chord – that was the melodic fragment he was picking up on. My personal view is that it is not beyond the realm of coincidence that two composers separately could come up with what is a relatively simple harmonic and melodic idea over two phrases.
“The challenge with this kind of issue, and particularly the Randy California issue, is that everybody hears music subjectively.”
“When a listener hears a piece of music they’re listening to quite a lot of information going into their brain, not just the thing musicologists write about typically – melody, harmonic context, i.e. the underlying chords and that which could be notated, but they’re also hearing the production, they’re hearing the instrumentation.
“So for example, had I played you the Randy California track using a brass band arrangement, it would be technically the same composition and the same piece of intellectual property in terms of music publishing, but it would sound completely different because it would be played by a brass band.. So, the reason that a lot of people hear similarities can be influenced by something as simple as instrumentation, and because I’m sitting here with an acoustic guitar and have played both examples on the same acoustic guitar back to back, that rather enhances their similarity as composition in terms of listener perception.”
CF: “The Beatles in particular came up with very-very original songs for their time and had a very unique sound. While they might borrow ideas and get influence from rock and roll and other stuff that was around at that time, they definitely put their own stamp on it. I don’t think that you could regard what they did as plagiarising, but it was taking influence and producing original music.”
JB: “A lot of my academic research is investigating the psychology of the creative process – exactly how do people come up with melodies? There’s a lot of romantic mystery attached to it in the mainstream media and of course songwriters maybe have a bit of a vested interest in mythologizing the process in that way.”
“Every creator of music has heard previous music and is creating new material in that context. So when I interview songwriters they tell me that it happens all the time that they accidently, inadvertently or even deliberately compose fragments for their own song that they’ve taken from other songs… But normally that’s avoidance of plagiarism – a normal part of the creative process. You just go – oh that sounds a bit similar, I’ll tweak it until it doesn’t.”
AM: “The issue that we come across again and again is the dichotomy between an idea and the form of expression of an idea… And you see that in all forms of copyright works, it’s not just music.
“But at what point is what has been taken – the inspiration, as against down at a level where it’s the particular way in which that idea is expressed. It’s a real problem for the courts to grapple with any particular case and therefore it’s a real problem for artists and music companies when they’re looking at issues like this…”
“I think the answer ‘I wasn’t aware’ is probably not a defence… A court can find that you were copying and reproducing and that’s the test – were you as a matter of fact copying without intending to, maybe even without realising?
“The answer seems to be yes you can. You’ve got to have pretty compelling evidence to show that that particular track was around so much and you’d heard it so often that it was somewhere there in the back of your mind that you’d be regurgitating it without even realising…”
JS: “When you combine a musical pattern and also a lyric which quite often Led Zeppelin have done then that’s when you haven’t really got too much of an argument. Again it was something that Noel Gallagher has done several times – the song ‘Whatever’ goes ‘I’m free to do whatever I want’ and Neil Innes of the Bonzo Dog Doo-Dah Band said that he [Neil] basically stole that from ‘I’m free to be an idiot’. As far as I know Neil Innes now has a credit on that one, along with the other ones that Noel Gallagher has given credits away to. If Neil Gallagher was going to steal the melody, he might have gotten away with it, but to actually steal the first two words? Then you’re in trouble.”
CF: “Most times when you come up with a song that you actually want to borrow a part of then you approach their publisher and ask permission to do so. I’ve done that before in bands that I’ve been in – we did a cover of Mr Sandman which is obviously a very old classic song. We approached the publishers and they approached the writers and they gave us permission to use it.”
“…We basically did a cover of the entire song but did it in a very different way to the original. The original is all very happy-clappy and we were doing a darker version of it. So we sent them a recording and they wrote back and said – yeah, you’ve got permission to use it… And they would get a percentage of royalties from it.”
AM: “It’s an expensive thing to do as a claimant and it’s an expensive thing to defend as a defendant. And I hate to say it, being a lawyer, but it is one of the areas where typically the people who really succeed are the lawyers and therefore it lends itself to early resolution.”
JB: “It’s all in the ear of the listener isn’t it? It’s dependent on the way people receive it – to some people things will sound very similar, to other people not.”