Close to the Edge: investigating songwriting’s ‘plagiarism threshold’

Joe Bennett, Boston Conservatory at Berklee

[Presented at IASPM 2017, 26 June 2017]

Wicked.png

Stephen Schwartz’s score for ‘Wicked’ quotes 7 pitches from ‘Somewhere Over The Rainbow’… but does it infringe a copyright?

Here is the abstract, with references, for the academic paper I presented at the IASPM 2017 conference in Kassel, Germany. At the moment it’s just abstract, slides and references. If it ever turns into a full paper I’ll upload it to this website with the rest.

Abstract: The songwriter Stephen Schwartz once described his ‘Unlimited Theme’ (from ‘Wicked’) as a musical joke, using as it does the first seven pitches from ‘Over The Rainbow’.Schwartz believed that by limiting the number of copied pitches, he was evading an accusation of plagiarism. Schwartz’s belief in a legally defined plagiarism threshold represents a common misconception among musicians; there is a similarly widespread myth that copyright law permits a specific number of seconds of audio sampling (this has explicitly been contradicted in US case law). But borrowing and adaptation is a common form of creativity, and there is a real risk that if creators misidentify the line between influence and plagiarism, they might either inhibit their own creative freedoms, or inadvertently infringe copyright. This paper discusses the mythical plagiarism threshold, using examples from copyright case law, interviews with creators, and comparative analysis of musically similar works to explore the question “how much is too much”?

Download pdf of slides (or click image below)

Slides

References:

  • Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390 (6th Cir. 2004)’. Harvard Law Review 118 (4): 1355–62. doi:10.2307/4093384.
  • Cronin, Charles Patrick Desmond. 2017. ‘Seeing Is Believing: The Ongoing Significance of Symbolic Representations of Musical Works in Copyright Infringement Disputes’. Social Science Research Network. https://papers.ssrn.com/abstract=2967590.
  • Demers, Joanna. 2006. Steal This Music – How Intellectual Property Law Affects Musical Creativity. Athens : University of Georgia Press,.
  • Grand Upright Music, Ltd v. Warner Bros. Records Inc., 780 F. Supp. 182 (S.D.N.Y. 1991)
  • Schwartz, Stephen. 2004. Wicked’s Musical Themes Interview by Carol de Giere. http://www.musicalschwartz.com/wicked-musical-themes.htm.
  • Three Boys Music v. Michael Bolton 212 F.3d 477. 2000 477. 9th Cir.

 

Wayfair, you’ve got just the soundalikes I need

Friends, musicians and soundmen (and women) – lend me your ears. Here are some Wayfair TV commercials in a playlist – let me know (Twitter @joebennettmusic) what songs you think they’re using as a template for the music. Disclosure – this is for academic research, not copyright/client work.

[Health warning – these ads have a level of cheesy catchiness that may be difficult to cure once acquired.]