Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law
Olivia Rodrigo rose to stardom this year when her song Drivers License dominated pop music charts across the world. However, Rodrigo’s subsequent album Sour has recently been circulating the news cycle for less sweet reasons. Rodrigo has come under fire for copyright theft and plagiarism for her songs Deja Vu and Good 4 U.
Rodrigo’s highly anticipated debut album, Sour, was released in the wake of the success of Drivers License. Music fans quickly noted the similarities between Rodrigo’s songs and already popularized songs including Misery Business by Haley Williams and Joshua Farro, and New Year’s Day by Taylor Swift, Jack Antonoff, and Annie Clark. Despite the similarities, some are arguing it’s questionable if Rodrigo committed copyright theft. Good 4 U has a similar melody and chord progressions with Paramore’s Misery Business, but besides the angsty punk undertones many generations of teens have come to love, many contend the songs are not all that similar.
What is copyright and copyright infringement?
Copyright is the exclusive legal right to produce, reproduce, publish or perform a musical work. Copyright infringement is the use or production of copyright-protected material without the permission of the copyright holder. In essence, copyright infringement is plagiarism. In Canada, courts will determine whether a body of work has been infringed upon using the Copyright Act. Copyright protections are granted as soon as a work is created, so long as it meets the conditions set out in the Act.
What are music royalties? Why did Rodrigo pay them?
Music royalties are payments received by songwriters, music composers, and publishers for the right to use their intellectual property. Essentially, artists pay royalties to copyright holders in exchange for using part of their work. Like them or not, the music industry heavily depends on royalties and many artists rely on them as a primary form of income. The growing popularity of music streaming platforms like Spotify, which only pays $0.005 per stream, further cements their importance.
This royalty debacle has been costly for Rodrigo. Hayley Williams and Joshua Farro were given writing credits on Good 4 U and will receive a combined royalty share of 50%. Swift, Antonoff, and Clark will also receive writing credits and 50% of royalty shares on Deja Vu. These moves will likely cost Rodrigo millions of dollars in publishing royalties. When weighing the costs of paying royalties versus lengthy litigation against fellow hitmakers in court, Rodrigo and her team likely felt it was most cost-beneficial to simply pay the royalties.
Are artists abusing copyright?
Artists are becoming increasingly concerned about outlandish copyright claims in the wake of the 2013 case involving the estate of Marvin Gaye and the trio behind Blurred Lines, Robin Thicke, Pharrell Williams, and Clifford Harris Jr. (T.I.). The trio alleged that the Gaye estate staked an ownership claim of not a song or an album, but rather an entire genre of music. Thicke and Williams were found guilty of copyright infringement and were ordered to pay $7.3 million. This amount was reduced to $5 million in 2018, in addition to half of all future royalties from Blurred Lines.
Although caselaw is rife with examples of major royalty deals ordered to artists, not all cases end with million-dollar payouts. Katy Perry was successful in her appeal against rapper Flame for her song Dark Horse, which Flame asserted plagiarized his song, Joyful Noise. Specifically, the case centered around an eight-note “ostinato.” The judge ruled that the ostinato was not a particularly unique or rare combination. Perry’s lawyer praised the ruling and proudly stated, “building blocks cannot be monopolized.”
The controversy has only further advanced the argument that outrageous music copyright lawsuits are going to lead to stagnation in the music industry. Some record labels are going so far as to hire on-call musicologists who can review new releases for potential copyright claims. Artists signed with major record labels are also encouraged to sign “Errors and Omissions” insurance, which protects them from legal challenges to their intellectual property. Errors and Omissions policies cover millions of dollars in artists’ costs if they lose a copyright lawsuit. Shockingly, copyright litigation in the United States has increased by 350% in the last decade. Along with its high costs, the fear of copyright litigation risks preventing less established, albeit talented, musicians from climbing the charts without the support of a major record label.
Although new to the hit music scene, Olivia Rodrigo has not only offered music lovers catchy pop anthems, but has also advanced the conversation surrounding copyright theft in the music industry. While some believe Rodrigo is guilty of plagiarism, others feel she is a victim of the corollary impacts of the growing popularity of streaming services and increasingly outrageous copyright infringement suits. The latter camp can only hope that the courts will become more stringent in future suits to prevent music monopolies.
I agree with your caution about the music industry moving in the direction of creating music monopolies for well-known and well-established artists. The danger of this, at least in Canada and the United States, is that it tips the balance sought in copyright law in favour of rights holders. As such, public interest considerations in protecting musical works are neglected and, as you point out, new musicians are deterred from releasing music through fear of copyright litigation.
What complicates matters even more is that copying in the music industry is inevitable. There are only so many melodies to build on and one artist is bound to be inspired by another’s melody. In fact, in the 1982 case of Gondos v. Hardy, the songs of two defendants at the centre of the copyright infringement claim were made independently of the plaintiff’s, but sounded much the same as the plaintiff’s song. There was however insufficient evidence to prove access or causal connection between the works. Interestingly as well, the Ontario High Court of Justice pointed out that the melody of the plaintiff’s song was similar to that of a passage from Vivaldi from the 17th and 18th centuries. Blatant copying of music is relatively rare. More often, compositions are unconsciously inspired. Although copyright infringement claims may sometimes be hard for plaintiffs to prove, it is still important to be aware of where the music industry may be heading towards.