According
to ARC Law Group (2013), there are two different copyrights for music. There is a copyright in the physical sound
recording and one in the underlying words and music. The difference between the two is that the
first one deals with what is actually being heard on the song and the second
deals with the publishing rights, such as the lyrics and sheet music.
Normally when a song is created, the original
artist will retain the publishing rights to what they wrote (lyrics, sheet
music, etc.), as well as the copyright to their recorded performances. This do-it-yourself ethic is becoming the
norm today as artists are turning to their own resources to release their
material. However, traditionally, the
record label would own the rights to the physical recording. If a song were to be used in, say, a video
game, the creators of the game would have to get a master use license for the
sound recording and a sync license for the publishing rights.
It is
understandable when an artist or band sues for using their material without
their permission or compensation.
However, in my last blog post and as mentioned in Entertainment Law
Update (2013), The Black Keys are seeking legal action against various
companies that have not even used their original songs in commercials, but
“sound-alikes” of the songs instead. In
my opinion, this is something that can never be clearly decided. There is no definite amount of notes that
sound the same and no effective way of measuring how much a song can sound the
same to classify a similar sounding song as infringement. Each person has different musical
capabilities and will have different opinions on how much certain songs can
sound the same. For those that are
knowledgeable in music theory, songs are composed of chord progressions. Certain progressions are typically used in
popular songs because they are the easiest to digest for the common listener;
it is a formula that has worked time and time again. With the numerous amount of music material
available today, there are bound to be songs that will sound similar based on
their chord progression. One particular chord
progression can be used for countless songs.
What makes them different from each other are the melody, lyrics, and
instrumentation, among other things. I
have not heard the songs in question with The Black Keys’ claim, but with today’s
music it is almost impossible not to sound “substantially similar” to an
already existing song. There are only 12
different notes in the Western music world; arrangements of those notes are
bound to repeat themselves.
