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Stairway to fortune: Why the music industry still favors the thief

“There’s Big Ben; there’s Piccadilly Circus; there’s Jimmy Page, the greatest thief of American black music who ever walked the Earth …”

That’s Homer Simpson in London, throwing an easy sucker punch at the legendary Led Zeppelin guitarist. It’s a casual punchline from over a decade back, but it’s especially relevant today, considering Zeppelin just escaped a $40 million payout in its most recent run-in with copyright law.

Plagiarism in popular music is a timeless phenomenon, with decades of public legal fights and centuries of well-documented sonic improprieties the world over. But as an increasing number of cases between big-money parties have headed to court over the past several years, copyright cases have been a growing topic in the public zeitgeist. And, as Led Zeppelin’s victorious legal battle over the originality of iconic rock song Stairway To Heaven shows, the outcome historically favors the accused.

We’ve delved into the history books and spoken to an expert on the subject, in the hopes of illuminating the “why” behind the music industry’s dark and larcenous underbelly.

It’s always been this way

“What advice would you give to anyone who wants to become a singer?” A jovial Vogue reporter asked Taylor Swift during the magazine’s lighthearted set of 73 rapid-fire questions. “Get a good lawyer,” she responded, an ominous glint in her eye hidden quickly by a casual turn into the doorway of her home.

You’ve probably read the quote before or heard a cynic say it aloud, “Good artists borrow, great artists steal.” That quote, when applied to the modern history of American music, rings as true as anywhere.

“Good artists borrow, great artists steal.”

In fact, many of the most iconic hits in history — even some by those considered to be among the most talented musical geniuses of their time — have been surreptitiously borrowed.

Remember The Beach Boys’ breakout hit Surfin’ USA? Stolen. The Beatles’ Come Together? Yoink. What about more recent hits like Robin Thicke’s Blurred Lines or Mark Ronson’s Uptown Funk? Yep — at least according to the courts and out-of-court settlement proceedings — those are stolen, too.

All of these points and more are covered by author Tim English in his book, Sounds Like Teen Spirit: Stolen Melodies, Ripped-off Riffs, and the Secret History of Rock and Roll. The book was written, according to English, when he realized that nobody else had tackled the subject head-on, despite a relatively well-known history of theft in the industry.

It pays to steal

The conclusions drawn in Mr. English’s book paint the music world as a complicated place when it comes to the “how” of theft, but there’s one point many cases have in common as far as the “why”: Even when a musician gets caught red handed, it typically doesn’t negatively affect their career.

“Let’s take a look at Sam Smith’s song Stay With Me,” cited the author about halfway into our conversation. “It’s a bald rewrite of Tom Petty’s I Wont Back Down: It’s the same song, just sort of slowed down. Under the radar, Petty and his co-writer Jeff Lynn brought suit and got a court settlement with a gag order, and they ended up with, I believe, a court settlement of 25 percent split two ways. In the meantime, Sam Smith is playing Madison Square Garden, he’s doing the James Bond Theme, he’s got a great career — mostly thanks to that song.”

In fact, many fans will continue to assert that something wasn’t stolen even after an artist has lost in court — as evidenced by the recent trial between Robin Thicke and Pharrell Williams with the estate of Marvin Gaye over the originality of Blurred Lines. Many industry commentators said Blurred Lines was copying a “vibe,” and not the music explicitly. The jury disagreed, giving Gaye’s estate a multi-million dollar settlement in the process.

However, Blurred Lines continues to be popular to this day, and the lawsuit didn’t have any sort of lasting negative impact on either musician’s careers.

“Even if you don’t get away with it, [stealing] is really a small price to pay for getting your foot in the door in the music business,” says English.

It’s hard to get caught

It’s difficult to bring any suit to court with regards to musical theft, largely because the burden of proof lies firmly on the person making the claim of theft.

First, a musician has to prove that the offender had access to the song; then he or she has to prove that the songs in question are “substantially similar,” which isn’t as easy as it sounds.

According to English, before 1978 all copyrighted music was based upon a work’s written form only, not its recording. Musicians, labels, or other representatives would have to produce their latest pop hits in sheet music form, then submit them to the copyright office as originals. If the original sheet music wasn’t as specific as it should have been — outlining  the same inflections, arrangements, or nuanced melodic elements as the sound recording did — many cases against allegedly infringing works are impossible to win.

The statute of limitations on copyright infringement lawsuits lasts only three years after the alleged song in question is released.

But regardless of whether or not the sound recordings are admissible in court or not, the decision as to whether or not the songs are substantially similar enough for legal repercussions comes down to two points: Expert musicologists who must speak about the song objectively in technical terms to the jury, and the jury’s own opinion about whether or not the songs are similar enough to warrant a judgement for the plaintiff.

“The one part that is very subjective is a jury opinion, and the other which is more objective is that they bring in a musicologist to say, ‘Well, this is in this key, and this is this chord and that is that chord,’ etc.”

As a result of so many ambiguous factors at play, many of these cases get settled out of court — typically for much less money than a plaintiff would get if they won the case outright — because neither party is confident in the opinions of a jury composed of their non-musical “peers.”

And then there’s the time factor: The statute of limitations on copyright infringement lawsuits lasts only three years after the alleged song in question is released. In fact, the only reason the recent Stairway to Heaven trial was admissible in court is that the band re-mastered the song and re-released it in 2014.

The Led Zeppelin case(s)

One of the grandest examples of how difficult it is to win one of these cases is also the most recent: As referenced at the intro, the estate of songwriter Randy California of classic rock band Spirit sued Zeppelin for the alleged theft of the guitar riff that begins Stairway to Heaven.

Even though Led Zeppelin officially won the case, there are a few points critics of the case will no doubt continue to bring into question, many of which were not admissible in court.

“Zeppelin, in building up to this trial, were claiming that they never were familiar with Taurus. But there is at least some very strong circumstantial evidence that they were aware of Spirit,” says English. “They played a show or two with them, for one thing, and for another, they covered a song that was like Taurus from the first Spirit album, a song called Fresh Garbage, when they first came over here in early ‘69.”

The jury, for their part, did agree that the members of Led Zeppelin had access to the material, but eventually decided that the songs were not substantially similar.

Even if the riffs were deemed slightly different in this case, however, Led Zeppelin has a well-documented history of failing to credit songwriters for borrowed melodies, lyrics, and other influential material, all of which was ruled inadmissible by the judge in this case. The sound recordings of each song also weren’t admissible, as both songs were copyrighted before 1978. If the jury members were allowed to hear the history of Zeppelin’s proven lack of crediting influencing songwriters and their songs, it’s possible the case would have gone a different way.

“I’ve written extensively about Zeppelin because they have been involved in so many of these cases,” English says of the band. “When you compare the songwriting credits, especially on the first two albums to what you would see on a CD release today, you will see extensive revisions which was the result of legal action that was brought against them.”

Led Zeppelin classics such as Bring It On HomeThe Lemon SongWhole Lotta LoveBoogie With Stu, and Dazed and Confused have all been the subject of out of court settlements, requiring added songwriter credits. And still more are the subject of fan speculation.

Zeppelin, like many other bands, have a history of acting first and asking questions later when it comes to musical copyrights, and that’s likely because the law is weighted on their side.

If a musician steals a song, waits the three year statute of limitations and nobody notices, they can then own that material forever (provided they choose never to re-master it, of course). In the off chance a band does get sued during the legal timeframe allowed, wealthy musicians typically have substantially more resources than those they steal from.

Plus, even if Spirit had won their recent case it wouldn’t have affected future cases because, as Rolling Stone points out, jury trials don’t create legal precedent.

That being said, some people — many of them musicians themselves — will argue that difficulty in filing lawsuits over allegedly stolen material is a good thing. After all, on some level, all great artists are always borrowing from those that came before them, and frivolous lawsuits are a pain to deal with for any artist and a drag on the legal system.

“It’s interesting, Bruce Springsteen — and he’s not a blatant offender in these things by any means — he admitted himself that his song Badlands is the same riff from Don’t Let Me Be Misunderstood by The Animals. He said he couldn’t believe that nobody ever called him on it. He’s got enough going on in the song that most people didn’t pick up on it, but when you listen to it again you go, ‘Oh yeah, he’s right!’”