Ideas, originality, and copyright. Coldplay accused of infringement again.

One of these days we’ll learn what the KLF long ago tried to teach us about pop music: “Every Number One song ever written is only made up from bits from other songs. There is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for originality.”

Let’s get a basic point straight: copyright does not protect an idea. As the U.S. Copyright Office puts it: “Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section ‘What Works Are Protected.’”

So it may be true, as Consequence of Sound reports, that “just days after settling with Joe Satriani over plagiarism allegations, [Coldplay] is now being accused of copyright violations by UK musician Andy J. Gallagher for borrowing from Gallagher’s “Something Else” video with their video for ‘Strawberry Swing.’” But being accused of copyright violations and having those accusations deemed worthy of anything other than contempt are two entirely different things. As the Guardian explains, “there’s no doubt that [Gallagher's] and Coldplay’s music videos offer ‘an awful lot of similarities’. Or rather, one big similarity: they both show people interacting with animated chalk-boards.” And it may even be true that, as Gallagher complains, it seems “less than fair that [Coldplay's] video will win numerous awards and receive industry praise when [Gallagher's] director Owen Trevor had the idea the year before.”

But the answer is: so what? You cannot copyright the idea of a video involving people interacting with animated chalk-boards. As the producers of Coldplay’s video point out (pdf), the idea was hardly original with Gallagher. Nor do they claim originality; rather, they claim to have worked hard at making the Coldplay video:

We’re aware of those videos, and I don’t wish to denigrate them, but we thought there was more mileage in the technique than they had explored. We never claim to be original, just rigorous. So we wrote a story we thought would be entertaining and went about making it. It was a lot of hard work.

The specific video they produced may be original, but it hardly precludes anyone else from making videos involving people interacting with animated chalk boards.

Friday Night Music Club: There’s no business like stealing bits from others

Let me repeat the immortal (and utterly unoriginal) words of The KLF as memorialized in The Manual (How to have a Number One the Easy Way):

Every Number One song ever written is only made up from bits from other songs. There is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for originality. In the past, most writers of songs spent months in their lonely rooms strumming their guitars or bands in rehearsals have ground their way through endless riffs before arriving at the song that takes them to the very top. Of course, most of them would be mortally upset to be told that all they were doing was leaving it to chance before they stumbled across the tried and tested.

And I presume you’ve heard Happy Xmas (the War is Over):

We really should give the last word to Negativeland:

There still is nothing new under the sun. So what is originality?

Is Coldplay original? As Paste reports, “Back in December, . . . guitarist Joe Satriani was accusing Coldplay of plagiarizing his song, “If I Could Fly,” with their undeniably catchy, monster hit, “Viva La Vida.” Coldplay has now responded, claiming Satriani’s song is not original enough to be infringed. Of course, Satriani’s lawyer disputes the legitimacy of this defense:

Coldplay and its lawyers saying Satriani’s song doesn’t even deserve protection because it “lacks originality.” So, they’re basically saying that because the song blows in the first place, it doesn’t deserve shielding of the law. Fair enough.

But that’s a straw man’s argument, says Satriani’s lawyer Howard E. King, replying that this sort of response is “typical” in copyright infringement cases. According to King, Satriani would like this matter settled out of court, but Coldplay isn’t ready to budge.

It is not, of course, the first time Coldplay has been accused of stealing the tune to Viva la Vida, and it is not the first time Coldplay’s apparent plagiarism has been explained as the coincidental replication of a common pool of pop music moves. Because we so worship the creative artist, though, we tend to recoil from the idea that so much genuine artistry is merely the repackaging of formulas with which we are familiar and comfortable. The KLF, though, understood the formulaic foundation of pop music, publishing The Manual (How to have a Number One the Easy Way), a how to? guide to the method they used to construct British pop hits. As they explained:

Every Number One song ever written is only made up from bits from other songs. There is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for originality. In the past, most writers of songs spent months in their lonely rooms strumming their guitars or bands in rehearsals have ground their way through endless riffs before arriving at the song that takes them to the very top. Of course, most of them would be mortally upset to be told that all they were doing was leaving it to chance before they stumbled across the tried and tested.

Thus, they instructed the pop star wannabe:

The first of the component parts you are going to need to find is the irresistible dance floor groove.

Before we go any further we had better define “groove”. It is basically the drum and bass patterns and all the other musical sounds on the record that are neither hummable or singalongable to. . . .

Black American records have always been the most reliable source of dance groove. These records down through the years have inevitably laid so much emphasis on the altar of groove and so very little into fulfilling the other Golden Rules that they very rarely break through into the U.K. Top Ten, let alone making the Number One spot. A by-product of this situation is that gangsters of the groove from Bo Diddley on down believe they have been ripped off, not only by the business but by all the artists that have followed on from them. This is because the copyright laws that have grown over the past one hundred years have all been developed by whites of European descent and these laws state that fifty per cent of the copyright of any song should be for the lyrics, the other fifty per cent for the top line (sung) melody; groove doesn’t even get a look in. If the copyright laws had been in the hands of blacks of African descent, at least eighty per cent would have gone to the creators of the groove, the remainder split between the lyrics and the melody. If perchance you are reading this and you are both black and a lawyer, make a name for yourself. Right the wrongs.

As the Authorship Collective in the English Department at Case Western Reserve explains (footnotes omitted):

With its emphasis on originality and self-declaring creative genius, this notion of authorship has functioned to marginalize or deny the work of many creative people: women, non-Europeans, artists working in traditional forms and genres, and individuals engaged in group or collaborative projects, to name but a few. Exposure of these exclusions — the recovery of marginalized creators and underappreciated forms of creative production — has been a central occupation of cultural studies for several decades. But the same cannot be said for the law. Our intellectual property law evolved alongside of and to a surprising degree in conversation with Romantic literary theory. At the center — indeed, the linchpin — of Anglo-American copyright as well as of European “authors’ rights” is a thoroughly Romantic conception of authorship. Romantic ideology has also been absorbed by other branches of intellectual property law such as the law of patent and trademark; and it informs the international intellectual property regime. In patent it survives today both in figurations of the inventor and in the emphasis, which this body of law shares with copyright, on the “transformative” moment in the creative process.

The Authorship Collective goes on to cite examples of “biopiracy,” the appropriation by pharmaceutical companies of native knowledge in medicinal plants. The companies then patent synthetic versions of the plants’ effective ingredients and profit from the sale of the “new” drug. For example:

The Hoodia cactus, native to South Africa, has recently come to the fore of the debate surrounding bioprospecting and intellectual property rights. The Hoodia cactus, native to the Kalahari Desert, has been used for centuries by the hunter-gatherer San speaking tribes of the region (in the past they were commonly referred to as “Bushmen”, although now this designation is recognized as being pejorative, inaccurate and outdated). The San peoples have long recognized the appetite suppressant qualities of the Hoodia cactus, and have traditionally chewed the stem to stave off hunger and thirst during long hunting expeditions in the desert. Scientists from the South African Council for Scientific and Industrial Affairs learned of the Hoodia’s properties and began to study the cactus. In scientific tests, animals given the cactus lost weight rapidly without any apparent negative side effects. According to scientists from the South African Council for Scientific and Industrial Affairs (CSIR), the Hoodia works by “mimicking the effect glucose has on the nerve cells in the brain, in effect telling us we’re full…thus curbing the appetite.” (http://news.bbc.co.uk/2/hi/programmes/correspondant/2947810.stm) Scientists at the CSIR dubbed the appetite suppressant molecule in the Hoodia “P57″. Recognizing the enormous potential market for the Hoodia outside South Africa, CSIR placed a patent on P57 and sold the licensing rights to an English biopharmaceutical firm, Phytopharm, in 1997. Phytopharm then sold the license to American pharmaceutical giant Pfizer for 25 million dollars. Throughout the whole process, however, the San peoples were completely unaware of what was occurring.

So, is Viva la Vida merely a reworking of old formulae? It sure seems it might be:

So maybe Coldplay is not a group of plagiarists; rather, it is a group of pop hacks working on tropes that the entire pop music industry since the 1950’s has stolen from elsewhere. Originality is a tricky thing. Just ask Shepard Fairey.

Living the life of an artist or stealing? Coldplay faces the question once again

The Chicago Tribune reports: “A day after hauling in seven Grammy nominations, the members of Coldplay should’ve been celebrating. Instead they were served with a copyright infringement lawsuit Thursday that claims they ripped off guitarist Joe Satriani to write one of their biggest hits, ‘Viva La Vida.’”

And a comparison of the songs sure makes Satriani’s allegations credible:

There must be something about that song.  A band called Creaky Boards earlier this year accused Coldplay of stealing Viva La Vida from them:

As TechDirt subsequently reported, however, the leader of Creaky Boards later “not only retracted his accusation, but suggested that perhaps both bands were actually “inspired” by the “Fairy Theme” in the Legend of Zelda.”  TechDirt also made this, very important point:

. . . The thing is, part of the point we keep trying to make around here is that, for the most part, that’s true of just about everyone. It’s the overly aggressive use of copyright law that prevents that sort of “goodness” from showing up. Oh, and it’s also worth mentioning, that this little story has definitely increased the profile of The Creaky Boards — proving one of the points we recently made about plagiarism. Even if the plagiarist is “bigger” than you, the original creator can use that to their advantage aswell.

Plagiarism, even “unconsciously” done, has gotten musicians in trouble. In Three Boys Music v. Michael Bolton, a federal court of appeals upheld a jury award of $5.4 million against Michael Bolton and Sony (the record company associated with him) for “unconsciously” plagiarizing the Isley Brothers’ “Love is a Wonderful Thing.” As noted by the Columbia Law Library Music Plagiarism Project, the case is comparable to Bright Tunes Music v. Harrisongs Music, in which the court held that in his hit song “My Sweet Lord” George Harrison had “unconsciously misappropriated the musical essence of ‘He’s So Fine.’”

The decision against George Harrison has been heavily criticized.  It is important to note, though, that “plagiarism” involves issues entirely different than the ones (contentious themselves) involving sampling. Most importantly, it involves drawing those impossible lines between artistic influence, legitimate appropriation, and acts that are considered the equivalent of theft. Bob Dylan is without question one of the most important artists of our time, but, as John Pareles has written in “Plagiarism in Dylan, or a Cultural Collage?”

The absolutely original artist is an extremely rare and possibly imaginary creature, living in some isolated habitat where no previous works or traditions have left any impression. Like virtually every artist, Mr. Dylan carries on a continuing conversation with the past. He’s reacting to all that culture and history offer, not pretending they don’t exist. Admiration and iconoclasm, argument and extension, emulation and mockery – that’s how individual artists and the arts themselves evolve. It’s a process that is neatly summed up in Mr. Dylan’s album title ” `Love and Theft,’ ” which itself is a quotation from a book on minstrelsy by Eric Lott.

Hip-hop, ever in the vanguard, ran into problems in the mid-1980’s when the technique of sampling – copying and adapting a riff, a beat and sometimes a hook or a whole chorus to build a new track – was challenged by copyright holders demanding payment even for snippets. Although sampling was just a technological extension of the age-old process of learning through imitation, producers who use samples now pay up instead of trying to set precedents for fair use.

Check out the following.  Led Zeppelin was covering Kansas Joe McCoy and Memphis Minnie, but Dylan claims the authorship of and the copyright in his song.  Of course, the copyright in the first song had expired, so Dylan’s song is not an legally infringes nothing:

I have made it a point on this blog to point out that historically many “Writers, like other artisans, considered their task to lie in the reworking of traditional materials according to principles and techniques preserved and handed down to them in rhetoric and poetics – the collective wisdom of their craft.”  In short, there is nothing unusual about Dylan’s compositional methods.  That’s not to say that Coldplay isn’t in legal trouble as a result of Satriani’s lawsuit.  It’s to say that we’re in a cultural moment in which people are ready to find theft and “plagiarism” where there may not be any.  Is Coldplay making money that really belongs to Satriani?  Would Satriani’s song have gotten a greater audience had Coldplay’s never been released?

ADDENDUM, from Wired:

Joe Satriani accused Coldplay of plagiarism for lifting elements of his song “If I Could Fly” for its hit song “Viva La Vida” earlier this year.

Now, videos depicting  similarities between the songs are disappearing from YouTube courtesy of Coldplay’s label, EMI, which claims the videos infringe on its copyright. We found one that’s still online, which you can view to the right, for the time being.

You can still hear the Coldplay song elsewhere on YouTube, including in user-generated videos, so it seems likely that EMI is removing the comparison videos due to embarrassment on the part of Coldplay and/or legal ramifications for the ongoing Satriani suit, as Music Industry Blog posits. One imagines that a judge or jury would merely need to see one of these videos to conclude that there’s a striking similarity between the songs… probably too striking.

It’s conceivable that the Chris Martin lifted the beat, chords and melody from Satriani subconsciously. It’s not uncommon for musicians to hear something and regurgitate it later without realizing it. Coldplay has been accused of stealing someone’s music before — for the same song, no less. And another YouTube video has cast doubt on these claims by showing that all three bands could owe a debt to some guy called Günther.

We’re not so interested in the spat between Satriani and Martin; plagiarism accusations abound in the music world. What’s interesting here is that EMI appears to be using copyright as a way to remove one version of a Coldplay song while allowing other versions to remain online. It’s a useful reminder of the ways in which copyright law can be used for purposes other than thwarting the infringement of copyright. In this case, it’s a somewhat useful tool for downplaying plagiarism accusations directed at one of the world’s top acts.

Many labels have deals with YouTube that allow their works to appear in user-generated videos, because doing so can net them more of YouTube’s ad revenue (artists and labels sometimes can get paid when someone synchs their music to user-created video on YouTube). Apparently, these deals involve the ability to pull certain objectionable usages for reasons other than copyright, although the message that appears on YouTube — “This video is no longer available due to a copyright claim by EMI Music” — appears a bit disingenuous. If copyright were the issue, a YouTube search for “coldplay viva la vida” wouldn’t return 32,700 results.