Copycat, Tribute or Thievery? It's a tough call.

I Recently got a call from a a musician friend of mine. He was given an assignment to create two minutes of music in the style of a recording by a popular artist. The recording had a typical-sounding contemporary rock band accompanying a singer. It was hackwork—a formulaic composition and commercial arrangement with few, if any original musical ideas.

Nonetheless, the producer of the recording, and the musician assigned to create the "sound alike" piece were concerned about copyright infringement. It's a valid concern. What constitutes imitation in a sound-alike? I advised my friends to watch and listen to what Alf Clausen does on The Simpsons, and what Walter Murphy does for Family Guy.

But even Family Guy gets into trouble over this stuff once in a while. Personally, I can't see their song and When You Wish Upon A Star being that similar. This is one in the style of Gilbert & Sullivan. If it's in the style of a particular song, I don't know the original. If you know the Gilbert & Sullivan style song to be a parody of one in particular, please comment on it here.

Composers like Clausen and Murphy often write new songs that are really variants on songs we already know. A lot of people who hear these variants can even recognize the song on which the variant was based. By having modified slightly the chord progressions, melodies and harmonies and rhythms from the original song (and sometimes of a particular recording of a song) the composer gets "off the hook" on technicalities.

In normal-people speak: You can imitate without ripping off. So long as the "sound-alike" piece is sufficiently different from the original that people can tell them apart, there's usually no basis for a lawsuit.

My friend's call to me about this problem brought out several age-old questions:

1) When does imitation cross the line into stealing?
2) When does stylistic influence become "copycat"?
3) Can two people come up with the same idea, conveyed almost exactly alike, without one having "borrowed" from the other?

These are tough questions, and have been fought in and out of courts for hundreds, if not thousands of years. And it doesn't apply only to music. There are comedians, authors, even tap dancers, who have claimed, after seeing someone else's seemingly-similar work, that the similar work had been "lifted" from one of their own. It's often tough to tell.

Below are a few cases and/or general scenarios showing different manifestations of this problem.

• Harlan Ellison claimed that material for two of the episodes he authored for the series Babylon 5 were used in the movie The Terminator. He sued James Cameron (who wrote The Terminator) and won.


• Two key (musical, not lyrical) phrases in George Harrison's My Sweet Lord sound very similar to The Shirelles' R&B hit He's So Fine. The composer of He's So Fine sued, and George Harrison paid a settlement. George claimed he could have been subconsciously influenced by The Shirelles hit. After all, he and the other Beatles were avid fans of American R&B before they had "made it big". However, George was a terrific composer, who'd written many truly-original songs.


• There are many comedians who have written jokes about the same topics. Even comedians make fun of this, thinking of a lot of it as hackery. Many comedians use as an example the line "Why couldn't they make the whole plane with the same material the black box is made of?"..So many comedians have thought of that premise that it's considered a "hack" joke. Two people can observe and comment on the same thing without having heard one another's observation.

In Campbell v. Acuff Rose, Luther Campbell of the rap group 2 Live Crew admitted to have parodied the Roy Orbison hit Pretty Woman. However, he claimed that his integration of some of the lyrics into his Rap variant of it was sufficiently different from the original that it did no harm to the sale or reputation of the original. The U.S. Supreme Court agreed. Because of Campbell v. Acuff Rose, song parodists no longer have to get permission to use the work from the creator of the original the parodist is borrowing from. They must, however, pay the statutory royalties to which the original composer is entitled. (When Weird Al Yankovic puts new lyrics to an existing song, he pays the composers of the music. That's only fair.)

Note: Nothing in here is meant to be legal advice. If you need legal advice about this stuff, contact your friendly local intellectual property attorney. I know a whole bunch of 'em. Contact me if you'd like some help finding one.