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‘Music Copyright Lawsuits Are Scaring Away New Hits’, Argues Rolling Stone

A new article in Rolling Stone argues that the forgotten 2013 hit song “Blurred Lines”, which a court later ruled infringed on a 1977 song by Marvin Gaye, turned copyright law into “a minefield” — for the music industry.

While copyright laws used to protect only lyrics and melodies (a prime example is the Chiffons’ successful suit against George Harrison in 1976 for the strong compositional similarities between his “My Sweet Lord” and their “He’s So Fine”), the “Blurred Lines” case raised the stakes by suggesting that the far more abstract qualities of rhythm, tempo, and even the general feel of a song are also eligible for protection — and thus that a song can be sued for feeling like an earlier one. Sure enough, a jury in 2019 ruled that Katy Perry owed millions for ostensibly copying the beat of her hit “Dark Horse” from a little-known song by Christian rapper Flame, stunning both the music business and the legal community. “They’re trying to own basic building blocks of music, the alphabet of music that should be available to everyone,” Perry’s lawyer Christine Lepera warned in the case’s closing arguments.

That case, which Perry’s team is currently in the process of appealing, suggests a second point: Plaintiffs in copycat cases are largely targeting megahit songs because they’ve seen where the money is, and the increasing frequency of those court battles in headlines is causing an avalanche effect of further infringement lawsuits…. While some record labels may have the budget to hire on-call musicologists who vet new releases for potential copyright claims, smaller players who can’t afford that luxury are turning toward a tried-and-true form of protection: insurance. Lucas Keller — the founder of music management company Milk and Honey, which represents writers and producers who’ve worked with everyone from Alessia Cara and Carrie Underwood to 5 Seconds of Summer and Muse — recently began encouraging all his songwriter clients to purchase errors-and-omissions insurance, which protects creative professionals from legal challenges to their intellectual property. “We all feel like the system has failed us,” Keller says. “There are a lot of aggressive lawyers filing lawsuits and going ham on people.” (He’s particularly critical of publishers whose rosters are heavier on older catalogs than new acts: “Heritage publishers who aren’t making a lot of money are coming out of the woodwork and saying, âWe’re going to take a piece of your contemporary hit….’â”) Artists are understandably reluctant to publicly disclose that they have copyright insurance, which could open them up to an increase in lawsuits. But music attorney Bob Celestin, who’s helped represent acts like Pusha T and Missy Elliott, says it is safe to assume that the majority of artists who show up in Top 10 chart positions are covered in this way…

The popularity of cheap music-production software, which offers the same features to every user, has added another layer of risk. “Music is now more similar than it is different, for the first time,” says Ross Golan, a producer and songwriter who has released songs with stars like Ariana Grande and Justin Bieber. “People are using the same sample packs, the same plug-ins, because it’s efficient.”

Then there’s the issue of the finite number of notes, chord progressions, and melodies available…

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