Robin and I had lunch the other day with a long time reader here at MLR, Brian Curtin. Among the many things we talked about was the issue of “sound likes”. I remember a PMA meeting, a year or so ago, where some of the major libraries were staying away from mentioning artist names when describing what a particular piece of music sounded like. It seems that record companies are getting more litigious about music sounding like their artist and trading on the name.
So, what do you think? Is this a real issue or a red herring? Are their legal grounds for this? Maybe MichaelL can weigh in.
And thanks for the lunch Brian!
I have written many instrumental sound-alike tracks and they have been big sellers for me. My “Close but no lawsuit” collection…… Seriously though, you do have to be very careful in doing this. You are really representing the style of an artist or band or a certain song by them. Using similar chord progressions, and maybe using a melody that sounds similar. Also from a production stand point, getting the mix etc to sound like the original. i.e. using lots of reverb to imitate the “Wall of Sound” etc., and using the right instruments to duplicate the sound. Also when you get the idea for the track, make sure and listen to the artist or bands song before doing it just to make sure you are not infringing.
Gary,
I don’t want to keep you awake at night but….here’s the law:
“[I]t is well settled that copying may be inferred where a plaintiff establishes that the defendant had access to the copyrighted work and that the two works are substantially similar.” Warner Brothers v. American Broadcasting Companies,
“The test of infringement is whether the work is recognizable by an ordinary observer as having been taken from the copyrighted source. Slight differences and variations will not serve as a defense.” Bradbury v. CBS 287 F.2d 478
If your “soundalikes” or anyone else’s, for that matter, are recognizable to the average ordinary person as sounding like the original –which IS your intent, then you have committed infringement.
” Also when you get the idea for the track, make sure and listen to the artist or bands song before doing it just to make sure you are not infringing.”
Bad advice. Would you think that “He’s So Fine” and “My Sweet Lord” are the same song? They don’t even sound alike AND George Harrison LOST that case.
The most likely reason that you haven’t been sued is that your tracks have not caused enough monetary damage to get into federal court (75K) or they simply haven’t been used in a high profile public media.
Check back with us if one of your soundalikes gets used during half-time at the Super Bowl.
Cheers,
Michael
Easy there Michael. You may have valid points but you’re awfully heavy-handed and condescending the way you go about it.
Gary’s got some great tracks and they are definitely only in the style of certain artists.
I’m not sure why this thread has become so aggressive.
Hey Mark,
Sorry. I didn’t intend offend, be heavy handed or aggressive. Definitely didn’t mean to be condescending. I’m sure that Gary does good work. I just don’t want to see any of my fellow writers get hurt or mislead into thinking that there is a safe way to create “soundalikes.” It’s a risk.
Writing in a “style” IS different than taking a well known song and just changing a few notes.
The point that I was trying to make is that the threshold — the plaintiff’s burden is pretty low. All it takes is an average person to say “yes that sounds like He’s So Fine.”
So, a great deal of caution should be taken to emulate style, without actually infringing on a given work.
The second point, was not meant to be a put down. IP litigation is extremely expensive. The threshold of damage required, just to get into federal court, is 75K. In a royalty free situation, where the end user may be an in-house non-broadcast producer, the damages would never get that high and the exposure is minimal.
One of the other factors that courts consider is the economic loss to the original copyright owner. The stakes would be greater in a high profile ad, like during the Super Bowl. If company A used a soundalike of song X, because the original artist wanted too much money, the original artist would have a strong case against the soundalike’s creator and publisher.
_Michael
Yes, I think most composers are aware that they can’t copy someone else’s work, change a few notes and resell it. That has been stated here many times for some reason when the subject of the thread (one that I thought would have been interesting to actually discuss) is whether music libraries can promote songs that are ‘in the style of’ an artist and use that artist’s name in the description of the track (absolutely nothing to do with copyright infringement.
For example, from one of the tracks that I’ve written and is available on our site:
“An homage to Jimi Hendrix and Robin Trower, funky rock metal blues with wah wah and phase shifter. Laid back drum beat and pumping bass line under an eerie melody and funky guitar riffs. Ends with a classic Robin Trower style solo. ”
It seems that some people are under the impression that record labels will sue somebody for simply having a description that mentions an artist’s name.
What are your thoughts?
Hey Mark,
My thoughts/opinion (again not legal advice) is that is purely descriptive. People need a frame of reference when searching for tracks. If, on the other hand (don’t you love lawyers) the average guy on the street hears the track and thinks its Purple Haze you could have a problem. The problem isn’t your description, it’s the guy on the street thinking it’s a particular song.
Hope that clarifies.
Cheers,
Michael
PS. Of course if you played that with the guitar behind your head, that’s another story.
Thanks. That’s reassuring to hear from a law professional.
This is the track by the way
http://www.musicloops.com/music_download/wherever-we-go-7249/
I don’t think anyone would mistake it for Purple Haze.
Hey Mark,
That’s just my opinion not legall advice. Law was a brief interruption in 30 year composing career. I’m now a “recovering attorney” — thankfully writing full-time again for a living.
I kiss the ground every morning, look up to the sky and say “thank you thank you thank you.”
Cheers,
Michael
PS. I’m going to put on a tie-dyed T-shirt and check out your track. ‘scuse me while I touch the sky.
Whoa — Hey Mark –great track. I cannot say that I am familiar with every Hendrix tune, but that is an good example of writing in a “style.”
Nice chops –BTW.
Thanks for sharing.
Michael
Thanks for the compliment Michael.
Glad hear that you’re a ‘recovering attorney’ and that you’re doing so well as a composer.
From what I hear in the news about unemployed lawyers in these tough times it seems you made the right career choice.
Cheers,
– Mark
PS- Sometimes I feel like a ‘recovering guitarist’ turned businessman, but that’s a different story.
Thanks Mark.
I’m grateful for my good fortune every minute of every day.
Best,
Michael
Like I mentioned it’s all about “intent”.
As an aside: When “My Sweet Lord” came out I immediately recognized it as a rip off of “He’s So Fine”. Later I found out, through some inside sources, that they knew it was a knock off, would have to pay off the original copyright owner but ultimately the $$$ where there to be worth the risk. Only hearsay information mind you.
Boy I guess I really opened a can of worms here… First, thanks Mark for backing me up on this. Again the whole idea behind sound-alikes is writing in the STYLE of a particular
artist or genre. Also as stated, yes people will buy sound-alikes because they
cannot afford to pay for the licensing of the original. Michael, I think you should
visit my site and listen to some of the tracks I have done, and tell me if you
think I am infringing on anything. Go to:
http://www.garywolkproductions.com click on the Partners in Rhyme logo, and look up the
tracks listed under “Sound-Alikes”. Would like to know what you think.
Hey Gary,
What I think, when I listen to your tracks doesn’t matter (but I will check them out).
Again its what the average on the street thinks. If he says that sounds like the Rolling Stones, it’s one thing. If he says that’s Brown Sugar it another. And, obviously if you call your soundalike “Raw Sugar” and it’s based on Brown Sugar, you’re playing with fire.
Play the tracks for a bunch of friends and ask them to name the tunes. If they name the songs that you based the tracks on then maybe your too close. (again not legal advice).
When I was in law school, my IP professor played He’s So Fine for the class, and My Sweet Lord for the class. Less than half heard any similarity. And I said that Harrison rhythm guitar was playing the “doo lang doo lang” part. In other words I heard things that the non-musicians didn’t.
As I said in a previous post, not every Harmon mute means Miles Davis. Not every Hofner bass means Paul McCartney (unless played left-handed). The distinction is between style and substance — like the court said “substantially similar.”
The things that made me uncomfortable with your post was this:
“You are really representing the style of an artist or band or a certain song by them. Using similar chord progressions, and maybe using a melody that sounds similar”
That’s a fine line to walk, that must be done with great care, and there’s no magic number of notes that you can change to make it safe.
Cheers,
Michael
I would avoid basing soundalikes on any specific song. (not legal advice, but what I would do).
Hi Gary,
I listened to a number of your tracks. Nice work. (Standard disclaimer applies — this is not legal advice, it’s just my opinion, and I do not represent you).
I would say on some you’re clearly writing in a “style,” on others you may be too close.
Generally, you can’t copyright a chord progression. But, when you start borrowing parts of a melody, it gets dicey. I really felt it on the Phil Spector track. When the melody came in, I heard Ronnie singing the lyrics. On the Brian Setzer (big band) track, I really thought that I was hearing the intro to one of the two songs of his that I would recognize. Now — your defense might be that all that his music is made up of standard riffs that were commonly used by a lot of artists — like old blues riffs.
I think that Mark’s approach — capturing the spirit — without using musical references to specific songs, is the way to go. I think that you did that well on a lot of what I heard.
But remember, just changing a few notes is NOT all the you need to do. If the ordinary listener recognizes the song, you’ve crossed the line.
Hope that helps.
Michael
If push came to shove (again not legal advice), it might be safer to use the Pandora/ iTunes approach …. “if you like the music of famous band A, then you will like the music of composer B, particularly track XYZ.
Seems like its splitting hairs, but the comparison is by inference, rather than direct.
Of course, neither approach, helps if the cue is a direct rip.
Cheers,
Michael
My 2 cents….
1. When asked who does your music sound like on some sites, I never have a clue except for one tune that I call Playing Cold…. I might change that title…
2. I was sued for non musical reasons, I won, but it wasn’t cheap… Stay clear of lawyers…
Then again maybe I could sue somebody for sounding like me… Hmmmm
I say let the lawyers worry about those issues. Employees at any other job wouldn’t worry about lawsuits. Neither should musicians.
If you’re a musician with no money and no assets, fine. If you do have some money and/or assets (or hope to someday) that’s a very naive approach.
“I say let the lawyers worry about those issues. Employees at any other job wouldn’t worry about lawsuits. Neither should musicians.”
Huh –what? The lawyers aren’t worried. It’s a win -win situation. They will either get paid by a library to analyze the risk and possibly advise it to drop your infringing tracks. OR, they will be charging artists like you $500 an hour to defend you when you are sued for infringement.
Of course, like I said, you are probably judgment proof. So, you don’t have the 125K statutory fines, or the winner’s legal fees (which you will pay). In that case the “worried” lawyer will file a lien that will follow you until the day you die. If you ever do acquire property, have a hit, win the lottery, they will be there to collect.
And second… you are not an employee of the library. And if you are selling tracks to a library, you will sign a contract verifying that the compositions are original and yours to sell. You will be indemnifying the library.
Yeah — let the lawyers worry about it.
Sounds good. Thanks.
@ Synth Player
You do understand that I was being sarcastic? DO NOT just “let the lawyers worry about it.”
You SHOULD worry about it. In a royalty free situation you OWN the track, so it is your responsibility. In exclusive situation you are verifying that you are the creator / owner of the composition. If you get sued for infringement, not only might you be liable to the original composer, but you have also breached your contract with the library and could be responsible to it, not only for what it paid you but for it’s legal fees, if any.
We need to be clear on the distinction between literally copying a song and writing in a style.
Not every sweeping orchestral piece of music with french horns is the theme from Indiana Jones — even though it might be in John Williams’s style. But, if you use the cords from Indiana Jones, just change the melody by a few notes and call the track “Indiana Smith” you are not only unethical and uncreative — you are walking on thin legal ice.
Look at music of the 50’s doo-wop era. Everybody sounded like everybody else considering all the vocal groups used the same 4 chord progression in their songs. That said, in “mentioning artist names when describing what a particular piece of music sounded like,”
There’s a difference between copying a style of music and lifting a substantial portion of a song and calling it your own.
Sounding like somebody else isn’t illegal.
Yes Synth Player, that’s of course obvious and completely true.
But I think the question proposed in this thread is whether it is legal to use the original artist’s name as a comparison when marketing the music to prospective clients.
Why would it be illegal? Generic companies always compare their stuff to name brand products. All a knock-off artist has to say is “song inspired by ______”. Why do people get so caught up in legal matters anyway? Big name artists don’t care about some background music in a reality show. I’m sure they have bigger fish to fry.
I’ve been involved in two different situations where a reality show got sued for a tracks being too close to another well known song. The problem in both cases was that the producer first asked for a quote from the record label, got a price they couldn’t afford and then proceeded to ask the composer to do a knock off. The record label then kept a close eye on what the show used instead.
Fortunately the shows have insurance for lawsuits like this, but it was a huge amount of money (more than the entire music budget in both cases).
I also know of a trailer music company that got asked very sternly by another music company to remove tracks from their catalog that were blatant knock-offs of their music.
I’m no lawyer, but from what I understand, these days copyright law in the US comes down to the concept of ‘intent to copy’. It’s not just about are these three notes the same as these ones, these chords etc etc, but if the writer set out to write a piece of music derived from another. Saying something like ‘inspired by’ or ‘in the style of’ might get used against a library or composer in the unlikely event they actually get noticed by a record label and sued.
OK, I’ve got a crunching deadline, but I’ll chime in. Standard disclaimer –this is not legal advice and I do not represent anyone in this matter — always consult with your own attorney.
Standard lawyer’s answer –it depends. Can you sue every trumpet player who uses a Harmon mute because he sounds like Miles Davis or every guitarist who uses 16th note delays for sounding like U2 — yes. Will you win? Not likely. Can library say “in the style of ?” Probably. – unless…. you are copying more than the style.
Doing a direct knock-off of a specific track is more than just writing “in the style of.” The litmus test (loosely) is NOT how many notes are the same, but whether the average listener would recognize the original track in the knock-off. So, this is where you walk a fine line. There are defenses, which I won’t discuss, but it is not likely that any would apply to library music, which is strictly a commercial venture.
The are where soundalikes are a particular problem are with vocal music. The courts have viewed a person’s voice as part of their “personality” — like their image. Individuals have a right to control the use of their image/personality for profit.
The two seminal cases along these lines involve Tom Waits and Bette Midler. Tom Waits has been successful, winning millions of dollars, in suits against advertisers who hired singers to copy his vocal style.
The Bette Midler case against Ford is similar to what Matt described. Ford wanted to use Bette Midler’s version of “Do You Wanna Dance” in a commercial. She turned them down, so they hired a Bette Midler soundalike to sing the song.
http://www.punknews.org/article/21912
http://personalityrightsdatabase.com/index.php?title=Bette_Midler_v_Ford
Proceed with caution.
Cheers,
Michael
“The two seminal cases along these lines involve Tom Waits and Bette Midler. Tom Waits has been successful, winning millions of dollars, in suits against advertisers who hired singers to copy his vocal style”
This is similar over here, especially in situations where the original artist has been requested and is then not proceeded with due to cost, and a sound-alike is used to mimic the original.
As regards music library descriptions I dont know, record companies routinely describe their acts as the new Radiohead/Michael Jackson etc. There are often comparisons in the trade papers too, Oasis/Beatles etc. You cant really give with one hand and take with the other.
I’d be surprised if “Undercover Boss” doesn’t get sued (maybe they have). Their end theme that is such an obvious lift from Coldplay’s “Viva La Vida”.
The one I hear just about everywhere are knock-offs of ‘The Ending (Ascent)’ by Brian Eno.
It must be super-popular as a temp track.
Ah yes…the bane of every film composer — the temp track. How do you copy something without copying it?
From what I’ve always understood it’s all about intent. Add that to how deep the pockets are, as well as visibility, and the risk goes up substantially for a lawsuit.
“Add that to how deep the pockets are, as well as visibility, and the risk goes up substantially for a lawsuit.”
There’s a phrase that lawyers use when referring to someone without assets -“-judgment proof.”
I think that it would be dicey for an exclusive library with deep pockets to go down the soundalike route. I see a potential issue when you’re dealing with royalty free libraries, who don’t own the tracks. Could they be sued for putting an infringer’s track into the market place?
A lot of writers don’t have two nickels to rub together, i.e, they are judgment proof, so lawyers would most likely try to go after the library, even though it doesn’t own the cue.
Yep. The concerns that I heard were at a PMA (Production Music Association) meeting a couple of years ago. The members consist mostly very large, exclusive, libraries. Some mentioned that they had removed all references comparing their tracks to well known artists . Ron Mendelsohn, president of Megatrax, (one of the largest libraries) has visited MLR before so maybe he will weigh in on this.
When submitting to Crucial (non-exclusive) the ‘sounds like’ field is one that you have to fill in to complete the submission form. There can surely be nothing wrong in describing a track as such.
hmm, I think the record companies would have a lot of work on their hands if they legally went after every library/composer that uses the phrase ‘in the style of’ in their track descriptions.
I’ve been in the business for a very long time and have never heard of any legal problems arising from using the names of other composers to describe what a music track sounds like.
If any problems did arise I would deal with it on a case by case basis and change the description if requested. I would never remove composer names used for comparison in a track description from our sites across the board as it would negatively effect our site search engine results and our customer experience.
Mark Lewis
Partners In Rhyme Inc
http://www.partnersinrhyme.com
http://www.musicloops.com
http://www.sound-effect.com