# Are royalties payable when a song is similar to another? Who decides on similarity?
**URL:** https://boards.straightdope.com/t/are-royalties-payable-when-a-song-is-similar-to-another-who-decides-on-similarity/479089
**Category:** Factual Questions
**Created:** [December 29, 2008, 5:54pm UTC](https://boards.straightdope.com/t/are-royalties-payable-when-a-song-is-similar-to-another-who-decides-on-similarity/479089 "2008-12-29T17:54:36Z")
**Posts on this page:** 14
**Page:** 1
### Author:  [@hammos1](https://boards.straightdope.com/u/hammos1)
#### Post date: [December 29, 2008, 5:54pm UTC](https://boards.straightdope.com/t/are-royalties-payable-when-a-song-is-similar-to-another-who-decides-on-similarity/479089/1 "2008-12-29T17:54:36Z")
Listening to September’s 2008 euro-dance hit ‘Cry For You’, anyone with UK 80s pop exposure can’t help but notice the similarity between the main synth riff and that of Bronksi Beat’s ‘Smalltown Boy’.
[September- Cry For You (YouTube)](http://uk.youtube.com/watch?v=ChrSo9Dw90s)
[Bronski Beat- Smalltown Boy (YouTube)](http://uk.youtube.com/watch?v=U7-q1WRaKNg)
Aside from this, the two songs are not particularly alike.
According to Wikipedia, ‘Cry For You’ uses a sample of the Bronski Beat song, so I imagine in this case that royalty cheques are even now winging their way towards the diminutive 80s popsters.
But what if two songs are only a little bit similar? Who decides? Do the composers seek clearance first with the rights holders, and agree on a percentage? What sort of percentage? Or is it ‘publish and be damned’, and wait for someone to sue?
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### Author:  [@ivn1188](https://boards.straightdope.com/u/ivn1188)
#### Post date: [December 29, 2008, 6:35pm UTC](https://boards.straightdope.com/t/are-royalties-payable-when-a-song-is-similar-to-another-who-decides-on-similarity/479089/2 "2008-12-29T18:35:02Z")
> [@hammos1](#):
>
> But what if two songs are only a little bit similar? Who decides? Do the composers seek clearance first with the rights holders, and agree on a percentage? What sort of percentage? Or is it ‘publish and be damned’, and wait for someone to sue?
This depends on the rightsholder of the copied song. Let’s say group A records a song, and group B then records a song that has a similar riff.
B can send a letter to A and ask if it’s all right. A might ignore the communication, deny permission, or grant permission. Note that asking permission is in a sense an admission that you did some copying – not a big deal for samples but for “similar” riffs or melodies, it’s dangerous. A and B then negotiate the royalties, fees, etc. as per any other contractual matter.
On the other hand, B can just go ahead and publish, then A hears it on the radio.
A might decide that it’s cool, and do nothing.
A might decide that B has ripped off the song, and will likely send a letter to B along the lines of “You ripped me off, pay up or stop playing the song” etc.
B may then capitulate, or B may just say “Nuts!”.
A then may drop its shakedown attempt, or proceed to file a lawsuit to stand up for their rights as an artist, depending upon how good their case is. So the next question is “What makes a good case?”
Here, it gets a bit fuzzy. Money and good lawyers make your case better, but the basic strategy is to show the prima facie case for copyright, namely that you have a valid copyright, that the copier actually copied it, and that the copying was not allowed. Check wikipedia for a decent summary of what you need to prove and how you prove it.
Anyway, you then go to court and either a judge or a jury will decide if B has copied A’s song, or at least they will decide if A has proven enough of their case to win an award.
Generally, it takes more than mere similarity to count as infringement, but there are a lot of (bad) decisions out there, so it ends up being a judgment call anyway. Usually music professors and such are called to show how different/identical things are, etc etc.
With sampling, there is the recent Bridgeport case, which says that ANY sampling is an infringement, with no de minimis exception. This is expected to be overturned, as it’s a badly written decision, and it’s highly unpopular.
Copyright infringement is like any other tort, the person who is allegedly wronged has freedom to pursue the matter however they like. Imagine your neighbor dropped a crate of diamonds on your yard – you could sue for trespass if you wanted, but no one will force you to do so.
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### Author:  [@Keeve](https://boards.straightdope.com/u/Keeve)
#### Post date: [December 29, 2008, 7:29pm UTC](https://boards.straightdope.com/t/are-royalties-payable-when-a-song-is-similar-to-another-who-decides-on-similarity/479089/3 "2008-12-29T19:29:33Z")
A famous example of your question concerns the similarities between George Harrison’s 1970 song “My Sweet Lord”, and The Chiffons’ “He’s So Fine” from 1963. Read more about it at [Wikipedia](http://en.wikipedia.org/wiki/My_Sweet_Lord#Legal_controversy) and elsewhere.
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### Author:  [@Markxxx](https://boards.straightdope.com/u/Markxxx)
#### Post date: [December 29, 2008, 7:44pm UTC](https://boards.straightdope.com/t/are-royalties-payable-when-a-song-is-similar-to-another-who-decides-on-similarity/479089/4 "2008-12-29T19:44:14Z")
It generally goes with who is credited on the song.
This will vary if a negotiated agreement is in play.
The thing is it’s fairly easy to take a similar piece of music and change it enough here and there without changing the sound of the record.
George Harrison’s case is somewhat different as he said he didn’t intentionally steal it. He said he if he had known he would’ve changed it or simply paid royalties.
In America anyone can record your song. You can’t stop them but you must pay them for their music. (This varies in different countries though).
Sometimes if the sample is small enough it’s not worth the royalties which may only come to one or two cents a copy. Why isn’t it worth it? Well if I’m going to get a check for say $5,000 for the song that samples my old record fine. But supposing I say no, the artist may then use ANOTHER song or simply not use anything rather than pay the royalty.
But if that song is a hit enough interested may be generated in the sample (Note “Can’t touch this” for example) that I may start getting more sales to an old album (with higher royalties that wouldn’t have come at all had my song not been exposed through the sample). Also it may lead to other jobs.
I’ve also heard of artists saying “OK you don’t have to pay royalties on the sample, so long as you allow me to write another track with you.” So there are a lot of ways of getting paid other than pure royalty payments
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### Author:  [@Acsenray](https://boards.straightdope.com/u/Acsenray)
#### Post date: [December 29, 2008, 7:51pm UTC](https://boards.straightdope.com/t/are-royalties-payable-when-a-song-is-similar-to-another-who-decides-on-similarity/479089/5 "2008-12-29T19:51:49Z")
In order for royalties to be due, Song B must infringe on the rights of the owner of the copyright in Song A. In order to infringe, it must be shown that:
1. Song B is _substantially similar_ to Song A _ **and** _,
2. Song B was _copied_ from Song A.
In other words, if the creator of Song B came up with Song B without ever hearing Song A, there is no infringement. Copyright law allows for similar (even identical) works to be created independently.
If there is no direct evidence of copying, the owner of Song A can try to use indirect evidence, such as evidence of opportunity – in other words, by showing that it was very likely that the creator of Song B had heard Song A.
Sampling, since it is necessary a copy of a recorded work, is in itself a proof of copying. Someone who is sampling would be smart to seek a license beforehand. If you look at the credits on most rap albums, you’ll notice lengthy credits. That indicates that there is a good chance that all the appropriate copyright holders are being paid.
It’s up to a judge or a jury to decide whether works are substantially similar.
> [@ivn1188](#):
>
> This depends on the rightsholder of the copied song.
Not really. There is a legal standard.
> [@](#):
>
> Let’s say group A records a song, and group B then records a song that has a similar riff.
I doubt very much that anyone can claim copyrights in a riff, even if it is identical. A riff isn’t sufficiently creative or original. However, a _sample_ of a riff recorded by someone would be protected.
> [@](#):
>
> Generally, it takes more than mere similarity to count as infringement
Right. The standard is _substantial_ similarity.
> [@](#):
>
> but there are a lot of (bad) decisions out there
Such as?
> [@](#):
>
> This is expected to be overturned, as it’s a badly written decision, and it’s highly unpopular.
It might be unpopular, but I found it to be a rather soundly written decision.
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### Author:  [@An\_Gadai](https://boards.straightdope.com/u/An_Gadai)
#### Post date: [December 29, 2008, 8:01pm UTC](https://boards.straightdope.com/t/are-royalties-payable-when-a-song-is-similar-to-another-who-decides-on-similarity/479089/6 "2008-12-29T20:01:42Z")
The Flaming Lips gave half the royalties of their song _Fight Test_ to Yusuf Islam (formerly Cat Stevens) because of their song’s clear similarity to Islam’s _Father and Son_.
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### Author:  [@Green\_Bean](https://boards.straightdope.com/u/Green_Bean)
#### Post date: [December 29, 2008, 8:37pm UTC](https://boards.straightdope.com/t/are-royalties-payable-when-a-song-is-similar-to-another-who-decides-on-similarity/479089/7 "2008-12-29T20:37:00Z")
See, “Under Pressure” goes “ting ting ting ting ting ting ting” and “Ice Ice Baby” goes “t-ting ting ting ting ting ting ting.” They’re completely different.
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### Author:  [@si\_blakely](https://boards.straightdope.com/u/si_blakely)
#### Post date: [December 29, 2008, 8:51pm UTC](https://boards.straightdope.com/t/are-royalties-payable-when-a-song-is-similar-to-another-who-decides-on-similarity/479089/8 "2008-12-29T20:51:01Z")
**The Verve** lost all the royalties for _Bitter Sweet Symphony_, due to it’s use of a symphonic arrangement of a **Rolling Stones** riff.
Also, checkout the mashups on YouTube of **Coldplay** s _Viva La Vida_ with a **Joe Satriani** instrumental - currently a subject of a legal wrangle. A judge will decide in the end.
It gets messy - the keyboard player sued for a share of the royalties of _A Whiter Shade Of Pale_ - he argued that the distinctive riff he created was partially responsible for the songs success. The judge agreed, but felt that waiting 30+ years to pursue the claim indicated bad faith, and ruled that a writing credit was due, but not royalties.
Si
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### Author:  [@ivn1188](https://boards.straightdope.com/u/ivn1188)
#### Post date: [December 29, 2008, 9:37pm UTC](https://boards.straightdope.com/t/are-royalties-payable-when-a-song-is-similar-to-another-who-decides-on-similarity/479089/9 "2008-12-29T21:37:03Z")
> [@acsenray](#):
>
> > [@ivn1188](#):
> >
> > This depends on the rightsholder of the copied song.
>
> Not really. There is a legal standard.
You obviously misunderstood my point. The copyright holder has freedom not to pursue a remedy if she desires, even if it is a clear infringement. There is no trademark-like requirement of defense of a copyright, and this sort of infringement is not criminal copyright that would be pursued by the DOJ (who usually require a complaint from the victim to proseute anyway).
> [@acsenray](#):
>
> > [@ivn1188](#):
> >
> > Let’s say group A records a song, and group B then records a song that has a similar riff.
>
> I doubt very much that anyone can claim copyrights in a riff, even if it is identical. A riff isn’t sufficiently creative or original. However, a sample of a riff recorded by someone would be protected.
This is incorrect; as si\_blakely pointed out, there are several cases, even pre-Bridgeport, where a riff has been enough to count as copying the heart of the work. Pretty Woman’s opening bass line was such an infringment in Campbell v Acuff-Rose. (Even though Acuff-Rose lost, they lost on a fair use defense, which means that there had to have been infringement in the first place.) And note that a sample is only explicitly protected in one circuit, other circuits maintain a de minimis defense.
> [@acsenray](#):
>
> > [@ivn1188](#):
> >
> > Quote:
> > but there are a lot of (bad) decisions out there
>
> Such as?
>
> > [@ivn1188](#):
> >
> > This is expected to be overturned, as it’s a badly written decision, and it’s highly unpopular.
>
> It might be unpopular, but I found it to be a rather soundly written decision.
Well, obviously any court is going to make mistakes. There are, for instance, the LEE vs A.R.T. pair of cases that come to exact opposite decisions. Many cases from district courts get overturned upon appeal. The court of appeals in Cambell itself got overturned by the supreme court.
As far as Bridgeport goes, you may have been convinced, which is fine, but many [others](http://www.iptablog.org/2005/06/22/bridgeport_audio_sampling_and_transaction_costs.html) [were](http://williampatry.blogspot.com/2005/06/sixth-circuit-reaffirms-controversial.html)[not.](http://www.fepproject.org/commentaries/bridgeport.html)
Either way, it’s a controversy with no GQ-style answer.
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### Author:  [@Acsenray](https://boards.straightdope.com/u/Acsenray)
#### Post date: [December 29, 2008, 10:07pm UTC](https://boards.straightdope.com/t/are-royalties-payable-when-a-song-is-similar-to-another-who-decides-on-similarity/479089/10 "2008-12-29T22:07:30Z")
> [@ivn1188](#):
>
> You obviously misunderstood my point. The copyright holder has freedom not to pursue a remedy if she desires, even if it is a clear infringement.
Your point is “people can sue if they want.” It’s one that frequently causes confusion in threads on legal questions. But the question of whether something constitutes infringement is a _legal_ question, not a matter of choice of the copyright holder. That exists independently of any choice the copyright holder might make.
> [@](#):
>
> This is incorrect; as si\_blakely pointed out, there are several cases, even pre-Bridgeport, where a riff has been enough to count as copying the heart of the work.
“A riff found to constitute the heart of the work” and “a riff” without further limitation are very different things. Okay, so I’m parsing words here, but we are discussing the law. 🙂
> [@](#):
>
> Pretty Woman’s opening bass line was such an infringment in Campbell v Acuff-Rose.
My memory might be failing me, but the similarities in that case extended to much more than the bass line.
> [@](#):
>
> And note that a sample is only explicitly protected in one circuit, other circuits maintain a de minimis defense.
A de minimis defense is a _defense_ to infringement. That means that all the other factors of infringement: copying, substantial similarity, etc., have been found. I don’t think anything you said is in contradiction with anything I said about sampling.
> [@](#):
>
> Well, obviously any court is going to make mistakes. There are, for instance, the LEE vs A.R.T. pair of cases that come to exact opposite decisions. Many cases from district courts get overturned upon appeal. The court of appeals in Cambell itself got overturned by the supreme court.
It’s rather a mistake to set the standard for “bad decision” as “decisions reversed on appeal.” I think you know that law is much more complex than that.
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### Author:  [@KneadToKnow](https://boards.straightdope.com/u/KneadToKnow)
#### Post date: [December 29, 2008, 11:15pm UTC](https://boards.straightdope.com/t/are-royalties-payable-when-a-song-is-similar-to-another-who-decides-on-similarity/479089/11 "2008-12-29T23:15:10Z")
What was the substantial infringement in the Phil Collins/Prince case? IIRC, the songs in question were “Sussudio” and “1999,” but I’ve never heard the resemblance. Is it something you’d need the sheet music to catch?
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### Author:  [@An\_Gadai](https://boards.straightdope.com/u/An_Gadai)
#### Post date: [December 30, 2008, 1:08am UTC](https://boards.straightdope.com/t/are-royalties-payable-when-a-song-is-similar-to-another-who-decides-on-similarity/479089/12 "2008-12-30T01:08:40Z")
A link that might be of interest is:
[http://www.illegal-art.org/audio/liner.html](http://www.illegal-art.org/audio/liner.html)
This is an ‘illegal art’ compilation of songs that had copyright cases against them. Some, clearly and without permission, lifted samples from other songs but one or two of the resemblances aren’t all that obvious.
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### Author:  [@Acsenray](https://boards.straightdope.com/u/Acsenray)
#### Post date: [December 30, 2008, 2:50pm UTC](https://boards.straightdope.com/t/are-royalties-payable-when-a-song-is-similar-to-another-who-decides-on-similarity/479089/13 "2008-12-30T14:50:42Z")
> [@KneadToKnow](#):
>
> What was the substantial infringement in the Phil Collins/Prince case? IIRC, the songs in question were “Sussudio” and “1999,” but I’ve never heard the resemblance. Is it something you’d need the sheet music to catch?
A quick Google search reveals that a lot of critics have found significant similarities, but I’m not finding anything that says there was any actual legal action regarding “Sussudio.” Are you sure there was a finding of infringement?
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### Author:  [@KneadToKnow](https://boards.straightdope.com/u/KneadToKnow)
#### Post date: [December 30, 2008, 3:03pm UTC](https://boards.straightdope.com/t/are-royalties-payable-when-a-song-is-similar-to-another-who-decides-on-similarity/479089/14 "2008-12-30T15:03:13Z")
Hmmmmmm. No, I can’t say I’m sure. I had thought I’d heard there was a case and it was decided in Prince’s favor, but maybe I mis-remember. In re-researching it today, I did find [a website](http://www.nationmaster.com/encyclopedia/Sussudio) that claims the similarity is in some of the synth chord hits, though, so that’s something at least.