# How can music be scrutinized for plagiarism? **URL:** \ **Category:** Factual Questions\ **Created:** [December 1, 2009, 4:11am UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557 "2009-12-01T04:11:03Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Blut\_Aus\_Nord](https://avatars.discourse-cdn.com/v4/letter/b/9e8a1a/32.png) [@Blut\_Aus\_Nord](https://boards.straightdope.com/u/Blut_Aus_Nord)\ **Post date:** [December 1, 2009, 4:11am UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/1 "2009-12-01T04:11:03Z")
Let’s say I discover a song written years ago by an artist virtually unknown to anyone outside of Laos or some place, and then rerecord it under my own name. How can my song be traced back to the original? Is it only by pure luck, maybe if an immigrant from Laos makes his way over and recognizes my plagiarized song playing on the radio? Or lets say a more popular song is rearranged to the point where it’s only recognizable by the melody, but no one else knows that; as far as anyone is concerned, it’s just a coincidence. When does coincidence become plagiarism within music? ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [December 1, 2009, 4:30am UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/2 "2009-12-01T04:30:37Z")
> [@Chakra Nadmara](#): > > Let’s say I discover a song written years ago by an artist virtually unknown to anyone outside of Laos or some place, and then rerecord it under my own name. How can my song be traced back to the original? Is it only by pure luck, maybe if an immigrant from Laos makes his way over and recognizes my plagiarized song playing on the radio? Assuming that your song isn’t a huge international hit, that is the most likely way it could happen. I’m also pretty sure that new databases might make it possible to identify plagiarism, possibly by using the same types of software that can identify songs for listeners. > [@Chakra](#): > > Or lets say a more popular song is rearranged to the point where it’s only recognizable by the melody, but no one else knows that; as far as anyone is concerned, it’s just a coincidence. When does coincidence become plagiarism within music? Well, that’s for a judge (or jury) to decide. I’m pretty sure that the plaintiff would have to be able to show that the defendant had access to, or knew of, the work supposedly being plagiarized. I seem to recall Britney Spears or someone getting that ruling. [Wikipedia has a decent article on musical plagiarism](http://en.wikipedia.org/wiki/Musical_plagiarism). ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 1, 2009, 4:44am UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/3 "2009-12-01T04:44:48Z")
This site has musical infingement cases and offers comparisons of the songs: [http://cip.law.ucla.edu/song.html](http://cip.law.ucla.edu/song.html) cases: [http://cip.law.ucla.edu/caselist.html](http://cip.law.ucla.edu/caselist.html) ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 1, 2009, 4:53am UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/4 "2009-12-01T04:53:24Z")
And there’s a section of this book chapter that covers substantial similarity doctrine as it applies to music: [Chapter 7](http://www.edwardsamuels.com/ILLUSTRATEDSTORY/isc7.htm) ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [December 1, 2009, 6:36am UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/5 "2009-12-01T06:36:42Z")
> [@Gfactor](#): > > This site has musical infingement cases and offers comparisons of the songs: [http://cip.law.ucla.edu/song.html](http://cip.law.ucla.edu/song.html) > > cases: [http://cip.law.ucla.edu/caselist.html](http://cip.law.ucla.edu/caselist.html) All of the music files on that site are .ram (RealMedia) files. Macs can’t play them. It is a very exhaustive list, tho. Just wish I could hear some of the contested bits. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 1, 2009, 1:27pm UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/6 "2009-12-01T13:27:38Z")
> [@Snowboarder\_Bo](#): > > All of the music files on that site are .ram (RealMedia) files. Macs can’t play them. > > It is a very exhaustive list, tho. Just wish I could hear some of the contested bits. Oy! I wish I knew a workaround. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [December 1, 2009, 5:42pm UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/7 "2009-12-01T17:42:18Z")
> [@Gfactor](#): > > Oy! I wish I knew a workaround. There isn’t one, except to download the files, then try and convert them. The problems are that 1) I don’t want to get a converter program and 2) I think .ram files are really just embedded links to the actual .rm files, and that’s a lot of hassle to go thru. That website should stop using a format that has been outdated for 10 years now. Nobody uses RealPlayer anymore, ffs. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 1, 2009, 5:51pm UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/8 "2009-12-01T17:51:07Z")
> [@Snowboarder\_Bo](#): > > That website should stop using a format that has been outdated for 10 years now. Nobody uses RealPlayer anymore, ffs. Let’s not make this a referendum about web design or audio file formats, but FWIW, I agree with you. Bummer you can’t check it out. ---
**Author:** ![pulykamell](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pulykamell/32/3166_2.png) [@pulykamell](https://boards.straightdope.com/u/pulykamell)\ **Post date:** [December 1, 2009, 5:57pm UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/9 "2009-12-01T17:57:12Z")
> [@Snowboarder\_Bo](#): > > All of the music files on that site are .ram (RealMedia) files. Macs can’t play them. Works for me. I got a Mac. I also seem to have downloaded Real Player once upon a time, so just download RealPlayer and you’ll be good to go. ---
**Author:** ![BwanaBob](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bwanabob/32/2985_2.png) [@BwanaBob](https://boards.straightdope.com/u/BwanaBob)\ **Post date:** [December 1, 2009, 6:15pm UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/10 "2009-12-01T18:15:30Z")
I’ve always wondered about the inverse of this issue: what if I dream up a great song; how can I find out if I haven’t accidentally re-invented a someone else’s song (or a reasonably similar one). Even if it’s a coincidence, I don’t want the hassles of a plagiarism suit. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 1, 2009, 10:45pm UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/11 "2009-12-01T22:45:46Z")
> [@BwanaBob](#): > > I’ve always wondered about the inverse of this issue: what if I dream up a great song; how can I find out if I haven’t accidentally re-invented a someone else’s song (or a reasonably similar one). Even if it’s a coincidence, I don’t want the hassles of a plagiarism suit. It’s pretty well impossible, as far as I know, to do that definitively. So you could be sued for a song you wrote even if you’d lived in a music-free society and never heard any music at all. Of course, you’d win the case because the plaintiff would have to prove that you had access to the song. But that’s not what you seem to be asking. ---
**Author:** ![Troy\_McClure\_SF](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/troy_mcclure_sf/32/4150_2.png) [@Troy\_McClure\_SF](https://boards.straightdope.com/u/Troy_McClure_SF)\ **Post date:** [December 1, 2009, 11:16pm UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/12 "2009-12-01T23:16:54Z")
> [@Snowboarder\_Bo](#): > > All of the music files on that site are .ram (RealMedia) files. Macs can’t play them. Pretty sure Macs were able to play .ram files even way back when people didn’t loathe .ram files. ---
**Author:** ![BwanaBob](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bwanabob/32/2985_2.png) [@BwanaBob](https://boards.straightdope.com/u/BwanaBob)\ **Post date:** [December 2, 2009, 7:01pm UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/13 "2009-12-02T19:01:21Z")
> [@Gfactor](#): > > It’s pretty well impossible, as far as I know, to do that definitively. So you could be sued for a song you wrote even if you’d lived in a music-free society and never heard any music at all. Of course, you’d win the case because the plaintiff would have to prove that you had access to the song. But that’s not what you seem to be asking. You’re sort of in the ballpark. Here’s a for-instance. I have never listened to a Britney Spears CD since I never listen to pop stations. Now I’m a clever guy (for this example) and I’m handy with a melody. I come up with a ditty that sounds really good. Suppose I’ve independently stumbled on the melody of one of BS’s hits. I can claim that I’ve never listened to her stuff but since she’s a star her music has been everywhere. Now I don’t want to be sued, because I’ll have to pay a lawyer. I was hoping there’d be a way to catch this sort of “coincidence” before I even spend a minute in the studio. Some sort of riff/melody analyzer/cross-referencer. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [December 2, 2009, 7:11pm UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/14 "2009-12-02T19:11:47Z")
Maybe you could just hold your iPhone up to the speaker and see if it recognizes it? (LOL) ---
**Author:** ![gaffa](https://avatars.discourse-cdn.com/v4/letter/g/e68b1a/32.png) [@gaffa](https://boards.straightdope.com/u/gaffa)\ **Post date:** [December 2, 2009, 7:51pm UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/15 "2009-12-02T19:51:06Z")
We’re not _that_ far away from software that will be able to transcribe every single note in a sound file. And when that happens, it will be the Golden Age of plagiarism lawsuits. George Harrison didn’t intentionally copy _He’s So Fine_, and as far as I can tell the borrowing was mainly a three note motif “…he’s so fine” vs. “…my sweet Lord”. The Rolling Stones, pretty talented songwriters themselves, accidentally borrowed a different four note motif from K.D. Lang’s song _Constant Craving_ for their song _Where’s My Baby_, and wound up splitting songwriting credit…and royalties. So innocence is apparently no longer a defense. Song owners (as opposed to actual song_writers_) are going to process their entire catalogs and compare it to everyone else’s entire catalogs and the suits are going to fly. Songwriters are going to discover that their recent pop hit accidentally duplicated a portion of a melody of a little ditty from _Golddiggers of 1937_. They will only find this out when they get served. They will have a choice between waging a court case where they will have to try to prove that they have never stumbled across the supposed “original” while channel surfing, or giving half their royalties to some leech of a descendant of the original songwriter. It’s gonna get ugly. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 2, 2009, 11:01pm UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/16 "2009-12-02T23:01:36Z")
> [@BwanaBob](#): > > You’re sort of in the ballpark. Here’s a for-instance. I have never listened to a Britney Spears CD since I never listen to pop stations. Now I’m a clever guy (for this example) and I’m handy with a melody. I come up with a ditty that sounds really good. Suppose I’ve independently stumbled on the melody of one of BS’s hits. I can claim that I’ve never listened to her stuff but since she’s a star her music has been everywhere. Now I don’t want to be sued, because I’ll have to pay a lawyer. I was hoping there’d be a way to catch this sort of “coincidence” before I even spend a minute in the studio. Some sort of riff/melody analyzer/cross-referencer. Right. I think there may be limited opportunities to do this sort of analysis (the iphone thing isn’t that far off the mark) and more will develop. The problem will always be that you won’t have a complete database. It’d be easier if you were willing to limit it to music that you’d listened to, and you only listened to your own CD collection or something. 😉 But once you step out of the house, you’d have to account for songs the kid across the street plays with his garage band, world music that the New Agers next door listen to, movie soundtracks. . . so you’d have a fundamental incompleteness to manage. I’m not sure how you’d account for that. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 2, 2009, 11:04pm UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/17 "2009-12-02T23:04:06Z")
> [@gaffa](#): > > So innocence is apparently no longer a defense. I know what you mean here, but technically “innocence” was never a defense. To win a copyright infringement case, you’ve got to prove copying, which includes access, but the copying can be accidental. ---
**Author:** ![gaffa](https://avatars.discourse-cdn.com/v4/letter/g/e68b1a/32.png) [@gaffa](https://boards.straightdope.com/u/gaffa)\ **Post date:** [December 3, 2009, 12:52am UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/18 "2009-12-03T00:52:44Z")
I am not a lawyer. In my example, if someone writes a song tomorrow, and a company that owns a huge catalog of songs finds that some portion of the new song matches a portion of one of their songs…what is the likely outcome? If they can show that the song was on TV at some point during the life of the young songwritr, is that enough to prove exposure? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 3, 2009, 1:04am UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/19 "2009-12-03T01:04:40Z")
> [@gaffa](#): > > I am not a lawyer. In my example, if someone writes a song tomorrow, and a company that owns a huge catalog of songs finds that some portion of the new song matches a portion of one of their songs…what is the likely outcome? If they can show that the song was on TV at some point during the life of the young songwritr, is that enough to prove exposure? I haven’t looked at those cases in a while. In the "He’s So Fine Case, > [@](#): > > George Harrison, a former member of The Beatles, was aware of He’s So Fine. In the United States, it was No. 1 on the billboard charts for five weeks; in England, Harrison’s home country, it was No. 12 on the charts on June 1, 1963, a date upon which one of the Beatle songs was, in fact, in first position. For seven weeks in 1963, He’s So Fine was one of the top hits in England. [http://cip.law.ucla.edu/cases/case\_brightharrisongs.html](http://cip.law.ucla.edu/cases/case_brightharrisongs.html) He admitted he knew about the song. But the judge didn’t believe he intentionally copied it. > [@](#): > > What happened? I conclude that the composer,12 in seeking musical materials to clothe his thoughts, was working with various possibilities. As he tried this possibility and that, there came to the surface of his mind a particular combination that pleased him as being one he felt would be appealing to a prospective listener; in other words, that this combination of sounds would work. Why? Because his subconscious knew it already had worked in a song his conscious mind did not remember. Having arrived at this pleasing combination of sounds, the recording was made, the lead sheet prepared for copyright and the song became an enormous success. Did Harrison deliberately use the music of He’s So Fine? I do not believe he did so deliberately. Nevertheless, it is clear that My Sweet Lord is the very same song as He’s So Fine with different words,13 and Harrison had access to He’s So Fine. This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished. Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936); Northern Music Corp. v. Pacemaker Music Co., Inc., 147 U.S.P.Q. 358, 359 (S.D.N.Y.1965). So in that case, access wasn’t contested. Beyond that, I’ll have to get back to you. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 3, 2009, 1:23am UTC](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557/20 "2009-12-03T01:23:27Z")
> [@](#): > > Proof of access requires “an opportunity to view or to copy plaintiff’s work.” Sid and Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1172 (9th Cir. 1977). This is often described as providing a “reasonable opportunity” or “reasonable possibility” of viewing the plaintiff’s work. 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, § 13.02[A], at 13-19 (1999); Jason v. Fonda, 526 F. Supp. 774, 775 (C.D. Cal. 1981), aff’d, 698 F.2d 966 (9th Cir. 1983). We have defined reasonable access as “more than a ‘bare possibility.’” Jason, 698 F.2d at 967. Nimmer has elaborated on our definition: “Of course, reasonable opportunity as [\*\*9] here used, does not encompass any bare possibility in the sense that anything is possible. Access may not be inferred through mere speculation or conjecture. There must be a reasonable possibility of viewing the plaintiff’s work - not a bare possibility.” 4 Nimmer, § 13.02[A], at 13-19. “At times, distinguishing a ‘bare’ possibility from a ‘reasonable’ possibility will present a close question.” Id. at 13-20. > > Circumstantial evidence of reasonable access is proven in one of two ways: (1) a particular chain of events is established between the plaintiff’s work and the defendant’s access to that work (such as through dealings with a publisher or record company), or (2) the plaintiff’s work has been widely disseminated. See 4 Nimmer, § 13.02[A], at 13-20-13-21; 2 Paul Goldstein, Copyright: Principles, Law, and Practice § 8.3.1.1., at 90-91 (1989). Goldstein remarks that in music cases the “typically more successful route to proving access requires the plaintiff to show that its work was widely disseminated through sales of sheet music, records, and radio performances.” 2 Goldstein, § 8.3.1.1, at 91. Nimmer, however, cautioned that “concrete cases will pose difficult [\*\*10] judgments as to where along the access spectrum a given exploitation falls.” 4 Nimmer, § 13.02[A], at 13-22. > > Proof of widespread dissemination is sometimes accompanied by a theory that copyright infringement of a popular song was subconscious. Subconscious copying has been accepted since Learned Hand embraced it in a 1924 music infringement case: “Everything registers somewhere in our memories, and no one can tell what [\*483] may evoke it . . . . Once it appears that another has in fact used the copyright as the source of this production, he has invaded the author’s rights. It is no excuse that in so doing his memory has played him a trick.” Fred Fisher, Inc. v. Dillingham, 298 F. 145, 147-48 (S.D.N.Y. 1924). In Fred Fisher, Judge Hand found that the similarities between the songs “amounted to identity” and that the infringement had occurred “probably unconsciously, what he had certainly often heard only a short time before.” Id. at 147. > > In modern cases, however, the theory of subconscious copying has been applied to songs that are more remote in time. ABKCO Music, Inc v. Harrisongs Music, Ltd., 722 F.2d 988 (2d Cir. 1983) is the [\*\*11] most prominent example. In ABKCO, the Second Circuit affirmed a jury’s verdict that former Beatle George Harrison, in writing the song “My Sweet Lord,” subconsciously copied The Chiffons’ “He’s So Fine,” which was released six years earlier. See id. at 997, 999. Harrison admitted hearing “He’s So Fine” in 1963, when it was number one on the Billboard charts in the United States for five weeks and one of the top 30 hits in England for seven weeks. See id. at 998. The court found: “the evidence, standing alone, ‘by no means compels the conclusion that there was access . . . it does not compel the conclusion that there was not.’” Id. (quoting Heim v. Universal Pictures Co., 154 F.2d 480, 487 (2d Cir. 1946)). In ABKCO, however, the court found that “the similarity was so striking and where access was found, the remoteness of that access provides no basis for reversal.” Id. Furthermore, “the mere lapse of a considerable period of time between the moment of access and the creation of defendant’s work does not preclude a finding of copying.” 4 Nimmer, § 13.02[A], at 13-20 (citing ABKCO, 722 F.2d at 997-98). [\*\*12] _Three Boys Music Corp. v. Bolton_, 212 F.3d 477 (9th Cir. 2000) [Next page](https://boards.straightdope.com/t/how-can-music-be-scrutinized-for-plagiarism/519557.md?page=2)