Using a tiny fraction of another song - and paying royalties

So I learned recently that the looping two-second guitar strum that commences at the very beginning of Gotye’s Somebody That I Used To Know, was actually taken from the opening of a 1967 song called Seville by Luiz Bonfa.

This news article states that the late Luiz Bonfa’s estate has been reaping some “royalties gold” as a result of the enormous success of Gotye’s song.

Two things I can’t understand.

  1. Wow. You have to pay royalties for using two seconds of someone else’s song?

  2. If you’re Gotye, why not just recreate those two seconds of guitar strumming yourself, and keep those royalties in your own pocket? No court in the world would convict you because a poultry two seconds of your song kind of sounds like another two seconds from an obscure song from 1967.

As for the first question, you very well could be sued for even small amounts of sampling. See this court decision. Considering artists who do unauthorized sampling have lost 100% of their royalties or even been forced to recall their recordings, most artists prefer to pay royalties rather than face the risks of fighting it out in court.

  1. Yes - see Grand Upright Music, Ltd. v. Warner Bros. Records Inc. (and if you don’t like it, write your own music.)

  2. Performing your own version of someone’s copyrighted song (or some portion thereof) doesn’t negate their copyright.

It’s misleading to say he’s just using two seconds of someone else’s music. That loop may be only two seconds long, but it plays almost constantly through the song, forming the foundation of the whole instrumental track. In that sense, Gotye is using more like four minutes of Bonfa’s music.

Presumably the “Baa Baa Black Sheep” xylophone part is in the public domain.

It’s worse than that.

The technology to recognize a melody is getting better and better. In my case, I shoot videos of the School of Rock. As soon as I upload them to YouTube, no matter that the original file is called, and no matter what information is entered for the description of the file, in about half the cases the song is recognized. So a song played by a group of kids can be, about 50% of the time, accurately recognized for the purpose of attributing copyright. The record company puts an ad to purchase the original song next to it and everybody is happy.

But what happens when this technology is perfected? When every single song in the publisher’s library can be automatically converted into a score? I believe that they will use their library of old songs, and do the same thing to every new song and compare the two. All of the sudden, artists who believe they have composed a new song get sued for half, or more, of their royalties on behalf of someone they never heard of. It turns out that their melody had been used in the score of the film “Broadway Babies of 1936” or some such. Claiming that the new artist never heard the original song is no defense. George Harrison did not intentionally use the melody of He’s So Fine for My Sweet Lord, but it cost him three quarters of the royalties. Nor did the Rolling Stones intentionally plagiarize k.d. lang’s Constant Craving with their song Anybody Seen My Baby?.

The last is especially insane, as the melody of the chorus shared by those two songs is four freaking notes! How many musically enjoyable four note pop melodies are possible?

The combination of this technology, avaricious lawyers and extended copyright will be the death of music.

I get that, but I just find it inconceivable that recreating such a tiny portion of someone else’s music, (we’re talking three or four strums on a guitar string here) from an obscure 1967 song is worthy of royalties.

I could easily write a piece of computer software that pumps out every single two-second four-strum guitar combination there is, and then publish them on some music website.

Could I then sit back and litigate my way to untold wealth by suing every artist who uses at least two seconds of guitar strumming in any published song from that point forward?

I can’t find a link for it, but a single word, a single note is considered a “musical performance”. The case was a sample of Michael Jackson singing “Beat” from “Beat It”.

I’m quite confident that some copyright troll lawyer is planning to do exactly that. Welcome to Hell.

Take a look at the case of Bittersweet Symphony someday.

There’s distintive melodic, rhythmic, and harmonic content there - at least as distinctive as a couple of seconds of the strummed electric guitar intro to many Rolling Stones songs for example, or just a few notes of a strong melody like “Over the Rainbow” or “Happy Birthday”, etc, which obvioulsy would be protected - and of course how old or obscure (to you) the song happens to be makes no difference to its copyright status, as long as it’s under the legally protected term.

Try it and see - but note judges generally aren’t idiots.

Or Men at Work’s “Down Under”.

I can’t remember what comic strip it was, but a character announced that he had composed two pieces of music. He called them “1” and “0”, and planned to sue some artist for many copyright violations - 41,000x16 violations per second.

This is weird. Because I often note similarities between songs that no one else seems to (I’m a songwriter, and we all play around with snippets of existing songs in creating new ones).

But I don’t hear that with “Bittersweet Symphony” and the Rolling Stones’ “The Last Time”.

If that’s plagiarism (worth 100% of royalties), the Beatles should own plenty of Oasis’s catalogue. “She’s Electric” alone ‘borrows’ from “While My Guitar Gently Weeps” and “With a Little Help from My Friends”.

Huh. Keith Richards from the Rolling Stones said:

Richards was being completely disingenious here. He would have been honest if he had said:

"Each generation listens to music and gets creative. We did so in a time that the musicians before us could only detect our plagiarism if it was really blatant and purely by accident. And luckily, all those musicians are dead now and can’t pay lawyers to harrass us. But we have the technology and the lawyers to harass you. And we are going to harass the shit out of you. Because despite posing as anti establisment, we are the establishement. And despite being fucking loaded with money, we need more, because all those paternity suits by groupies against me, and all those drug dealers I owe, aren’t going to pay themselves. So basically, you’'re screwed just for being born 30 years after me. Neener nener. "

Of course, since a fair number of four-strum guitar combinations have already been used in existing songs, you’re presumably going to lose a hunk of that untold wealth to other people suing you.

This is incorrect. In order to prove infringement, you must prove copying, and if the defendant can show that he or she never had access to the plaintiff’s work, then you defeat the claim.

Harrison admitted to having heard “He’s So Fine.” And not just once.

Nitpick: If you’re talking about copyright law, you are talking about “infringement,” not “plagiarism.” Plagiarism isn’t defined by the law and it can actually be much broader than copyright infringement. For example, copying an idea (as opposed to expression) is not copyright infringement, but it might be plagiarism.

You’re listening to the popular version of The Last Time by The Rolling Stones, which turns out, is not the version that is the subject of the copyright claim.

Take a listen to the B-Side of that Stones album for the Andrew Oldham Orchestra version. Woah! That’s Bittersweet Symphony alright!

How do you prove you never had access to something that was written before your piece?

Holy Crap! After hearing that I thought that maybe someone had just created that piece as a joke or a hoax, but you can actually buy it on Amazon. The Verve really didn’t get ripped off by lawyers.

Exactly. In a world of iTunes, YouTube, NetFlix and Google how could one possibly claim that they could never have heard a particular song? George Harrison would have had to have heard “He’s So Fine” on the radio, in the cinema, on TV or via his own or a friend’s record. But if one has a computer and a Net connection, there is no way to prove you didn’t hear any song, no matter how obscure.