Inspiration vs. Imitation: Understanding copyright infringement

11th March, 2025 - 5:03 am Categories: Copyright 0 Comments

Right from the moment a child is born to the moment of a human’s last breath, harmonies, symphonies, rhythm, and tempos are a constant. Music plays an integral role in everybody’s life, its influences being subtle. It affects us in more ways than we can acknowledge. Knowing this, let’s delve into the idea of ownership and the creation of music. Can you claim ownership of the rhythm of your heart’s beat and say that it’s your original work? Wouldn’t that be a poetic way of claiming ownership of your existence through intellectual property? This wouldn’t work since the beats of your heart aren’t recorded in any tangible medium that can be documented. Copyright provides the owner with rightful control over the means of reproduction of their work. Using work without credit or authority results in infringement. In this article, we are going to analyse three well-known songs, namely, ‘The Air That I Breathe’ by Hollies, ‘Creep’ by Radiohead and ‘Get Free’ by Lana Del Rey and how copyright altered the course of their existence.

What makes a song ‘original’?

1. The key factor that helps us assess copyright infringement is the creative input used and the medium in which it is created. Originality remains a very subjective term and is thus open to various interpretations. Feist Publications, Inc., v. Rural Telephone Service Co. ¹, established norms to distinguish creativity from a minimal compilation of information. The case laid the groundwork to define creativity and said that for a work to be protected by copyright, it needs to have some standard of creative input. A mere compilation of varied elements won’t make a work original. This case also established the threshold for creativity. It said that for a work to be copyrighted, it needs to possess some creative input even if the work is inspired by something. In India, the Supreme Court in Eastern Book Company v. D.B. Modak ² (2008) emphasized that originality requires the application of skill and judgment. This case rejected the ‘sweat of the brow’ doctrine and aligned with Feist, reinforcing that mere effort in compiling information does not warrant copyright protection.If we thoroughly examine the above three songs, they are original; however, it is the similar chord progression and structure that have caused these disputes in the first place.
   

   II. Substantial similarity

There seems to exist a grey area that blurs the lines between homage and theft. Artists have often used other artist’s work for inspiration. However, if the elements are replicated, the song appears to be similar. The landmark judgment of Arstein v. Porter³ established that to prove a case of copyright infringement, two conditions need to be satisfied. First, the defendant had access to the plaintiff’s work, and second, the song produced by the defendant is substantially similar to that of the plaintiff. The first condition of the defendant’s access can be satisfied in both cases since the songs were published prior to the infringed songs. The second condition is difficult to prove due to the labyrinth of musical knowledge it requires.

Albert Hammond and Mike Hazlewood’s song, ‘The Air That I Breathe,’ became popular after The Hollies recorded it. This melody was allegedly copied by Radiohead in their song ‘Creep’. When we apply the principle of the ordinary observer test laid down by Arstein v. Porter which explained that for an observer with no prior knowledge, if two songs sound the same, it would amount to infringement. Both these songs use the chord progression I, III, IV and iv ⁴ making them sound similar to a layman.

Lana Del Rey’s song ‘Get Free’ from her album ‘Lusting for Life’ was threatened with copyright infringement claims when Radiohead discovered similarities between the two. When you listen to these three songs, one after the other, it seems as if they are sides of a quasi-equilateral triangle.

Fair use

Copyright provides the owner rights to control the usage of his original creation. The doctrine of fair use is used as a defence to protect the infringer. Fair use essentially means the use of original work for criticism, citing, education, etc. The songs ‘Pretty Woman’ by 2 Live Crew and ‘Oh, Pretty Woman’ by Roy Oribson underwent a legal battle and the Supreme Court of the US ruled that 2 Live Crew’s song was a parody and wasn’t affecting the market for Roy Oribson’s song and therefore acknowledged the claim of fair use.

There are several industry practices like interpolation and sampling used to escape the infringement claims which are especially common amongst the pop artists. To simplify we can understand interpolation as a practice of using previous melodies and altering them with appropriate additions or subtractions to produce something new, and sampling as a technique used to reuse certain sections of existent melodies in a new creation.⁵  Since fair use is determined on a case-to-case basis, it is a precarious edge to determine it. But judges base their decisions on four factors- the purpose of your work, nature, the amount of substantial work used and effect upon the market.⁵

Resolution for the conflict

In the above two conflicts, the resolution was reached in out-of-court settlements. Lawsuits leave a scar on the reputation of an artist’s legacy, and therefore, out-of-court settlements are convenient. They open doors for arbitration and mediation. A common solution for infringement claims is part ownership of royalty fees. In Concert, Lana announced that the lawsuit with Radiohead was resolved by giving them writing credits and royalty ⁶.

Future of Music

In light of recent lawsuits involving AI music startups like Suno and Udio⁷, the ever-increasing tension between technological innovation and copyright protection becomes evident. These cases underscore the challenges of applying traditional copyright principles to AI-generated music, raising key questions about the use of existing copyrighted material in new, AI-driven creations. As these legal battles unfold, they may shape the future of music rights in an age of rapidly advancing technology. Questions about ethics and values often come into the frame with AI replacing traditional roles.

Music is an expressive art form. Ideas are generated every minute, but most of them don’t see the light of day due to fear of infringement claims. The same ideas can occur to the same people, causing havoc and confusion. Lack of copyright legislation and the growing pressure from the media deflect true creativity. The role of generative AI seems to blanket the space for originality, creating further complications. It is crucial to establish a balanced approach that encourages creativity while respecting intellectual property rights. Without this, we risk limiting the very essence of artistic progress and expression.

Author: Aabha Talekar, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

References
1) https://supreme.justia.com/cases/federal/us/499/340/
2)https://www.scconline.com/Members/NoteView.aspx?enc=KDIwMDgpIDEgU0NDIDEmJiYmJjU1I3VuZGVmaW5lZA==

3) https://law.justia.com/cases/federal/appellate-courts/F2/154/464/1478575/

4) https://www.youtube.com/watch?v=PV8jYTfxJTI&t=145s

5)https://www.copyright.gov/music-modernization/educational-materials/Sampling-Interpolations-Beat-Stores-and-More-An-Introduction-for-Musicians-Using-Preexisting.pdf

6)https://www.bbc.com/news/entertainment-arts-43540358
7)https://www.reuters.com/legal/litigation/music-ai-startups-suno-udio-slam-record-label-lawsuits-court-filings-2024-08-01/