In recent years, copyright infringement in the music industry has become a hot-button issue, with an increasing number of musicians and producers claiming their works have been unlawfully copied. From high-profile lawsuits to viral debates, the fine line between inspiration and theft has never been more critical. The “Defe Defe” incident earlier this year is just one of many cases that have sparked discussions about what constitutes infringement. In this article, we’ll dive into the nuances of copyright in music, examining when borrowing artistic elements crosses the line into infringement and what this means for musicians today.
What is Copyright?
Copyright is a legal concept that grants creators exclusive rights to their original works, including music, literature, and art. In Ghana, the Copyright Act, 2005 (Act 690) and Copyright Regulations, 2010 (L.I. 1962) govern copyright. To be protected, a work must be original, tangible, and an expression of an idea. Music protections cover melodies, harmonies, rhythms, and lyrics, not general ideas.
Ghana’s copyright system is also influenced by international agreements like TRIPS (1994), the WIPO Copyright Treaty (1996), the Berne Convention (1971), and the WIPO Performances and Phonograms Treaty (1996), which ensure global protection for creators.
Elements of Copyright Infringement
When it comes to music, copyright infringement occurs when someone uses a copyrighted work without permission in a way that violates the owner’s exclusive rights. To determine if infringement has occurred, courts look at two main elements:
- Ownership of a Valid Copyright: The plaintiff must prove that they own a valid copyright in the work that is allegedly infringed.
- Copying of Protected Elements: The plaintiff must demonstrate that the defendant copied elements of the work that are protected by copyright. This involves proving two key aspects: access and substantial similarity.
Access and Substantial Similarity
Access means that the defendant had the opportunity to view or hear the copyrighted work. In the digital age, proving access has become easier due to the widespread availability of music.
Substantial similarity is more nuanced. Courts employ two tests to determine this: the extrinsic test and the intrinsic test.
- The extrinsic test is an objective analysis that examines specific expressive elements of the works, such as melody, harmony, rhythm, and lyrics in musical pieces. Experts often provide testimony in this phase to dissect the technical aspects.
- The intrinsic test is subjective, focusing on whether an ordinary, reasonable person would recognize the substantial similarities between the two works.
To illustrate how these principles are applied, let’s examine a few landmark cases.
Marvin Gaye vs. Robin Thicke and Pharrell Williams
In 2015, a jury found that Robin Thicke’s “Blurred Lines” infringed on Marvin Gaye’s 1977 classic “Got to Give It Up.” The court considered the distinctive “feel” and “groove” of both songs. Despite the lack of identical melodies or lyrics, the jury awarded Gaye’s estate $7.4 million, later reduced to $5.3 million on appeal. This case stirred significant debate in the music industry about the boundaries of inspiration versus infringement.
The Verve vs. The Rolling Stones
The Verve’s “Bitter Sweet Symphony” famously sampled an orchestral version of The Rolling Stones’ “The Last Time.” Initially, The Verve lost the rights to the song, and The Rolling Stones claimed all royalties. In 2019, however, The Rolling Stones relinquished their rights, acknowledging The Verve’s Richard Ashcroft as the sole songwriter. This case underscores the importance of properly clearing samples and the potential long-term consequences of copyright disputes.
What Do Courts Look At?
When a court examines a potential copyright infringement case, it considers various factors to determine whether the use of a work is infringing:
- Originality: Is the work independently created and does it possess some minimal degree of creativity?
- Fixation: Is the work captured in a tangible medium that is perceptible either directly or with the aid of a machine or device?
- Expression: Are the protected elements of the work, such as specific melodies or lyrics, copied rather than just the underlying ideas?
Section 1 of Ghana’s Copyright Act, 2005 (Act 690) protects artistic creations, literary works, musical compositions, sound recordings, choreographies, audiovisual materials, derivative works, and software. Local artists and designers should register their works with the Copyright Office to secure legal protection. This registration allows them to address infringements by filing a complaint for resolution.
Remedies for Copyright Infringement
In Ghana, remedies for copyright infringement can be severe. Criminal sanctions allow the copyright holder to initiate legal action against offenders. Upon conviction, offenders may face fines or imprisonment up to three (3) years.. Additionally, copyright holders can pursue civil action in the High Court to seek damages or compensation. Parties involved in a copyright dispute also have the option to seek settlement by petitioning the Copyright Administrator. Both criminal and civil proceedings can be initiated simultaneously.
Conclusion
Such incidents of copyright infringement bring important questions to the fore: Was there substantial similarity between the two songs, and if the case goes to court, what tests would the courts use? Navigating the boundaries of copyright in music requires a careful balance of respecting original works while fostering creativity and inspiration. By understanding the elements of copyright and the criteria for infringement, creators can better protect their work and respect the rights of others. As these high-profile cases illustrate, the line between inspiration and infringement can be thin, making awareness and caution essential for all involved in the music industry.
