Thoughts on Copyright Infringement

My daughter and her friends are doing a fun project during a free hour at school. It's a mockumentary in the style of The Office, called The School.

She asked me if I could write up and record a theme song in the style of the well-known Office opening, which I did, and it turned out pretty well considering it took less than an hour to compose and put together.

They made their first intro, and it was fun to watch! The montage was timed perfectly to the music, ending with the "The School" title featured on a piece of paper sitting in a printer tray. I like the fact that they are working as a team, doing something creative, and getting some exposure to what it takes to produce a multimedia piece of work.

And then I started thinking about the song, and what the implications were around copyright. I had written it clearly with the Office theme song in mind - it's not something I could deny given the context. I was careful not to use the same chord progression or the same melody, but there are similarities in that the lead instrument sounds like an accordion or a reed organ (I used the latter - the Soundiron Traveler Organ), I start with a piano, the song builds without a change up until the ending chord, and so on. 

I can't say for sure if someone listened to the song out of context it would evoke images of The Office, but in the montage it certainly would be easy to think it was the same song or at least a soundalike.

So I thought I'd do some research on what is legal, what is not, and where there is gray area that might be okay but should probably be avoided. It turns out there are a lot of factors involved, and a lot of gray area.

For starters, I had long been under the impression that as long as the melody doesn't line up with another copyrighted work, I was good to go.  I think I'd heard that as long as you didn't have 7 exactly matching melodic notes in a row you were protected. This was based on anecdotal information I'd been given over the years by people at various levels of sobriety, and not on any real legal research. 

If you look at several well known infringement cases where the infringed upon successfully garnered damages, some of them (to my ears) are real head scratchers. One of the most famous is George Harrison's My Sweet Lord vs Ronnie Mack's He's So Fine. I personally can hear the similarities, but they're really very different songs.

Another, Huey Lewis's I Want A New Drug vs. Ray Parker Jr.'s Ghostbusters was one that really surprised me when I heard about it (I was just starting to listen to radio pop music when both those songs came out and it never even occurred to me that there was a similarity). 

Probably the one that really floored me the most was the recent case of the Tom Petty/Jeff Lynne song I Won't Back Down vs Sam Smith's Stay With Me. Yes, the chorus is similar strictly from a melodic standpoint for a couple of measures, but again, these songs have a completely different feel. Also, it's not like Tom Petty's music is super complicated - generally it's a few chords with a very simple melody. Ultimately for me (and, judging by the number of opinions written on this, many others), this reflected extremely poorly on Tom Petty. I used to buy into his "every man" appeal but now I kind of see him as a bully.  

And this is where you get into the reality of the situation. Copyright cases can be expensive and bring bad publicity. Also if you look at the first two examples, there were mitigating factors, including the ulterior motives of Allen Klein in the My Sweet Lord case and the fact the Huey Lewis had originally been offered the Ghostbusters theme song gig (it would be easy to imagine Ray Parker Jr. being directed to write a soundalike).

I believe in the case of the The Office-inspired theme song, I am reasonably protected, for the following reasons:

  • The songs are dissimilar. The chords are different, not all of the instrumentation is the same, and the melody doesn't come close to the original.
  • The work is a parody of The Office, so could be protected under Fair Use.
  • It's not likely that a non-commercial high school project would be sued by the owner of the song. It would be difficult to prove damages from a high school project.

All that said, I don't plan on exposing this song outside of this project, for instance posting it to a stock site for others to license. That includes posting it here (sorry for anyone who is curious what it sounds like). Bottom line is that I don't feel that it would be ethical to make a profit off of a soundalike. 

This is a very large and complicated topic, and I will add it to my growing list of stuff to write an article about. In the meantime, here are some good links I came across while writing this post on copyright, fair use, and many other interesting (and good to know!) concepts around the legal composition of music:

Buzzfeed - Here's What Makes A Song A Ripoff, According To The Law

Pitmans - Sound-alike Songs: Blurring the Lines

Rolling Stone - 10 Landmark Music Copyright Cases


Until next time,

-- Joel