WIPOD – Page Points: Transcript of Episode 16

Intellectual Property and Music Borrowing

Chen Wei Zhu
I think our listener may wish to compare two sounds. They can be the judge or forensic musicologists themselves after this podcast. So they can go to any of the streaming platforms. They try to try these two sounds. One is the sound called He's So Fine by a group called Chiffons. Another sound is called My Sweet Lord by the former Beatles, George Harrison.

Lise McLeod
In 2023, the average person spent some 20.7 hours listening to music each week, including more than eight different genres of music. Over 700 different genres have been given as the different types of music people listen to, reflecting the diverse music landscape that global fans now enjoy.

Let’s listen to the following conversation which highlights the many factors behind the categorization of our favorite music genres … and so much more.

Hello Page Points listeners. It's great to have you join us and to share our discussion about copyright and music borrowing. The editors, Enrico Bonadio and Chen Wei Zhu of the book entitled Music Borrowing and Copyright Law: A Genre by Genre Analysis are here with us today. You will have already met Enrico during a previous Page Points episode on IP and food.

Welcome to you both to the podcast.

Enrico Bonadio
Thank you for having us.

Chen Wei Zhu
Thank you.

Lise McLeod
Let's begin with our first question, in which music genres are often seen as fluid rather than in rigid categories. What are some of the biggest challenges in defining and categorizing music?

Chen Wei Zhu
Yes, the music indeed are fluid, so it's harder to define and categorize. Legally speaking, I think the music copyright law is really multi-layered for defining what is music. So in the past there have been two types of definitions about what music can be and the law. So one is symbolic representation of music, which represents music as symbols.

So this was, I think, mentioned as early as in the 18th century by the Lord Mansfield, who happened to be one of the greatest British judges, who made the ruling on the music copyright case in 1777 in a case called the Bach vs. Longman. So the Bach, not the Johann Sebastian Bach, but the Johann Sebastian Bach's youngest surviving son, who went to the UK and stayed there until his death.

So the JC Bach, and this established music and the law as a kind of marks and figures types. So basically in 1777, we know music can be protected and a copyright law as a matter of sheet music, not yet sound. Another way of defining music is defining music as a sonic artifact. So this came a bit later. Interestingly enough, it was not until 2005 in the UK we have another case in the Hyperion Records v Sawkins and the judge at the Court of Appeal, defined music as a sound. So that's really interesting to define music as a sonic object. So we really have these two ways of defining music. So in that 2005 ruling, nowadays we can define music legally, not just as the written down music symbols as sheet music. It can be also recorded music.

So as long as you have some way of fixing your music, that's fine. In terms of categorizing music, I think it is even more fluid because there are so many music genres categories nowadays. I think Spotify is very keen on cataloging all sorts of music genres. If you go to a website called Every Noise, so they have cataloged thousands and thousands of music genres categories. So many genres die each day or each week, many more emerge. So I think the challenge of doing a book, edit a book like this is how we have many, music genres manageable. So some music genres are more established like hip hop. Some music genres they didn't stand the test of time, so they die. But we try to have some music genres that can be representative, they have relevance in music copyright law.

Enrico Bonadio
Yes, if I may add that, I mean, music genre classification faces several challenges, due exactly to the fluid nature of musical categories. For example, the classification of music into genre is inevitably subjective, leading to inconsistencies in how different people categorize the same music. And this subjectivity makes it sometimes difficult to establish clear universally accepted definitions for genres.

Also, many genres share similar musical features, making it very challenging to draw distinct boundaries between them. And this is an overlap which can result in ambiguous classifications, especially for music that blends multiple styles. Then also there is an evolution element.

Because music genres are not static. They emerge, evolve, and change over time. So new genres appear and existing ones evolve, transform, making again, it challenging to maintain, let's say, up-to-date classification systems, right? Also, geographical factors may influence music genre, leading to different interpretation and categorizations across regions and culture.

Also, technological influences are important because the rise of digital platforms in the latest decades, algorithms for music discovery and recommendation has introduced new ways of categorizing music that may not align with the traditional region classification.

Chen Wei Zhu
Yeah, so very broadly speaking, we are looking at these three, what you can call mega genres, meta genres. So they can be art music, folk music and pop music. These are three big ones. So they may overlap. So there are a lot more sub genres. So as you mentioned, there are a lot of genres of fluid. For example, the genre called city pop. So what is the genre city pop? So it is a genre which was popular in the 1980s in Japan. Now, after 2010, they have become global phenomena thanks to the YouTube algorithms recommended to people. So yes, I think the genres today have just evolved.

Lise McLeod
Throughout history, how have different cultures and musical traditions approached the idea of musical borrowing and reworking?

Chen Wei Zhu
I think throughout history, I think this is a cross-cultural phenomena. Music borrowing is as old as music creation. So since the very beginning, when people started to make music, they would borrow elements from different places. So I think in terms of law, I think the law tends to use this much more kind of simplified binary classification for music borrowing.

So legal or illegal infringement or non-infringement. But in the creative process in history, there are just a wide range of borrowing activity happens. The law is simply not nuanced enough. So thankfully we have Professor Peter Burkholder, who is the founder of the music borrowing in this field, who had a very detailed chapter charting the typology of music borrowing.

So there are many, many types of music borrowing. I think that lawyers can learn a lot from that chapter, that's in chapter two.

Enrico Bonadio
Yes, as Chen said, the musical borrowing has been a common practice since ancient times. Classical masters frequently incorporated elements from other works into their compositions and folk music, traditional music is a best case study. Right. In many cultures, folk music has evolved through a process of oral transmission.

Where melodies, lyrics have passed down across generations and naturally modified over time. So this organic form of borrowing has been crucial in shaping cultural identity. Another example could be Afro-American music, the development of genres like blues, jazz, gospel - always involve a complex interplay of African musical tradition and the European influences. Slaves in America, brought from Africa, West Africa, created new musical forms by combining their African heritage with the music that they encountered in the new environment. So global influences, cross-fertilization of musical ideas from continent to continent also as a of migration waves has been always has always been key.

Cultures have come into contact through trade, colonization, migration, and the musical borrowing has followed in the footsteps, right? We have several examples that are reflected in our in our book, right? Migration. I give you just an short example of how rap and hip-hop developed in New York, in the Bronx. According to many commentators, DJ Kool-Herk, a Jamaican migrating from Jamaica to the Bronx in New York, brought to the new town New York this idea of toasting, talking on the records, which was typical of Jamaican traditions.

And this is the way hip hop started in the Bronx in New York. So migration and borrowing, evolving is a foundation of the birth of many music genres.

Chen Wei Zhu
One thing from the book, so most borrowed music are not litigated, only a small number of them unfortunately go to court. But these small number of the cases, they attract a lot of media attention. So yes, most of the music borrowing are innocent, so they will have no legal issues.

And also another thing I want to say, music borrowings may happen across different genres, so pop, art music, folk music, they borrow from each other. Think about the Mahler's Symphony No. 1. Mahler had borrowed nursery rhymes, Frere Jacques, into his Symphony No. 1 and he turned it into a minor key, is the brooding, long meandering. It's spooky, but it's fun borrowing.
It had no problem at all, so it's well accepted.

And also some I think those 8-bit video music composing like Koji Kondo from Nintendo, so I think he was influenced by the city pop music, so if you listen to an early city pop group called T-Square there's a soundtrack or a song called Sister Marian, and you listen to brother Mario, so you will hear some similarity, but it's a kind of innocent kind of paying homage to the early composer or songwriter.

Enrico Bonadio
There is also this just also a little criticism of borrowing, especially when what is borrowed is traditional music from the global south by Western organizations. There is here an issue of cultural preservation because of course some societies, especially in the global south, have been more protective of their musical heritage.

Viewing sometimes borrowing, as a potential threat to cultural authenticity, especially when this borrowing is made by Western organizations for commercial purposes. And these have led sometimes to debates about cultural appropriation and the ethics of musical borrowing. We should also remember this aspect of borrowing.

Lise McLeod
How does copyright law balance the protection of originality and allow for music borrowing as an inherent part of artistic expression?

Chen Wei Zhu
That's exactly what the copyright law tried to tackle. It's a one million dollar question. So it's going to be very hard for copyright lawyers and judges in the courts because there's no ready-made formula the court can use. Then when they say they find there are six or eight sequential notes being similar or identical therefore infringement. There's no such thing as if similarity, then infringement.

So all the cases have to be examined, adjudicated on the case-by-case basis. There are basically, I think, two types of music similarities which concern the court. So which I think the court will use to find out whether they are the copyright infringement.

So the first similarity is called the probative similarity.So it is just a fancy word for the kind of similarity will help the court to see there is a copying. So causation between the defendant's work and the plaintiff's work. So the probative similarity is used for the purpose of establishing inference of copying. So when the copying is established, this is not the end of the story.

So the court will still need to go one step further by finding out if there is a substantial similarity. So substantial similarity is a similarity that will finally lead to copyright infringement. And sometimes, I think a lot of times, the court will spend a lot of time with the existence of those music experts, which we'll talk a little bit later, to establish, to find if there are these two types of similarities.

So in my own chapter I argue the substantial similarity is ontologically unstable because in order to find the substantiality from the earlier music you basically need to do a lot of work and a lot of times this is not like when a musician writes a song it's more or less clear the song is written so it's a piece of the music work which can get copyright protection.

Say for example, if you ask Mr. Beethoven, I like your Symphony No. 3. It's a wonderful piece. Beethoven may well agree, because Symphony No. 3 is the one which has its texture boundary, when it was written, it is defined. But if you ask another question, Mr. Beethoven, what is the substantial part of your Symphony No. 3?

This is going to be a much more difficult question because nobody knows until the music piece got litigated. Yes, it is subject to litigation.

Enrico Bonadio
Yes, I mean copyright law aims to, at least should aim to balance not the protection of originality with the allowance for musical borrowing, right? Which as we have seen is a fundamental aspect of artistic expression. However, achieving this balance is difficult. Of course, there is the Fair Use Doctrine, right? In the US, fair dealing in Europe, UK. As many know, this is a legal principle which allows limited use of copyrighted material without permission for purposes such as criticism, commentary, education, parody. It provides a framework for assessing whether borrowing constitutes infringement or permissible use.

But as I said, it's difficult to draw the line between legal inspiration and, on the other hand, illegal appropriation, let's say. Let's say musical borrowing spans a continuum from subtle inspiration to direct copying, let's say. And many cases fall in the gray area, where it is difficult to determine the legality of borrowing.

Also, the analysis is often subjective and contested in court. And we need also to take into account technological advances. So digital tools in the latest decades make it easier not to replicate and manipulate music, complicating further questions of authorship and originality.

We will talk about later about sampling and remixing, which are common in the genre about hip hop, electronic music. And they have often in the past faced the legal challenges despite the fact that they're creative practices, right?

Chen Wei Zhu
It is sometimes a bit harder to show these similarities, substantial similarity leads to infringement without giving concrete example. I think our listener may wish to compare two sounds. They can be the judge or forensic musicologists themselves after this podcast. So they can go to any of the streaming platform. They try to try these two sounds. One is the sound called He's So Fine by a group called Chiffons.

Another sound is called My Sweet Lord by the former Beatles, George Harrison. So listen to these two songs. In the court's ruling, the judge identifies two places where the music is substantially similar. Where he called is the motif A and motif B. Motif A is the ‘so mi re’, which repeated again, again, again. Then motif B is a six note, ‘so la do la re do’, so the re being a grace note, which also repeats again and again in both pieces of music. So that took place of the similarity, so eventually established infringement in this case.

There is clearly melodic similarity, but in some other cases, like in the Blurred Line case, there was no melodic harmonic similarity, so it's just a similarity where there's vibes or feels of the music being similar. So that's why some cases can be more controversial than others.

Lise McLeod
Thanks, Chen. I'm going to take you up on that suggestion and have a listen. Could you please explain what is meant by forensic musicology and what challenges might exist when distinguishing inspiration from infringement?

Chen Wei Zhu
Okay, that's a great question. Forensic musicology is a relatively young field, so it was not widely used a few decades ago. Basically forensic musicology is used to assist the judges to do music analysis because most of the judges are not musically trained, they are legally trained, so they are very knowledgeable about the law.

But it is not their profession to do music analysis. Although I know some judges, they do music, they are musically talented, but to do proper music analysis, you still need a forensic musicologist, so expert witness to do this work properly. Most forensic musicologists, I think they belong to a small group of people at the moment.

So it is not widely understood. So it is small circle. So it baffles a lot of people as outside. So I think that forensic musicology is really the field which needs more study. In our book, we have two chapters dedicated to this topic by two very eminent forensic musicologists.

The first one is Guy Protheroe. He practiced the forensic musicology in the UK for the past 35 years. It was quite phenomenal, and because of the book, we are knowing Guy quite well. And he turned out to be such an erudite, knowledgeable and friendly person. And after the pandemic, I invited him to give a lecture to our students to explain how he used forensic musicology, for the court.

Another forensic musicologist who contributed to the book is Professor Joe Bennett and he is a professor from the Berkeley College of Music. He had a lot of important insights in this field. For example, in the chapter he mentioned the ‘independent creation hypothesis’ which needs to be tested. Both are practicing forensic musicologists and I think we learn a lot from them in terms of the music borrowing.

Enrico Bonadio
Yes, I mean, as Chen said, forensic musicology is a relatively recent field of study. It's the scientific study of music in a legal context, primarily used to analyze the similarities between musical works to determine potential copyright infringement. It involves applying musical expertise to investigate whether a song or just a part of a musical work is copied from another one, an earlier one. And musicologists, forensic musicologists use techniques, specific techniques such as musical comparison, prior art research, audio sample authentication to assess the similarities. There are challenges, of course, in distinguishing, for example, inspiration from infringement and such challenges lie in the subjective nature of music and creativity, as we have said.

Chen Wei Zhu
As Enrico, said there are challenges to forensic musicologists and these two contributors are not complacent about this practice because there can be a lot of issues. For example, forensic musicologists need to be impartial, need to offer objective evidence to the court.

A lot of time because the forensic musicologists are paid by clients, so it is very difficult to argue against to provide evidence which is not in favour of their clients. So that's something worth thinking about. So how to avoid the forensic musicologist expert become overly adversarial. So they should have their impartial position.

Another problem I've been thinking about for a long time is the validation of forensic musicology methodology because if we do not validate their messages. So there can be good evidence and bad evidence. So if we don't have the proper validation scheme or method, it's very difficult to tell the bad evidence from good evidence. So it is a bit like my analogy is a tea leaf reading. So if some people go to a fortune teller, so they will have tea together.

So after tea, they will look at the teacup, look at these leftover tea leaves. So the fortune teller may tell you always looked like a dragon or like a snake. So the next month you will have good or bad luck. So human beings are very good at interpreting symbols or very good at overinterpreting symbols. So sometimes you will see forensic musicologists providing fancy kind of music score comparison diagrams, but with no third-party validation, so that's a danger. I think for future reference, I think a lot more research needs to spent in this field to validate the forensic musicologist methodology, how valid, how good they are.

Lise McLeod
What are the ethical and legal implications of artists incorporating traditional music into their own projects?

Chen Wei Zhu
Yes, I think although traditional music are called traditional music, a lot of them may have identifiable authors, so they can be composed, so-called traditional music, and they can also be rearranged music, which may trigger new copyright. I think one of the telling cases from the book, and also something we know a little bit already, is the Lion Sleeps Tonight case, because the Disney film used that song, of course it became very, very popular and famous.

That song is adapted from an early song called Mbube, which was recorded in 1939 by a Zulu African worker who happened to be very talented. His name is Solomon Linda. But he was not treated very well by the copyright system. He was illiterate and he signed away his copyright and his family after Linda's death in 1962 lived in abject poverty. So that's a very, very sad story. I think the ethics issues, I think that if someone wants to adapt or use so-called traditional music, they really need to do due diligence search to find out someone who might have contributed to compose this piece of music and they deserve copyright royalty.

So what happens later, I think, there is a South African lawyer, he wrote a piece in 2006 for the WIPO Magazine about the litigation, how he managed to repatriate the copyright back to the Linda’s family. I think that's very interesting case which used the copyright law to help a traditional music composer. But it's a very difficult long legal journey.

Enrico Bonadio
Yeah, adding up on ethical considerations, of course artists, musicians, must consider whether their use, for example, of traditional music shows respect for the source, culture, and its heritage. As I said before, there is a need to recognize potential imbalances between the borrowing artist and the source community, especially when Western artists borrow from global south traditions. So that's important.

In general, artists should consider how accurately they represent the borrowed traditional elements and whether their use might lead to misrepresentation or stereotyping, which might be disparaging sometimes. So ethical borrowing often involves properly crediting the source of music and recognizing its cultural significance.

That's important. Sometimes it doesn't happen. And this is no good, of course.

Lise McLeod
How does the idea of a musical unconsciousness help to explain recurring patterns in pop music?

Chen Wei Zhu
Yes, when you say music unconsciousness, I think this can be divided into two issues. One is a creator's unconsciousness. So sometimes the creators may borrow unconsciously or subconsciously from the early source. So that happened in the case we just mentioned, in George Harrison's case. So it was established that George Harrison borrowed subconsciously, although he didn't have the intention to borrow, he just regurgitates from something deep from his unconsciousness.

But unfortunately copyright law uses strict liability, state of mind doesn't matter, ignorance is not a defense. Even someone unconsciously copied from an earlier source, this will still be copyright infringement if there are substantial similarities being found.

Another unconsciousness I think comes from the listeners. It is the listeners' collective unconsciousness because a lot of times listeners don't want to hear overly original, overly new music. They want to hear something familiar, something nostalgic. So that's why I explain the revival of the city pop music. So people want to go back to the past. So I think there is a big market for those kind of nostalgic, familiar music.

So that's why the place where it's music borrowing comes in. So in order to work for that market, the musicians have to be very, very careful. So if they borrow, they need to make sure they don't borrow substantial parts from early music. And also they need to acknowledge that they are sourced properly.

Enrico Bonadio
Yes, I mean, the concept of musical unconscious often helps explain a recurring pattern in pop music, right? By, for example, highlighting the role of unconscious process in both music creation and perception. For example, it may suggest that composers and listeners are influenced by musical schemes, cultural experiences, also psychological factors that operate below the level of conscious awareness.

And this can lead to the emergence of common, short progressions, melodic motifs, rhythmic patterns across different songs and artists. So the musical unconscious also shapes listeners’ expectations, making certain musical structures feel familiar and satisfying to the ears of listeners.

Additionally, this concept of musical enclosures suggests that repetition and familiar patterns in pop music may be linked to the brain's tendency to seek to look for efficient ways of encoding and remembering the musical information. And this happened, as Chen said, in the famous George Harrison case. So even if you don't realize it, you may be a copyright infringer because subconsciously you have reproposed the musical elements that have somehow and somewhat entered your brain.

Chen Wei Zhu
But also I have seen the argument saying that unconscious copying or subconscious copying should be a defence, but it's not yet been accepted by the legal system. So we will see how this will go in the future.

Lise McLeod
This makes one think about hip hop, which has long been built on the practice of sampling. How has copyright law shaped this genre's evolution?

Chen Wei Zhu
Yes, hip hop is really interesting because it is based on a lot of sampling. I think one of the turning points for hip hop is the 1991 Grand Upright Music vs Warner Case, where Biz Markie, this rapper, borrowed music from O'Sullivan's Alone Again. So basically that court ruling and
the judge says you really need a license in order to do a sample. I think that's established and one very important precedent.

Looking back many years later at this case, I have sympathy for both sides. From Biz Markie's point of view, this is the way hip-hop artists have been doing things for a very long time. They use sampling quite often. So that's a way of making art.

From the claimant's point of view, the song called Alone Again was the poignant song written for the loss of his parents. So he didn't want this song being used, quote un quote, ‘in a comic sense’. So I think there are some moral rights issues.

This was not raised in that case because the litigation proceeding was brought in the United States and the United States didn't have the moral rights for musicians, although they have some moral rights for those visual artists, but not for musicians. But if this case happened in the UK, there might be an issue called the moral rights of integrity.

So the authors will have the right to stop the works being kind of derogatorily treated, which is prejudicial to his or her honor or reputation. So I think the moral rights issue also needs to be, I think people need to be aware of that when borrowing.

Enrico Bonadio
Yes, exactly. I think the hip hop music here gives us a perfect case study to assess how sampling and how copyright law has impacted on the evolution of hip hop in general, because most cases, most interesting cases come exactly from hip hop.

As Chen already said, the Grand Upright music case of 1991 has been a landmark case establishing that unlicensed sampling constitutes copyright infringement, requiring artists to obtain permissions before using even very short samples. Another important case was Bridgeport a few years later, another case involving hip hop involving sampling. And interestingly, in these two cases, judges clearly said, get a license or do not sample.

Very clear. And in the first one, actually the judge said, you shall not steal quoting one of the ten commandments. So it is clear from these two cases that the judiciary in the US especially has been very, very strict in preventing follow on artists from appropriating even just very tiny,
very short samples.

Of course, there have been criticism about these strong copyright enforcement with someone arguing that the strict copyright laws have discouraged the creativity in hip hop by limiting the ability to freely borrow and transform existing works. However, other commentators have on the other hand, pointed out that these restrictions encourage innovation by pushing producers, hip hoppers, rappers to create original sounds or at least reinterpret samples in transformative ways.

Because under US law, fair use is allowed when the second-comer transforms the meaning of the borrowing, in this case, the borrowing with music. In Europe, we also had more recently a case, which is the Pilham case originating in Germany. Again, here, the Court of Justice of the European Union took a pro-copyright stance in the sense that it required basically the license of a previous sample, right? Especially if this sample is still recognizable to the listeners. So again, if you as a sampler, as a hip hopper are able to transform the sample in a way which is no more recognizable to listeners, well, you can get away with that. So, similar but not identical ways of interpreting the fair use in this field in the two sides of the Atlantic.

Lise McLeod
In electronic dance music, where remixing and sampling are essential, how do artists navigate copyright restrictions while maintaining creative freedom?

Chen Wei Zhu
I think in terms of EDM (electronic dance music), the same rule applies, just like hip-hop music. So nowadays you must clear your rights when doing sampling. I think that there are also new EDM genres emerging these days, for example, algo rave. So algorithmically composed dance music.

So I know there's a community who are very enthusiastic about using software code, doing live coding for dancing. For example, one of my favorite live coding software is called Sonic Pi, which is designed by Sam Aaron. So it's a wonderful piece of software which allows people to do live coding for EDM. But I think that community has no issues with music borrowing. But of course, I can imagine issues, if people get the code from, GitHub. So I think they need to look at the license, make sure they need to attribute the author. If the code was not licensed and open source license, just make sure there can be compliance issue.

Enrico Bonadio
Yeah, as Chen said, here very similar issues arise, similar to the hip hop scenario, because again, EDM (electronic dance music) is very much based on sampling, remixing, mashups, and so on and so forth. So artists here, need to seek permission from copyright holders to use samples.

And this can be very time-consuming and very expensive, especially for less known producers, right? I mean, the big, big producers, the big creators of EDM, they might have the financial capabilities of going through this minefield of copyright holders and stuff. But what about less known EDM producers?

And let's remember that EDM can also be created in bedrooms or in living rooms with these very powerful machines that now are available to many are very affordable, right? And just to conclude on this, we also need to specifically consider that the peculiarity of EDM lies in the fact that the boundary between record production, sound recording production and music composition is practically non-existent here.

There is a kind of merger between underlying musical composition and recording experience. Because both dimensions are fully integrated into one single process. And this, you know, blurs the original distinction between song composition, which is basically written by a songwriter, and recording in the studio. EDM basically merges the two experiences.

Chen Wei Zhu
I think this is right because I think there is a blurred line between composition and performance. So how can someone tell when people are doing live coding if this is a composition or performance? So probably both.

Lise McLeod
I would like to take this opportunity to thank you both for sharing your time today and for highlighting the different aspects of your book. This book, as you said, is filling a potential gap in the scholarly practitioner sphere in relation to music borrowing.

Not only am I pleased to be able to highlight that this book is housed in our knowledge repository, but also that this year's World IP Day theme is IP and Music: Feel the Beat of IP. So the availability of your book is very timely to help contribute to that discussion and to help celebrate and everything that that entails.

Enrico Bonadio
Thank you so much, Lise, for having us. It's been a pleasure, as usual.

Chen Wei Zhu
Thank you. It's been a great pleasure.

Lise McLeod
The pleasure is mine. Thank you.

I hope that you enjoyed my conversation with Chen and Enrico about music borrowing and copyright law.  The book includes a carefully selected range of musical genres, including pop, hip-hop, jazz, blues, electronic and dance music, as well as a diversity of region-specific genres.  There’s something for everyone.

Until next time, and the next Page Points, bye for now.