Alethea Song Student Writer, Windsor Law LTEC Lab J.D. Candidate 2020
Prior to attending law school, I completed my bachelor of music (B.Mus) from the University of Toronto, specializing in music education and trumpet performance. Throughout my undergrad, I constantly wondered how musical works could sound so similar to one another and whether composers were being compensated fairly. I have always known that music could be copyrighted, but the technicalities of how much of the music could be used and reproduced were questions that I carried with me to law school. As a result, learning more about the concept of originality within musical works was one of the reasons why I decided to take the copyright course in my second year at Windsor Law.
As far as I am aware, the element of originality in music has been contested throughout music history. For example, compare the works of J.S. Bach’s Harpsichord Concerto in f minor. BWV 1056 (II y III) (Larghetto & Allegro), and Georg Philipp Telemann’s Flute Concerto in G major. After listening to both pieces, it is clear that the melodies are identical. Both composers lived and died during the Baroque era, and under today’s copyright law regimes, Bach would likely have infringed the rights of Telemann as the melody of his work is not original when compared to that of Telemann’s.[1] But then the copying and sampling that occurred in the Baroque era cannot be explained in terms of copyright laws that exist today.[2]
Copying and sampling of music continues to occur to this day. In order to explore the elements that make a musical work original and the process of determining whether an infringement of copyright has occurred,Mark Ronson’s chart-smashing hit, Uptown Funk, will be used as an example. Mark Ronson is a record producer from Britain credited with writing Uptown Funk, which features the vocals of Hawaiian-born singer, Bruno Mars. Uptown Funk was released in Ronson’s fourth album, Uptown Special, which was released in January 2015. The album won a Grammy in the United States of America, while Uptown Funk topped the charts across Europe, North America, Asia, Africa, Oceania, and won the 2015 Grammy Award for Best Pop Duo/Group Performance.[3] However and as discussed further below, the originality of this musical workwas questioned when four separate musical groups claimed that Uptown Funk had copied elements from their respective songs.
Is the musical work original?
In order for a work to be protected under the Copyright Act, the work must be original.[4] The test for finding the element of originality in such works was set in CCH Canadian Ltd. v Law Society of Upper Canada, the leading case in Canada. For a work to be original, the work must: 1) be more than a mere copy of another work, 2) need not be creative, in the sense of being novel or unique, and 3) requires an exercise of skill and judgement that is more than trivial.[5] In the case of Uptown Funk, it is more than a mere copy of the other works and even though the element of creativity is not necessary, it is still a very catchy piece that has broken numerous records in the music industry.
The most important element to finding for originality is the exercise of skill and judgement. According to Chief Justice McLachlin in CCH, “skill” is defined as the use of one’s knowledge, developed aptitude or practised ability in producing the work, while “judgment” is defined as the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work.[6] In the context of a musical work, “skill” may be defined as the theoretical knowledge that was needed in order to create a catchy melodic line, harmonic chord progressions, and a memorable rhythmic base line. Furthermore, “judgement” within a musical context may be knowing when to add an additional verse, deciding which instruments should be playing at a given time, and strategically placing dynamic markings to create suspense and excitement within the work.
Upon listening to Uptown Funk, it can be argued that it took a tremendous amount of skill and judgement in order to create this musical work. The lyrics are catchy, the groove is funky, and the various musical elements of the song create a cohesive work that is pleasing to the ear. However, the originality of this musical work was questioned when four separate musical groups claimed that Uptown Funk had copied elements from their respective songs. The first of these claims came from a popular 70’s funk band named The Gap Band. The band’s management group filed a claim against Ronson in early 2015, claiming similarities between Uptown Funk and their song, Oops! Upside Your Head.[7] Upon listening to Oops! Upside Your Head, the opening verse that repeats “Oops upside your head, oops upside your head” is immediately recognizable as the bridge of Uptown Funk, as the lyrics “Uptown Funk you up, Uptown Funk you up” are repeated in the same funky rhythmic feel and pattern in both songs. In the end, the claim was settled outside of court and the five writers of Oops! Upside Your Head have been credited as writers of Uptown Funk.[8]
Since the Gap Band’s victory, more artists have surfaced claiming infringement of copyright against the Uptown Funk writers. The second claim was made in 2016 by a funk band named Collage. The band claimed that Uptown Funk is “an obvious, strikingly and/or substantially similar copy” of their 1983 single, Young Girls.[9] Upon listening to both songs, the similarities are audible, especially with regards to the guitar riff, bass line, and overall themes. While the details of the claim have not been released to the public, reports have surfaced that both sides have agreed to drop the case permanently.[10]
The third claim was made in the Fall of 2017 by Lastrada Entertainment, on behalf of Zapp, who filed a suit against Ronson for copying elements of their 1980’s hit, More Bounce to the Ounce.[11]
One of the disputed elements of Uptown Funk is the first 48 seconds of the song, as the word “doh” is repeated in a rhythmic pattern similar to that of sections found within More Bounce to the Ounce.[12] It was reported that Lastrada Entertainment initially sought damages, a jury trial, and a permanent injunction to prevent Ronson from performing Uptown Funk in concerts; however, the case has been settled as of June 22, 2018 according to Pitchfork Magazine.[13]
The fourth claim comes from 70s-80s female funk group, The Sequence, who claim that Uptown Funk has “significant and substantially similar compositional elements” to their song, Funk You Up.[14] The group is seeking monetary damages from both Ronson and Mars; however, further details of the claim and reports of a settlement have not been released.
For the purpose of this discussion, and not having the benefit of the details of the settlements and pending claim against Ronson, we will continue our analysis of the originality of Uptown Funk and whether it has infringed copyright from a Canadian copyright law perspective.
Was there an infringement of copyright?
When initiating a claim for infringement of copyright, the burden of proof is initially placed on the claimant. The claimant must establish substantial similarity between the disputed works. As per Cinar Corporation v Robinson, [15] a substantial part of a work is a part of the work that represents a substantial portion of the author’s skill and judgment expressed therein.[16] Since the Cinar judgment, the courts have favoured a more qualitative and holistic approach rather than a quantitative and piecemeal approach to comparing copied features. Therefore, this is where the analysis of skill and judgement reoccurs, as the test for finding substantial copying focuses on whether copied features constitute substantial part of the skill and judgement expressed in the claimant’s works. As stated above, elements of the four works are definitely recognized in Uptown Funk. While it can be reasonably determined that skill and judgement were used to create each individual musical element, Cinar emphasizes that “substantial part” of work has to be measured in relation to the claimants’ work, not relative to what it represents with respect to to the alleged infringer’s work overall, e.g., Uptown Funk.[17] Whether a substantial part of claimants’ work was reproduced by Ronson is to a large extent a question of fact to be assessed by the courts on a case by case basis.
The second step to initiating a claim for infringement of copyright requires that a linkage be established between the evidence of copying and access to the work. As per Delrina Corp. (c.o.b. Carolian Systems) v Triolet Systems Inc.,[18] copying is not limited to literal copying under copyright law, and copying can be established even when the copying occurred subconsciously or by memory.[19] Additionally, it should be noted that two identical works can be equally protected by copyright and not be infringing one another if there was absolutely no access to the work by the second creator. If Ronson had absolutely no access to and never listened to the works of The Gap Band, the Sequence, Zapp and Collage, it could be argued that Uptown Funk does not infringe copyright. However, we live in a digital age where music is constantly played in malls, elevators, and radios, which will make the argument of having no access to the work difficult to establish. It may be possible that Ronson could have been exposed to the works of the four artists in the past and emulated elements from each piece subconsciously whilst composing Uptown Funk. However, as per Delrina, this could still amount to copying.
Originality and Copyright Infringement
Overall, the fact that one may be infringing copyright, does not take away from the fact that the infringing work may still be original. It is important to note that even if elements of Uptown Funk were found to have infringed elements from each of the claimants’ songs, it does not preclude other parts of the work from being considered original. However, the consequences of the infringement would mean that the infringed elements cannot be reproduced, performed, communicated to the public, or published (etc) as per section 3(1) of the Copyright Act. Therefore, Ronson would require a license to use the sections of Uptown Funk that have infringed copyright of another work, which is precisely what happened with the Gap Band: the five writers of Oops! Upside Your Head are now credited as co-writers of Uptown Funk and receive royalties earned from the song.
Copyright law in Canada contains exceptions to the rights of the copyright holder, which the Supreme Court of Canada has identified as “user rights”.[20] One of these exceptions is the non-commercial user-generated content exception as per section 29.21(1) of the Copyright Act that allows to use (portions of) a work in the creation of a new one under specific conditions.[21] This exception would however not be available to Ronson for Uptown Funk, primarily because this song was made for commercial purposes and generates revenues. Other exceptions to copyright infringement such as fair dealing would not be available here.
Closing Thoughts
With only so many chord progressions and sequencing of musical notes that can be utilized in order to create tonal musical works, what does this mean for music and copyright law? A surprisingly large number of Western pop songs contain the chord progressions: I-IV-V-vi. A great example of just how often this chord progression is utilized has been demonstrated and performed by Rob Paravonian.[22] Also, there are only so many pitches in the context of Western music: twelve pitches within a chromatic scale, meaning only twelve different pitches available for musicians and songwriters to sequence in order to create melodies.
The modern-day music industry is constantly recycling, sampling and featuring existing expressions of musical elements. Therefore, despite composers and musicians having what is deemed, an original work, they must still seek to get proper clearance if they are to publicise their works without any complications or infringement of copyright challenges. There is a lack of software or system that notifies composers if their compositions are infringing copyright of other musical works, whether intentional or not, and where exactly the infringement is stemming from. If the music industry is to protect works that are genuinely deemed to be original while still protecting the rights of existing copyrighted works, better safe guards need to be established. As a musician myself, I appreciate that protections are afforded to artists from potential infringement of copyright; however, the nature of the music creation process combined with what may amount to be the reproduction of a “substantial part” of an earlier work may lead to a large amount of valuable music pieces infringing other works. In my opinion, there needs to be a balance between the protection of rights and the free-flow of creativity in music industry. But how should the courts be balancing these interests? Should courts afford less stringent protections on owners’ rights in musical works in order to promote music production overall? If a piece is deemed to be on the whole, original, should the composer still be liable to such scrutiny by the courts? These are just some of the questions that I look forward to having answered with the development of music copyright litigation.
[1] As discussed further below, under today’s copyright law regime, infringement would be found if there was evidence of Bach copying the work of Teleman and if Teleman had not given his consent to use of his work by Bach.
[2] Germany’s first copyright law statute was adopted on June 11, 1870 several decades after Bach and Teleman’s era, under the Northern German Confederation; see Freidemann Kawohl, “Commentary on the Copyright Act for the Norther German Confederation and the German Empire”, online: Arts and Humanities Research Council < http://www.copyrighthistory.org/cam/tools/request/showRecord?id=commentary_d_1870#_edn2>.
[3] Andy Kellman, Mark Ronson, online: AllMusic <https://www.allmusic.com/artist/mark-ronson-mn0000237773/biography>.
[4] Copyright Act, RSC 1985, c C-42, s 5.
[5] CCH Canadian Ltd. v Law Society of Upper Canada, 2004 SCC 13, [2004] 1 SCR 339, para 16.
[6] Ibid at para 16.
[7] Ed Christman, ‘Uptown Funk’ Gains More Writers After Gap Band’s Legal Claim, online: Billboard Magazine < https://www.billboard.com/articles/news/6553522/uptown-funk-gains-more-writers-after-gap-bands-legal-claim>.
[8] Ibid.
[9] Luke Morgan Britton, Mark Ronson and Bruno Mars settle one of three ‘Uptown Funk’ lawsuits, online: NME <https://www.nme.com/news/music/mark-ronson-bruno-mars-settle-one-of-three-uptown-funk-lawsuits-2291919>.
[10] Ibid.
[11] Noah Yoo, Mark Ronson Settles “Uptown Funk” Zapp Copyright Lawsuit, online: Pitchfork Magazine <https://pitchfork.com/news/mark-ronson-settles-uptown-funk-zapp-copyright-lawsuit/>.
[12] Michelle Kaminsky, Bruno Mars And Mark Ronson’s ‘Uptown Funk’ Faces (Yet Another) Copyright Infringement Suit, online: Forbes <https://www.forbes.com/sites/michellefabio/2017/12/30/bruno-mars-and-mark-ronsons-uptown-funk-faces-yet-another-copyright-infringement-suit/#46f2a34b70c0>.
[13] Ibid.
[14] Ibid.
[15] Cinar Corporation v Robinson, 2013 SCC 73, [2013] 3 SCR 1168.
[16] Ibid, para 26.
[17] Ibid, para 39.
[18] Delrina Corp. (cob Carolian Systems) v Triolet Systems Inc., 58 OR (3d) 339, [2002] OJ No 676.
[19] Ibid, para 10.
[20] CCH Canadian Ltd. v Law Society of Upper Canada, 2004 SCC 13, [2004] 1 SCR 339, para 48.
[21] Copyright Act, RSC 1985, c C-42, s 29.21(1).
[22] Rob Paravonian, “Pachelbel Rant”, online: YouTube < https://www.youtube.com/watch?v=JdxkVQy7QLM>.