When does it become infringement?
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I know several of my trusteds aren't Metal fans, so this is a Metal Music warning.
My question here is, at what point does a song, which seems to "borrow" from two other well-known songs in the same genre, touch on copyright infringement? Is it when the song is actually good (not so much in this case)? When the song in question is getting lots of radio play and record sales (again, not in this case)? I present the similarities between the Misfits' "Helena," C.o.C's "Clean My Wounds," and Metallica's "Welcome Home (Sanitarium).
At 1:29 on "Helena," (1999, bottom video) you will notice a striking similarity between this song and about 4:08 on Metallica's "Welcome Home (Sanitarium)" (1986, middle). Also, and in my opinion, more obvious are the similarities of the chord progression and tempo C.O.C.'s "Clean My Wounds" (1994, top). To my ear, it's quite close in many ways.
Tell me if you think I'm being a bit over-sensitive here.
Comments (16)
you're not being over-sensitive - one is definitely influencing the other - however, there probably wouldn't be a copyright problem ... simply because you can't copyright a chord progression - and since 80% of music is Rhythm, its very difficult to pin that down... an actual sound recording (sample) is copyright infringement (unless you pay for it) and then there's the melody (but it includes the rhythm) is usually what is proven in court - lyrics are also considered original - but using the same phrase like say, "I love you" in more than one song is not a problem...
It's a matter of how much of the song - and how much of the original - for example, you used to be able to take 2 bars (before sampling for free) but that is no longer the case.
Hope this helps.
btw - the song doesn't have to be popular - all music is protected from the time of its creation - whether someone else hears it or not - _and we register tunes with the Library of Congress (those that are unpublished) in order to establish proof of their creation date etc...
Hope that helps some more...
Van
Thanks, Van! Copyright law seems about as hard to nail down as warm jello to a wall, and you helped clarify it some for me.
To be honest, I don't honestly think the songs are so close that a copyright case could be made. After all, if litigation-happy Lars Ulrich thought there was one, I'm pretty certain he would have brought it up long ago. The real point was to call the Misfits out, eleven years late.
Exactly... I agree its not enough there too... and I also hear you about Lars, but you never know, I remember my arranging teacher Fred Lipsius (Grammy winner with Spinning Wheel) back in the day I told him about a band that sampled that tune - his horn arrangements from that classic tune - and he got really pissed at first, and then said, "I should probably sue them..." - then tailed off and said, "Nah... I don't have the energy..." and that was that.
ahahaha! Do you remember the tune that sampled his horns? Did they at least do a good job? I'm the type that might sue because they screwed it up, not simply because they stole from me.
LOL!!! I hear you on that one. BTW, that's one of the ways that you can sue as well, if someone does a cover of your tune - and really butchers it and "lowers the value of the song" - you can block it from being released, and even pull it...
Not sure what the band/tune was exactly - but it didn't sound good at all, so hthat might have accounted for his initial reaction.
I didn't know that! Is it standard practice to put a clause in the deal that protects the original work from damage, or is it somehow a foregone conclusion? And I have to wonder how a party argues about musical taste in the court of law. That's got to be tricky. But that's probably why I never became a lawyer.
It has got to be a particularly difficult case to chase once the cat's out of the bag. I mean, if it sucks and gets no attention, it might be difficult to argue the loss of value, because the public at large is ingorant of it. On the other hand, pulling the tune would make little difference anyway, so why not?
If it does well, and original artist gets paid well, that income could be argued (possibly?) to offset the loss of value. Further, it could probably be argued that considering the success of the cover tune, there is no loss of value. I doubt that ever happens, though.
I gotta say, I definitely hear the similarities in those songs. Your mind is always movin Scotch... i love that.
I once read an article (don't ask where, when or who it was about), and the guy mentioned that Talib Kweli used a sample of his song without permission. Clearly he was aware of this usage, but (from the words in print) he didn't seem the least bit bothered by it. I know that's a completely different level of musical thievery, but I thought you'd be interested.
With that said my point is this: Infringement occurs when the person who owns the rights is aware and cares enough to (a) defend their creativity or (b) be a complete asshole for money. All depends on the situation.
Thanks Scotch
I see your point, I remember there was an issue between a band called Excel and Metallica over the song Enter Sandman. A good thing to do is to get two types of copyrights, a printed version and a recorded version.
Of course like you said, it is a hard issue and it does comes to the judge.
http://en.wikipedia.org/wiki/Excel_%28band%29
vannatta : That's a new one, use to be that you could use someones lyrics with different music, and not have any problems. A Perfect Circle did that, of course the copyright laws are always changing.
Here's one of the least talked about egragious examples:
that's pretty crazy Contra
I follow copyright law, so I am always interested in it, because I think the old laws do not apply to the digital age. Infact a rather scary development today from Wired on copyright:
http://blog.wired.com/27bstroke6/2008/06/if-ap-is-right.html
I believe in fair use. As far as music is concerned, I believe often the case is that there are occasional coincidences. I think remixing is should be allowed under copyright law. But I do believe the source should be cited.
I look at it this way, people grossly over value content. People want some sort of template for payment where everyone gets payed the same thing. The net runs on "copy paste, copy paste" (to put it briefly). If it's not a news story that's "apropriated" it's the code that makes up the web page, or some arcane bit of server language or OS. Invention and creativity relies on access to information. Every new thing is just a modified version of something older.
Scribes, thanks man. I have to wonder if the Misfits purposely aped those riffs, or was it that they heard the songs so much, after so many years, that it was subconscious. In any case, they certainly didn't make a point to cite their sources, and their versions of those riffs were not nearly as good as the originals.
Ray, I looked for that song on youtube, but couldn't find it. I'd love to hear just how similar "Enter Sandman" is to Excel's "Tapping Into The Emotional Void".
Contra, speaking of Zeppelin:
I know that toady Led Zeppelin is quick to point out the debt they owe to the old blues guys, but they sure weren't quick to pay them for the songs and lyrics they nicked.
Contra said, "I think remixing is should be allowed under copyright law. But I do believe the source should be cited." When the source isn't cited is when I get upset. I know I wouldn't be too happy if someone took a song I wrote and claimed it as their own.
Over the years, I've been changing my outlook on IP. Because, as you said, "Every new thing is just a modified version of something older."
I looked also and didn't find it . I got the Excel CD and I'll do a post on both tunes.
Excellent, thanks! I was hoping you'd have that song...
...not a forgone conclusion ... but I understand that it's been tested. Also, using words I think is only if it's in the public domain, otherwise you need permission. I also agree that fair use is important but that it should be done under what is legally considered fair use... like for educational purposes. Content can also be overvalued too - especially in this day and age because the cat is already "out of the bag" digitally - however how many of us can site the one or two hits that Livingston Taylor (James Taylor's brother had?) - each year (back before the digital revolution) he used to make about 100K a year off those songs - and only had to pick up the check in his mailbox and cash it for that work... so if people are fair about the property of artists - it can have _great value - even to this day ... otherwise...