At the time of this writing the Robert Plant/Jimmy Page Led Zeppelin copyright infringement trial is underway regarding the origins of their mega-hit, iconic rock anthem Stairway to Heaven. (Full Disclosure: Rock buff that I am, I was never into the Zeppelin; would have been just fine if I’d never heard Stairway.)
Last year there was major attention paid to similar litigation, trying to figure out whether or not Robin Thicke and Pharrell Williams’ tune Blurred Lines was copied from Marvin Gaye’s Got to Give it Up.
For several decades now I have served as a court authorized expert in intellectual property litigation, particularly in cases involving copyright infringement, trademark, and plagiarism. My experience deals not in music but movies.
These cases are always fascinating. They go right to the heart of the nature and process of creative expression. They provide a window through which we can examine the way art and artists work.
These actions rarely go to trial; almost inevitably, prior to any judgment from any court, the parties come to an agreement. The testimony is offered, therefore, not so often in courtrooms as in lawyers' offices, in the form of depositions.
In depositions, the witness is sworn and a court reporter keeps a record of all that is said. I have been deposed scores of times over the years. I’ve never given a deposition where the court reporter failed to remark during a recess something like, “Wow! This sure beats the case I was on yesterday. There, the testimony was all about a porch awning exceeding a property line by four centimeters according to an April survey, or something like that.”
Few experiences mellow the spirit better than meeting with a bunch of attorneys and having them pay you money instead of the other way around.
I have been retained sometimes by plaintiffs other times by defendants.
Generally speaking, I find most such cases to be meretricious. As I preach eternally, amateurs venerate beyond reason the value of ideas, and they pay short shrift to where true dramatic value actually resides: story. Someone sees a movie in which, say, two people fall in love, then break up, then reconcile, and believes it can only have been purloined from their own work.
Let’s just say that this misunderstanding, that is, assigning too much value to mere ideas, has put orthodontia on my children’s teeth and paid their nosebleed-expensive prep school tuition.
That said, I have also seen multiple cases where plaintiffs have legitimate justification to prevail in copyright litigation.
In those legitimate cases, however, where copying has actually occurred, I do not believe that defendants typically sit down and consciously, knowingly, willfully decide to steal. My clear impression is that, more often than not, the worthy cases occur in instances where writers have pitched a notion or submitted a screenplay to a producer; the producer decides she doesn't want to make that movie but is attracted to the central, overall notion, which she properly regards as too general to warrant copyright protection.
They aim to use only the vague central idea to take it in an entirely different direction.
Much of the creative process, however, occurs in the unconscious. I have repeatedly seen cases where defendants sincerely believed they took only the overall, general, core notion of a writer’s pitch or script, which they consider (again, quite properly) all by itself to be too loose to merit protection. Except for that lone, central notion, they believe they have created something original.
Unconsciously and subliminally, however, again and again I have seen elements from earlier work migrate into ‘new’ product.
Involving music copyright issues, three instances reveal the way artists—in particular songwriters--work and create. Two of them are Beatles; the other a Rolling Stone.
Years ago a court found that George Harrison had copied My Sweet Lord from He’s So Fine, a tune recorded in the early ‘60s by the Chiffons.
Harrison, of course, was a fountain of talent, a prolific, prodigious creator who didn’t have to steal anything from anybody. All the same, My Sweet Lord is note-for-note the same tune, including both the chorus and the bridge, as He’s So Fine. Only the lyrics are different. The first time I heard My Sweet Lord, I recall thinking, “God bless George! What a clever spin on He’s So Fine!”
How does it come to pass that a genius like George Harrison ends up stealing another songwriter’s tune?
The answer is that creative expression in any and all media is an unconscious and mysterious enterprise not only for audiences but also for artists. Writers base what they write upon their imagination and their experience. The problem is, of course, that experience involves not only actions they have taken but also movies seen, books read, and songs heard.
George, upon hearing the charges against him, like too many artists went reflexively into defense mode, asserting unequivocally that the tune was wholly his own invention. Defensively, he painted himself into a corner from which he could not escape.
Consider on the other hand Mick Jagger. He wrote what seemed to him a fresh tune and played it for his adult daughter. She said, “Dad, what a wonderful take on that K.D. Laing tune!” Mick wasn’t aware of having used any of K.D. Laing’s material. But instead of protesting, he listened carefully to his tune again and also to Laing’S. He realized that, indeed, unconsciously substantial similarities invented not by him but by K.D. had leaked into his own piece.
Acting not emotionally but rationally, Mick instructed his lawyers to contact K.D.'s management. They crafted a deal for her and Mick to share credit and revenues. Instead of acting out of anger, instead of embracing a dynamic that is adversarial, circumspection and good faith led to an across-the-board agreement that for all parties was a win-win.
The other, referenced above, Beatle is McCartney.
Paul woke up one morning having dreamed the tune Yesterday, which is now the single most covered tune in history. There are more recorded versions of it—in the industry they’re called covers--by more artists than of any other tune. Some years ago it overtook the previous longtime leader, Irving Berlin’s White Christmas.
Upon waking, Paul quickly wrote down the tune he’d heard in his dream.
To Paul’s ears, however, the progression of chords, what musicians call the changes, seemed to him so predictable, so obvious, so inevitable, that he wondered if he hadn’t subconsciously copied it. For a long period he would stop friends and ask them to listen to him perform Yesterday. He would then ask if they could remember having heard it before.
Only after months of trying to track down some other source, which consistently proved to be a phantom, did Paul allow himself to own the fact that he had indeed, all by himself, created Yesterday.
It’s all too rare that artists exercise caution and circumspection in so responsible a manner as Paul or Mick. They set a worthy example not for songwriters alone but for all artists, among them even screenwriters.
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About the Author: Richard Walter is a playwright, screenwriter, author of best selling fiction and nonfiction, celebrated storytelling educator, associate dean, entertainment industry expert and longtime professor and chairman of the graduate screenwriting program at the UCLA School of Theater, Film and Television. In January 2017, Richard Walter will offer an exclusive online 6-week course. Here is a once-in-a-lifetime opportunity to train with the world’s most accomplished screenwriting educator. And, he'll read your script if you complete it within 1 month of the class! Reserve your seat at: .
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