A question I get asked a lot is how to “copyright” your songs, or generally protect them. The question isn’t as straightforward as it seems.

The Berne Convention states that copyright exists automatically in creative works from the point it is first “fixed”, basically when you write it down or record it.You only need to prove it if another party also claims ownership.

As the USA didn’t sign the Berne Convention until over 100 years after it was first agreed, it was essential for artists in the USA to actually register works in much the same way you would register a trademark or apply for a patent. As a result, people often wrongly assume that was/is the case worldwide.

If you Google “how to copyright…” you will see dozens of articles advising a variety of different ways to establish copyright. The most common is to post the music or recording to yourself by recorded delivery and keep it sealed. This makes sense in principle but actually doesn’t prove you wrote, or own, the song at all…it just proves that on the day you sent the letter you were in possession of the music or recording.

This may be enough but it would be relatively easy to tamper with such evidence, you could, for example, send yourself an unsealed envelope and put the song in at a later date.

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Emailing yourself the song is a much better way, and harder to falsify. The best way to make sure you are protected is to do all the things the owner is expected to do, such as register the composition with a performing rights society (PRO), or sign with a publisher who will do that for you. Imagine two people claim they wrote the same song but one of them did nothing until the song was worth something, and the other person spent the same time promoting and performing the song if that went to court the odds would be stacked in favour of the person who did most to make the song valuable.

The most common writing/ownership disputes occur between writing partners or band members. To protect yourself against this you should have written agreements on what the writing splits are.

People stealing a song wholesale and passing it off as their own is relatively rare (considering the millions of songs there are). What is much more common is copyright infringements, when sections of the song are used or adapted in a new composition, you can find similarities in millions of songs and a lot of the time this will be coincidental, but sometimes people do intentionally take ideas from existing songs. When these cases go to court it’s a matter of establishing if the similarities are by coincidence or design.

Over the last few years, there have been a few high profile cases of people being sued for copyright infringement in their songs. For me the two most notable cases were Marvin Gaye estate VS Robin Thicke & Pharrell Williams regarding the track “Blurred Lines”, and Spirit VS Led Zeppelin over “Stairway to Heaven”.

The cases are quite similar but the outcomes very different. Both went to court (although when you watch Pharrell’s deposition you’ll wonder why they risked going to court at all), but Led Zeppelin was found not guilty of stealing the main riff for Stairway to Heaven while Pharrell was judged to have copied Marvin Gaye.

The similarities in both cases are quite obvious, so what was the difference?

There are two big differences, firstly at no point since releasing “Stairway to Heaven” have any of the members of Led Zeppelin mentioned the Spirit song “Taurus”. Pharrell said in an interview with XXL that he “pretended he was Marvin Gaye” while making Blurred Lines, and Robin Thicke claimed in another interview that he specifically mentioned the Marvin Gaye track “Got To Give It Up” and said he wanted to do a song like it. So there we have two instances of the creators of the song admitting intent.

Secondly, in the Led Zeppelin case, the band’s testimony stated that the intro riff utilises a descending sequence that has been common in music for centuries, Led Zeppelin were able to demonstrate this by playing variations of both songs, and reference other famous songs that also use the sequence. They were able to show and prove they were capable of independently creating the song and that similarities were both common and coincidental.

Pharrell, however, was unable to show any such musical ability. The combination of the admission of intent to copy (or at least “channel”) Marvin Gaye, and the inability to prove themselves capable of independently composing the track is what lost this case for them.

The way evidence was presented in the two cases was also very different, in the “Blurred Lines” case the jury heard the recording of the Robin Thicke song, as it is the recording that was used to establish copyright, but as “Got To Give It Up” was written prior to the USA joining the Berne Convention it is the sheet music that was the subject of the copyright, so the jury heard musicians playing elements from the sheet music.

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In the Led Zeppelin case, as the copyright in both songs was established using only sheet music the famous recordings of the songs were not played to the jury, instead they heard musicians playing the songs from the sheet music, making a lot harder for the jury (that I’m assuming are not musicians or songwriters) to pick up on the similarities that are obvious when you hear the two recordings.

Prior to court cases in the USA, it is common for each legal team to interview potential witnesses in the case. This is called a deposition and is used to form the strategy for their case, in some cases if there was a particularly bad deposition the lawyers will opt to settle out of court rather than risk a damaging testimony that may result in a worse settlement than what could be negotiated out of court.

Below are clips from Pharrell’s deposition, after watching them it’s quite easy to understand how a jury could have ruled against him.

In the following video, just moments after claiming to be able to read (but not write!?) music notation he then says he is unable to read pitches within the written music, he is then unable to identify the notes on the sheet music given to him. He just repeatedly states he is “not comfortable”, and the only indication that he knows any music theory at all is him saying ” I know Every Good Boy Does Fine, and F.A.C.E” referring to the way elementary music theory is taught to primary school children, which is much below the expected knowledge of a multiple Grammy-winning songwriter and producer.

By the next video, Pharrell is getting very defensive as it’s now becoming apparent that he doesn’t have much musical theory knowledge and he seems a little embarrassed. He’s unable, or unwilling, to explain the theory behind the progression he claims he used as the basis for the track.

In this video, Pharrell correctly points out that most artist “embellish” the origin stories of their songs. This is very true, many artists receive contractual writing credits regardless of their actual contribution to the composition and are also prone to use hyperbole when retelling how they wrote their songs. I myself worked with an artist who claimed, in an interview, we had copied a Michael Jackson song. She had mentioned the song, but I constructed the music based on her vocal idea and did not make any attempt to emulate the track she identified. So he’s right on this point, but the damage had already been done by this time.

So the bigger question is, how do you protect yourself from being accused of “stealing” yourself?

Well one detail in the Pharrell case that often gets overlooked is that as part of his agreement to work on the track Pharrell signed an “indemnity agreement” which basically states that he didn’t infringe any copyrights to make the track so should any copyright infringement cases arise from the song, Pharell alone would be responsible. This meant that once the Gaye family had decided to sue, Pharrell was on his own.

You may well be confident that you have come up with your song on your own and therefore believe that any such lawsuits would be extremely unlikely, but should the worst happen you would definitely benefit from having the legal muscle of a record label or a least having a co-defendant. So if possible have these types of clauses removed or at least reworded so you are not left out to dry if any cases do arise.

In fact, Pharrell actually appealed the decision to award damages that he has to entirely pay when the record label also benefited from the infringement. The judge agreed and reduced the damages Pharrell personally has to pay from $1.2million to around $350,000. The judge also ruled that although T.I.’s contribution to the track didn’t infringe any copyrights he should also be included in the case as he also benefits from the track.

If you have used elements from another song, either by sampling or replaying the parts, then consider clearing them. I’m sure Pharrell could have agreed a much smaller percentage than the 50% awarded in court had this been cleared prior to release.

Another really important way to protect yourself is to watch what you say in interviews when asked about how you write and create songs. Don’t go into specifics about what artists inspired your individual tracks and certainly don’t claim to have “pretended” to be a famous artist when you recorded it.

Most artists go their entire careers without being on either side of any such cases, although they do seem to be getting more common, so unless you are in the habit of taking chunks of existing songs this probably won’t be something you have to worry about.

Should it happen, its a pretty classy problem to have as it means the track was succesful, nobody is going to sue you for a flop. Also, in most cases the settlement will be based on what the track is worth so you’re unlikely to lose more than you made.