Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.
Music Borrowing and Copyright Law: A Genre-by-Genre Analysis. Edited by Enrico Bonadio & Chen Wei Zhu. Oxford: Hart, 2023. xviii, 464 p. Includes bibliographic references and index. ISBN 9781509949380 (hardcover) $249.75; ISBN 9781509949397 (ePub) $199.80; ISBN 9781509949403 (PDF) $199.80.
Reviewed by Hannah Rosborough
Instruction & Scholarly Communications Librarian
Sir James Dunn Law Library, Schulich School of Law
Copyright and music borrowing have received significant media attention in recent years. In 2015, a jury found that the song “Blurred Lines” by Robin Thicke and Pharrell Williams infringed the copyright of Marvin Gaye’s estate due to having a similar feel to the song “Got to Give It Up.” Thicke and Williams paid US$7.3 million to the Gaye estate.[1] This heavy-handed decision had downstream effects on copyright litigation. In 2019, Taylor Swift was accused of infringing the simple line, “players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate.” She settled out of court.[2] In 2021, Olivia Rodrigo, an artist who has talked openly about the musicians who have inspired her, retroactively ended up paying half of her royalties for the song “Good 4 U” to the band Paramore, despite her legal team having reached out to them before publishing her debut album. This scenario was not about lyrics, but a similar melody and chord progression. Rodrigo also added a songwriting credit for the band, presumably to avoid a lawsuit.[3] In a full circle moment in 2023, Ed Sheeran won a copyright infringement lawsuit brought forward by the Gaye estate claiming the song “Thinking Out Loud” infringed chord progressions from “Let’s Get It On.” Sheeran has since said, “These chords are common building blocks which were used to create music long before ‘Let’s Get It On’ was written, and will be used to make music long after we’re gone. They are in a songwriter’s alphabet, our toolkit, and should be there for all of us to use.”[4]
While these infringement claims are but a few recent and popular examples, they highlight several points of significance. First, the relationship between copyright law and music borrowing is dynamic. Second, copyright and music borrowing have most often been considered and centred around a Western perspective. Third, there is a concern that copyright may stifle creativity in the music space. And fourth, the relationship between copyright law and music requires a fulsome review to better understand the borrowing norms and practices of musicians.
Edited by Enrico Bonadio and Chen Wei Zhu, Music Borrowing and Copyright Law: A Genre-by-Genre Analysis confronts the valuable task of addressing these points of significance, amongst others. IP scholar Paul Heald states in the foreword that this edited collection is a significant contribution to copyright law, one that provides the raw material necessary for a rational law of music copyright, a law that could, and should, defer more to musicians themselves.
The central theme running through the collection is that music creativity and borrowing activities are amorphous. This is because music borrowing occurs through collective bargaining between musicians, creating an inherent struggle for the role of copyright law. Variations on this theme are demonstrated through genre-specific analyses. In this collection, experts and contributing authors of varying backgrounds, ranging from intellectual property law scholars and lawyers to forensic musicologists and cultural economists, write chapters on Western and non-Western music, including genres such as pop, hip-hop, jazz, reggae, calypso, Indo-Caribbean, Irish folk, flamenco, Benga beat, Indigenous Australian, and M?ori. Other chapters encompass broader descriptions of types of music, including Israeli, South African, Japanese, traditional Chinese, and traditional Greek. While not comprehensive, this widened scope of genres is notable and provides a necessary shift away from a primarily Western perspective.
The collection is structured in two parts. Part I: Music Genres, Borrowing and Copyright focuses on the foundational issues of music borrowing and provides a theoretical foundation for recalibrating copyright law with music-borrowing practices. Broadly speaking, this part provides a high-level overview of the ontological struggle of music borrowing and copyright law. It speaks to how essential a nuanced understanding of culture is in relation to music creation (they cannot be separated) and, as a result, how black letter copyright law cannot adequately address reworking and music borrowing because copyright is impacted by both genre and culture.
Part II: Analysing Music Genres and Their Relationship with Copyright extends copyright analysis beyond the existing literature’s concerns about similar melodies and lyrics. It does this, in part, by providing clear examples of the norms and traditions of music borrowing and reworking these as tenets of music creation for specific genres and geographic regions. Woven throughout each chapter is an examination of the delicate balance between creators’ rights and the preservation of artistic freedom. The themes of appropriation, colonialism, adaptation and derivation, plagiarism, hybridisation, and “the commons” are addressed across various cultures and through domestic legal frameworks. Altogether, Part II encompasses the indivisible nature of music and culture that tends to be neglected in conventional copyright analysis.
The editors point to several potential shortcomings. Despite recognizing the ontological problem of copyright and music in Part I, they then organise Part II by genres within broad graphic regions (e.g., Americas, Europe, Africa and Middle East, and Asia and Oceania). While this taxonomy serves to improve navigation for the reader, by doing so, it also identifies common socio-culture conventions of a region and tangentially supports the ontological nominalist impulse to localize smaller units of music into copyrightable material. The collection is not comprehensive in its provision of music genres—how could it be? The editors’ stated intention, arguably achieved, is to invite further scholarly communication on the topic.
Music Borrowing and Copyright Law: A Genre-by-Genre Analysis is an essential addition to any IP or music collection in an academic library. The novelty and value of this curated collection is that it extends the discussion of music borrowing to new, often overlooked regions and genres of music. It also addresses copyright through the intertwining historical cultural practices and norms that have since been overlooked. The chapters in this collection would make excellent reading for courses on IP, copyright, music history, and specific genres of music. Finally, anyone interested in music or IP at a general level will find this collection fascinating.
_________
[1] Williams v Gaye, 895 F (3d) 1106.
[2] Hall v Swift, 786 Fed Appx 711 (Mem).
[3] Kirbie Johnson, “Olivia Rodrigo, Paramore, and the Murky Tides of Copyright Infringement” Dazed (7 September 2021), online: <dazeddigital.com>.
[4] Structured Asset Sales, LLC v Sheeran, 673 F Supp (3d) 415; Daniel Kreps, “Ed Sheeran Wins ‘Thinking Out Loud’ Copyright Trial” Rolling Stone (25 September 2023), online: <rollingstone.com>.
Book Review: Music Borrowing and Copyright Law: A Genre-by-Genre Analysis
