Music Plagiarism and Taco Bell:  Beefy 5-Layer Conundrum

Imagine being so confident in the pure, unmitigated originality of your art that when you hear a melody like yours in another song, you are certain they are trying to steal it from you.

Led Zeppelin, The Beatles, Nirvana, Radiohead, Madonna, Kiss, The Rolling Stones, and so many more famous artists have been involved in litigation concerning plagiarism.  The more visibility the artist has, the higher the likelihood they’ll be targeted by an accuser who claims their work has been ripped off.

But what constitutes an actual theft?  Surely there must be a line between the accidental and the overt cases, between the identical and the only vaguely similar cases, but where is it?  So far, it doesn’t exist.  If the accuser has a case compelling enough, or if the accused would just rather settle than fight, the matter can be decided in favor of the plaintiff without clear evidence.

And it doesn’t matter if the issue is rooted in the desire to uphold artistic integrity and give credit where it is due, as this process is meant to address, or if it’s just a money grab.

Take for instance the 2010 lawsuit of a music publishing company against Austrailian band Men At Work for the similarity of the flute line in “Down Under” to a 1932 nursery rhyme melody for which the company happened to own a copyright.  The company won, and Men At Work were forced to pay a percentage of past and future proceeds on the work.  After, the executive responsible for the work admitted that the impetus for the suit was financial.

I’m not saying the whole thing was illegitimate, but how does this serve the intent behind the creation of intellectual property rights?

I have been writing songs for thirty years, and I’d like to think that I’ve been prolific.  I have several hundred completed songs in my catalog, and many additional partial compositions, some of which are featured on other artists’ work.  In that time, I have noticed striking similarities in some of my pieces to other artists’ music multiple times.  It happens, man.  It’s pretty much unavoidable if you write much music.

In 1997, I eagerly picked up Megadeth’s newest album, Cryptic Writings.  Imagine my dismay when I heard the song “Trust” for the first time ever, and found it to be a near clone of a song I’d written only three years prior.  What could I do?  I did have evidence of my song’s copyright prior to theirs, but…sue them?  No, of course not.  They weren’t copying me.  The combination of chords, timing, and vocal melody were very similar but ultimately they were incidental.  Even if somehow they hadn’t been, I’d have only been honored to be imitated by one of my favorite artists.

Plus, what a dick you’d have to be to sue a band, thinking that you’re entitled to the money they earned making, performing, and promoting their work.  The sheer hubris!

As someone who has spent a lot of time working with the same ingredients as so many other artists, and who has turned out a lot of compositions, I understand how the elements of music lead us in similar directions and how overlap is an inevitability with a large enough population of composers.

It’s like Taco Bell.  How many ways can they serve those same five ingredients?  How many of those combinations will be any good at all, let alone tasty to customers and saleable across the country?

Musician and lawyer Damien Riehl did something interesting to address the vagaries of legality in musical plagiarism:  he used a computer model to generate every possible melody that can be created with the 12 notes that exist, and released them to the public domain.  There were over 68 billion of them.

Melody, of course, is only a piece of a composition.  If a melody were truly evidence of a forged work, every single musician on the planet could be cited with plagiarism.  The vast majority of songs are based on short, 2-4 chord melodies.  They are reused constantly.

But they have been enough to snag a guilty verdict before, as in the case of “Down Under”.  Perhaps Riehl’s melody database will turn up in future courtrooms.  Hopefully, it and other innovations will lead to a future where musical artists are free to explore their artistic vision in the finite melodic universe we inhabit.

Tap here to check out Damien Riehl’s Ted Talk about his project