The judgment was a long time coming, and it still might not be final. In March 2020, a US appeals court ruled that British rock band Led Zeppelin hadn’t stolen part of their song Stairway to Heaven. Randy Wolfe, a member of Spirit, a Los Angeles band, had claimed that Led Zeppelin’s Jimmy Page, Robert Plant and John Paul Jones had lifted a chord progression in Taurus, a song written by Wolfe.
Spirit and Led Zeppelin had toured together before Stairway to Heaven was released in 1971. Wolfe had suggested that the members of Led Zeppelin had heard the section of the song during the tour and appropriated it.
A ruling in 2016 had stated that Led Zeppelin had not committed copyright infringement. A panel overturned that ruling two years later, and two years after that, the original ruling was reinstated. A lawyer for Randy Wolfe’s trustee said at the time that he might appeal to the Supreme Court.
Page testified in court that the chord sequence had “been around forever.”
That court case though is just one in a long list of cases in the music industry claiming copyright infringement. George Harrison was accused of lifting his 1970 hit My Sweet Lord from The Chiffons’ 1962 song He’s So Fine. Killing Joke said that Nirvana’s Come As Your Are had ripped off its 1984 track Eighties. Radiohead claimed that Lana Del Ray’s Get Free had plagiarized their song Creep—a track which now gives Albert Hammond and Mike Hazelwood songwriting credits because of its similarities to The Hollies’ The Air That I Breathe.
One of the reasons for the frequency of copyright infringement cases in the music industry is that the stakes are high. A hit song can generate millions of dollars of revenue in a short space of time. But the opportunities for lawsuits are also high.
“Popular song is a constrained art form, with a palette of statistically predictable phrase lengths, song forms, scale and chord choices, lyric tropes and song durations,” Joe Bennett, a forensic musicologist told The Guardian newspaper. So there are plenty of note sequences for rivals to claim when a song does well.
But another reason for claims of copyright infringement in music has broader ramifications: the genuine belief that an idea that we took from somewhere else is our own. When a court ruled that George Harrison had plagiarized He’s So Fine, the judge described the copying as “subconscious.” Paul McCartney has described spending days asking people whether they knew the melody for Yesterday when he woke up with the tune in his head before he was certain that the tune was his.
That subconscious copying, or cryptomnesia, is a problem that can extend beyond the world of music. When Helen Keller was just eleven years old, she wrote a story called The Frost King which she sent to Michael Anagnos, the head of a school for the blind. Anagnos published the story in his alumnus magazine which was then picked up by local newspapers. As the story spread, someone noticed that the story was almost identical to another story called The Frost Fairies by Margaret Canby. A bit of digging turned the book up at the house of a friend of the Keller family who said that she had indeed read the book to Helen.
There are only two possibilities. Either Helen Keller had rewritten someone else’s story and passed it off as her own. Or the story had been circulating in her head for so long that she no longer remembered where it came from and mistook it for her own.
That memory misattribution, the same kind of subconscious copy that would later affect George Harrison, is a common phenomenon. But when does it occur and what can we do to minimize the chances that we’ll inadvertently copy something we believe is our own—and set ourselves up for an expensive lawsuit? A study conducted at the University of Plymouth might offer some answers.
Develop an Idea, and You’ll Think Its Yours
Researchers Louisa-Jayne Stark and Timothy J. Perfect recruited 32 undergraduates, divided them into pairs, then read them the names of four objects: a brick, a shoe, a button, and a paper-clip. The participants then generated four new, unconventional uses for each of the items, such as using the brick as a door-stop. The researchers also contributed eight new uses of their own and told the participants to listen to them carefully to avoid reproduction.
After this generation phase, the participants spent five minutes completing a picture puzzle to distract them, while the experimenters wrote down the participants’ ideas in their booklets. The researchers then divided the ideas and asked the participants to perform one task on each idea. The participants rated some ideas on five-point scale for imaginability and effectiveness. They also wrote three ways to improve other ideas, and they imagined the ideas that their partner had just improved.
A week later, the researchers called the participants back and asked them first to write down the ideas that they had generated for new ways to use each of the items, then produce four new uses for each of those items.
What they found was a lot of plagiarism. When the participants had to generate more new ideas, 20 percent of the ideas they cited had been generated by someone else, while almost 4 percent were copies of their own ideas that the participants had forgotten. And that plagiarism happened to almost everyone. Of the 32 participants, 29 re-presented an old idea as new, and almost all of them offered more than one old idea. That high rate of plagiarism compares to earlier studies that had a base plagiarism rate of 11 percent.
What made the difference in this experiment was the work that the participants had performed on both their own and others’ ideas.
“This study demonstrated that post-event manipulations may also alter a person’s belief that an idea was his or her own (self-generated) when it was not,” state the researchers.
The researchers go on to explain that when we take an idea and invest time and cognitive effort into re-working and improving it to create something new, we increase the risk of forgetting the source of that idea. In the act of building on an idea, we start to feel that the whole idea is our own and not just the additions that we’ve developed.
That’s a problem because while plagiarism, the failure to credit someone for their work, is an ethical matter, copyright infringement is a legal matter. Taking someone’s idea and trying to earn from it without paying a license to use that concept can result in expensive copyright law suits and punitive damages.
At the very least, it can stymie your growth.
From Jotto to Wordle
In November, a simple online word game leapt from 90 users to two million players, many of whom shared on social media the speed with which they guessed a daily five-letter word. The creator of Wordle, Josh Wardle, had created the game as an antithesis of casual gaming applications that demand attention, send notifications, collect user data, and push out advertising. The game itself isn’t even an application; it’s only available through a free website.
It wasn’t long before copycat versions started appearing on app stores. Apple, whose store policies prohibit the “copying of another developer’s work,” quickly removed them even though Wordle isn’t available in its App Store. One developer told the BBC that he would appeal against the ban on the grounds that… Wordle is itself derivative. The game has the same mechanics as Mastermind, a game in which players have to guess the location of colored pegs, while Jotto, a game even older than Mastermind, required players to guess five-letter words.
All of which only shows that originality is problematic. Very little is entirely new, and concepts that are entirely new often fail to find an audience because they’re too unfamiliar. Hit songs have the same structure as other hit songs because that structure is what listeners like and expect. Move away from that format, and a creator moves away from their audience.
But producing familiar works raises the risk of accidentally breaching the copyright of a previous work as we mistake our additions for complete originality. And even when we do come up with something new, there’s always a chance that someone else came up with the idea first, and we just never heard about it.
So how can businesses develop new concepts that are familiar enough to be popular, novel enough to be interesting, but don’t breach the copyright of previous works?
The first step is to understand the risk. Accept that nothing is entirely new and that any attempt to produce something original will always include elements of previous works. The question is which elements can you repeat and which must be new? A three-minute song with an ABABCB structure of verses choruses and bridges is fine. Chord sequences not so much. Word games are good. Guessing five-letter words with color codes for letters that are present but in the wrong order will get you kicked out of the app store.
Next, recognize that any time you develop a new idea you increase the risk of assuming that the entire concept is yours. The manipulation itself gives you a sense of ownership of the base on which you’ve built that idea. Being aware of that mistake might just help you to avoid it and to look for the concepts you’ve borrowed.
Finally, you’ll need to do some searching. Check patents to make sure that someone hasn’t already registered an idea, no matter how much you think it’s yours. And search for those elements you know aren’t original to make sure that they aren’t copyrighted.
If your idea turns out to be a big success, there’s always a chance that someone will claim it eventually—even almost fifty years later—but you should know exactly which ideas you’ve borrowed and which ideas are yours.