As Robert Plant and Jimmy Page of the band Led Zeppelin take the stand during a copyright dispute this week over their signature anthem, "Stairway to Heaven," ethicists and lawyers muse over the ever-shifting line between inspiration and plagiarism.
As “remixing” has grown in popularity, the question of ownership has shifted from being about copyrights on lyrics and scores, to scores of nuanced lawsuits over chord progressions and melodies.
In the current trial, the trustee of late guitarist Randy Wolfe from the band Spirit, a rock band formed in 1967 in Los Angeles, claims that the iconic opening riff of Stairway was lifted from the song "Taurus," performed at a 1970 concert in Britain that Mr. Plant allegedly attended.
Reportedly, Mr. Page stated under oath that he remembered buying Spirit's second and third albums, "The Family That Plays Together" and "Clear." However, Mr. Page stated that he had never heard "Taurus" until controversy began appearing online recently.
Music plagiarism cases have abounded over the years, with cases resting on more glaring use of another artist’s music, lyrics, or both, rather than lifting a riff or feel.
For example, Johnny Cash was forced to pay composer Gordon Jenkins $75,000 for using lyrics and melody from Jenkins's 1953 track "Crescent City Blues" as core for his 1955 song "Folsom Prison Blues." Cash altered the theme from a lonely woman seeking escape to a prison tale. The classic opening lines, "I hear the train a-comin, it's rollin' 'round the bend" were similar enough to warrant a lawsuit.
More recently, in the 2015 case involving Robin Thicke's "Blurred Lines" versus Marvin Gaye’s "Got to Give it Up," a jury ordered Pharrell Williams and Mr. Thicke to pay $7.4 million to Mr. Gaye's children.
“The 'Blurred Lines' case is an excellent example,” writes Jonathan Bailey, founder of the website Plagiarism Today, in an e-mail interview. "There're actually two ways of looking at this issue: Legally and ethically.”
He continues, “Legally, I don't think it will have any lasting impact because it's so fact-specific and Thicke/Williams fell victim as much to their own poor handling of the case as they did the facts.”
The bigger issue, Bailey says, is that over the past 10 years, “We've developed technology that can track samples of even a fraction of a second. A sample that wouldn't have even been noticed a decade prior can become the subject of a lawsuit in 2016.”
But, he adds, in those lawsuits, “we're seeing the courts generally side with the remixer.”
“Ethically, the line has definitely been moving in recent years, but more toward broader reuse and appropriation.... Remix culture and greater access to creative platforms has made it broadly more acceptable to take the works and ideas of others and create new ones.”
He attributes the change to YouTube, “as creators there are participating in a culture where it's ethical to take work from outside sources and incorporate it into their own, but are constantly butting against legal realities that often aren't as yielding.”
Still, this culture is far from completely permissive.
“YouTubers, for example, are extremely upset about 'Freebooting' by Facebook users, where YouTube videos are reuploaded wholesale to Facebook, but it's definitely more permissive than the creative culture that existed 10-20 years ago,” he writes.
Elaine Rogers, co-chair of the Entertainment and New Media department at Meister, Seelig & Fein, agrees that these kinds of cases have become about increasingly minute details, rather than the more blatant thefts of bygone eras.
“While the chord progressions incorporated in Led Zeppelin’s piece are somewhat common,” writes Ms. Rogers in an e-mail interview, “I’d have to agree with Judge [Gregory] Klausner in his decision that it's possible a jury could find 'substantial similarity' " between them.
"It may come down to a jury evaluating the 'concept and feel' of the two songs," she writes.
So when does inspiration become theft?
“The line is, and always has been pretty much, whether you're creating a new work or something that's meant to replace or compete with the original,” Bailey says. “Taking something I've seen or heard and going a new direction with it is one thing, creating an imitation is another.”