“7 Notes” and the Dilemma of Originality: The Limits of Plagiarism and Inspiration in Musical Works

30.01.2025

Although “plagiarism” is not defined under Law No. 5846 on Intellectual and Artistic Works (“LIAW”) it is widely accepted in Turkish law as the act of using and appropriating the intellectual or artistic work of another without the permission of the owner. Similarly, “inspiration”, which does not have a clear definition or criteria in the LIAW systematic, means the creation of a new and original work by being influenced by another work. While drawing inspiration from existing works is typically seen as permissible under copyright law, the lack of clear, objective criteria distinguishing inspiration from plagiarism often leads to uncertainty and debate.

The boundaries between plagiarism and inspiration are even more blurred when it comes to musical works. Evaluating similarities in musical works may necessitate a more flexible and art-focused approach compared to literary works. This is largely due to the unique creative process behind musical composition and the inherent need for reliance on inspiration from existing works. More significantly, music often incorporates universal elements such as shared tempo, meter, melody, and rhythmic patterns.

This understanding is present in the decision of the 11th Civil Chamber of the Court of Cassation dated November 1, 2017, and numbered E. 2016/3508 K. 2017/5950, which stated that “In composing a musical work, it is not necessary to invent an entirely new musical genre or a melody that has never been created before. Drawing inspiration from and being influenced by existing works is acceptable, as long as the resulting work does not constitute plagiarism or imitation...”

In order to determine whether a musical work has been created through plagiarism rather than inspiration, it is essential to conduct a detailed analysis of its melodic, rhythmic, and harmonic elements and to assess whether the observed similarities are coincidental.

Is it truly the case, as Kirby Ferguson suggests, that every work is a 'remix' of another, as per his statement dedicated to various fields of art?[1] Is the question posed by another famous artist about how many different compositions can be made with the seven existing notes also a legally valid question?

The recent decision in Structured Asset Sales, LLC v. Sheeran, upheld by the United States Court of Appeals for the Second Circuit has made quite a stir in terms of the music industry and assessment of plagiarism. In its ruling on November 1, 2024, the Federal Court addressed allegations that Ed Sheeran’s song Thinking Out Loud infringed the copyrights of Structured Asset Sales, based on claims that the chord progression and harmonic rhythms in the song were substantially similar to those in Marvin Gaye’s Let’s Get It On. In its decision, the Federal Court noted that the chord progression in the plaintiff’s song is a simple, four-chord sequence, and the harmonic rhythm represents a basic syncopation[2] technique. The Federal Court affirmed the District Court’s ruling that these elements, when considered in isolation, are not copyrightable. It further held that the combination of these elements was too common to meet the originality threshold required by law, as similar patterns had been used in numerous works both before and after the two songs in question, ultimately concluding that no copyright infringement had occurred.

It is noteworthy that the decision of the US Court of Appeals for the Second Circuit in Gaste v. Kaiserman, which is cited in the judgment, echoes similar sentiments to the famous singer's ‘seven-note lament’: “[In assessing the evidence], we are mindful of the limited number of notes and chords available to composers and the resulting fact that common themes frequently reappear in various compositions, especially in popular music”.[3]

The decisions rendered by Turkish courts are also of a similar nature, and in two recent rulings, similar principles have been evaluated.

Within the scope of the decision of the 16th Civil Chamber of the Istanbul Regional Court of Appeals dated December 1, 2021 and numbered E. 2019/375 K. 2021/2035, the expert reports submitted to the file by two different panels were examined, and the First Instance Court's ruling, which determined that the similarity between the two musical works did not constitute plagiarism but rather fell within the scope of inspiration, similar to other works in the market, was upheld.

In this case, the additional report from the first expert panel analyzed the works both through listening and by examining the musical and lyrical elements separately. It was noted that the 'intro' sections of the works were different, and therefore, the main comparison was made on the remaining parts of the songs, where a similarity of 48% was found. While this percentage does not reflect the overall similarity between the two works, it was deemed a notable figure considering the production processes. In this regard, the experts acknowledged that the varying distribution of similarity between the melodies, according to specific measures, reduces the likelihood of a systematic and deliberate act of plagiarism. However, taking into account the similarities in the relevant section, they concluded that at least the plaintiff's composition had been used without permission to create the work.

Within the scope of the report received from the second expert panel, it was noted that the common musical phrase, which was described in the previous report as “largely similar with minor rhythmic and melodic differences”, was only four measures long, and thus was not sufficient to bear the characteristics of its author or elements of uniqueness. It was also noted that this musical phrase did not appear in the chorus, which constitutes the identity of the work. Finally, it was stated that the fact that many similar musical phrases had been published previously in the music industry and presented to the public meant these musical phrases could not be considered original. Based on these findings, it was concluded that there was no similarity between the works to the extent of plagiarism.

Again, in the decision of the 16th Civil Chamber of the Istanbul Regional Court of Appeals, dated May 30, 2024, and numbered E. 2022/1859 K. 2024/1045, the appellant's request for appeal was reviewed. The First Instance Court had rejected the plaintiff's case on the grounds that the works in question and the reasons provided were fundamentally different, and that the small details showing similarities between them were derived from the stereotypical, anonymous elements commonly used in Turkish folk music.

The Regional Court of Appeals, referring to the expert reports obtained in the case, stated that the similarity between the defendant's work and the plaintiff's work was limited to the two-measure section of the instrumental part and the last two beats of the measures that form the chorus of the lyrical sections (i.e., half of the mentioned measures). It was concluded that the main reason for the similarity between the works stemmed from the shared sequence, meter, tempo, instrumentation choices, and the use of characteristic and regional musical elements of the 'Kaşık' folk dance performed in the Nikriz scale of Turkish Folk Music. The common 'Haydaa' exclamation was also identified as a widely used anonymous call in such dances. Considering the use of these stereotypical melodies in other works within and beyond the field of Turkish Folk Music, the court concluded that the defendant's work was not created as a form of plagiarism from the plaintiff's work.

When all these judicial decisions are examined, it is seen that both in our country and in other countries, a very high level of similarity in melodic, rhythmic, maqam, harmonic issues and its distribution to the whole song are sought in order to decide that there is plagiarism, Additionally, elements that could be common in works across various music genres, such as “anonymous” elements, are differentiated.

In our opinion, it is crucial to maintain a high threshold of similarity and originality high in plagiarism investigations regarding musical works. Otherwise, a contrary attitude could make it difficult for new works to reach listeners. In these types of cases, courts adopting a more flexible perspective would, in our view, support musicians in freely utilizing common rhythmic structures or melodic patterns, thereby encouraging their creativity and the production of original works. However, this should certainly not mean allowing the exploitation of another artist's creative labor, beyond mere inspiration. At this point, it is of utmost importance that the legal analysis is based on sensitive and scientific grounds.


[1] Ferguson, Kirby. “Everything is a Remix.” TEDhttps://www.ted.com/speakers/kirby_ferguson.

[2] “A temporary displacement of the regular metrical accent in music caused typically by stressing the weak beat.” Merriam-Webster. “Syncopation” Merriam-Webster.com Dictionary.

[3] Gaste v. Kaiserman, 863 F.2d 1061, 1068 (2nd District1988).

This website is available “as is. Turkish Law Blog is not responsible for any actions (or lack thereof) taken as a result of relying on or in any way using information contained in this website, and in no event shall they be liable for any loss or damages.

The content and materials published on this website are provided for informational purposes only and should not be used as a legal opinion in any way. This website and the information contained are not intended to establish an attorney-client relationship.
th
Ready to stay ahead of the curve?
Share your interest anonymously and let us guide you through the informative articles on the hottest legal topics.
|
Successful Your message has been sent