Here’s something that happens semi-frequently – my band is writing a song and it’s feeling good, catchy, but also somehow familiar. And then we realize why it feels familiar – we’re actually just ripping off one of our own songs. Sometimes it’s really close, sometimes it’s just vaguely similar. It’s often a frustrating moment. But it feels better to have caught it during the writing process, before having it pointed out after release.
But say that ‘rip-off song’ does get released – is that a legal issue? Lots of bands have songs that sound similar. And it’s your own song, so what’s the problem?
The answer can depend on whether a) you have contracted away some of your rights in that first song, for example in a music publishing agreement, and b) you’ve actually copied in a manner that would infringe copyright in the first song.
For example, many publishing agreements give the publisher exclusive rights to exploit copyright in a composition, and the right to legally enforce the copyright (a little more about publishing deals in my earlier post here). If you’ve given a publisher these rights (or a publisher has otherwise acquired them), it’s theoretically possible to create a cause of action against yourself for copyright infringement of your own song.
Fantasy v. Fogerty
Getting sued for copying your own music is a pretty rare situation (and you can also avoid it in your contract) – but it happened in the U.S. case of Fantasy v. Fogerty. John Fogerty wrote a song called Run Through the Jungle for Creedence Clearwater Revival, released in 1970. A label called Fantasy Records owned publishing rights in the song.
In 1984, John Fogerty released a solo song called The Old Man Down the Road.
And then Fantasy Records sued Fogerty for copyright infringement of his own song, claiming The Old Man Down the Road unlawfully copied Run Through the Jungle.
There was a jury trial in San Francisco, featuring testimony from musicologists. And Fogerty himself testified in the case, even playing his guitar on the stand, and said that the songs were both simply indicative of his “swamp rock” style. Ultimately, the jury found there was no copyright infringement.
The Fogerty case was more famous for resulting in a U.S. Supreme Court decision about whether Fogerty could recover attorney’s fees. I’ll admit, I find that to be the less interesting aspect of the case.
As a musician, it’s this quote from the New York Times that gets to me:
At a news conference after his victory, Mr. Fogerty said the larger issue of whether composers, writers and artists could be barred from creating new works that bare [sic] the stamp of their own distinctive style weighed heavily on him in his testimony. He said he imagined the spirits of William Shakespeare and John Lennon telling him, ”Don’t blow this, Johnny.”https://www.nytimes.com/1988/11/11/us/the-law-a-victory-for-the-creative-process.html
Copyright law is notoriously fuzzy and inconsistent on what represents an unlawful, substantial copying when two songs sound similar. Trying to find a consistent thread through the case law is a frustrating effort (and also a future blog post!). And it’s probably worth noting in the CCR case that there was a long-standing grudge between Fogerty and Saul Zaentz, the owner of Fantasy Records.
But to answer the question of whether it is ever possible to be sued for self-plagiarism… sadly and rarely, yes you can. At the same time, Fogerty’s case hopefully shows us that there’s nothing wrong with simply sounding like yourself.