# Copyright infringement for copying 'tone'?



## MikeH (Nov 3, 2011)

Does anyone remember the specifics detailing a rather famous case where a guitarist successfully won a case against someone who he claimed got too close to his personal 'tone'? I thought it was Santana, but can't be certain.


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## midphase (Nov 3, 2011)

If it was reverse engineered I don't see how it could have possibly held up in court.

I can see someone like Santana going after a company like Line 6 if they market a "Santana" tone without his consent, but another guitarist?


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## reddognoyz (Nov 3, 2011)

funny I ran into an issue on a commercial where I did a track that was made up of the exact same set of instruments and style, but completely different melody/harmony/song. The temp track was a song the Carpenters covered and the daughter of the writer called the agency and asked if they had permission to use her dad's song. I asked a lawyer and explained what I did feeling i was completely within my rights. He said something to the effect of "look kid, if you get twelve people in a room and ask em' does your song sound like theirs, and they say yes, you gotta problem"


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## reddognoyz (Nov 3, 2011)

the agency pulled the spot and we redid with a new track


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## givemenoughrope (Nov 3, 2011)

I remember this one. It was The Edge who sued Keith Levene for a tone/guitar styling that KL actually came up with.

http://www.youtube.com/watch?v=IQtO6R4qkg0

http://www.youtube.com/watch?v=ifhgIWU2 ... re=related

Fortunately or unfortunately, he (The Edge) got too busy to pursue it with his band taking off, just before they sued Negativland and appropriated their aesthetic for the Zoo-rope-uh tour. 

http://www.youtube.com/watch?v=Z6gPSSYxex0

The original suit has come up from time to time but between The Edge's efforts to reappropriate the Malibu coastline and Levene's unclear whereabouts, it hasn't gone very far.

---------------

Seriously though, if someone could sue for a guitar tone (the way Tom Waits sued over use of "his" voice) then half the guitarists alive would be sued by the estate of Jimi Hendrix, Billy Gibbons, Buzz Osborne, Keith Levene, The Youngs (ACDC), Pat Methaney, Bill Frissell, George Benson, etc.


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## noiseboyuk (Nov 3, 2011)

reddognoyz @ Thu Nov 03 said:


> funny I ran into an issue on a commercial where I did a track that was made up of the exact same set of instruments and style, but completely different melody/harmony/song. The temp track was a song the Carpenters covered and the daughter of the writer called the agency and asked if they had permission to use her dad's song. I asked a lawyer and explained what I did feeling i was completely within my rights. He said something to the effect of "look kid, if you get twelve people in a room and ask em' does your song sound like theirs, and they say yes, you gotta problem"



Blimey. You read some posts here that say "unless you rip someone off every note, note for note, in a major production, no-one is going bother", then you read stuff like yours! That's amazing / ridiculous. I can't believe it would have ever stood up in court, but the point really is that people are so terrified of legal action, beating the path of least resistance is usually the favourite option.


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## midphase (Nov 3, 2011)

Just to make it clear, anyone can sue anyone else for any reason. Unfortunately many times is comes down to legal costs more than who is right and who is wrong.


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## José Herring (Nov 3, 2011)

The older I get the more I'm just like, come up with your own sound and don't worry about it. It's actually a good thing. I say. The more people get sued for this or that then the more I can say when somebody ask me to copy, "I can't do that without getting sued so let's try something else.".


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## Daryl (Nov 3, 2011)

noiseboyuk @ Thu Nov 03 said:


> reddognoyz @ Thu Nov 03 said:
> 
> 
> > funny I ran into an issue on a commercial where I did a track that was made up of the exact same set of instruments and style, but completely different melody/harmony/song. The temp track was a song the Carpenters covered and the daughter of the writer called the agency and asked if they had permission to use her dad's song. I asked a lawyer and explained what I did feeling i was completely within my rights. He said something to the effect of "look kid, if you get twelve people in a room and ask em' does your song sound like theirs, and they say yes, you gotta problem"
> ...


Unfortunately winning in court has little to do with right and wrong, or even justice.

In this case a court would be deciding on intent to copy, and that is very difficult to get out of. A singer can even be sured (and lose the case) if their performance of a song is deemed to close to the performance of a more famous artist.

I never accept pitches that involve ripping something off, and by now it has got to the stage that I don't even get asked to do it. :wink: 

D


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## Resoded (Nov 3, 2011)

This whole thing is just ridiculous. With so many people making music some are bound to either come up with a sound someone else already has or a song/melody/chord progression someone already used. I believe the actual cases of people stealing other peoples ideas are rare.

I remember a case I read about where someone was sued for stealing the song. When listening to both songs the feeling of them were very different. It was obvious However, they won in court based on the fact that the music theory behind it all, notes and chords, were alike.

It was obvious that it wasn't a rip off. And even if it was, it was so different that I can't believe they actually won the case.


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## RiffWraith (Nov 3, 2011)

MikeH @ Thu Nov 03 said:


> Does anyone remember the specifics detailing a rather famous case where a guitarist successfully won a case against someone who he claimed got too close to his personal 'tone'? I thought it was Santana, but can't be certain.



You are probably talking about Tom Waits, who sued General Motors over a "soundalike".

http://today.msnbc.msn.com/id/9355877/n ... rtainment/


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## Daryl (Nov 3, 2011)

Resoded @ Thu Nov 03 said:


> This whole thing is just ridiculous. With so many people making music some are bound to either come up with a sound someone else already has or a song/melody/chord progression someone already used. I believe the actual cases of people stealing other peoples ideas are rare.


Unfortunately, when pitching for adverts, it's very common to be told to get as close as possible to the temp, but without getting sued. There are numerous cases of ads having to be pulled, and usually that happens because the producer insists on changes, and the composer doesn't have the balls to tell him/her where to shove it. :lol: 

D


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## Mike Greene (Nov 3, 2011)

Yes, it was Santana, and yes, Santana won.

It wasn't *just* about his tone, though. As Daryl said, intent has a lot (almost everything, in fact) to do with these cases. Undoubtedly the composer was asked to cop the Santana style. (There's your intent, right there. Get the Santana sound without paying Santana.) If people watching the commercial would think that they were hearing Carlos Santana playing the song, then an endorsement is implied. It's not just the guitar tone, it's the "pretend Santana is on this commercial" that got them into trouble. (Tone or style are not copyrightable.)

These cases are really common, although it's usually with voices, and it's why you always hear "Celebrity voices impersonated" at the end of commercials. Otherwise the listener might think Jerry Lewis is the new pitch man for Eddie's Cameras. Jerry Lewis could then claim his "branding" is diminished, and there you go.

Albert Brooks won millions on some cartoon voice that sounded like him. (I know the guy who did his voice on that one.) Rodney Dangerfield sued all the time. (Same voice actor. You'd think animation clients would learn.)

I once did a commercial that was a rip off of . . . errrr, _inspired by_ "You Got the Power" and couldn't even use a female singer. Had to be a male. That's how afraid they were of getting sued by Martha Wash.

Most of these cases involve advertising, which is always dangerous territory because of the deep pockets of the clients, plus the lack of being able to say it was truly "artistic expression." Red Hot Chili Peppers can put the "Iron Man" guitar lick in the outro of a song, and the "Salt Peanuts" riff is a staple in any jazzers solo arsenal, but try doing either one in a commercial and see what happens.


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## germancomponist (Nov 3, 2011)

MikeH @ Thu Nov 03 said:


> Does anyone remember the specifics detailing a rather famous case where a guitarist successfully won a case against someone who he claimed got too close to his personal 'tone'? I thought it was Santana, but can't be certain.



What is meant by a "tone"? A tone, or in other words, a sound noone can copyright.... .

When two guitar players use the same equipment they will both have the same tone/sound what comes out of the box. Yes, no?


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## David Story (Nov 3, 2011)

Everyone you have ever heard of copies from others. The expansion of copyright from 2 years to 95, and the extension to intangibles such as "personality rights" is about greed. The is no popular unique art. The effort to codify and lock it up is contrary to the public interest. The public domain is frozen at 1923!

I can find prior art in anything, and the "golden nugget" concept is silly. If I put 4 notes together into a catchy riff, it's not a monumental achievement to be protected forever. 25 years is enough. 
And a unique "tone"? There are teens with a gift for mimicry that do funny impressions of A list stars. A tone just isn't that special. But it's nice to have variety, and I appreciate coming up with a cool patch.

It's what you do in the work as a whole that counts, and even that needs to be recycled by other artists in time. It's how artist and culture evolve. But personal and corporate greed tries to posses even intangibles forever.

As Resoded and Kays say, this is about expensive lawyers intimidating people.

The reality is you won't get sued unless you're making money from it. And if you were following a temp track, the producers have to help defend you- they're at risk too. The major studios usually have an unwritten truce on infringement, since they do it every day.

It's subjective- people may notice details and miss a large pattern, or vice versa. Billy Jean and Beethoven's 5th have start with 3 8ths and a quarter, does that mean MJ copied the idea? And if someone emulates the sound of The Carpenters, and someone else emulates Louis Armstrong, is one really more right than the other? In practice those are treated very differently.

Even your sound isn't entirely without precedent. Vote for copyright reform that favors indie artists. And don't copy a temp for a small-time producer. (Mike explained why)
The soap box is now yours, thank you


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## reddognoyz (Nov 3, 2011)

my other funny rip offs:

Now these were for Nickelodeon back in the day and we're meant to be rips offs. 

Whole lotta Lucy wherein we hired a robert plant sound-a-like to sing "need a whole lucy" instead of whole lotta love and instead of jimmy pages guitar slide down between lines we substituted Lucille Balls trademark Wahhh!". thr track was the zepplin riff inverted. 

The higher ups at nick heard it after a couple of months and pulled it.

Bonanza: wherein we wholesale ripped off the rawhide theme and changed the lyrics to
"Turn it on! tune it in! turn it up! Nick at night!"

the nick at night logo was simultaneously through a map just like the Bonanza open.

Nick wass threatened with a lawsuit by the daughter(again!) of the writer of the...(wait for it)... Bonanza theme! guess the map threw her. Nick pulled it, and then I guess by mistake started airing it again. loosy goosey back in the day.

Here's some advice for you all. If you're approached to do a sound alike, either don't, or make sure that it's in writing somewhere that that's what you're being hired to do.Takes the onus off of you somewhat if you're simple hired to do a sound alike. As opposed to passing off someones work as your own an having your client "unwittingly" broadcasting it.


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## David Story (Nov 3, 2011)

Funny!!


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## antoniopandrade (Nov 3, 2011)

The REALLY funny thing is that in Hollywood, composers can be sued for copying... themselves. Since technically the studio owns the copyrights to their music, if they work on another movie (and for another studio, but I don't it even needs to be for another studio) and copies the theme he used for another movie... he can be sued! I got a kick thinking about James Horner with that one... (disclaimer: I love his music!)


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## lux (Nov 3, 2011)

My impression is that hardly a famous guitar player would take himself the fuss of suing someone for such matter. 

But i think that when you are very high in the chain food probably you get lot of attorneys flying around and telling how much money youre loosing and how they can help, and perhaps you just say ok.

At the very end it is hard to understand what really happens behind the scenes in those cases.


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## Dan Mott (Nov 3, 2011)

Kim Kardashian or whatever, tried to sue someone for looking like her. No joke lol. Stupid.

Anyway. Everyone gets their ideas off other songs and sounds. 

I find it weird how you hear about these topics, but why hasn't every pop or hip hop artist tried to sue eachother yet? I swear, each song I hear has similar chord progessions and notes, if not the same! Especially pop rock. I'd expect to hear "Hey!! you stole my really good chord pregession I made up (but really was used so many times in the past). I'm sueing you!!"

:D


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## Christian Marcussen (Nov 4, 2011)

I seem to recall Elfman sueing a company over an Edward Scissorhands ripoff. Notes were different (although close) but there was no doubt about the tone.


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## Daryl (Nov 4, 2011)

antoniopandrade @ Thu Nov 03 said:


> The REALLY funny thing is that in Hollywood, composers can be sued for copying... themselves. Since technically the studio owns the copyrights to their music, if they work on another movie (and for another studio, but I don't it even needs to be for another studio) and copies the theme he used for another movie... he can be sued! I got a kick thinking about James Horner with that one... (disclaimer: I love his music!)


Theoretically they could be, but I doubt that they would get very far. AFAIK, the studios only own the Copyright to the recordings; the music Copyright is retained by the writer, and it is only the Publishing that is owned by the studio. As the Publisher is supposed to be acting in the interests of the composer (not that they ever do....!) it is very unlikely that something like this would even get to court, never mind win. Of course I could be wrong. it has been known. Allegedly. :lol: 

FWIW most Publishers could be sued for not fulfilling their obligations for secondary exploitation, so I think that this is a can of worms that no sane film music Publisher would open.

D


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## IFM (Nov 4, 2011)

reddognoyz @ Thu Nov 03 said:


> funny I ran into an issue on a commercial where I did a track that was made up of the exact same set of instruments and style, but completely different melody/harmony/song. The temp track was a song the Carpenters covered and the daughter of the writer called the agency and asked if they had permission to use her dad's song. I asked a lawyer and explained what I did feeling i was completely within my rights. He said something to the effect of "look kid, if you get twelve people in a room and ask em' does your song sound like theirs, and they say yes, you gotta problem"



A big reason why I hate reference or temp tracks. "Oh we want it to sound similar to this"...sometimes it pans out and other times it doesn't. Usually if I run into this I only listen to it once to get an idea then promptly try to ignore it.

Anyways I digress. I remember the Tom Waits suit.


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## bluejay (Nov 4, 2011)

Christian Marcussen @ Fri Nov 04 said:


> I seem to recall Elfman sueing a company over an Edward Scissorhands ripoff. Notes were different (although close) but there was no doubt about the tone.



Yes, in an interview Elfman very clearly stated that every Christmas he sends his lawyers after the Scissorhands soundalikes.


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## David Story (Nov 4, 2011)

bluejay @ Fri Nov 04 said:


> Christian Marcussen @ Fri Nov 04 said:
> 
> 
> > I seem to recall Elfman sueing a company over an Edward Scissorhands ripoff. Notes were different (although close) but there was no doubt about the tone.
> ...



I love Danny. Great score. That theme is Tchaikovsky meets Herrmann. Nice idea, but uncool to sue your colleagues who have the same influences. Intermodal triads in celeste and strings. Plus old English boys choir: http://www.ncboyschoir.org/thesnow.wma

I bet they don't go after Williams for the Harry Potter music, which is very similar 

On the topic of self imitation in films: I know composers that include a clause that they will write music that is similar to what they have done for other clients. That this is expected and not grounds for action.

Gota reign in the greed. Let the ideas mingle freely.


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## Brobdingnagian (Nov 6, 2011)

David Story @ Fri Nov 04 said:


> On the topic of self imitation in films: I know composers that include a clause that they will write music that is similar to what they have done for other clients. That this is expected and not grounds for action.



I like this and will try and implement it into my next agreement.

-B


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