How Ads Get Away with *Almost* Plagiarising Existing Music

After the recent Jase Harley-Childish Gambino controversy, we asked industry experts where the line falls between imitation and inspiration.
10 July 2018, 11:16pm
Childish Gambino (L) by Ibra Ake via PR; Jase Harley via AP Music Group

It started, as so many niche stories do nowadays, on Reddit. An r/hiphopheads post two weeks ago picked up on a resemblance between Childish Gambino’s recent massive single “This Is America” and lesser-known New Jersey rapper Jase Harley’s “American Pharoah.” The main issue? The fact that Harley’s single came out in March 2016. Soon, people on Twitter picked up on the subreddit thread. Suggestions of foul play and plagiarism spread, until Gambino’s manager Fam Udeorji posted a now-deleted tweet of his own: “‘This Is America’ is three years old, and we have ProTools files to prove it but fuck you and your moms.” Hit the brakes on the thinkpieces, then.

That this similarity even picked up so much attention tells its own story. Yes, people would want to latch onto a potential underdog tale, but there also seems to be a growing awareness, in people working outside the industry, of what constitutes plagiarism in music. High-profile cases boost a layman understanding of these complication – most notably the Marvin Gaye Estate versus Robin Thicke and Pharrell’s “Blurred Lines.” But these kinds of song similarities are more common than you might think. You’ll probably know a really basic example: TV ads that sound sort of like a hit – a White Stripes “Seven Nation Army” advertising a betting shop, that just does not sound like Jack White played guitar on it, for example.

Within what’s known as sync, the portion of the music industry that deals with putting music to picture, clients will often fall in love with a track that they can’t afford. And then they’ll ask for something that has similar elements. Sound-a-likes (songs that actively try to replicate the key elements of a song) are especially risky; Eminem successfully sued New Zealand’s National party last year for using a replica of “Lose Yourself” in a campaign video. After the clattering impact of Kanye’s Yeezus in 2013, “Got anything that sounds like ‘Black Skinhead’?” became such a common request that it's turned into something of an industry in-joke. It was the name of the UK sync community’s Fantasy Football League last season.

I spoke to four people working in sync to get their perspective and find out how they stay on-trend, while toeing that blurred line between being using the reference track as a starting point and plagiarising it.

Phil Stubbs – Director Of Sales and Marketing at BMG Production Music UK

Not crossing the line between influence and plagiarism is a hard thing to balance because we’re in the business of creating music for productions as opposed to charts. Some media producers and editors are au fait with music, but the vast majority of them aren’t necessarily musical. When they try to describe a track, they’re not always going to say, “I want a 4/4 beat and a crescendo here.” What you’re doing with music for picture is capturing a feeling, so the easiest way to describe it is to say “I want something like this song” because it has the pace, feel and mood that they’re after. We actively try to avoid making a copy because it’s not necessarily that track they want, it’s what it encapsulates. If someone wants a particular genre we have to provide an authentic version of that, so we’ll use the same recording techniques or studios or instrumentation as the people in that scene. Obviously when it sounds authentic you run the risk of it sounding similar to certain artists, but that’s not why it’s being created. The Eminem case was just a bit stupid – when you’re listening to it you can hear it was a deliberate rip off.

The average person on the street could think two tracks sound similar, but if you look closely at the key, the notes and the progression in legal terms it might be fine. There are very few musicologists out there and they’re kept busy because there’s always somebody suing for copyright infringement. Blurred Lines was such a high profile case and has certainly generated wider interest. These things have always been going on but it’s definitely getting more heat from the press now.

Sabrina Di Giulio – Former Creative Development Manager at Massive Music

I feel like avoiding plagiarism often comes down to educating and managing the expectations of the brand, agency or production company that have their heart set on the sound of a familiar commercial track. The sooner you can do that, the less likely it is that you'll have to worry about being too close to the original. It’s a great help to lead the brand, agency or production company to focus on some of the more vague yet important aspects of the track – things like BPM, key instrumentation or the emotion it evokes – rather than specific identifiable elements or melodies that could ultimately get the music supervisor and composer in trouble. I haven't directly experienced greater caution in the wake of the high-profile lawsuits, but I can imagine music supervisors and producers tread much more carefully before they hit the submit and send button.

Vin McCreith – Composer

Any brief I've ever seen usually has something like "references for inspiration purposes only – we do not want a soundalike" in big letters across the top. At the end of the day, we're here to help the brand look good and plagiarism is definitely not a good look. Creatively, I'm just not interested in recreating someone else’s work and I'd rather my pitch be completely surprising and "wrong" than exactly what was expected and "right". Maybe it's not the soundest business strategy short term, but as the composer I feel a duty to fight on the music’s behalf, and I feel like that can only serve me (and by extension, the client) in the long term. I'll take the BPM from the temp track and use that as my jumping off point. After that I rarely refer back to the reference. The future implications of cases like “Blurred Lines” and the “Thinking Out Loud” one definitely come up in pub conversations, but anyone who knows music can spot a rip off and those aren’t ripoffs. It's an over enthusiastic legal team trying to generate extra revenue for an estate.

When I was younger I used to obsess over sounding too much like someone else. Eventually you crack the code and start making music that is completely unique that nobody has ever heard before, then you realise it’s because nobody ever wanted to hear it, and with good reason! When your uniqueness and your influences are in balance, that's when you find your voice. The fact is that music isn't created in a vacuum. It builds on the past, from folk to blues to rock and roll to disco, punk, ad infinitum. As a composer you are the sum total of the genres, idioms, vibes, feels, grooves and everything else you've heard since you were born. You spit it out the best you can and hope some of it goes on to feed the next generation.

Craig Beck – Former Head of Production at Universal Production Music

This kind of thing has been going on forever. I worked in advertising doing mixing for years and it was going on back then. Every now and again I’d get asked to compose something that sounded like the Black Keys or whoever, but I didn’t want to do that. I don’t want to put myself in the firing line just because they’re not willing to pay a big sync fee, but advertising agencies don’t care as long as they’re keeping the client happy. Back then, you were almost able to run the gauntlet of whether someone would catch you. With the detection software these days, if you do something completely similar in key or tempo or whatever it could probably be picked up and someone would just have to put the two pieces together and say “Hang on a sec we didn’t do a sync deal on this.”

We had a conference a few years ago where a musicologist came and gave us a rundown of what crossing the line was. He ended basically by saying that if it goes to court and you have a jury of people who aren’t musically minded, when you play the two tracks next to each other it almost doesn’t matter what the professional opinion is, they’ll just think ‘Oh yes that does sound similar.’ In our department I got asked to check tracks a lot to see if they were too close, but honestly if in doubt send it to the musicologist. I think it’s a bit tricky with music because if you take lyrics out of the equation and strip it down to the melody, the bed and the foundation then that’s a bit different from copying text word for word. I don’t think you can own a feel, a style or a mood in that way.

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This article originally appeared on Noisey UK.