IS CONTRAFACT IN MUSIC A VIOLATION TO OUR COPYRIGHT LAW UNDER R.A. 8293?
By Bert Junrie B. Espina
It is common for musicians and artists alike that they borrow ideas from previous works of fellow musicians, such as melody lines of a certain composition may be adopted or borrowed by another artist for his or her composition. It can be that the entire chord progression of a song, or harmonic structure of the music are adopted or the making of improvisation from that pre-existing music through the introduction of new melody lines with that music. This is what we call in music as “contrafact.” I am certain that professional musicians had many times encountered it in their career that which normal listeners to music may not easily notice.
Contrafact was widely popularized in the 20th century, especially when jazz music started to rise. In jazz, a contrafact is a musical composition consisting of a new melody overlaid on a familiar harmonic structure.
However, I think this raises some concern with our existing copyright laws today. Section 172 of R.A. 8293 provides that literary and artistic works are original intellectual creations in the literary and artistic domain protected from the moment of their creation. Paragraph (f) of the same provision includes, “musical compositions, with or without words.” In my mind, contrafact would fall under this category of the law “with or without words.” To repeat, musical composition are protected from the moment of their creation.
The Supreme Court had once defined in the case of Ching v. Salinas, G.R. №. 161295, as what may be considered “original” and “copy” of works. Although I must clarify that that the issue in that case was about the proper subject of a copyright and patent, emphasizing that both terms are different. But for purposes of our discussion, I would like to quote the definition, to wit:
“𝘉𝘺 𝙤𝙧𝙞𝙜𝙞𝙣𝙖𝙡𝙞𝙩𝙮 𝘪𝘴 𝘮𝘦𝘢𝘯𝘵 𝘵𝘩𝘢𝘵 𝘵𝘩𝘦 𝘮𝘢𝘵𝘦𝘳𝘪𝘢𝘭 𝘸𝘢𝘴 𝘯𝘰𝘵 𝘤𝘰𝘱𝘪𝘦𝘥, 𝘢𝘯𝘥 𝘦𝘷𝘪𝘥𝘦𝘯𝘤𝘦𝘴 𝘢𝘵 𝘭𝘦𝘢𝘴𝘵 𝘮𝘪𝘯𝘪𝘮𝘢𝘭 𝘤𝘳𝘦𝘢𝘵𝘪𝘷𝘪𝘵𝘺; 𝘵𝘩𝘢𝘵 𝘪𝘵 𝘸𝘢𝘴 𝘪𝘯𝘥𝘦𝘱𝘦𝘯𝘥𝘦𝘯𝘵𝘭𝘺 𝘤𝘳𝘦𝘢𝘵𝘦𝘥 𝘣𝘺 𝘵𝘩𝘦 𝘢𝘶𝘵𝘩𝘰𝘳 𝘢𝘯𝘥 𝘵𝘩𝘢𝘵 𝘪𝘵 𝘱𝘰𝘴𝘴𝘦𝘴𝘴𝘦𝘴 𝘢𝘵 𝘭𝘦𝘢𝘴𝘵 𝘴𝘢𝘮𝘦 𝘮𝘪𝘯𝘪𝘮𝘢𝘭 𝘥𝘦𝘨𝘳𝘦𝘦 𝘰𝘧 𝘤𝘳𝘦𝘢𝘵𝘪𝘷𝘪𝘵𝘺. 𝘾𝙤𝙥𝙮𝙞𝙣𝙜 𝘪𝘴 𝘴𝘩𝘰𝘸𝘯 𝘣𝘺 𝘱𝘳𝘰𝘰𝘧 𝘰𝘧 𝘢𝘤𝘤𝘦𝘴𝘴 𝘵𝘰 𝘤𝘰𝘱𝘺𝘳𝘪𝘨𝘩𝘵𝘦𝘥 𝘮𝘢𝘵𝘦𝘳𝘪𝘢𝘭 𝘢𝘯𝘥 𝘴𝘶𝘣𝘴𝘵𝘢𝘯𝘵𝘪𝘢𝘭 𝘴𝘪𝘮𝘪𝘭𝘢𝘳𝘪𝘵𝘺 𝘣𝘦𝘵𝘸𝘦𝘦𝘯 𝘵𝘩𝘦 𝘵𝘸𝘰 𝘸𝘰𝘳𝘬𝘴.”
By looking at the definition, it seems to be that “contrafact” may fall under the definition of “copying.” And if that might be the case, then strictly speaking “contrafact” may be considered a violation to copyright infringement. (It must be pointed out, however, that this article merely attempts to make an interpretation of the law or as an academic discussion, and I suppose this concern is still not brought before the Supreme Court.)
Most Supreme Court decisions in relation to Copyright Infringement had dealt with issues on unauthorized manufacturing of intellectual works and unauthorized performance, i.e., without obtaining the copyright owner’s prior consent; and insofar unauthorized manufacturing is concerned, it is understood as the production of an artistic work into a representation of it. Perhaps, one may argue that “contrafact” may fall under Section 175 of R.A. 8293 insofar if one may look at it as a mere idea, concept or principle, to wit:
“Section 175. Unprotected Subject Matter. — Notwithstanding the provisions of Sections 172 and 173, no protection shall extend, under this law, to any idea, procedure, system, method or operation, concept, principle, discovery or mere data as such, even if they are expressed, explained, illustrated or embodied in a work; news of the day and other miscellaneous facts having the character of mere items of press information; or any official text of a legislative, administrative or legal nature, as well as any official translation thereof.” (emphasis supplied)
Yet, it is still debatable whether or not “contrafact” should be considered by any of those enumeration which cannot be protected by the law because contrafact may be argued that it cannot be considered a principle or idea. Contrafact is not a principle in music theory, like the “Circle of Fifths,” or the concept itself of a “Modal Interchange.” Hence, if one would compose a song with new melody lines but using the chord progression from the song “Ang Huling El Bimbo.” Well, I do not think the Eraserheads would be happy to hear about it, unless if the intention is merely a recitation or performance of a work which shall not constitute infringement of copyright under Section 184, paragraph (a) of R.A. 8293. In other words, contrafact is merely a coined term for a musical work based on a prior work and not a concept itself.
It might be helpful to tackle the US case to bring some light in this discussion, particulary the case of Griffin v. Sheeran and in Structure Asset Sales, LLC v. Sheeran. Both in that case concerned a claim against Ed Sheeran alleging that the “Thinking Out Loud” by Ed Sheeran infringed on Marvin Gaye’s “Let’s Get It On.” It argued that the two songs shared the same chord progression (specifically, a I — iii — IV — V progression), as well as the same harmonic rhythm, and that the combination of those elements was sufficient to establish substantial similarity. However, Sheeran won in those two cases. The Court noted that both the chord progression and harmonic rhythm at issue were unprotectable, and while all musical works are in some way composed of the selection and arrangement of unprotectable elements, the combination of just two such elements is not enough to support a claim of substantial similarity.
In another case, Skidmore v. Led Zeppelin (alleging that Led Zeppelin’s “Stairway to Heaven” infringed Spirit’s “Taurus,” the court in that case rejected the allegation against Led Zeppelin that the songs’ melodies shared multiple elements including the same descending notes in the bass clef, same duration of pitches, same “combination of arpeggios and two-note sequences,” same melodic rhythm consisting of steady eighth note beats, and same “pitch collection.” It ruled that such melodic elements by themselves to be unprotectable.
It can be concluded in those cases that the question of whether two musical works are substantially similar so that it may be considered a copyright infringement often depends on a totality of factors rather than any one musicological element, even if it is an iconic and recognizable guitar riff.
I personally do not think it is also inherently wrong to take inspiration from the music, especially if the intention is not to do injustice against the original artist or composer, much less unjustly enriching himself by the work of others. Such as when a composer would pay homage to his or her favorite musician. Besides, even the greatest musicians in the history music had also done it. Mozart had adopted some works of Bach in his composition. Bach too had paid homage to his predecessors. Of course, their music are already accessible to the public. Overall, I just think that there is nothing wrong in taking inspiration from our favorite musicians or artists. And if this matter may be brought up before the Court, I humbly submit that this case may be an exception but with certain conditions and qualifications. Besides, who else doesn’t want to sit in a jazz club just to relax and witness how jazz musicians would apply thousands of unorthodox yet beautiful chords in a music?
References:
- R.A. 8293 https://lawphil.net/statutes/repacts/ra1997/ra_8293_1997.html#:~:text=It%20shall%20protect%20and%20secure,as%20provided%20in%20this%20Act.
- (Ching v. Salinas, G.R. №161295) https://lawphil.net/judjuris/juri2005/jun2005/gr_161295_2005.html
- (Uncleared Melody: Musicological Factors Considered in Copyright Infringement Cases) https://www.cll.com/CopyrightDevelopmentsBlog/uncleared-melody-musicological-factors-considered-in-copyright-infringement-cases?fbclid=IwY2xjawFnX5tleHRuA2FlbQIxMAABHTwfm8at3ac1U4GM5Bo4nDilOTsMdrmNwKn1ty9iXeLfkRbuKv8aJQvrsQ_aem_NPsEXe3O9kBzbrB17ZvT0w
- (Griffin v. Sheeran, 351 F. Supp. 3d 492 — Dist. Court, SD New York 2019) https://scholar.google.com/scholar_case?case=7928098748012290757&q=Griffin+v.+Sheeran&hl=en&as_sdt=6,33&as_vis=1
- (Skidmore v. Led Zeppelin) https://cases.justia.com/federal/appellate-courts/ca9/16-56057/16-56057-2020-03-09.pdf?ts=1583773288
