May 06, 2020 Advance Sheet

Does Genius Steal?

The Copyright Act’s two approaches to creativity collide from a practical standpoint.

Robert E. Shapiro

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Devotees of Sesame Street songs will remember well an encounter between Bert and Ernie over Bert’s “Pat, Pat, Patty, Pat” jingle. As is his wont, Bert has been earnestly at work on a new song and is bursting with pride over a one-verse composition about patting your stomach. He thinks this will knock the socks off his bosom buddy Ernie, not to mention the other assembled Muppets. The response is disappointing; his audience finds the tune uninteresting, in fact boring. “That’s it?” one asks. Bert is befuddled and feels underappreciated, once again.

Ever the enthusiast, Ernie comes to the rescue, popping up with his own inspiration: “Maybe we should make it more complicated,” he cheerfully proposes. “More complicated????” Bert asks incredulously. Ernie then shows everyone what he means, as he has the Muppets join together to turn Bert’s few spare lines into a multipart choral masterpiece choreographed with whirling, twirling, and hopping around, while still leaving ample room for unlimited additions concerning all parts of the Muppet anatomy. Each listener is implicitly invited to add a favorite activity to the fun thereafter. Et, voilà!!! A delightful, and highly marketable, new tune for the Muppets’ repertoire.

Who is the creator of the ultimate song? Bert is the one who devised the original tune and wrote the basic lyrics. There’s no question Ernie built his magnum opus from what Bert did, copying both the melody and the rhythmic pattern. But is that where the creativity, and the credit, lies? Bert’s song was, quite simply, a dud. It was uninspired and uninteresting, destined to be dismissed and forgotten, a damp squib. Ernie’s memorable creation, by contrast, explored—invented, even—a range of previously unconsidered possibilities and expanded, elaborated, recreated, and reimagined the boring original into a stupendously entertaining composition of music and dance against which the original paled, if it was not subsumed altogether. Is Bert really entitled to any accolades at all? Is it even Bert’s song any longer? Isn’t it Ernie’s imaginative reworking, his genius that is key? Are they both somehow original creators or is one or the other entitled to all the glory?

Illustration by Max Licht

Illustration by Max Licht

Who Is the Creator?

Lest you think this is mere child’s play, or even just idle thought mongering, consider the fate of Katy Perry and her hit song, “Dark Horse.” The palpable success of her number, along with the lavish pop video accompanying it, did not prevent, indeed may have encouraged, a Christian rapper claiming that Perry’s hit stole its basic musical themes from one of his songs. The obvious difference between both the mediums and the messages might give one pause, but the similarities between the beat line of the two songs, and the sounds used to create it, were also undeniable. The overall impact of Perry’s song, as well as its popularity, was as different from that of the Christian rapper’s product as one might imagine, creating totally different moods and impressions, but the rhythmic overlap was substantial too. Substantial enough, said a federal jury, to find Perry liable for copyright infringement and award the rapper $2.3 million in damages. This was a small fraction of what the Perry song garnered in the open market, and what the rapper wanted, but not chump change either.

Music professionals will tell you that this kind of dispute is becoming more and more common in the industry. An all-star cast of composers and performers have been the targets of copyright lawsuits for perceived similarities between their works and more obscure “originals,” not a small practical problem for the industry and the courts alike, regardless of the outcome on appeal. There’s more at stake here than money and lawsuits, however. The theoretical seriousness of the problem can be seen in a quick look at the U.S. Constitution.

In a country in which we constantly insist on our “rights,” it is no small matter that the original text of the Constitution, as completed by the Philadelphia Convention in 1787, mentions a “right” only in one case. This is not the right of free speech or assembly or religious freedom or a jury trial, all of which were articulated for the first time in the 1791 amendments we call the Bill of Rights. According to the founders, none of those acknowledged rights merited articulation in the Constitution proper. James Madison, the architect of the constitutional text, thought that unnecessary and redundant, even dangerous, the Constitution being a series of procedures to protect “natural” rights, not a creator or a potentially restrictive catalogue of them. But protection for creative works was different, deserving acknowledgment and enforcement as a right only as a matter of law, not nature. So the Constitution was explicit that Congress was empowered, if it so chose, to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”


Copyrights, as they have come to be known, are society’s way of encouraging and protecting invention and creativity in the liberal arts, much as do patents in scientific endeavors. Each rewards those talents with exclusivity of use for a period of time. Congress took up the constitutional invitation by, among other things, immediately enacting the first Copyright Act in 1790, followed by several further iterations. The current legislative regime continues the basic protections.

As currently structured, the Copyright Act tries to balance the contributions of both Bert and Ernie. In Bert’s favor, it protects those who have created something concrete and new with the ability to “copyright” it and keep control of the original and any basic derivatives. A person violates the creator’s rights, and the act, if she intentionally uses the copyright holder’s original without permission. Independently creating the same thing does not trigger the act. If Bert and Ernie had each thought up the idea of the song, it’s neither Muppet’s sole creation, and each has some claim on it. Two creative minds, each uninfluenced by the other, may come up with the same or a similar thing without liability. But if a second comer—here Ernie—had access to and relied on the original, a right of action is triggered.

Under this approach, Bert is the creator of the work and seems entitled to all the rights, including all the benefits that may arise from the song, even if Ernie added to it. But this is not the end of the story. Ernie still has a claim, or at least a defense, described as “fair use.” This allows him to use Bert’s original if he has done something “transformative,” which appeals to a different or broader market. Transformation and marketability, along with two other factors, give Ernie his out. He has not stolen the original. He has built upon it and improved it, changing it fundamentally.

But note that we are, as a theoretical matter, now back to square one. Without Bert, the whole idea would not have arisen. Without Ernie’s elaboration, Bert’s ditty was going nowhere. But is this going to be enough to give Ernie the rights? Which leads us back to the question of who was the (more) creative one, Bert or Ernie? Whom should we protect, the originator or the elaborator? Who decides and on what basis?

Copyright Collisions

This is not the only problem. The Copyright Act’s two approaches to creativity collide from a practical standpoint. Take Perry’s case. She could have taken the route of fair use, claiming she worked a transformation of the original song, which her video too would show was substantial. But to do so, she had to acknowledge she used the Christian rapper’s original and, impliedly, that it had some creative value. This is not something that can be solved by alternative pleading, as there can be alternative legal theories but not alternative facts. Either she used the original or she didn’t. Fair use thus presents a high-stakes gamble. If the jury were to think her song was truly creative, notwithstanding its use of the original, she wins. But that reminiscent beat might have been enough to persuade the jury otherwise.

So, for good reason, Perry’s lawyers eschewed the gamble, and much of the trial focused on whether the similar beat is something in which the rapper could even have any rights and, if so, whether Perry and her songwriting team had ever heard the rapper’s number or came up with it independently. Perry’s team summed up its defense on the first issue by saying that to hold their client for copyright infringement would be to eliminate from use some of the basic “building blocks” of music, which are universally the same. They had a point. Almost all rock/pop music can or has been reduced to a few chords and beats, as has been hilariously demonstrated in a recent YouTube video, Axis of Awesome—Four Chord Song. But then again, there was that characteristic beat and electronic sound in the rapper’s number. Was there not something creative to it?

Perry next argued that she had never herself listened to the rapper’s music. It seemed unlikely she had, but the rapper’s lawyers spun out several theories about how her world and his may have collided, or at least crossed, either through her own listening or that of some of her team. The courts have held that the jury may “infer” the existence of a contact even in the absence of specific evidence of one. What evidence might support the inference? Well, the similar beat and technique, of course.

In the end, the jury was apparently not dissuaded from finding liability by the “building blocks” argument and was able to draw an inference of intentional copying, though the arguments of Perry’s team, especially on the former issue, may have influenced the size of the award. It also caused the judge eventually to throw out the verdict (an appeal seems likely). Regardless, the result demonstrates some emerging perils of the “origins” approach to copyright infringement. Even the smallest overlap of some of the basic elements of music can now serve as the predicate for a violation. And the jury’s ability to draw “inferences” of a contact even in the absence of actual evidence is an invitation to speculation, as seems to have existed in the Perry case itself. To the extent there is a “crisis” in the industry, as some will tell you there is, it is that the reliance on basic musical elements and the too-ready availability of inference drawing have resulted in a dangerous brew that may impede the real creative work of musical artists hereafter.

The outcome emphasizes that, in practice, the Copyright Act seems to favor Bert over Ernie. Even in the face of lessening standards of what’s copyrightable and the slack provided by available inferences, Perry’s defense saw the fair use defense as too parlous to rely on. Does the fair use defense do enough to encourage the Ernies of this world? An aphorism often attributed to Steve Jobs has it that talent borrows and genius steals. This is a misquotation, and misunderstanding, of a line by T. S. Eliot, who understood, rather, that genius transforms, not steals. But in itself it suggests we may no longer appreciate Ernie’s kind of creativity, and the act may not fully protect it.

Historical Examples

A few historical vignettes are worth considering on this score. Take, first, a seemingly easy case of fair use. In 1747, Frederick the Great of Prussia asked, in a moment of Bert-like bumptiousness, if the incomparable Johann Sebastian Bach, then a composer of considerably less fame (and certainly less clout) than Frederick, would consider and improvise on a complex tune Frederick, himself no musical slouch, had composed. After a short while, Bach published something known to posterity as A Musical Offering, a truly astonishing piece of virtuoso composition. Like Bert’s ditty, Frederick’s lick was unquestionably the source of Bach’s masterpiece. But no one would ever consider calling Bach’s composition a copy or something that might qualify today as a copyright violation. To even suggest it seems absurd, so thoroughly did Bach turn what was a Bert-like simple tune into an Ernie-style raging masterpiece.

Isn’t this the kind of creativity we most want to protect? But would the Copyright Act do so? Are you really so sure a jury would be kinder to Bach than it’s likely to be to Ernie, in the moment, without the imprimatur of later musical fame?

Next consider Beethoven’s Diabelli Variations. In 1819, Anton Diabelli, a composer of light music, invited a who’s who list of then-famous and not-so-famous composers to each write a variation based on a waltz tune he composed, the resulting work to be sold and the profits used to benefit widows and orphans. Among the invitees were Beethoven, Franz Schubert, and Johann Nepomuk Hummel, as well as Beethoven’s patron, the Archduke Rudolf, and Beethoven’s student, Carl Czerny, who apparently roped in Franz Liszt as well. Over the next four years, Beethoven composed what is considered by some to be the greatest piano composition in classical music history. But Diabelli’s original tune figures in all 33 variations, just as the essentials of Bert’s ditty show up in all of Ernie’s more elaborate stanzas. Where do we draw the line on what’s transformation or, in Jobs’s infelicitous view, theft?

An even more radical case arises in Shakespeare. Leaving aside how Shakespeare treats the various historical accounts supplied to him through Holinshed, there is his play All’s Well That Ends Well. This is an almost exact repetition of a story from Boccaccio’s Decameron, with just a handful of small changes. Was Shakespeare a plagiarist? In evaluating that shocking question, one would have to explore two issues: What were the minor changes Shakespeare made and what is their significance? Note that the changes are so small they are not likely to have been perceived by the theater audience. Same characters, same plot, almost the same outcome. But to a discerning reader, they change the entire point of the story. Is the play then something creative, worthy of protection?

Critical mutterings about how the play is a “lesser work” do not dispense with the overall question. Wherein does creativity lie? Originality? Total transformation? Subtle changes masking a wholly different perspective? And, again, from whose point of view? The general public’s? Some other audience’s? Note that, while Shakespeare seemingly labored hard to make a novel point from this close but not exact retelling of the original, its very subtlety seems to conflict with our modern standards of originality and creativity, which judge things according to what seems wholly new to a sometimes less than discerning public. Likewise, in some great philosophical writings, a thinker will repeat a point made previously by himself or others with a nearly unnoticeable change, seemingly doing little or nothing new. But reflecting on the change, as the writer expects a careful reader to do, can provide the most fertile ground for thinking. In these cases, almost the nearest of literal copying can be the source of the greatest, and most transformative, intellection.

Where to Go from Here

It could be said that, in the contemporary world, we tend to favor originality, or the origins of things, over a subtle, if still profound, reorientation, a rethinking or new synthesis. In academia, for example, the greatest emphasis is on “original” scholarship, with the implication that new interpretations, even if highly innovative, are to be less valued, even sometimes disparaged or condemned. But, as Shakespeare shows us, sometimes those little tweaks, the slight changes in direction, can be the most inspired of all. If even such a greater reworking of a slight musical idea as was provided by Ernie, not to mention Katy Perry, is not likely on any theory to be protected by the Copyright Act, is there any hope for these seemingly slight, but really more far-reaching, ideas?

One wonders, in short, whether the matter of creativity generally, and of copyrights under the act, may now need to be rethought. Whatever its theoretical merit, the “origins” approach risks becoming a failure if too little of a creation is required to earn protection or too speculative an approach is permissible for an inference of copying. But even if that kind of argument becomes better protected, it may do little to prevent us from looking through the wrong end of the telescope, failing to see creativity and inspiration where they really lie and, while acknowledging Bert’s claims to invention, giving Ernie his due.

Robert E. Shapiro

The author, an associate editor of Litigation, is with Barack Ferrazzano Kirschbaum & Nagelberg LLP, Chicago.