Originality thresholds and 'newness'

We have seen that songwriters are inevitably partly economically motivated;

even if money itself is not a stated goal of the creative process, the desire to create something that affects a number of listeners in implicit in all songwriting. Returning briefly to Boden's three adjectives new, surprising and valuable, we will now focus on the first of these. How is 'newness' defined by songwriters, listeners and the music industry?

A song is required to be original; if it is not original enough, it is plagiaristic. In (UK) copyright law, the threshold for plagiarism is defined as copying the whole of a work or a 'substantial part' of the w o r k . 2 0 9 Importantly, substantiality is defined

208 Etzkorn, "Social Context o f Songwriting in the United States," 1963.

209 Intellectual Property Office, Concept House, "Intellectual Property Office - Enforcing Copyright - Substantial Part," Text, Septem ber 2 0 ,2 0 0 6 , h ttp ://w w w .ip o .g o v .u k /ty p e s/co p y /c-m a n a g e/c- useenforce/c-enforce/c-enforce-subpart.htm .

qualitatively rather than quantitatively^.210 As we have seen, 'song' and 'recording' are two different properties, with their attendant copyrights often owned by different parties. Because a recording represents a manifestation of a song, it is possible to infringe a song copyright [for example, by copying a lyric or a melody fragment) without infringing a recording copyright. For the same reason, it is logically impossible to infringe a recording copyright without also infringing the song. Thus, 'song only' plagiarism disputes may focus on purely musical/literary copying where no audio copying [i.e. audio sampling) has taken place. Recording-based disputes usually involve both of these intellectual properties i.e. the song and the recording, copying the former being an inevitable consequence of copying the latter.

Copyright law is one of the drivers of subtractive behaviours in songwriters [who, we recall, are required to create something new). Most experienced songwriters know that they cannot copy someone else's melody or lyric to the extent whereby such copying is apparent to the listener. Therefore, during the songwriting process, it is common for a w riter or a co-writer to identify inadvertent plagiarism where it occurs and discard those ideas because they are too similar to extant works, particularly if such works are well known to listeners, because any obvious plagiarism may diminish the song's value [whether measured in economic or cultural terms). The collaborative process increases the likelihood of inadvertent plagiarism being detected because more than one songwriter's listening history is present in the room.

In practice, as my case studies will show, a collaborator frequently identifies plagiaristic stimuli provided by the Other and vetoes or adapts them. Indeed, the efficient identification and subtraction of unusably plagiaristic elements may incenti vise co-writing itself, as songwriter Dominik Boncza-Skrzynecki attests:

210 The author has personal experience as a forensic m usicologist for the Music Publisher's A ssociation (UK), advising m usic publishers, songw riters, legal professionals or the law courts on the

m usicological sim ilarities or differences b etw een w orks. For an exam ple o f court proceedings featuring Bennett's w ork in this area, see Naxos Rights International L im ited V. P roject M anagem ent (Borders) L im ited + Keith Joseph Salmon, 09 O ctober 2012, Lord Glennie, Edinburgh, 2012,

h ttp://w w w .scotcourts.gov.uk/opinions/2012C SO H 158.htm I

I find similarities [to existing songs] pretty much in every co-write.

When you're co-writing you get that instant feedback, so it's a more obvious and conscious thing. You have someone with you who is immediately going to say whether or not your idea sounds like something that already exists.

When you're writing on your own, you might have the same concerns but you might not be able to think of [the source of the plagiarism]. You might think it's familiar, but it's only when you start performing it in front of people that you can test whether or not anyone's going to pick it out. 211

Inadvertent plagiarism is common among songwriters, and may be a manifestation of what Théodore Flournoy first described as Cryptomnesia - that is, mistaking a forgotten memory for a new o n e . 2 1 2 Carl Jung stated that the phenomenon 'can mislead the scientist, author or composer into believing that his ideas are

o r i g i n a l ' .2i3jung later posited that the ability to recognise newness is a prerequisite for processing potentially cryptomnesiacal ideas:

Only those associations which have once passed through our conscious minds have the quality of being known ... consciousness m u s t... ask each thought: Do 1 know you, or are you new?2i4

Interestingly, Jung contrasts 'genius' with cryptomnesiacally-recalled information, implying that the former requires adaptation of existing ideas. In this respect his view of genius aligns with Boden's [of requisite newness) and Arthur Koestler's concept of bisociation [i.e. new ideas being created by combining extant ideas). Jung implicitly acknowledges that even geniuses may be adapting raw material that is cryptomnesiacally generated.

The work of genius is very different [from cryptomnesia]; it fetches up these distant fragments [that may individually be

211 Dominik Boncza-Skrzynecki, Interview discussing challenges and p rocesses w hen w riting songs.. May 2013.

212 Théodore Flournoy, From India to the Planet Mars: A Case o f M ultiple P ersonality w ith Im aginary Languages. Princeton, N.J: Princeton University Press, 1994. Originally published: Harper & Bros., 1901.

213 Carl Gustav Jung, "On the Psychology and Pathology o f so-Called Occult Phenomena," P ^ c h ia tric Studies (1902): 3 -8 8 .

214 Jung, Psychiatric Studies. London: Routledge, 1905, pp .98-100

recalled cryptomnesically] in order to build them into a new and meaningful structure.^::

Perhaps the most famous case of cryptomnesia in popular music is George Harrison's plagiarism of the 1962 Ronnie Mack song 'He's So Fine' in the melody and chords of his 1970 hit 'My Sweet Lord'. Judge Owen's 1976 verdict acknowledges the unintentional nature of Harrison's plagiarism but concludes that this does not make the copying any less infringing of the plaintiffs copyright [my italics):

1 conclude that the composer [Harrison], in seeking musical materials to clothe his thoughts, was working with various possibilities. As he tried this possibility and that, there came to the surface o f his mind a particular combination that pleased him as being one he fe lt would be appealing to a prospective listener; in other words, that this combination o f sounds would work. Why?

Because his subconscious knew it already had worked in a song his conscious mind did not remember. Having arrived at this pleasing combination of sounds, the recording was made, the lead sheet prepared for copyright and the song became an enormous success. Did Harrison deliberately use the music of He's So Fine? 1 do not believe he did so deliberately. Nevertheless, it is clear that My Sweet Lord is the very same song as He's So Fine with different words, and Harrison had access to He's So Fine. This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished^.216

The judgement shows a surprising level of sensitivity to Harrison's non- plagiaristic intentions [surprising, that is, considering that the eventual level of damages awarded against him was almost $1.6m!). The description of the creative process [italicised above) is one that 1 recognise from my interviews with songwriters, and is remarkably similar to the statements they make about non-plagiaristic activities. That is to say, for many songwriters, the creative act consists partly of searching for that which may be 'appealing to a prospective listener'. During this creative treasure hunt, then, some of our explorers may stumble upon a tomb that has already been raided.

215 Jung, P ^ ch ia tric Studies; Steve Myers, "The Cryptomnesic Origins o f Jung’s Dream o f the Multi- Storeyed House," Journal o f A nalytical Psychology 54, no. 4 (2009): 5 1 3 -5 3 1 .

216 B right Tunes Music Corp. v. Harrisongs Music Ltd., 42 0 Federal Supplem ent (United States District Court 1976).

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