Inside Koda - A closer look: Plagiarism and cover versions

“THEY STOLE MY SONG?!”

That was the message in a post on CH10's Facebook page a couple of days after this year's X Factor finale.

The Danish singer and composer - who in reality is named Chio Dyrlund - had agreed a couple of months earlier to let one of the X Factor contestants perform one of her songs in the finale, and the day after, the X Factor contestant's cover version was even released on various streaming services.

The problem was just that no one had informed Chio Dyrlund that the song would also be released. And that was exactly what drove her to the keyboard. Could it really be true that one could just publish a cover of her song without prior permission?

The story was picked up by several media outlets, and on Facebook, the comment section was ablaze. Many of the comments argued that it was a case of copyright infringement, and that Chio Dyrlund should demand compensation. The discussions ebbed and flowed, and along the way, Koda was also called.

So how exactly are the rules in this area?

Good manners to ask for permission

The answer is not quite straightforward. On one hand, you are allowed to release a cover version without asking the original creator for permission. Of course, it's polite to ask, but as long as you remember to credit the composer, there are no legal issues. However, permission must be obtained if significant changes are made to the original composition. The question then is, when can something be categorized as significant changes.

In general, navigating musical rights issues can be challenging. There can be strong emotions involved, and there are many rumors and myths about what is and isn't permitted.

Music consultant at Koda, Jens Bruno Hansen, who has been working with copyright disputes at Koda since 1991, says that.

In collaboration with Koda's music expert committee, he offers advice, mediation, and music expertise assessments in connection with rights disputes among Koda's members. In the case between Chio Dyrlund and X Factor, however, the parties managed to find a solution without formally involving Koda.

Hard to make a general rule

Jens Bruno Hansen says that inquiries concerning the borderland between cover and adaptation are relatively frequent.

“It is an area with many gray zones,” he says.

“The fundamental principle is that one must not violate an original work or the artistic uniqueness of its creator. But what does that mean? Does it mean you can't use a saxophone instead of a trumpet in the ensemble? Or that you can't create a slightly varied introduction to the song? It's extremely difficult to establish a general rule for this.”

Especially the score music - or what Jens Bruno Hansen calls the artificial repertoire - is sensitive to even small changes. Conversely, the more popular repertoire - for example, works that appear in the High School Songbook - is more robust to interpretations, he says.

“But I usually say that one must be careful not to create a version that suddenly casts doubt on what the work is really like in its essence. If you make a version where, for example, you throw out the fourth verse or have added a new bridge, people might suddenly believe that this is how the original work is. Similarly, you must not change significant words or the melody in a song,” says Jens Bruno Hansen, explaining that, for the most part, this is something the involved parties regulate themselves:

“Considering the number of cover versions that are released in a constant stream, how diverse they are in terms of processing and production characteristics, and how few dispute cases filter through Koda, it is experientially something that slips through quite effortlessly,” says Jens Bruno Hansen, who only remembers two cases from the last 20 years.

Koda can advise on these matters, but cannot grant permission to make changes, and if there is any doubt, one must ask the creator for permission. Ultimately, it is a court that must decide whether, in individual cases, there are cover versions or non-cleared and thus illegal adaptations.

Doesn't it sound a bit like...?

The plagiarism inquiries that Koda receives, which result in actual copyright disputes, almost always concern music in advertisements.

“These are clearly the most problematic cases we encounter, and they typically arise when a composer - usually from an advertising agency - is asked to create a sound alike - that is, something that closely resembles another piece as much as possible without being the same. Most often because the advertising agency has either been unable to clear the original composition with the creator, or because they simply couldn't afford it. It's a really contentious practice to get into,” says Jens Bruno Hansen.

If a composer suspects that someone has created a sound alike of their work, Koda offers a range of options to take advantage of. Initially, the composer can attend a fact meeting where the rules in the field are reviewed. If it turns out there is a case, Koda can then block all payments on the number until the issue is resolved.

The next steps could be dialogue meetings between the parties, and if they still cannot come to an agreement, they can have Koda's music expert committee provide an assessment of whether it constitutes plagiarism.

It is conducted through a so-called statistical parameter analysis, where the two works are compared across seven musical parameters: melody, harmony, rhythm, time signature, instrumentation, form, and lyrics. The more parameters with similarities, the greater the likelihood of plagiarism.

Next, one assesses whether the similarities fall under what Jens Bruno Hansen calls 'the risk of double creation'.

“If the elements that constitute similarities are so trivial that one can easily expect multiple different creators to independently come up with the same thing, then it is hardly protected by copyright law. This could be, for example, a 16-bar blues, the tonal cadence, a drumbeat - elements that are so common that no one can really claim exclusive rights to them.”

The assessments made by Kodas in terms of music expertise are not legally binding. However, they can provide the disputing parties with an indication of how the case would be assessed if it were to end up in court.

“These advertising cases are extremely sensitive. And in most instances, the matter is settled with the composer often receiving several hundred thousand kroner in compensation, in exchange for the case being closed and kept out of the public eye.”

Worst case scenario

One of the few copyright disputes that actually went to a Danish court is from 2011. However, it was not a case of sound alike advertising music, but rather an illegal sample. The DJ duo Djuma Soundsystem was at that time sentenced in a historic ruling to a fine of 747,183 DKK for forgetting to credit and ask for permission when they sampled the Danish-Turkish percussionist Atilla Engin's 'Turkish Delight' in 2003.

“It is the most serious case that has ended up in court in recent years, and I still use it as a worst case scenario when I sense that people are taking these matters too lightly. It's not just a fine of 500 kr. you might have to pay. You could risk losing your house and home,” says Jens Bruno Hansen and continues:

“We do what we can to steer our members away from these serious matters. The fact that there haven't been more lawsuits might indicate that some of the professional music advice we provide is actually effective.”