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Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.





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Notes on Lady Gaga, Madonna, George Harrison and originality in music.

Via Radar-Online:

Madonna's music manager brother Chris Ciccone has blasted Lady Gaga's sound-alike new single Born This Way.

He told RadarOnline.com: "All I can say is 'What the F**K!...It sounds just like Express Yourself - I can't believe it to tell you the truth."

Read the full story here: http://www.radaronline.com/exclusives/2011/02/exclusive-interview-madonnas-brother-blasts-lady-gaga-sound-alike-new-song

You can compare samples from the two songs here:

http://media.ccomrcdn.com/media/station_content/163/GAGA_MADONNA_MASHUP_2-11-11_1297447093_8958.mp3

After hearing the comparison myself, I can draw a personal conclusion that Lady Gaga was heavily influenced by Madonna and is far less talented and original than people give her credit for.

But could she be liable for copyright infringement? In a sane world, the answer should be "no", since the works can still be distinguished. Gaga clearly took the broad structure of Madonna's song (the "spine" of the melody, if you will), but then put a personal gloss over it to make it her own, new work. The fact that it clearly grew out of Madonna's previous creation should not make it an actual "copy" in the eyes of the law.

However, this is not a sane world as far as the realm of copyright law is concerned. New musical works can still be considered "copies" or unlawful "derivative works" if they even build upon more abstract aesthetic elements such as melodic motifs and musical timings in such a way that a listener can recognize it as being influenced by a previous work.

A famous example in legal circles is when George Harrison was found liable for copyright infringement when his song "My Sweet Lord" was deemed too similar to the Chiffons' hit "He's So Fine".

Read the court ruling and hear samples from both works here:

http://cip.law.ucla.edu/cases/case_brightharrisongs.html

If Harrison can be found liable, it isn't too much of a stretch to suggest that Gaga could be liable for infringement as well if Madonna decided to go after her. One could always argue that Gaga's song has more original production "frills" than the similarities found between Harrison and the Chiffons' song. But you would be splitting some awfully thin hairs at that point, and end up turning what should be objective law into a legal decree based on personal aesthetic judgments. In my book, that's a sad criteria to enforce the law with. But that is what the current copyright regime has wrought.

It should be enough to brand Lady Gaga as a coat-tailing poseur. There is no need for a legal system which could dole out punishment to her for "copying" in this instance.


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