EXPLAINER: Is it a copyright crime if two songs sound alike?

Atty. Emerson Cuyo, Intellectual Property Office of the Philippines' Bureau of Copyright and Related Rights director, said that two songs being similar to each other does not automatically mean there is copyright infringement taking place.

"The requirement for copyrightability is 'originality,' which means that the work was independently created (not copied) and evidences at least minimal creativity," he said.

Atty. Renz Javier Ayongao, who specializes in intellectual property cases, explained that the extent of similarity of the two songs is a factor in determining whether plagiarism has been committed.

"Literary and artistic works are protected of their copyrights from the moment of creation without the need of any registration," he said.

"When an individual, other than the author of the literary or artistic work, uses such work without the permission of the author and despite a few modifications, there is already copyright infringement," he added.

FILSCAP PR Committee Chairman Trina Belamide, who is also a self-publishing songwriter, said that plagiarism can happen if the identical melody is found in a big chunk of the song, and in the case of Selos, "it is practically the whole song."

"If there is any doubt as to the similarity, the video on YouTube actually 'credited' Lenka's Trouble Is A Friend as the 'original' melody. So there is not even a question or doubt that the composer took Lenka's song's melody and used it for Selos," she said.

"The way I see it, it is a clear case of plagiarism because they did not seek Lenka's team's permission, and perhaps the composer thought that simply crediting or acknowledging Lenka would get him off the hook," she stressed.

Enter fair use

In the music video of Shaira's song, the disclaimer states, "The content presented here is a work of parody and should be viewed as such. This work is intended for entertainment purposes only and is not associated with the original creators or any entities affiliated with the original work."

It is, however, also billed as "Original Bangsamoro Music."

On whether parodies can be sold as an original, Atty. Enrico Joseph Aguinaldo, a lawyer whose focus areas includes intellectual property registration and protection, said that a parody may fall under fair use.

This refers to the right to use a copyrighted work under certain conditions—and it can be used as a defense against copyright infringement.

These include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work.

"In my view, the most important to consider is the purpose and the character of the use, because here we can determine the intent and whether or not it is focused solely on commercial purposes. The other factors would then support this and we will be able to determine whether or not there is copyright infringement," Aguinaldo said.

According to him, if the "parody" will be sold as an original in streaming platforms, it would "be prudent to seek legal advice and consider negotiations on obtaining a license or permission from the copyright holder or owner of the song" as this "will likely include payment of royalties, among others."

"It must be noted that there are several factors in order to determine if the defense of fair use would be applicable," he continued.

When is borrowing someone else's work permitted?

Despite the restrictions imposed by copyright laws, there are times when artists are allowed to borrow someone else’s work and it's when they are granted official permission through licensing.

"The only way borrowing from someone else's work can be 'okay' is when the composer and/or music publisher who controls the rights to the song knows about it and grants permission.  Intellectual property is the same as any other piece of property," said Belamide.

Ayongao meanwhile warned that copyright infringement can still be found even if a work is unpublished.

"This applies even more so when a copied work is published to earn commission and the public easily identifies that the work is only copied from the original source," he said.

Cuyo also told L!fe that the copyright law prohibits copying a substantial part of the work, which is both a "quantitative and qualitative standard."

"Pwedeng 1/10 of the original work ang kinopya pero it may still be adjudged as copying/copyright infringement kasi 'yung 1/10 na 'yun is the defining melody, for example, of the song," he said.

However, this is different from what happened to Orange and Lemons' Pinoy Ako, which served as the theme song of the maiden season of the reality series Pinoy Big Brother. Many listeners pointed out that the song resembles English new wave band The Care's 1997 song Chandeliers right off the bat, but Orange and Lemons asserted that any similarity was unintentional.

"The Care was one of the bands we covered so subconsciously, it was there, the pattern was there so inapply ko. It sounded similar but the notes are different," Castro said. "We were being accused of plagiarism. I was dealing with lawyers telling us not to say anything about it. It even reached the publisher of that song, pero wala naman, e. Walang nagdemanda. It wasn't a big deal to them."

Another instance is when Ed Sheeran won a copyright claim involving Thinking Out Loud, where it was argued that the first 24 seconds of the song was "virtually identical" to Marvin Gaye's Let's Get It On. According to an AFP report, he said he simply used a 1-3-4-5 chord progression, which is "a basic building block of pop music that can't be owned." Jurors ruled that he had "independently" created his 2014 song after a series of deliberations.

What happens when you commit copyright infringement?

Under Republic Act No. 8293 or the Intellectual Property Code of the Philippines, copyright infringement is punishable by law.

The first offense subjects you to imprisonment of one to three years plus a fine ranging from P50,000 to P150,000.

For the second offense, you will face jail time of three to six years plus a fine ranging from P150,000 to P500,000. The subsequent offenses include imprisonment of six to nine years plus a fine ranging from P500,000 to P1.5 million.

The court will base the number of years of imprisonment and the amount of fine on the value of the infringing materials that the person produced and the damage that the copyright owner has suffered from the crime.

Aguinaldo warned that those who are aiding, abetting, and benefitting in relation to an infringement of copyright may also be held liable.

Editor's Note: The article has been updated to add comments from FILSCAP.