The requirements for plagiarism of a musical work: a recent decision by the Court of Milan

The Court of Milan recently ruled on the issue of plagiarism of musical works.

The proceedings described herein were brought before the Milan Court, by an author, against a well-known Italian singer-songwriter B.A. and his company Iris S.r.l., alleging that the musical track "Mio Fratello", contained in B.A.'s album "Dediche e Manie", constituted plagiarism of an earlier composition of his entitled "Sogno d'amore".

The plaintiff claimed that he composed his song in 2006 and filed it with the SIAE in 2010, and then sold the editions to the company 'Viameda Edizioni Musicali S.r.l.'. According to the plaintiff, B.A.'s song published in 2017 bore a clear resemblance to 'Sogno d'Amore', which was also confirmed by a technical report carried out by two authoritative and experienced musicians. The object of the plagiarism concerned the eight bars of the refrain of the plaintiff's song, which, according to the plaintiff, coincided with the refrain of the opposing song in melodic, harmonic and rhythmic terms.

As proof of the alleged plagiarism, the plaintiff attached the collaboration that took place in 2015 between the producer of the plagiarised song and the owner of the rights to the plagiarised song.

The plaintiff therefore requested that the defendants be ordered to pay compensation for economic and moral damages and to file with the SIAE a news bulletin of the allegedly plagiarised song with the mention of L.D.L. as the author of the music, establishing the claimant’s rights to a share of the sales. The plaintiff also insisted that the judge impose an order that the copies of the album containing the allegedly plagiarised song be withdrawn from the market and destroyed, and that the copies not yet distributed and those found on the web be corrected.

The defendants entered an appearance, contesting the plaintiff's reconstruction of the case in its entirety and requesting the rejection of the opposing claims, with an order to pay damages for procedural liability pursuant to Article 96 of the Italian Code of Civil Procedure.

First of all, the Court of Milan recognised the existence of the requisites required for the author's protection of the plaintiff's song, which had argued the originality and creativity of its composition since the introduction, a circumstance not contested by the defendants, except in a belated and in any event generic manner.

With reference to the comparison of the two songs, the Court emphasised that the comparative investigation considered relevant was only that carried out on the scores and not on the recordings of the two songs, since it was not disputed that the plaintiff had never recorded or published the song "Sogno d'amore" but had only filed the scores with the S.I.A.E. The Court clarified that the non-publication of the work was not an obstacle to the full application of the copyright law.

The Court of Milan excluded plagiarism, referring to the Court expert's analysis (not even contested by the plaintiff) which confirmed there were similarities between the refrain of "Mio Fratello" and the verse of "Sogno d'amore", but not sufficient to presume plagiarism, since the notes were placed in a partially different order. Moreover, according to the consultant, the extemporaneous performance of the scores on the piano gave a different result, giving a completely different sound. The Court of Milan therefore dismissed the plaintiff's claims but did not find the prerequisites for a conviction pursuant to Article 96 of the Italian Code of Civil Procedure.