Here we are 175 years later, and those questions are more contested in the courts than ever. This month alone the US Supreme Court finally dismissed a long-running claim that Led Zeppelin plagiarised the introduction of “Stairway to Heaven” (1971) from Spirit’s instrumental “Taurus” (1968) but high-stakes copyright lawsuits against Katy Perry, Ed Sheeran and Taylor Swift continue to move through the legal system. Even in the midst of a pandemic, the vital business of deciding whether some songs sound too much like other songs goes on.

There is something inherently ludicrous at the best of times about judges and juries assessing copyright infringement claims based on the testimony of rival musicologists (“proverbially discordant among themselves,” as Carusi’s attorney put it) and their own inexpert understanding of the creative process, and these are not the best of times. The business of sueing over plagiarism — and it is a business — has been in overdrive since 2015, when a jury found that Robin Thicke’s and Pharrell Williams’ hit “Blurred Lines” (2013) had stolen from Marvin Gaye’s 1977 hit “Got to Give It Up”.

Even though the two basslines used different notes, rhythms, phrasing and scales, the jury decided, to the tune of $7.4m, that having a similar vibe was enough. It was a shocking, chilling verdict, and when Thicke and Williams lost an appeal in 2018, the author of the dissenting opinion stated that the verdict “allows the Gayes to accomplish what no one has before: copyright a musical style”. The judge added that the decision “establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere”.

Musicians and legal experts agree that this lousy decision has created a climate of fear, with artists awarding credits left, right and centre in order to fend off the faintest possibility of a lawsuit. Almost as soon as some listeners noticed that the chorus of Taylor Swift’s “Look What You Made Me Do” (2017) was amusingly similar to that of Right Said Fred’s “I’m Too Sexy” (1991), Swift credited the British band, even though nobody seriously thought that she plundered 90s novelty hits for melodies. If you’ve ever wondered why modern hits seem to have so many songwriters, then this neurotic credit inflation is one reason. Credits are becoming more a legal fiction than an accurate account of a song’s creation because it is easier to settle even a frivolous claim than to risk years of costly litigation.

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The “Blurred Lines” verdict was unusually hostile but it exposed the underlying weaknesses of copyright law as it relates to music. Other artforms have a much more mature relationship with the nature of influence. While a screenwriter or director can’t just plagiarise someone else’s work wholesale, the likes of Quentin Tarantino and Ryan Murphy are free to stuff their work with homages and allusions. Nobody would claim that a Mexican stand-off, or a socially awkward detective, or a pram rolling down steps, or a serial killer who makes costumes from human skin are legally-protected concepts. And every Shakespeare-lover knows that he took raw material from extant sources without being a mere copyist. Art should be a lively conversation between past and present, with the minimum of obstacles.

Not so for music, where litigation has little to do with the reality of creativity. For a start, most instances of “plagiarism” are unintentional. Songwriters are human jukeboxes whose instinct for realising when a new melody resembles an old one can never be infallible. After Sam Smith gave a cut of “Stay with Me” (2014) to Tom Petty for its inadvertent resemblance to “I Won’t Back Down” (1989), Petty was sympathetic: “All my years of songwriting have shown me these things can happen. Most times you catch it before it gets out the studio door but in this case it got by… A musical accident, no more no less.”

Unfortunately, the judge who ruled in 1976 that George Harrison had plagiarised the Chiffons on “My Sweet Lord” (1971) set a precedent that did not allow for accidents: “Did Harrison deliberately use the music of ‘He’s So Fine’? I do not believe he did so deliberately. Nevertheless… this is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.”

Some elements of copyright law are hopelessly outdated. The old defence that the defendant did not have “access” to the plaintiff’s song is meaningless in an era of streaming. The song is on Spotify or YouTube? Then you have access, whether or not you know it exists. Nor has the law kept pace with songwriting norms. Most hits are now constructed by several specialists: the beatmaker, the topline melody writer, and so on. Yet when a jury ruled (dubiously) that Katy Perry’s “Dark Horse” (2014) had copied the beat from Flame’s “Joyful Noise” (2008), even the lyricists were ordered to pay damages. The ongoing suit against Taylor Swift is of a different order of stupidity: her song “Shake It Off” (2014) bears no resemblance to 3LW’s “Playas Gon’ Play” (2000) except the common phrases “Players gonna play” and “haters gonna hate.” The writers of Playas Gon’ Play are claiming ownership of figures of speech.

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The historical amnesia of culture warriors

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The history of popular music skews towards the free flow of ideas, from the melodic recycling of the folk tradition to the cheerful repurposing of old songs in sample collages and mash-ups. Yet the law keeps getting in the way. The notorious 1991 case Grand Upright Music, Ltd. v. Warner Bros. Records Inc. destroyed the tradition that gave us freewheeling, sample-happy records like the Beastie Boys’ Paul’s Boutique and De La Soul’s 3 Feet High and Rising. Even now, uncleared samples bar De La Soul’s classic work from streaming services. Samples are at least demonstrably someone else’s work but how can you own a generic beat or common chord progression? As Katy Perry’s lawyer Christine Lepera complained in court, the writers of Joyful Noise were “trying to own basic building blocks of music — the alphabet of music that should be available to everyone”.

Who benefits from strangling creativity in this way? Certainly not music fans. The most compelling case for copyright law is protection for the little guy. It feels ethically right that struggling blues musicians won songwriting credits from Led Zeppelin in the 1970s and tragic that the drummer Gregory Coleman died homeless in 2006 even as his performance on the Winstons’ “Amen, Brother” (1969) became the most sampled breakbeat of all time. The idea that songwriters shouldn’t starve while others grow fat off their work has an instinctive moral appeal.

Most plagiarism suits, however, have less uplifting consequences. Bridgeport Music, the second plaintiff in the Blurred Lines case, has made millions of dollars from hundreds of suits over unlicensed samples without any benefit to the original songwriters. The 2005 case Bridgeport Music, Inc. v Dimension Films (2005) overturned the de minimis defence of sampling, making even an unrecognisably altered two-second sample a matter for litigation, yet the composer of the sampled song, George Clinton, didn’t get a cent because, he claimed, Bridgeport “stole” his publishing rights (although the courts ruled it legal).

Copyright acquisition can lead to Kafkaesque scenarios. John Fogerty was sued by his former record label over a resemblance between his song “The Old Man Down the Road” (1985) and one of his hits for Creedence Clearwater Revival 15 years earlier. Because the label owned Creedence’s publishing rights, Fogerty became the only person ever to be sued for plagiarising himself. “It was very cruel,” he reflected.

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This year’s economic turbulence has seen a boom in investors scooping up song catalogues. While this is primarily to profit from streaming revenues (“Music and booze are only two industries that flourish when people are both happy and sad,” one wealth manager told Billboard), the potential for a bonanza lawsuit will not be lost on them. One of the plaintiffs sueing Ed Sheeran is a company called Structured Asset Sale. So much for the little guy.

There needs to be some legal deterrence against bad actors flooding Spotify with note-for-note replicas of classic songs, or big stars stealing demos submitted by hopeful young songwriters, but the bar should be extremely high. Currently, the typical case is a cynical waste of time and money which gives the public the false impression that artists are amoral thieves without two original ideas to rub together. A successful song is both an artwork and a commercial asset but the plagiarism-suit racket perverts the art. Old songs become roadblocks to new ones. The natural process of being influenced, consciously or subconsciously, is recast as larceny.

This was never the intention. “The immediate effect of our copyright law is to secure a fair return for an ‘author’’s creative labour,” said Supreme Court Justice Potter Stewart in 1975. “But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” The post-“Blurred Lines” epidemic of litigation and nervous celf-censorship makes a travesty of that aim by suppressing creativity. Enough. Throw all of these cases out, reform copyright legislation, and let art do what it does. And you know what? Carusi’s version of “The Old Arm Chair” was better.

Time and again multinationals and public companies turn out to be as happy as junior members of the Royal Family to sign up to an ideology which will come to eat them next. If anyone is in any doubt about this trend, they should look to the men’s magazine GQ – or what we should more properly describe as the former men’s magazine, GQ.

Firstly, I should declare my prejudices at the outset. Though I have never bought a copy of GQ, I have often flicked through it at the barbers as a way to avoid conversation, and have always found it aggravating in the way that aspirational lifestyle magazines generally are.

By necessity these magazines are pornography for people who don’t have much sex, who feel that looking is the second-best thing to touching. How many of GQ’s readers could ever afford the vast price-tags on the sort of clothes the magazine made it look as though every man wore? How many went to the luxury resorts that were flagged in each issue? Or owned the cars, or generally lived the sort of James Bond-wannabe lifestyle that GQ presented as the achievable ambition of any man? If these flaws were aggravating then they were also embedded. You cannot have an aspirational lifestyle magazine which does not aspire.

Then there was the “Man of the Year” nonsense, the annual jamboree in which GQ got to display its own latest version of the modern aristocracy; a catwalk of public figures who were in turn flattered to be regarded as being in the cool club. GQ was always adept at this, hiring Alastair Campbell to give it alleged gravitas, or handing an award to Russell Brand in order to look like they were on top of each pseudo-serious trend.

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In reality, of course, such episodes showed the vulnerability of these very modern day snobs, the pretence that they were style arbiters and trend-setters rather than deeply unimaginative trend-followers. The inability to take a stand on anything until the precise moment that GQ sensed that the stand was being taken by everybody else. The sucking-up to power wherever it came from. It is an editorial talent of a kind, to be so craven that you will jump on any trend as soon as you think it no longer worth resisting.

With complete inevitability, in recent times GQ has been all too happy to join the woke bandwagon. As the Western world has gone through a set of values-alterations, so GQ has had to keep its antennae exceptionally attuned so as to know where it should follow next.

And one must pity them in some ways, for a men’s magazine like GQ really has only one objective in mind: to trick men into believing that it has the secret (or at least some of the secrets) of how men can attract women. Of course the usual pretence intermittently occurs – as it does throughout GQ’s opposite numbers in the world of women’s magazines – that all of this is only for the personal self-esteem of the readers and to make them feel better inside.

In reality the business model is to pretend that the magazine has knowledge its readers need. And the pity for GQ is that its core business – the whole business of relations between the sexes – has become exceptionally fraught in recent years.

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Inevitably, GQ found a way to roll with that tide. In the year after the “MeToo” movement broke out it was necessary for them to demonstrate not only that they were totally on board with whatever the new consensus was, but that they were – if anything – positively ahead of the curve. That is why the magazine’s UK editor, Dylan Jones, last year editorialised that “For the first time in history, we’ve all been called to account for the sins of the patriarchy.” What does this surrender flag even mean? What is “the patriarchy”? What are its “sins”? Why do all men have to be called to account for them? Have I been called to account? Have you?

That increasingly beseeching, begging tone began to infuse the magazine. When Lewis Hamilton was accused of transphobia in the closing days of 2017 it was GQ which came to his rescue with a reputational repair job. As the cover star a few months later, in August 2018, Hamilton was photographed in a hideous tartan skirt. Though not forgetting to show some carefully rippled abs (for it is important for a man to still have some self-esteem while being forcibly feminised in the name of the new tolerance), the headline read “Lewis Hamilton refuses to skirt the issue”.

And now, a year later, GQ have found their latest surrender-hole. A magazine that solely exists because it pretends that it knows what masculinity is, and what women like about it, has decided instead that masculinity is a problem and that a “new masculinity” is needed.

The cover star this time is Pharrell, wearing a hideous outfit that looks like a cross between a cassock, a tent, a poncho and a dinghy – perhaps in due course it will be known as the life-raft outfit. For its aim, as with the whole pathetic mess that is this GQ issue, is to try to save men from the accusations being made about them: by promising that they have surrendered already.

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A beseeching, begging editorial by Will Welch (the new editor-in-chief) pays its indulgences straight away. He talks about the “pervasive culture of sexual intimidation and violence and blatant gender inequality”, of “victims” and the “discriminatory culture”. How should these things be addressed? Welch writes: “We see every day at GQ as an opportunity to answer that question,” continuing “one way we’ve addressed it is by making a magazine that isn’t really trying to be exclusively for or about men at all.” Which is one hell of a change of mission statement for a men’s magazine.

Inside, readers of this former men’s magazine can find advice from, for instance, someone called Hannah Gadsby, telling men why they “should be more ladylike”, and “interrogate” themselves as to why they might not want to be. Of course the ideal would be if everybody could be allowed to be themselves, whatever that self may be. But just as it is tedious and restrictive to assume that all men should behave one way and all women another, so it is equally – in fact more – ridiculous to insist that men should act more like women and all women perhaps more like men.

Sensible people will simply ignore GQ’s advice, realising that although women want many things, what they want least of all are the ex-men that GQ has now dedicated itself to creating. The magazine always relied on stereotypes, but at least they used to be amusingly aspirational. Nobody will aspire to the its ideals now, and soon perhaps GQ will learn the mantra that Gillette and others learned before them: get woke, go broke.