Friday, March 04, 2022

Adventures in Music Copyright Infringement


Rick Beato compares the two songs at the root of a copyright infringement case brought by a reggae band named Artikal Sound System against Dua Lipa.


This one sounds like obvious theft to him, and to me too, though most of the time it’s really difficult to figure out if a chunk of a song melody is actually stolen or just created independently in a very similar way.

As George Harrison claimed in his defense that “My Sweet Lord” was not a rip-off of The Chiffons “He’s So Fine” (which he lost) you as a creative person in the process of writing a song may hear a chord progression or “hook” in your mind and believe that you created it instead of recycling something you’ve heard before.

How can anyone really tell which one it is, after the fact? In Harrison’s case the songs were seven years apart (1963 vs. 1970) — does anyone really believe that he set out to purposefully steal the melody of a song from seven years earlier? That seems a stretch. But he lost the case and had to pay nearly $2M to the plaintiff, Bright Tunes, and in 1976 released a clever and satirical song about the whole experience, “This Song”, that went to #25 in the US.

The lyrics are funny and so is the video — note how the judge’s gavel, the court reporter’s keystrokes, etc, are all in sync with the music, the horn section sits in the jury, etc.

This song came to me

It turns into a minute-long full-on barrelhouse R&B saxophone/horns/piano jam at 1:40 in, which is quite fun.

Usually these copyright infringement cases are extremely difficult for at least two reasons: (1) the lawyers trying the cases and the judges deciding them are never experts on creating music, and (2) there are only so many ways to arrange notes and chords in any key that sound pleasing to the ear, i.e., merely establishing that two songs are identical or nearly so in that specific way is not necessarily hard evidence of theft, it just means they ended up sounding similar, and there are non-criminal ways for two songs to end up sounding similar.

It seems worth noting that you can only copyright songs themselves but not their titles, presumably because we want to allow multiple songs titled exactly the same to allow creative expression to thrive. I’m not sure I get how this situation is much different, or different at all. Do we want to punish people for writing similar melodies and chord structures if they are tuneful, pleasing and memorable? 

Here are the two songs at the heart of the George Harrison case, listen for yourself and see what you think, and keep in mind it’s only the basic melody and chord structure that are at issue; ignore the intro, solos and musical breaks, and slight tempo differences.

First, The Chiffons “He’s So Fine” from 1963.

George Harrison, “My Sweet Lord”