Occasionally, pop innovates in a hard stylistic jolt, or an outlier comes to rapid prominence (see: Lil Nas X), but more often, it moves as a kind of unconscious collective. An evolutionary step is rarely the product of one person working in isolation; it is one brick added atop hundreds of others.
Originality is a con: Pop music history is the history of near overlap. Ideas rarely emerge in complete isolation. In studios around the world, performers, producers and songwriters are all trying to innovate just one step beyond where music currently is, working from the same component parts. It shouldn’t be a surprise when some of what they come up with sounds similar – and also like what came before.
The idea that this might be actionable is the new twist. Every song benefits from what preceded it, whether it’s a melodic idea, a lyrical motif, a sung rhythm, a drum texture. A forensic analysis of any song would find all sorts of preexisting DNA.
A copyright troll exploits that, turning inevitable influence into ungenerous and often highly frivolous litigation. And given how lucrative the Blurred Lines judgement proved to be, it has become a de facto blueprint for how claims about originality will be litigated moving forward: If there is a whiff of potential borrowing on a song (and there almost always is), the borrowed might come knocking.
This forecloses on the possibility that there is some value in copying, or duplicative ideas. It also suggests that all copying is alike – the brutally unethical kind, and also the Leibniz-Newton kind. It fails to make a distinction between theft and echo, or worse, presumes that all echo is theft. It ignores that the long continuum of pop revisits sonic approaches, melodies, beats and chord progressions time and again. It demands that each song be wholly distinct from everything that preceded it, an absurd and ultimately unenforceable dictate.
If there is a whiff of potential borrowing on a song (and there almost always is), the borrowed might come knocking.
What’s left in its wake is a climate of fear. In some recent cases, you can sense preemptive gamesmanship, as when Taylor Swift gave a writing credit to Right Said Fred for a cadence on Look What You Made Me Do that recalled I’m Too Sexy. Or the rapid settlement Sam Smith reached with Tom Petty for perceived similarities between Stay With Me and I Won’t Back Down. Whether there was a direct borrowing didn’t seem to matter; the potential for the perception of theft was enough to instigate an arrangement.
In these situations, the alleged source song was a popular one – the case could be made that even if there was no direct influence, there was an ambient one. Copyright law makes no distinction between conscious and unconscious copying, which means that even though fully unpacking claims like these might mean parsing the difference between outright and unconscious theft, or between thievery and parallel influence, those distinctions may well be, apart from the determination of damages, moot.
Cases like that are the exception, though. Most of the allegations that have been brought in recent years stretch the bounds of credulity.
A singer-songwriter named Steve Ronsen suggested that a passage in Shallow, the Lady Gaga/Bradley Cooper hit from A Star Is Born, is partly derived from one of his songs, Almost, and threatened a lawsuit. The Weeknd was sued by a trio of songwriters — Brian Clover, Scott McCulloch, and William Smith — who allege that his song A Lonely Night was a rip-off of an unreleased song called I Need Love that they’d written more than a decade earlier. Migos were sued by a rapper, M.O.S., who said that the title phrase of their song Walk It Like I Talk It had appeared in a song of his more than a decade prior (the case was dismissed). Miley Cyrus is being sued by a Jamaican performer, Flourgon, over a lyric in her song We Can’t Stop. Ed Sheeran has been the target of several lawsuits; an infringement claim for an ostensible borrowing on Shape of You from a singer named Sam Chokri has his royalty payments for that song on hold. But in almost all of these cases, the scope of the alleged infringement is so minor, so generic, that it suggests that a basic element of composition is up for an ownership grab.
Perhaps these claims are legitimate. There is, maybe, a slight chance of that. Theft is not unheard-of. The signature boast in Lizzo’s No.1 hit, Truth Hurts, was lifted from a tweet, and went wholly uncredited until two songwriters who worked with Lizzo at a session that initially yielded that critical line publicly staked a claim for credit. Lizzo responded by announcing a lawsuit seeking to have their claims formally declared invalid and, for good measure, extended songwriting credit to the author of the tweet.
Sometimes these quibbles come down to a determination of who has the permission – literal or social – to borrow, and from whom. Perry’s Dark Horse was a late-career attempt to absorb trap music, a genre far from her comfort zone. In a sense, the lawsuit by Flame, by no means the only performer to have used a similar-sounding beat, was a kind of culture-borrowing tax.
Or maybe Perry could have had an outcome more like Ariana Grande, whose 2019 No.1 7 Rings was the subject of several claims about its originality, particularly a cadence associated with 2 Chainz or Soulja Boy. In this case, Grande had already ceded 90 per cent of her royalties to the Rodgers & Hammerstein Organization (the song interpolates My Favorite Things from The Sound of Music). But after a meeting with 2 Chainz, the two agreed to collaborate on a pair of songs. Similarly, an air-clearing phone call brought a claim by Three 6 Mafia against Travis Scott to a swift and amicable resolution this year.
The echoes deployed by Grande and Scott were intentional homage. In hip-hop especially, artists frequently incorporate fragments of earlier songs as a kind of wink, or nod to a forebear. But depending who’s doing the nodding, it doesn’t always go smoothly. In 2014, Drake revisited lyrics by Bay Area hip-hop elder Rappin’ 4-Tay, who, unimpressed, chose to publicly invoice Drake for $US100,000. (As of last year, Drake had not paid.)
If echoing is always going to be treated as thievery, then songwriting credits and payments should be trickling back way past the 1970s and 1980s, all the way back to Robert Johnson and the Carter Family and Chuck Berry and the Last Poets – perpetual royalties for foundational innovations.
The idea that there is a determinable origin point where a sonic idea was born is a romantic one. But a song is much more than romance these days – it is an asset, and a perpetual one at that. Note the recent boom market in the rights to song royalties. Check out the listings on royaltyexchange.com, where you can bid on fractional ownership to the rights for thousands of songs. Or the catalog gorging happening in the music publishing sector, with firms like Kobalt and Merck Mercuriadis amassing huge catalogs. Strategies like these are the equivalent of placing bets on every square on the roulette table. A fractional claim (via songwriting or sample credit) on a pop megahit can mean millions of dollars.
This system encourages bad-faith, long-shot action. Juries filled with non-music experts are ill-suited to make decisions in cases that tend to come down to the testimony of dueling musicologists. Perhaps a better solution is needed: an arbitration panel, with buy-in from all the major record labels and song publishers, where claims can be adjudicated by a jury of peers.
That system would certainly have spared Led Zeppelin, which has been embroiled in a copyright suit over Stairway to Heaven with the trustee of the singer of Spirit, a 1960s psychedelic rock band. That case, even flimsier than the Blurred Lines one, has dragged on since 2014 (after initially winning the infringement case in 2016) and will continue in 2020.
But a similar fate might be destined for Blurred Lines, too. Last fall, Pharrell Williams, the song’s producer, gave an interview in which he described his work on the song differently than he had in his sworn testimony. A few weeks later, the Gaye estate filed a motion accusing him of perjury and asking a judge to revisit the decision. Even $US5.3 million doesn’t buy restraint.
New York Times