This week, the big topic of conversation among music fans is whether the chorus of Sam Smith’s “Stay With Me” sounds enough like Tom Petty’s 1989 hit “Won’t Back Down” to warrant the 12.5 percent songwriting credit recently awarded to Petty and his co-writer, Jeff Lynne. Copyright infringement as it applies to songwriting plagiarism goes beyond merely how a song sounds, and if a songwriter even intended to copy the work of another. The field has become more and more litigious in recent decades, and to an outsider, the situation can look a bit creatively limiting. Sometimes people do go to court and win, but many big cases settle out of court on the basis of subconscious plagiarism. What a scary landscape to live in as a musician — being responsible for inadvertently copying someone else’s work you’ve never even heard.
Based on past cases in the music world, here’s a rundown of pretty much every scenario that can happen, and how a songwriter can avoid full-blown copyright infringement controversy, which can ultimately damage one’s career.
Negotiate a songwriting credit beforehand.
Countless songs give credit where credit is due, everyone gets paid, and allegations of plagiarism never come up. The Rolling Stones were inspired by k.d. lang’s “Constant Craving,” for example, when they wrote Bridges to Babylon single “Anybody Seen My Baby?” so they gave lang and her co-writer Ben Mink a credit.
That said, even when artists have the foresight to sample and reference the legal way, things can blow up in their faces: see The Verve’s “Bittersweet Symphony” vs. The Rolling Stones’ “The Last Time.”
Rip off a Tom Petty song without a co-writer.
Back in 2006, after people started comparing the Red Hot Chili Peppers’ “Dani California” to “Mary Jane’s Last Dance,” Petty brushed it off in an interview with Rolling Stone:
“The truth is, I seriously doubt that there is any negative intent there. A lot of rock ‘n’ roll songs sound alike. Ask Chuck Berry. The Strokes took ‘American Girl’ [for their song ‘Last Nite’], and I saw an interview with them where they actually admitted it. That made me laugh out loud. I was like, ‘OK, good for you.’ It doesn’t bother me.” “If someone took my song note-for-note and stole it maliciously, then maybe [I would sue them]. But I don’t believe in lawsuits much. I think there are enough frivolous lawsuits in this country without people fighting over pop songs.”
The difference with Sam Smith’s “Stay With Me” vs. Petty’s “Won’t Back Down” is that Jeff Lynne, ELO frontman and influential producer, co-wrote the song with Petty.
Don’t leave a paper trail leading right back to the song you supposedly plagiarized.
In the case of Huey Lewis and the News’ “I Want a New Drug” vs. Ray Parker, Jr.’s Ghostbusters Theme — which was settled out of court in 1984 — Lewis had been approached by the film’s producers about writing the theme song. When he declined, Parker was hired and shown footage that featured “I Want a New Drug” as a placeholder song, setting the tone for Parker’s own No. 1 hit.
In the case of Robin Thicke’s “Blurred Lines” vs. Marvin Gaye’s “Got to Give It Up,” Thicke had done multiple interviews name-checking Gaye as inspiration for his No. 1 hit. He told GQ, for example, “One of my favorite songs of all time was Marvin Gaye’s ‘Got to Give It Up.’ I was like, ‘Damn, we should make something like that, something with that groove.’ Then he started playing a little something and we literally wrote the song in about a half hour and recorded it. The whole thing was done in a couple hours.”
Don’t “pre-emptively protect” a song you think someone may accuse of copyright infringement.
After Thicke name-checked “Got to Give It Up” and “Blurred Lines” broke big, Thicke and his co-writers filed a legal motion to pre-emptively protect “Blurred Lines” from copyright infringement claims that were yet to be filed by the Gaye estate, as well as the copyright holders of Funkadelic’s “Sexy Ways.” The request was denied, making Thicke and co. look overly defensive in the public’s eyes and not exactly helping their chances of settling out of court.
Keep your personal drama out of it.
To make matters even worse, when Thicke finally faced off against the Gaye estate in court, he made wild allegations of drug abuse that he thought would somehow help his chances of winning the case. So far, Thicke has lost his first fight in the ongoing battle — and ruined his career.
If you have the money, settle out of court before the controversy hits the press.
Even if they claim innocence, the biggest acts tend to settle out of court if the case against them has even a little validity. Bet Michael Bolton still wishes he’d settled with the Isley Brothers back in 1991 over the lyrical content of “Love Is a Wonderful Thing,” instead of having to pay them $5.4 million (!!!).
Claim coincidence, and that you’ve never heard the song you’re accused of ripping off.
Talking about how many millions of songs exist and how few emotions/chords/whatever comprise them is one strategy. It’s an approach Avril Lavigne used when her 2007 hit “Girlfriend” was accused of ripping off ’70s power-pop group The Rubinoos’ “I Wanna Be Your Boyfriend.” She wrote on her Myspace at the time: “I had never heard this song in my life and their claim is based on five words. All songs share similar lyrics and emotions. As humans we speak one language.” (The two settled out of court.)
Coldplay used a similar strategy when Joe Satriani claimed their “Viva La Vida” ripped off his “If I Could Fly” (they also settled). Coldplay claimed the copyright infringement was “entirely coincidental, and just as surprising to us as to him.”
Be aware of “subconscious plagiarism.”
The most exhaustive and well-known copyright infringement case in music history resulted in a ruling of “subconscious plagiarism,” setting a legal precedent. The term has played a role in many subsequent cases of these kinds.
Shortly after George Harrison found a hit in 1970’s “My Sweet Lord,” the copyright holder of The Chiffons’ 1963 hit “He’s So Fine” — Bright Tunes Music — brought a case against the ex-Beatle, claiming near identical melodies, sequence of repetition, and placement of a grace note. As the case verdict discusses, the songs do differ slightly, particularly with regard to the performance improvisation of these melodies, as opposed to the sheet music of each work.
Harrison worked with frequent collaborator Billy Preston to compose “My Sweet Lord,” a praise song for the Hindu god Krishna. Harrison was aware of “He’s So Fine,” as it was a No. 1 song in 1963, albeit a smaller hit in his native England. His defense was one that argued that the songs were different enough, but also that he had no intention of plagiarizing “He’s So Fine.”
Buy the copyright of the song you’re being accused of plagiarizing.
Back in 1971, Harrison tried to purchase, via his manager Allen Klein, the financially ailing Bright Tunes to no avail — efforts that went on for years while the case awaited trial. Ultimately Klein would try to screw Harrison after the ex-Beatles severed professional ties in 1973, providing Bright Tunes with insider info, trying to purchase the company for himself, and ultimately obtaining the copyright (and thus all litigation surrounding) “He’s So Fine.”
Klein tried to sell the song back to Harrison for more than a million dollars. After a decade of legal battles, the court intervened and cut that sum in half, due to Klein’s duplicity. Had the purchase worked out initially, Harrison would have saved himself one of music’s longest legal battles.
Hire a musicologist — the more respected, the better.
Before these kinds of cases even go to court, each side usually hires a musicologist to defend their stance using musical theory. Vanilla Ice’s devilish defense of the slightly altered bassline of “Ice Ice Baby” only showed that he knew what he was doing when he ripped off Queen and David Bowie’s “Under Pressure.” Maybe Ice would have looked like less of an ass had a musicologist said the same thing, not that he would have stood a chance at winning his case.
Get those mash-ups taken off YouTube.
Fans can manipulate all sorts of things in songs, from slowing down or speeding up the bpm to adjusting pitch. A lot of times, even the clunkiest of mash-ups can serve as proof enough in the court of public opinion. The copyright might be up for debate, but the legality of an unauthorized mash-up gone viral isn’t.
Donate some of your royalty proceeds to charity.
In the case of Brazilian musician Jorge Ben’s “Taj Mahal” vs. Rod Stewart’s “Do Ya Think I’m Sexy?”, Stewart claimed “unconscious plagiarism” and ended up donating some of the song proceeds to UNICEF. A hugely worthwhile thing to do and a good look.
If all else fails, just be apologetic and give up a songwriting credit before things escalate.
Back when Wayne Coyne handled his professional life like an adult, he dealt graciously with his plagiarism of Cat Stevens’ “Father and Son.” After Yusuf Islam, the songwriter formerly known as Stevens, sued over the Flaming Lips’ “Fight Test,” Coyne apologized and told The Guardian, “I want to go on record for the first time and say that I really apologize for the whole thing. I really love Cat Stevens. I truly respect him as a great singer-songwriter. And now he wants his money. There was a time during the recording when we said, this has a similarity to ‘Father And Son.’ Then we purposefully changed those bits. But I do regret not contacting his record company and asking their opinion. Maybe we could have gone 50-50. As it is, Cat Stevens is now getting 75 per cent of royalties from ‘Fight Test.'”
The Beach Boys avoided a what could have been a much bigger scene by promptly giving Chuck Berry a songwriting credit on every release of “Surfin’ U.S.A.” after 1966, due to its melody’s similarity to Berry’s “Sweet Little Sixteen.” Sam Smith took a similar approach recently with Tom Petty, which would have worked fine enough had the press not blown it up into a controversy — and Petty’s statement says as much:
“About the Sam Smith thing. Let me say I have never had any hard feelings toward Sam. 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. Sam’s people were very understanding of our predicament and we easily came to an agreement. The word lawsuit was never even said and was never my intention. And no more was to be said about it. How it got out to the press is beyond Sam or myself. Sam did the right thing and I have thought no more about this. A musical accident no more no less. In these times we live in this is hardly news. I wish Sam all the best for his ongoing career. Peace and love to all.”
Or barter…
In 1973, Chuck Berry’s publishing company accused John Lennon of incorporating certain melodies from Berry’s “You Can’t Catch Me” into The Beatles’ “Come Together.” Bizarrely, one part of the settlement requested that Lennon record three songs owned by the publisher, Morris Levy, including a cover of “You Can’t Catch Me” for his 1975 covers LP, Rock ‘n’ Roll.
Or pay the settlement and be a total prick about it anyway.
Of course, the Oasis route is incorporate lyrics from the song you were accused of ripping off into your live performances — after paying half a million in a settlement. Oasis’ “Shakermaker” vs. The New Seekers’ 1971 hit “I’d Like to Teach the World To Sing” — the inspiration for “I’d Like to Buy the World a Coke” — resulted in a snarky comment about how the Gallagher brothers only drink Pepsi now.
Even if you win, don’t go trash-talking your accuser — revenge may bite you in the ass.
After Creedence Clearwater Revival’s John Fogerty won his bizarre battle against former label Fantasy Records — for plagiarizing himself — in the case of CCR’s “Run Through the Jungle” vs. Fogerty’s “The Old Man Down the Road,” Fogerty included a song on his 1985 album Centerfield that slammed Fantasy head Saul Zaentz (titled “Zanz Kant Danz”). Zaentz claimed defamation, and Forgerty was forced to settle out of court with him, as well as change the song’s name to “Vanz Kant Danz.”
Huey Lewis violated the confidentially agreement that was part of his settlement with Ray Parker Jr. over the Ghostbusters theme by discussing the matter on an episode of Behind the Music. Parker retaliated by suing Lewis.