Pop music isn’t made in a vacuum. Copying isn’t always bad. And a new trend pulling more pop stars into courtrooms is a dangerous one.
Clockwise from top left: Katy Perry, Sam Smith, Ariana Grande, Robin Thicke, Lizzo and Ed Sheeran, pop stars who have been accused of borrowing in their music.Clockwise from top left: Getty Images; Associated Press; EPA, via Shutterstock
The past year was an exceptionally active, unusually silly and indubitably worrying one for pop music lawsuits.
In August, after determining that Katy Perry’s “Dark Horse,” a very generic trap song, had borrowed from “Joyful Noise,” another very generic trap song by the Christian rapper Flame, a jury awarded Flame and his co-plaintiffs $2.8 million in damages. (Perry is appealing the verdict.) In October, the inactive third-rate emo band Yellowcard sued Juice WRLD for $15 million over perceived similarities between one of his big hits, “Lucid Dreams,” and one of their non-hits, “Holly Wood Died.” After the rapper’s death in December, the band announced it was still moving forward with the litigation.
In both cases, the alleged musical connection is flimsy at best. But these are the sort of claims that have found oxygen in the wake of the “Blurred Lines” ruling in 2015. In that case, a jury awarded the estate of Marvin Gaye $7.3 million (later lowered to $5.3 million) after it determined that Robin Thicke, Pharrell Williams and T.I.’s song had a little too much in common with Gaye’s “Got to Give It Up.” It was preposterous, and chilling as well. Not only could you be held liable for theft, intentional or otherwise, but you now could be held liable for being influenced, too.
That is, to put it plainly, bad news for pop stars, and the producers and songwriters who help them craft hits. They are now marks for frivolous litigation premised upon nebulous assertions as well as a complete and willful ignorance of how pop music is actually made.
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 pre-existing DNA.
A copyright troll exploits that, turning inevitable influence into ungenerous and often highly frivolous litigation. And given how lucrative the “Blurred Lines” judgment 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.
What’s left in its wake is a climate of fear. In some recent cases, you can sense pre-emptive 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 percent 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 the Bay Area hip-hop elder Rappin’ 4-Tay, who, unimpressed, chose to publicly invoice Drake for $100,000. (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 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 $5.3 million doesn’t buy restraint.
PLEASE NOTE: IF YOU DO NOT WISH TO BE ON THIS MAILING LIST PLEASE RESPOND WITH ‘REMOVE’ IN THE SUBJECT LINE. IF YOU ARE RECEIVING DUPLICATE EMAILS OUR APOLOGIES, JAZZ PROMO SERVICES ANNOUNCEMENT LIST IS GROWING LARGER EVERY DAY…..PLEASE LET US KNOW AND WE WILL FIX IT IMMEDIATELY!