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From George Harrison to Michael Bolton, Strange Tales of Copyright Infringement

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From George Harrison to Michael Bolton, Strange Tales of Copyright Infringement You Stole My Song! From George Harrison to Michael Bolton, strange tales of copyright infringement By Bill DeMain ongwriters steal. It happens all the magpie spirit. Painters, novelists and film In the 18th century, composers often time. directors all stand on the shoulders of those accused others of swiping their motifs. S Bob Dylan’s classic “Blowin’ in the who came before them, referencing previous But then, most of them were freely Wind” lifted its melody from the tradi- works, filtering influences and ideas through looting melodies from peasant folk songs. tional folk song “No More Auction Block.” their own unique styles. But because of its It wasn’t until copyright laws were firmly Lennon and McCartney’s “Here, There and limitations—12 notes, harmonic simplicity, in place in the early 19th century that Everywhere” was cut from the same cloth as a handful of basic rhythms and lyrics that musical plagiarism landed in court. The the Beach Boys’ “God Only Knows.” David deal primarily with matters of the heart— first recorded case in the U.S. was Reed v. Bowie based “Fame” on a doo-wop tune modern pop songwriting has more shared Carusi, in 1831, over a song called “The called “Footstompin’.” Elvis Costello called DNA than any other art form. Old Arm Chair.” The plaintiff won $100 “Alison” a cleverly disguised rewrite of the But what happens when creative in damages. Spinners’ “Ghetto Child.” borrowing crosses the line into outright A hundred years later, copyright It’s not just songwriters who have the stealing? infringement cases were popping up every Performing Songwriter 16 J a n u a r y / f ebruary 2007 You Stole MY Song! copyright infringement Continued week in Tin Pan Alley. Indeed, a disgruntled single blanketed the airwaves, a strug- Apparently, no one in Harrison’s tunesmith from that era, Ira Arnstein, holds gling New York publisher, Bright Tunes inner circle got weird about the obvious the record for suing songwriters. Arnstein Music, must’ve heard divine intervention similarities of his new song to “He’s So Fine.” was so paranoid that he once marched in the melody of “My Sweet Lord.” It was Maybe the fear of calling a Beatle a thief was outside out of ASCAP wearing a sandwich identical to a chestnut in their dusty stronger than the need to tell the truth. board that read, my songs have been catalog, “He’s So Fine.” Harrison gave the song to keyboardist plagiarized by: irving berlin, george On Feb. 11, 1971, as Harrison’s hit was Billy Preston for his debut single on Apple gershwin, cole porter, jerome kern, idling down from four weeks at No. 1, Bright Records, but the release was withdrawn rodgers & hart. Tunes filed a copyright infringement suit. in September 1970. Two months later, That sign reveals a crucial aspect The older song, written by Ronnie Harrison’s version—produced by Phil of these cases. If you’re going to sue a Mack, had been a chart-topper in 1963 for Spector (surely the Titan of Teen detected songwriter, aim high. Better to go after the Chiffons. That same year, the Beatles plagiarism)—was released as the lead-off “I’ve never had any money from the song. As far as I’m concerned, the effect the song has had far exceeds any bitching between copyright people and their greed and jealousy.” —George Harrison Michael Jackson than LaToya Jackson. The thought is that a superstar would rather settle out of court than have his reputation tainted. John Q. Songwriter may not expect to win his case, but he might still get a hundred thou out of the deal. So how do you win a copyright infringement case? You need to prove two things. One, that the song in question has what the law calls “striking similarity” in melody, rhythm and structure to yours. And two, that the defendant had previous access The lawsuit brought against Harrison stretched into years, which may to your song. Not so easy. explain his grumpy look. Here we review four of the most famous copyright infringement cases. If there’s a lesson to be learned, it’s this: Imitation is were routinely singing the praises of such single from his triple-album debut All the sincerest form of flattery—except when American R&B tunes, both in interviews Things Must Pass. you have the same chorus and melody. with the British press and in the set lists of “I wasn’t consciously aware of the their live show. There was no question of similarity when I wrote the song,” Harrison Bright Tunes vs. Harrisongs access to the previous work, as Harrison said. “But once it started to get a lot of 1971 freely admitted during his trial. airplay, people started talking about it, and But the Chiffons weren’t on his mind it was then I thought, ‘Why didn’t I realize?’ DeFenDant’s sonG: in 1969, when he picked up his guitar and It would have been very easy to change a My sweet lord started singing the word “Hallelujah” over note here or there and not affect the feeling a two-chord progression. “I was inspired of the record.” Plaintiff’s sonG: by the Edwin Hawkins Singers’ version of Harrison tried to settle out of court. He’s so Fine ‘Oh Happy Day,’” Harrison said. His manager Allen Klein even offered to If anything gave him pause about his buy Bright Tunes’ entire catalog. But the “Every time I put the radio on, it’s ‘Oh My song-in-progress, it was the mention of publisher dug in, insisting that Harrison orbis c Lord,’” John Lennon said in December God in the lyric. “I thought a lot about should surrender his copyright. A four- 1970. “I’m beginning to think there must whether to do that, because I would be year stalemate ensued, during which be a God.” committing myself publicly and I antici- Bright Tunes went into receivership for enry Diltz/ h Lennon wasn’t alone. As his former pated that a lot of people might get weird unrelated business problems. bandmate George Harrison’s debut about it.” The case finally came to trial in February hoto by p Performing Songwriter 17 J anuary/february 2007 You Stole MY Song! CopYright infringeMent Continued 1976. Side by side, the two songs were The Bee Gees had to prove painstakingly analyzed. “The plaintiff had in court that they were three huge charts made up with the three notes wise men, not three thieves. from Motif A and the four or five notes from Motif B drawn on them,” Harrison recalled. “And they talked about these for about three days, to the point where I started to believe that maybe they did own those notes.” In the end, Harrison was found guilty of “subconscious plagiarism” and had to pay $1,599,987 of the earnings from “My Sweet Lord” to Bright Tunes (songwriter Ronnie Mack had died in 1963, shortly after “He’s So Fine” charted). “I’ve never had any money from the song,” Harrison later recalled. “It’s always been in escrow. As far as I’m concerned, the effect the song has had far exceeds any bitching between copyright people and their greed and jealousy.” There was a happy ending for Harrison, sort of. The headaches of the litigation If you’re going to sue a same time. But there are examples in inspired him to write “This Song,” which other disciplines of what scientist Robert went to No. 25 in 1976. songwriter, better to go after Merton famously called “Multiples”: the Michael Jackson than LaToya simultaneous discovery of calculus by Selle vs. Brothers Gibb Gottfried Wilhelm Leibniz and by Isaac 1980 & 1983 Jackson. The thought is that a Newton, the development of the theory of natural selection by Charles Darwin and DeFenDant’s sonG: superstar would rather settle by Alfred Russel Wallace, the invention How Deep is your love out of court than have his of the telephone by Alexander Graham Bell and by Elisha Gray. Couldn’t the same Plaintiff’s sonG: reputation tainted. phenomenon occur with pop songs? let it end One man who thought so was Federal Judge George Leighton, who overturned Maurice Gibb was on the witness stand, on the radio and thought he recognized the Selle’s victory in the Gibbs’ 1983 appeal. listening closely to a single-note melody melody as his own. He said, “There is no evidence the Bee being played on a cheap electronic The Bee Gees wrote “How Deep Is Your Gees had heard or seen Mr. Selle’s song keyboard. After eight bars, he identified the Love” in January 1977 while recording at and that mere similarities in the tunes do song as one he co-wrote with his brothers Chateau d’Hérouville in France. During not support the contention that the group Barry and Robin, called “How Deep Is Your the trial, their producer and several session had access to it.” Love.” Except it wasn’t. It was “Let It End,” players who were present at the studio penned by an amateur songwriter named testified on behalf of the Gibbs. A work tape Fantasy Inc. vs. John C. Fogerty Ronald Selle. was played, documenting the birth of the 1985 The plaintiff made much of Gibb’s mistake song. Bits of melody and lyric ideas were in court, claiming it was proof positive of heard being volleyed among the brothers. DeFenDant’s sonG: infringement. But Maurice was hearing The finished song was released in 1977 as the old Man Down the Road only the skeletal outline of the song.
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