Different Similarities: What Does it Mean to Infringe Copyright?

Earlier this week, Sam Smith1 settled with Tom Petty and Jeff Lynne about a copyright claim that Smith’s “Stay with Me” (a lovely, lovely song) infringed Petty and Lynne’s “Won’t Back Down” (one of Tom Petty & the Heartbreakers’ best known songs).

This is Tom Petty. I'm sorry I couldn't find a picture of Jeff Lynne on Creative Commons because he's equally awesome.

This is Tom Petty. I’m sorry I couldn’t find a picture of Jeff Lynne on Creative Commons because he’s equally awesome because ELO was awesome.

Sam_Smith_in_Boston

If you squint, you can just make out Sam Smith. Honest to goodness, this the best picture of him I could find on Creative Commons. He’s the bloke in the middle. Picture by “Estoymuybueno” (for real).

 

 

I’ll be honest with you, I didn’t make the connection myself when I just casually listening to “Stay with Me” on Lightning100, even though I’m a pretty big Tom Petty & the Heartbreakers fan. Smith’s song is slower and has totally different backing vocals. The two-phrase sequence in question plays a different role in both songs. In Smith’s song, it’s the main driving hook (a simple one, which shows off his vocals), whereas in the Petty/Lynne song, it’s more of an intro to the main chorus, which allows the song to ramp up its energy pretty quickly.

But once it was suggested that Smith might have gotten the two-phrase sequence from “Won’t Back Down,” I immediately saw it. Remove the backing vocals, speed it up a bit and drop the pitch a bit, and the two sequences sound almost identical. A lot of Tom Petty fans sure noticed.

To my ear, it sounds like about ten notes of melody, plus some chords. The melody consists of two five-note sequences, the second repeating the first at a lower pitch. The rhythm and pitch intervals sure sound the same.

Obviously, a lot of people will decide who is legally “right” in this dispute based on whether they’re Tom Petty fans or Sam Smith fans. But a lot of other people might be surprised or puzzled that Sam Smith settled so quickly, and on such generous terms—Petty and Lynne will split a 25% songwriting credit2.

What constitutes copyright infringement is both complex and poorly understood, even though it’s obviously central to any copyright case in which accused and original works are similar but not identical. You might be surprised to learn that Petty and Lynne actually had a very strong—but not airtight—case. Here’s why.

How Much Can You Take?

The key to any infringement analysis is “substantial similarity,” which is one of those ill-defined concepts in copyright law3. Fortunately, in most copyright cases, the copying is verbatim and there’s no question about substantial similarity, and the dispute revolves around things like copyrightability and fair use. But in those cases, like this one, where the taking is only partial or inexact, it’s one of those gut decisions. That means it’s a classic question for the jury. When we need someone to make a gut decision, we usually leave it up to the jury.

In this dispute, we have a two issues to work through. First, Smith didn’t take very much. So, how little can you take and still be an infringer? Second, Smith’s version doesn’t sound exactly like Petty and Lynne’s. How different can you make something and still be an infringer?

The answer to “How much?” is something of a sliding scale that accounts for quality and quantity. The more creative4 the bit that was taken, the less of it that must be taken to constitute infringement. Thus, courts have suggested (though not held) that “supercalifragilisticexpialidocious” could be infringed, even though it’s only one word from an entire song.5

Also, the more central the bit that was taken was to the original work (not the accused work), the more likely there is to be infringement. Thus, in Murray Hill v. ABC, the court found no infringement, because, even though the bit taken was important to the accused work (a radio broadcast), it was of very marginal importance to the underlying work, which was a movie. The bit that was taken was spoken by a (fictional) radio announcer in a scene where the radio was playing in the background—i.e., was just background noise in terms of the movie.

Bringing these two concepts together, and you get this case6, in which the defendants were accused of lifting “bow wow wow, yippee yoo, yippee yea” from George Clinton’s “Atomic Dog”7. Because that refrain was so creative and obviously central to the song—the equivalent to “ET phone home” to ET the Extra-terrestrial, in the court’s estimation—the defendant’s use of the refrain was an infringement of copyright.

In terms of music, two musical phrases are probably enough. One might think of music as being more creatively “dense” than mere words (i.e., you can pack a lot more expression in to a few notes than you can into a few words). It might be that no one element of the sequence is, by itself, copyrightable. Surely, for example, the idea of repeating a phrase again at a lower pitch is not original—it’s part of every composer’s toolbox. But that’s not the right way to look at it. It’s Petty and Lynne’s combination of elements that matters.

How Different Do They Have to Be?

The answer to “how different?” has no analytical structure (that I’m aware of). It’s perhaps the guttiest of the gut-level decisions the jury has to make. The question is whether the jury can recognize the original bit in the accused bit. What’s more, the jury doesn’t make the comparison blindly: not the way I was making the comparison before the possible similarities were brought to my attention, but the way I made the comparison after they were. Further, the focus must be on what has and hasn’t changed, and what has and hasn’t been taken, not what’s been added. If you borrow an unadorned melody for use in your complex, polyphonic orchestral work, the jury will (should) not consider all the stuff you added—just what you did with the unadorned melody.

Here, there are at least two (maybe three) major changes (that I can hear). First, the Smith version is considerably slower. Second, it’s at a considerably higher pitch. And possibly, third, it plays a different role in the song, as chorus, not just a buildup to a chorus. But that’s not enough. A jury, “unless [it] set out detect disparities, would be disposed to overlook them, and regards their aesthetic appeal as the same.” To avoid infringement, you pretty much have to change what you took to the point that the average person wouldn’t recognize it any more. And if you do that, why were you taking it in the first place?

How Creative?

The other objection to Petty and Lynne’s claim is that no one should have exclusive ownership to a certain sequence of ten notes (really, a sequence of five notes, repeated at a lower pitch). There are, after all, only so many aesthetically pleasing ways to string notes together notes in a bluesy style.

While this argument isn’t irrelevant to the infringement analysis—since it tends to weaken the creativity of what was taken—it’s really an argument that goes to whether those two short phrases can be protected by copyright at all. To be copyrightable, a work need only be “original,” i.e., a work of some minimal creativity that came out of your own head. It’s a low, low bar. Facts are not copyrightable because they are not created, so they’re not original, but an original organization of those facts might be copyrightable. Stock characters are not copyrightable because they’re not original to the author but are part of every author’s creative “toolbox.” But a stock character might transcend her “stockness” and gain some protectable elements.

The argument, then, is better cast as: is this five-note sequence, repeated at a lower pitch, creative? This “recovering composer” over at Slate8 thinks not. His argument is that the ways to string notes together are “finite.”

Putting aside this guy’s ignoring the rhythmic details, and fact that numbers can get pretty big and still be “finite,” to prove unoriginality, you’d have to show that that Petty and Lynne had very few reasonable choices in composing these two phrases, that almost every choice of rhythm and pitch and harmony that Petty and Lynne used was almost pre-determined by the rules of musical aesthetics they were beholden to. That’s simply not the case9 There might not be very many ways to write two catchy musical phrases, but there are enough to meet the low bar of “originality.”

Did You Copy?

The flip-side of this argument is that, although Petty and Lynne were “original,” they weren’t so original that Smith couldn’t have come up with nearly the exact same thing on his own. This goes to another aspect of infringement (not copyrightability): access.

You see, to prove infringement, you to prove not only “substantial similarity,” but also copying.10 If Smith did, in fact, compose his ten notes without any reference to “Won’t Back Down,” the copyright claim would fail because, although his ten notes are substantially similar to Petty and Lynne’s, he didn’t copy them.

To prove copying, you usually have to prove access.11 If Petty and Lynne were struggling songwriters, and Smith never came across their song, Smith would be in good shape. He had no access to “Won’t Back Down.” In a lawsuit against Mary J. Blige, the plaintiffs had sent a demo of their song to Blige’s publisher (the company that owns her music, but not her sound recordings). The recipient never listened to it and didn’t have a personal or even business relationship with Blige, except that he happened to work for her (very large) publisher. The court held Blige did not infringe the plaintiffs’ copyright because she didn’t have access to the plaintiffs’ song.

But Petty and Lynne aren’t struggling songwriters. “Won’t Back Down” was and remains a pretty popular and well-known song. Smith must have heard it at some point in his (young) life. But what if he didn’t remember but was unconsciously influenced by it? Can you copy unconsciously? Yes, actually, you can. Michael Bolton was found by a jury to have infringed an Isley Brothers’ song unconsciously. More notoriously, George Harrison, too. Intent has nothing to do with it.12

But even if Smith had access to “Won’t Back Down,” he’s not necessarily doomed. He can save himself, if he can prove that he composed the song independently of “Won’t Back Down.”13 Proving independent creation is hard and depends in large part on how believable you are to the jury, or that you luckily documented your process of composing your work. There’s a story about a certain well-known country music artist and songwriter who, when accused of copyright infringement and faced with evidence of access, tried to argue he composed the song on a Memorex cassette tape independently of the plaintiff’s song. The only problem was that the type of tape he produced was not in existence at the time he claimed to have recorded the song.

“A Musical Accident”

One of the purposes of fair use is precisely to allow artists to borrow from each other, so you’d think fair use would be a significant consideration here. But it isn’t. The main problem for Smith would be that he’s doing with the two phrases the same thing Petty and Lynne did 14. He’s not commenting on Petty and Lynne, or on rock songwriting in general.

Smith’s representative called the similarities (which he acknowledged) “a complete coincidence. And maybe Smith believes that but either doesn’t want the bother of a lawsuit or realizes that proving independent creation would be fraught with difficulties. Those are legitimate reasons to settle a dispute. Or maybe what he really means is that the similarities were unintentional. For his part, Petty called the episode “a musical accident,” which might be a bit closer to the truth. It also happens more frequently than you might suspect.

When people complain that Smith settled with Petty and Lynne, they’re not really criticizing Smith’s legal acumen. He was probably right to settle. They’re criticizing the state of the law. In particular, they’re surprised that Petty and Lynne can “own” such an aesthetically pleasing but short sequence of notes and chords, and that you can’t “borrow” that much. In the old days, this wouldn’t have seemed so burdensome: after 28 or 56 years, the phrase would be free for all to use15. But now, it’s locked up for well over a hundred years16 Even as copyright terms have become exponentially longer, the bar for originality has, if anything, gotten lower. That takes more and more out of creative circulation for longer and longer. That perhaps explains the sense of creative claustrophobia: in a highly conventional creative endeavor like popular songwriting, how long until all the good phrases are taken?

Full disclosure: yes, I am currently representing a songwriter who has a claim for copyright infringement involving a hit country music song that touches on many of the issues above.

Thanks for reading!