Why Tom Petty Should, But Won’t Back DownFriday, February 13th, 2015
If Sam Smith’s recent Grammy sweep tells us anything, it’s that the Academy’s voting members have a fairly blasé attitude when it comes to accusations of copyright infringement. While the organization may be singularly devoted to honoring Whoever-Sold-The-Most-Units-Of-The-Previous-Year, they at least have the sophistication to understand that a little harmless borrowing in popular music is no big deal.
Smith won four Grammys including Song of the Year and Record of the Year for “Stay With Me” and he walked away with a win in the Best New Artist category. All this after a much-publicized settlement between the publishers of “Stay With Me” and the publishers of Tom Petty and Jeff Lynne’s 1989 song “I Won’t Back Down.” In October 2014, Smith and co-writers James Napier and William Phillips quietly agreed to award Petty and Lynne songwriting credits and 12.5 percent of the royalties collected for “Stay With Me.” In January, Tom Petty released a statement on his website that indicated the settlement was reached largely in an attempt to avoid publicity:
“…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.”(1)
Sam Smith also released a statement to Rolling Stone claiming that he and his songwriting partners hadn’t heard “I Won’t Back Down” before the song’s publishers approached them. Upon examining the song, Smith’s team acknowledged the similarities and agreed to share songwriting credit with Petty and Lynne. That’s right: the writers of “Stay With Me” agreed to split all profits with two artists whose work they claim to have never heard prior to writing “Stay With Me.”
No one can fault Sam Smith’s camp for not wanting to bring attention to the alleged similarities, especially given that “Stay With Me” was on an upward trajectory at the time of the settlement. Let’s face it: the music-buying public has a short memory and, considering the majority of Smith’s fans were born after Petty’s song was in heavy rotation, the 12.5 percent royalty share probably seemed like a smart investment to ensure that “Stay With Me” would avoid allegations of copyright infringement which could ostensibly slow the song’s chart momentum.
But things didn’t work out that way. Homemade mash-ups comparing the two songs began to appear on YouTube as early as June 2014. Spurred on by recent media attention, one popular mash-up now has over 1.5 million views.(2) Now that the settlement is common knowledge and doesn’t seem to have hurt either song commercially, one wonders whether Smith & Co. are rethinking the wisdom of their strategy.
Tom Petty actually has a history of laissez-faire attitudes when it comes to accusations of copyright infringement on his songs.Portions of The Strokes’ “Last Nite” have been compared to Petty’s “American Girl” and the Red Hot Chili Peppers song “Dani California” allegedly bears some resemblance to Petty’s “Mary Jane’s Last Dance.” In both cases, Petty shrugged off the offenses and in 2006 told Rolling Stone he wasn’t interested in pursuing legal action:
“If someone took my song note for note and stole it meticulously then maybe. But I don’t believe in lawsuits much. I think there are enough frivolous lawsuits in this country without people fighting over pop songs.”(3)
The offending portion of “Stay With Me” occurs in the chorus, is eight measures long, and is repeated four times throughout the song. Though it bears an obvious resemblance to melodic and harmonic material in the verse of “I Won’t Back Down,” it hardly constitutes a meticulous theft of intellectual material. In fact, the real difference between this and Petty’s other two cases of “infringement” seems to be the impressive commercial success of “Stay With Me,” which has been planted on the on the Billboard Hot 100 for 43 weeks and counting. Now listed as a co-creator of the work, Petty is cashing royalty checks for both “Stay With Me” and “I Won’t Back Down” without the added annoyance of ever having to promote or perform the newer song.
Copyright infringement after the George Harrison case
There is certainly precedence for going after the big fish in cases of infringement. Billy Preston’s recording of George Harrison’s “My Sweet Lord” was released in 1970 to moderate success. However, Harrison’s 1971 recording of the song became that year’s best-selling single, and it was that version that Bright Tunes Music brought forward in the claim that Harrison plagiarized Ronnie Mack’s “He’s So Fine.”
In 1981, Bright Tunes Music was awarded $587,000 for what Judge Richard Owen referred to as “subconscious plagiarism.” (4) In addition to introducing this oddball concept to music-related copyright law, trial cases alleging infringement more than doubled each decade for 20 years following Bright Tunes Music v. Harrisongs Music.(5)
The largest damages ever paid in a case of copyright infringement was $5.4 million, and was awarded to Three Boys Music who claimed that Michael Bolton’s 1994 song “Love is a Wonderful Thing” infringed the copyright of the Isley Brothers’ 1964 song of the same name. In all, 91 cases of copyright infringement have gone to trial since Bright Tunes Music v. Harrisongs Music. However, the results of copyright infringement trial cases have proven to be a crapshoot at best. They are often expensive, protracted, and subject both sides to unwanted and often ugly publicity. For these reasons, many cases are settled out of court and include either a single payout (such as the $500,000 settlement between Oasis and the New Seekers for similarities between “Shakermaker” and “I’d Like to Teach the World to Sing”) or royalty shares such as the Petty/Smith case. Radiohead, The Beach Boys, and Coldplay have all gone this route in their respective battles with infringement allegations.(6)
But what about the music?
For his part, Sam Smith has the vindication of four Grammy wins, and his record In the Lonely Hour sold 1.2 million copies last year, eclipsing all other releases except Taylor Swift’s 1989.(7) So all’s well that ends well, right? The creative voices responsible for composing two vaguely similar songs have, like their forbearers, amicably settled. That means people like me who write about interesting phenomena in the music industry should move on to other interesting phenomena.
But, wait…what about the inane assertion that “Stay With Me” and “I Won’t Back Down” are so similar that their respective creators need to share songwriting credit? And why is the music press so reticent when it comes to weighing in on the accuracy of these claims, especially given the relative ineptitude of the courts when it comes to musical analysis?
Don’t get me wrong: “Stay With Me” and “I Won’t Back Down” have unequivocal musical similarities. But the story here is that these similarities are a total non-issue. Sorry to burst the bubbles of Sam Smith and Tom Petty fans out there, but absolutely no genius was involved in either artist’s appropriation of this melodic, rhythmic, and harmonic material. Yes, both artists borrowed this stuff from a preexisting source. In the past millennia of Western cultural tradition, it’s literally everywhere. Ditto for non-Western cultures.
To illustrate how utterly mundane this melodic material is, I’ll have to get just a bit technical, which I suspect accounts for the absence of op-ed pieces discussing the validity of copyright infringement cases in Rolling Stone-type publications. But don’t get too concerned: most of the ensuing musical explanation is covered within the first week of the average community college’s Music Appreciation course. Incidentally, Julie Andrews adroitly blows through this subject in about four minutes during the “Do-Re-Mi” song from The Sound of Music.
Here is the eight-measure fragment from the “original” song:(8)
In solfege terms, “I Won’t Back Down” employs a phrase that uses a pair of three-note descending patterns la-sol-mi, mi-do-do. Here are the offending eight measures from “Stay With Me”:(9)
I’ve changed the original key of “Stay With Me” to make the pitches match up with “I Won’t Back Down.” Aside from a bit of melodic ornamentation in the sixth measure, both songs do in fact employ the la-sol-mi, mi-do-do pattern and bear an undeniable resemblance rhythmically.
So, case closed—a clear instance of copyright infringement, right? Not so fast. A cursory survey of current songs on the Billboard Hot 100 finds the same pattern in
Ed Sheeran’s “Thinking Out Loud”:(10)
Sheeran adds some flourishes, but there’s a whole bunch of la-sol-mi, mi-do-do happening throughout “Thinking Out Loud.” But before Mr. Petty and Mr. Lynne get too excited about claiming yet another undeserved songwriting credit, let’s take a look at a very similar pattern in the opening line of Bob Dylan’s “Blowin’ In the Wind:”(11)
“Blowin’ In the Wind” predates “I Won’t Back Down” by some 27 years, and it’s still under international copyright protection. But that doesn’t mean that Petty and Lynne’s fellow Traveling Wilbury has earned a songwriting credit for “I Won’t Back Down” and all songs other songs that have employed this melodic pattern since 1962.
Truth is, any first-semester music major worth their salt can identify and categorize a melodic pattern like “I Won’t Back Down” upon initial hearing. It can be found in hundreds of musical excerpts from classical music to folk music around the world. There is nothing fundamentally special or ingenious about this melodic pattern because the pattern is itself fundamental to both Western and non-Western musical languages. It’s really basic stuff. To claim ownership over the pattern la-sol-mi, mi-do-do and its supportive diatonic harmonies is like claiming an ownership stake in the phrase “I’m hungry, let’s eat.”
It’s worth noting that I’ve limited the musical examples in this discussion to songs that bear a melodic resemblance. There are many other compositional elements to consider in cases of alleged infringement, but due to the court’s history of a rather arbitrary focus on melody, I’ll omit examples that illustrate wholesale borrowing of rhythm, lyrics, dynamics, instrumentation, and tempo that permeate music of all genres.
Pointing out the rudimentary nature of Petty and Smith’s compositional material is in no way intended as an insult to their songwriting craft. Simplicity is at the root of Rock & Roll’s ethos and appeal. And by the way, it’s damned hard to make a great song out of three or four chords and a total of seven different notes, and both Petty and Smith achieve that in their respective songs. But a limited compositional palette makes periodic duplication inevitable, and I’d argue that it renders many artists’ songs ineligible to sue or to be sued based on claims of musical uniqueness.
Obviously, I’m not advocating wholesale piracy here. Nor am I rejecting the decisions of every copyright infringement case in which the defendant lost based on appropriation of intellectual property. Rather, I’m pointing out that occasional redundancies are a naturally occurring and charming aspect of pop songwriting that can enhance the enjoyment of music for an informed listener.(12) Copyright infringement cases that make ownership claims on basic elements of music discourage the creation of new work, which was at one time the primary purpose of the U.S. Copyright Act of 1790:(13)
“The Congress shall have Power…To promote the Progress of Science and useful Arts, by securing for limited Tımes to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
With apologies, Mr. Petty: you didn’t discover the melodic or harmonic material that you are claiming to own. You borrowed it, just like the rest of us.
1. “A Statement from Tom Petty”, January 29, 2015, http://www.tompetty.com/blog/statement-tom-petty-423041
2. “Sam Smith’s ‘Stay With Me’ and Tom Petty’s ‘I Won’t Back Down’”, July 14, 2014, https://www.youtube.com/watch?v=qkcZV97O3pw
3. Andy Greene, “Tom Petty Doubts Chili Peppers Similarity Had ‘Negative Intent’” Rolling Stone, June 28, 2006, http://www.rollingstone.com/music/news/tom-petty-doubts-chili-peppers-similarity-had-negative-intent-20060628
4. Joseph C. Self, “The My Sweet Lord/He’s So Fine Plagiarism Suit”, Abbyrd’s Beatles Page, retrieved February 11, 2015, http://abbeyrd.best.vwh.net/mysweet.htm
5. The Music Copyright Infringement Resource, retrieved February 11, 2015, http://mcir.usc.edu/purpose/Pages/default.html; The MCIR lists 61 cases in the 134 years between 1845-1979. In the 34 years since Bright Tunes Music v. Harrisong Music went to trial, 91 other copyright infringement cases that have also gone to trial.
6. Matt Melis and Michael Roffman, “10 Famous Cases of Alleged Music Plagiarism”, Consequence of Sound, May 23, 2013, http://consequenceofsound.net/2014/05/10-famous-instances-of-alleged-music-plagiarism; Radiohead shares credit for “Creep” with members of the Hollies for similarities with “The Air That I Breathe”; the Beach Boys added Chuck Berry to the credits for “Surfin’ U.S.A” because Berry’s “Sweet Little Sixteen” bears some resemblance; and Coldplay shells out credit to Joe Satriani for parallels somehow perceived between Chris Martin and Co.’s “Viva la Vida” and Satriani’s “If I Could Fly.”
7. It is worth mentioning that Taylor Swift’s 1989 was not eligible for Grammy consideration in 2014 due to its release date.
8. Jeff Lynne and Tom Petty, “I Won’t Back Down”, Gone Gator Music, Sony/ATV Music Publishing LLC, and EMI April Music, ©1998.
9. Jeff Lynne, Samuel Smith, James Napier, William Phillips, and Tom Petty, “Stay With Me”, EMI April Music, Sony/ATV Music Publishing LLC, Stellar Songs Ltd, Salli Isaak Music Publishing Ltd, Method Paperwork Ltd, Gone Gator Music, Wixen Music UK Ltd, and Sony/ATV Music Publishing UK, ©2014…yup, I have to acknowledge Petty and Lynne here for legal reasons.
10. Ed Sheeran and Amy Wadge, “Thinking Out Loud”, Sony/ATV Music Publishing and DBi Music Ltd, ©2014.
11. Bob Dylan, “Blowin’ in the Wind”, Warner Brothers Incorporated, ©1962.
12. Of course when it comes to mechanical reproduction and fair use, all recorded music should be protected under international copyright law and often isn’t. But that’s another matter entirely, and my upcoming new blog about music and music makers, the Schroeder Report, will cover it sometime soon.
13. U.S. Constitution, Art I, Section 8.