Copyright law and popular music can sometimes appear to be strange bedfellows. The Founders were not likely to have intended this tension, given the fact that “promot[ing] the . . . useful Arts,” is followed by a phrase that limits the exclusive right to use, only “securing [it] for limited Times to Authors and Inventors.” Yet, as the statutory period for copyright protection has extended for longer and longer periods, America’s predilection for bubblegum pop music fare has the potential to increasingly become a legal battleground. Moreover, it is a legal battleground that will only continue to ripen based on a concept unfamiliar to some in the law: music theory.

The latest example of this tension is newsworthy settlement between Sam Smith and Tom Petty. Sam Smith is a British soul/pop singer-songwriter who in 2014 released the song “Stay With Me.” The song was greeted with commercial and critical success. It was also greeted with the threat of litigation by another successful singer-songwriter, Tom Petty (even though both parties–at least publicly–assert that the word lawsuit was never uttered).

Petty, in 1989, penned with his co-writer the song “I Won’t Back Down.” The song, like Smith’s, was also commercially successful. Like Smith’s, Petty’s song used five one-syllable words in the first two lines of its chorus. Like Smith’s, the melodic line moved up and down over common intervallic leaps. Like Smith’s, the song rested on a standard chord progression (more on that in a minute). And now, like Smith, Tom Petty will get paid every time someone hears the song “Stay With Me.”

Many will say, in Petty’s defense, that he got there first; fair enough. Petty also to his credit does not call Smith a thief either, dubbing it “[a] musical accident no more no less.” Even so, the fact that this matter settled means suit was possible. But rather than an instance of musical theft (as was at issue with “Ice Ice Baby” ) or aggressive borrowing (as is being argued in the ongoing “Blurred Lines” litigation), here we really have (if Perry is serious) an instance of two songs that rely on a shared frame of history and common taste, but share very little else in terms of production, instrumentation, and timbre.

The shared frame I’m speaking of is the underpinnings of western popular music thought. In the 1670’s, Nikolai Diletskii authored the foundational treatise on music composition, Grammatika. The treatise expounds on ideas we now consider foundational, not just to popular music composition, but all music and includes concepts regarding the twelve-tone scale. Not all notes in the twelve-tone scale are created equal though. Even in 1670, it was noted that the harmonic relations between certain pitches (specifically the first, fourth and fifth notes of a given key) sound better. There are even physics that prove this phenomenon.

Over time, more conventions established, and the standard refrain of popular music became increasingly concrete. Our ears engage with popular music now with expectations of how and where melody resolves; over 50% of songwriters who produced commercially successful music, when asked to follow a common minor chord (Em) followed it with the same chord in practice (Fmaj). Certain keys are preferred to others. In an analysis of 1300 popular songs, 26% were written in the same key (C Major; oddly enough the keys of “I Won’t Back Down” and “Stay With Me” are different making them sound much less alike than say “Thinking Out Loud” by Ed Sheeran and “Waiting on the World to Change” by John Mayer).

This is the frustration with Petty’s assessment of Sam Smith’s “accident.” Western popular music is a limited landscape. The IV-V-I progression has been played from Buddy Holly to “Buddy Holly,” from a number of country songs and R&B songs. Given the settlement, there would be a reasonable inference to make that Petty’s team believed a suit would be victorious. If a court were to declare something like a chord progression or a melodic line as owned by a copyright holder, without swift legislative action, the record companies would likely cease producing catchy tunes for younger listeners.

To summarize: good artists can borrow, great artists can steal, but the worry is that successful ones will get prosecuted for IP infractions.


Lawrence Crane-Moscowitz

2 Responses to Great Artists Steal? A Music Theory Thought Experiment & a Worry about the Litigation of Popular Music

  1. Cassidi Hammock says:

    Should the copyright be more relaxed with music to allow for the reality that many artists and sounds come from a limited common histories and must compete in the overall musical expectation? Another obvious solution would be to shorten the period of protection for music and thereby allow for that song to be an “inspiration” soon than currently allowed. My intuition is that musicians would rather have the longer protection, but also allow for progression within music. I look forward to seeing the outcome for this issue.

  2. Victoria Roessler says:

    Having just written my blog post on a specific authorship dispute in the music world, it seems to me that this trend is a slippery slope. Once other artists see that the original artists are winning these lawsuits, what is stopping them from filing a lawsuit every time they hear a song that sounds similar to one of their own? Being that popular music operates in a limited landscape, I believe that this practice will become even more popular, bringing uncertainty and distraction to the music world.

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