Plagiarism wars put rhythm and beats under the legal microscope

Robin Thicke, left, and Pharrell Williams, right, lost a plagiarism lawsuit in 2015 over the 'feel' of their song 'Burred Lines.' Alan Cross says beats and rhythms are the next target for litigation. Photo by Matt Sayles/Invision/AP, File

When a jury ruled that Robin Thicke and Pharrell Williams had plagiarized Marvin Gaye’s 1977 hit Got to Give It Up for their song Blurred Lines, a lot of songwriters felt a chill blowing in from that courtroom.

In the jury’s estimation, the two songs sounded too much alike and therefore the writers of Blurred Lines infringed on Gaye’s copyright. In short, this was plagiarism, one of the most damaging charges that can be laid on a composer.

The estate was awarded US$7.4 million (later lowered to US$5.3 million on appeal). If you examine the sheet music of both songs, you’ll see that they don’t have much in common note-wise. Where they are similar is the feel and groove. Those musical elements were enough to tip the verdict in favour of Gaye’s people.

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“Wait,” said every songwriter ever, “You mean I could be liable for damages if my song happens to feel like another? I can see a problem with sharing a melody or lyrical fragments, but now you can copyright how a song feels? What does that even mean?

The internet allows us to compare the two songs.

There are definitely similarities — and that’s by design. The writers of Blurred Lines were looking to pay homage to Gaye, not rip him off. The judge and jury ruled that Thicke et al went too far and thus violated Gaye’s copyright.

More than 200 musicians ranging from Rivers Cuomo of Weezer to movie score producer Hans Zimmer immediately reacted to the verdict, saying that it “threatens to punish songwriters for creating new music that is inspired by prior works.”

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I wholeheartedly agree.

When the ruling came down in 2015, I remarked to a friend that now that this precedent was set, an army of lawyers will be unleashed, trying to squeeze money out of songs that sound too much like an older track, no matter how obscure. And that’s exactly what’s happened.

To cite just one example, Mark Ronson now has to share royalties with five people he never met because Uptown Funk was ruled to sound too much like an old Gap Band song Don’t Believe You Want To Get Up and Dance (Oops Up Side Your Head). Katy Perry was dragged into litigation over eight notes in her hit, Dark Horse. Ed Sheeran was accused of copying another Gaye song, Let’s Get It On in the writing of his Thinking Out Loud. U2, Nickelback, Led Zeppelin, and dozens of other artists have been caught in the “this song sort of sounds like this” trap.

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The result is that songwriters are being very, very cautious. They don’t want to write an original song only to be told/sued later because it has some sonic similarities to an old song they’ve never heard before. Many are even reticent to answer the question “Who are your influences?” because even that could open the doors to opportunistic litigation.

And it could get even worse.

Back in 1989, a Jamaican duo, Cleveland “Clevie” Browne and Wycliffe “Steely” Johnson, released a song called Fish Market. It was the B-side of a 7-inch single released on their own Kingston-based Steely & Clevie Records. This is the first known example of a “dembow” rhythm.

Obscure? You bet. But dembow is the foundation of reggaeton, an extremely popular form of Latin American pop that’s made superstars out of performers like Daddy Yankee (the guy behind the megahit Despacito, which is the second-most viewed song on YouTube) and, Bad Bunny (one of the top five artists in the world right now).

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Steely and Clevie are now suing Daddy Yankee and his collaborators, alleging that Daddy Yankee unlawfully interpolated the rhythm of Fish Market and therefore, they want to be paid. And they didn’t stop there. The lawsuit names 55 other songs that they say stole their rhythm. Justin Bieber’s name is mentioned in the suit.

Beats have historically been uncopyrightable. If they win, the implications for music are massive. But not only would it make any song using a dembow rhythm in breach of copyright — bad enough since this is one of the foundational rhythms of reggaeton — but on other beats and rhythms as well.

For example, let’s look at Jet’s worldwide rock hit, Are You Gonna Be My Girl. Pay attention to the beat.

When that song came out in the summer of 2003, Iggy Pop fans were quick to point out the drum pattern was awfully similar to Iggy’s 1977 song, Lust for Life.

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Iggy and his co-composer lifted that rhythm from a theme they heard while living in Berlin on the Armed Forces Radio Network. Maybe that radio jingle twigged the memory of this Supremes song from 1966.

We can go back even further. Beginning in the late 50s, Bo Diddley played that rhythm so much that it was dubbed the “Bo Diddley Beat.” His signature song, also called Bo Diddley, was released in 1958.

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Diddley did not invent that beat. He had to have known of the seven-note rhythmic figure known as the “shave and a haircut, two bits” that had circulated through popular music for decades. It showed up a lot in vintage Looney Tunes cartoons. The Bo Diddley Beat was used in popular songs in 1939, 1933, 1915,  and 1911. The earliest use of the beat as we know it dates back to an 1899 composition by Charles Hale called At a Darktown Cakewalk.

And there’s more. Johnny Carson’s Tonight Show theme ended with a shave-and-a-haircut-two-bits flourish through all 4,531 episodes. It’s part of The Beverly Hillbillies theme. The same beat can be found in various traditional Spanish, Mexican, Irish, Swedish, Icelandic, Dutch, Argentine, and Italian songs throughout the ages.

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You can see the disaster that could occur if Steely and Clevie win their lawsuit. Will someone try to cash in on the Bo Diddley Beat? Taken to its ridiculous extreme, even a standard 4/4 disco beat would be imperilled, although I can’t fathom any situation where the litigant would be successful.

But as I said at the beginning, beats have historically been exempt from copyright — except in one case. If lawyers can prove that a specific rhythm is substantially original, then it might be subjected to copyright. Therefore, it is possible for infringement to occur.

Lawyers, labels, and music publishers will be watching the Steely and Clevie case very carefully. A good chunk of the future of popular music could be riding on the verdict.

Alan Cross is a broadcaster with Q107 and 102.1 the Edge and a commentator for Global News.

Subscribe to Alan’s Ongoing History of New Music Podcast now on Apple Podcast or Google Play

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