Saturday, July 07, 2018

Writing Songs in the Time of Lawsuits for Fun and Profit

Rick Beato discusses the recent copyright infringement lawsuit where the Marvin Gaye estate won over Ed Sheeran.   Using the a/b technique where the two recordings are played section for section side by side, he highlights where they are identical and where they are similar but different.   He comes down on the side of Sheeran and the usual huzzahs follow in the comments.

Compare it to George Harrison's problems with My Sweet Lord or the Led Zeppelin loss over Stairway to Heaven. This sort of derivative work has been a problem for a while. Pop is narrow and what sells is what has been selling lately. (the love of the ear is to hear what it heard before - neuroscience 101). Neither side gets me worked up that much. It's the risk of being obsessively style-oriented in production and possibly a good thing in breaking up the monotony of the Nashville song factories even if dodgy with respect to what should constitute a copyright.    As long as one set of curators demands "authenticity" while the money managers demand speed of production, the risk of getting sued is always waiting outside the songwriter cube of the publisher.

I think he is missing an opportunity here.

Beato puts a heavy emphasis on theory in his instructional videos and that is a reason for folks like myself, principally songwriters and not instrumental virtuosos, to attend. Lennon and McCartney are said to have warned Harrison about the dangers of derivatives, that one has to do that extra bit of work to change it up. This is when such things as chord substitutions, alternative modes, reharmonization, yadda yadda pay off big.  This danger of the Swamp Lawyers is also why a songwriter should be leary of the Nashville Chord Police and the Muscle Shoals It Must Be Blues or It Isn't A Hit producers. The Money Mold is a sweet temptation but a terrible mistress.   The writers assume the risks of belonging to the current trend clubs.    Chuck Berry could have and should have taken Brian Wilson to the cleaners.   There was more money to be made in rock then and publishers were less prone to sue.  That gentleman's agreement to hold fire when times are good falls apart when there is less scratch to split.

These leagal decisions are as some complain made by people who do not have enough music knowledge to distinguish derivation from outright copying.    Most assume as has been historically true that if the melody is different and the lyrics are distinct, a progression cannot be copyright.  That isn't quite true as precedent shows.   In the case of Stairway to Heaven, the progression is called a line progression, essentially a single voice in the harmony ascends or descends while the others are static.   That particular minor progression is a staple of composition and has been for centuries.   The a/b comparison was not revealing.  The facts that the plaintiff was touring with Zep and that Page had a prior history of infringement possibly weighed heavily in the decision.  So prior knowledge was established.  

Arrangements can be distinctive and the plaintiff can still win.   In the case of Sheeran, though the melody is different and the progression of  the chorus is different, the arrangement is very very derivative.   Where styles are applied without much distinction, an a/b comparison may not be a friend of the defense.   In the end, it does come down to the ears of the judge or jury.

In the case of Harrison vs the Chiffons, the melody was close and the progression was exact.  The arrangements were very different.   The history of how the song came to be in a jam session with Billy Preston could have been considered but I'm not sure Harrison or his defense team brought that up as it might have weakened their case.  In the end, similarities were strong enough to go against Harrison. It is enough to make one give up on pop songwriting or as some in the movie industry have, buy up every catalog affordable and rest in the fact that one cannot sue oneself.  Money is the best defense and without it, anonymity is the best offense or was until the current age of algorithmic sleuthing and snitching came.  YouTube giveth and YouTube taketh away.

The other extreme is to give up copyright and embrace the cult of "information wants to be free" which has decimated songwriters or pursue ever more abstract sounds and production that are alien to the ear. Few steal from the poor. The vows of poverty work only as long as the supplicant lives in a poorer monastery,  If the label is profiting bigly on the masters, the fact that the songwriter is not receiving much as is rapidly becoming the case with today's new streaming collection agencies is no protection.   There is still money in lawsuits if the lawyers target the right pots of money.

Artists have to choose if they want to surrender to the monotony of pop art or live impoverished in the wild lands of abstract expressionism. What remains for the centrists is politics. Keep a lawyer on retainer. Lady Antebellum and Chris Stapleton manage cloning and a legal defense.

Or work harder at individualism using techniques Rick Beato is making a career out of teaching. Lennon and McCartney set the example: don't write the same song twice, Contrast that with James Taylor's statement that a songwriter writes the same song over and over. I think that is the very high wall of the formula. A comfortable prison is still a prison.

Or... steal from the dead.   Beethoven's lawyers decomposed faster than his music.

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