James Hirsen, Special for USDR
At the recent Grammy Awards ceremony, British soul singer Sam Smith snagged some major attention by taking home four Grammys, which included awards for Best New Artist and Best Pop Vocal Album.
His biggest hit, “Stay With Me,” was in contention for both Song of the Year and Record of the Year and took both trophies. However, the tune was also the subject of a news story that involved a fellow musical artist, who this year was up for a Grammy as well, the famed producer-singer-songwriter Tom Petty.
Many inside and outside of the industry had noticed Smith’s song bore an eerie resemblance to Petty’s signature 1989 hit, “I Won’t Back Down.” Lawyers ultimately weighed in on what in fact turned out to be a music copyright infringement claim, or as the press were labeling it, “song plagiarism.”
In a typical music copyright case, evidence that demonstrates an infringer had actually previously heard an alleged plagiarized song is rarely available. Smith had made the claim that he had never heard “I Won’t Back Down,” and that any similarities between his 2014 hit and Petty’s song were merely a coincidence.
Smith had told CBC News that “it [the song resemblance] was a complete accident.”
“I am 22 years old … I’ve never listened to that song,” the singer added.
If a lawsuit had proceeded in this instance, Petty and co-writer Jeff Lynne would have had to carry the burden of proof in which they would have been required to demonstrate that “I Won’t Back Down” was substantially similar to “Stay With Me,” and that Smith and his song collaborators had indeed misappropriated musical characteristics from Petty’s song.
But interestingly in this case, rather than allowing the complicated matter to be handled by a trial court, Smith’s legal team compared the two songs and made the more prudent of decisions; that is, to pursue an amicable settlement.
In resolving the situation, the already credited co-writers of “Stay With Me” were supplemented with the additional “I Won’t Back Down” writers, Petty and Lynne. In a further twist to the legal plotline, George Harrison, who played acoustic guitar and provided backup vocals on Petty’s “Don’t Back Down” hit, was himself involved with a leading music copyright case that ended up providing guidance to Smith’s lawyers.
Harrison was sued in 1971 over one of the Chiffons’ songs, “He’s So Fine.” It was claimed that Harrison’s hit, “My Sweet Lord,” had infringed the copyright of “He’s So Fine,” because the harmony and melody of the two songs were strikingly similar in the verses and choruses, much like in the case of the Smith and Petty songs. The similarity was so remarkable that, as was done in the case of Smith and Petty, numerous mashups appeared on social media sites, which served to highlight the inherent likeness.
Even though defendants are prone to indicate that they have never heard a song in question, plaintiffs deal with the situation by proving “access.” Access can be established circumstantially by providing evidence that the infringed song was widely disseminated via radio, television broadcasts, streaming, downloads, and the like. This type of evidence, coupled with expert testimony, is oftentimes able to persuade a judge or jury that a defendant had been exposed to an infringed song in some manner. In Harrison’s case, the court came to the conclusion that the former Beatle had subconsciously appropriated musical ideas from “He’s So Fine.”
The same kind of analysis was used by Smith’s legal team in deciding to settle the matter, since “I Won’t Back Down” was on every pop radio playlist in 1989, continued to be featured on classic rock and “oldies” stations, in television shows and in film, and is readily available on the Internet.
Examples abound of high-profile music infringement cases, including the following:
-“Surfin’ U.S.A.,” in which The Beach Boys wound up giving co-writing credit to Chuck Berry because of his tune, “Sweet Little Sixteen.” The Beach Boys had written the song as a tribute to Berry but had failed to obtain his permission. After Berry threatened to file a lawsuit, The Beach Boys settled the case by listing Berry as the composer and giving him most of the royalties. When the single was first released in 1963, Brian Wilson was listed as the sole writer. However, in later releases, beginning in 1966, Berry appeared as the writer.
-Led Zeppelin’s “Whole Lotta Love,” in which it was alleged that lyrics were taken from Willie Dixon’s “You Need Love.” A lawsuit was filed against Zeppelin in 1985 and was ultimately settled in Dixon’s favor.
-“Ghostbusters” by Ray Parker Jr. was allegedly modeled after Huey Lewis’s “I Want a New Drug,” since filmmakers were purportedly unable to secure a licensing deal with Lewis. Lewis sued Parker in 1995, and the case was s ettled out of court.
-Robin Thicke’s copyright infringement case is still pending, the outcome of which will determine whether Thicke’s “Blurred Lines” tune borrowed elements from Marvin Gaye’s “Got to Give It Up.”