SONGWRITING, ORIGINALITY, AND THE GRAY AREA IN BETWEEN
Martina Kenner
EIS 4360: Entertainment Law & Licensing
Due Date: Thursday – November 3rd, 2016 by 11:59pm
Though Tom Petty has had many successes of his own, “Stay With Me” is not one of them. There is much irony – as well as there is gray area – in the case of the “I Won’t Back Down” songwriters, and the songwriters that they essentially forced to do exactly that: Sam Smith, James Napier, and William Phillips. While all sources seem to report that the original “Stay With Me” songwriters bowed out gracefully from Petty and his co-writer’s proposed lawsuit by adding them as additional writers through ASCAP – this may have only been the case because “Stay With Me” was the first song of Sam Smith’s to officially catapult his music career to the place that it is now. In addition to that – a legal battle so soon into his career, with the already-established Tom Petty, nonetheless, would not have been likely to fare well in numerous regards to his breaking into the industry. With all of this being said – there is still much gray area that exists within the case that never came to be.
The three basic requirements in order for a work to be eligible for copyright protection include originality, expression, and fixation. “Although this requirement may seem straightforward, the originality requirement is a common source of confusion … very little is totally original because virtually all creativity draws on already existing elements. Music composers select and arrange musical notes and rhythms that have existed for centuries, and literary authors use words already in existence rather than creating their own.” The “Blurred Lines” and “Got To Give It Up” case of Pharrell Williams and Robin Thicke versus Marvin Gaye’s Estate garnered much media attention in the year prior to the 2014 Petty/Smith case, as well as the years that followed, until its official verdict in March 2015. The verdict of that case required that Thicke and Williams “pay $4 million in copyright damages plus profits attributable to infringement, which for Thicke was determined to be $1.8 million and for Williams was determined to be $1.6 million — a total of $7.4 million. Both escaped statutory damages as the infringement was found not to be willful.” Many copyright infringement cases are not willful – because nobody in the right mind would want to put his or herself in a position to readily be sued – but proving originality itself proves to be a challenge within itself. “Original” is defined in the Oxford Dictionary as “present or existing from the beginning; first or earliest” – but those of us that inhabit this planet today are not the original humans that were set upon the Earth; the vernacular that we use is not original; the sounds and melodies and means by which we create them are not original; in terms of music – nothing about today’s society possesses the ability to be truly original, if we go by the dictionary’s definition. If we go by the simplest definition that Copyright Law can provide for “originality,” then “originality means that a work has been independently created by its author rather than copied from another work.” While there are laws and rules in place in order to penalize those that knowingly infringe upon ones’ rights or plagiarize by passing another’s work off as their own – copyright law within the realm of music just allows for a plethora of questions and confusion due to the uncertainty of what an “original” work truly is – especially when it is not intentional. Williams and Thicke’s admitting that they admire and were inspired by Marvin Gaye’s work, as well as Pharrell’s words “I must’ve been channeling…that late 70’s feeling,” are what resulted in the judge and jury’s decision to rule in favor of Marvin Gaye’s Estate – but the case still presented a very important point: “it is not copyright infringement to write a song with the same ‘groove’ or ‘feel’ as another.” That was a very integral part of Williams’ plea; “Pharrell Williams testified in a single phrase to what he thinks ‘Blurred Lines’ shares with the Marvin Gaye song it’s said to copy: ‘Feel. Not infringement.’”
The story of Petty and his co-writer, Jeff Lynne’s, at-the-time impending case against Sam Smith broke via The Sun – a UK news company. Smith’s rep stated that it was “the publishers for the song ‘I Won’t Back Down’ [that] contacted the publishers for ‘Stay With Me,’…about similarities heard in the melodies of the choruses of the two compositions” – and Tom Petty claims that “the word lawsuit was never even said and was never [his] intention” – but he went on to say that “Sam did the right thing and I have thought no more about this. A musical accident no more no less.” By Petty’s saying that “Sam did the right thing” – he was acknowledging that he truly does believe his rights were infringed upon, whether Smith and his co-writers were cognizant of it or not – but the point of this paper is that I do not believe that was the case at all, by any means. Not only do the song lyrics tell completely different stories and have entirely different bridges – but the key that the song is in and the tempo also must be altered in order for them to sound similar during their choruses, which was what the entire case originated from. One of the YouTube videos that was made in order to prove the songs’ similarities is what illustrates exactly that: the changing of the tempo and the key – both of which I find to be absolutely unfair in order to claim infringement – in addition to the fact that, again: the stories told within the lyrics are completely different; “I Won’t Back Down” tells the story of a person that will stand their ground, no matter the circumstances – and “Stay With Me” tells the story of somebody that just wants to be loved and seeks companionship. The aforementioned video was removed from YouTube due to a copyright claim of its own – but the link that it was formerly available at is: http://digg.com/video/proof-that-stay-with-me-and-wont-back-down-are-the-same-song. The video started off by playing the songs and pausing to provide on screen narrations that included slowing it down and altering the key of each song until they coincided with each other while playing. There are many other videos on the internet that play both songs simultaneously to prove their similarities, but the copies of the music have already been altered to be at the same tempo and in the same key. Original copies of each work can be listened to on YouTube if they are searched separately. The official “Stay With Me” music video can be found at (https://www.youtube.com/watch?v=pB-5XG-DbAA) – and the official music video for “I Won’t Back Down” can be found at (https://www.youtube.com/watch?v=nvlTJrNJ5lA).
Numerous listeners, fans and fellow musicians have pointed out the similarities that exist between the two songs – but as a musician and songwriter – I find their differences to outweigh their similarities, especially when the recordings need to be altered in order to make the similarities more apparent. I also find it a shame that Smith’s team gave in to the request of Petty’s publishers that Petty and Lynne be listed as co-writers of “Stay With Me” through ASCAP – but I do believe that it was done with reason; just not for the reason that Petty, Lynne and their publishers would like to believe. I believe that it was done in order to avoid a legal battle and/or jeopardizing such a talented young man’s career as it was just taking off – but whether that is true or not remains undetermined. All in all – the Petty/Smith case never made its way into a court room, like the “Blurred Lines” case did – but both were very enlightening of the gray area that exists within music copyright law, due to the ever-elusive concept of “originality.”
Bibliography
Eriq Gardner. “‘Blurred Lines’ Trial Verdict: Jury Rules Against Pharrell Williams & Robin Thicke.” Billboard. March 10, 2015. Accessed November 03, 2016. http://www.billboard.com/articles/news/6495159/blurred-lines-trial-verdict.
“Definition of Original in English | Oxford Dictionaries.” Oxford Dictionaries. Accessed November 03, 2016. https://en.oxforddictionaries.com/definition/original.
Jenkins, Jennifer. “The “Blurred Lines” of the Law.” Center for the Study of the Public Domain. Accessed November 03, 2016. http://web.law.duke.edu/cspd/blurredlines/.
Kreps, Daniel. “Tom Petty on Sam Smith Settlement: ‘No Hard Feelings. These Things Happen'” Rolling Stone. January 29, 2015. Accessed November 03, 2016. http://www.rollingstone.com/music/news/tom-petty-on-sam-smith-settlement-no-hard-feelings-these-things-happen-20150129.
Moser, David J., and Cheryl L. Slay. Music Copyright Law. Boston, MA: Course Technology, a Part of Cengage Learning, 2012.
Siegemund-Broka, Austin. “‘Blurred Lines’ Trial: Pharrell Says His Song Channels “That Late ’70s Feeling”” The Hollywood Reporter. March 4, 2015. Accessed November 03, 2016. http://www.hollywoodreporter.com/thr-esq/blurred-lines-trial-pharrell-says-779355.