It’s been about a year since a jury decided that Led Zeppelin’s Stairway To Heaven did not infringe upon the copyright of Taurus, by the band Spirit. That jury ruled that although Led Zeppelin had access to Taurus (meaning Zeppelin had probably heard it) the two songs were not substantially similar under the extrinsic test.
The plaintiff’s appealed arguing that the district court: (1) failed to instruct the jury that the selection and arrangement of otherwise unprotectable individual musical elements might be protectable by copyright; (2) improperly instructed about originality; and (3) didn’t give them an “inverse ratio” instruction.
And the Ninth Circuit pretty much agrees, and has vacated the district court jury’s decision and remanded for a new trial.
Well, whether you’re a lawyer, musician, or just rock and roll fan, so this first of all: While the appellate judgment upheld the ruling that the scope of the copyright in Taurus is limited to its deposit copy sheet music (and not its recording), it says the jury should have heard the recording of Taurus when Jimmy Page did, as part of the access argument. And correcting this supposed error is going to be a very big deal in the new trial.
“Wait,” you say, “they didn’t hear Taurus the first time?”
No. The first jury wasn’t allowed to hear the recording of Taurus, and it’s hard to overstate the importance of this. Taurus begins with a very (very!)Stairway-like guitar introduction. It would be much the whole point here.
This came up in the Blurred Lines trial too. The Copyright Act of 1909 says the protectable copyright is in the “deposit copy” — the thing you actually send to the U.S. Copyright Office. Nowadays the deposit copy is very often an mp3 recording, but it could also be sheet music, cassette (don’t giggle), vinyl; whatever serves best as the thing you want protected, you send that.Back in the early seventies, you sent sheet music, and the notes on the page are pretty much the extent of what’s protected. Most entertainingly in this case it so happens that neither Stairway’s nor Taurus’s guitar intros are in their respective sheet music deposit copies and therefore the recordings of those intros were disallowed. And since Taurus after its intro sounds and probably appears on sheet music not much at all like Stairway, this leaves a lot less for the plaintiffs to work with.
None of that changed really. It’s upheld that the deposit copy is the thing we’re comparing, but even though the 1909 act is still in effect, the jury may hear Taurus this time anyway. And it’s interesting going forward — a way to get your disallowed recording heard after all, just for a different purpose.
The Access Argument
Recall that copyright infringement is a bit of a three legged stool.
You need protectable stuff to begin with.
It has to be substantially similar to another’s stuff, created after your stuff.
The infringer needs to have somehow had access to the prior bit of stuff before infringing upon it.
Nobody imagines Page had access to the sheet music. The plaintiffs need to argue he’d heard the recording. It was decided in the first trial that since the jury was not to hear the recording, Page would need to go through the dance of heading off to another room, away from the jury, listen to Taurus, and return to be questioned about whether he’d heard Taurus before writing Stairway.
The Ninth believes that the jury should’ve been allowed to observe Page as he listened and I suppose check for physical signs of his recognition or perhaps guilty feelings? I can see that. But the remedy? They’re going to play that Taurus guitar intro and instruct the jury to not consider it when they decide on similarity? That I’d say is probably way far fetched.
The other misdirections.
Let’s get back now to the part where the plaintiffs were harmed because the jury wasn’t informed properly. First that selection and arrangement of otherwise unprotectable individual musical elements could itself be protectable. I can barely imagine what this even means in this context. Taurus isn’t a sound collage. All music is on some level an arrangement of unprotectable musical elements. A single note is an unprotectable musical element. A couple of them or a short series is possibly protectable, but it’s not very likely. It’s a bit pedantic to point out that a series or arrangement of unprotectable notes or groups of notes might be protectable. It’s possible, sure. But the precedents cited in the Ninth’s opinion are about computers and jellyfish sculptures. Putting sculpture aside a second, a computer is an assembly of parts that might enjoy their own respective patents or not, and the assembly, sure, might be protectable IP. But it’s not that you get to string together a bunch of unprotectable stuff and that makes the stuff protectable; rather it’s your arrangement that becomes protectable. MAYBE! And that’s as far as it goes. Here if we’re probably talking about a series of notes in a bass line and the progression is the thing that’s well worn, then the progression is the arrangement, and well worn it remains. To be fair according to the Ninth’s opinion, “(The plaintiff’s) expert, Dr. (Alexander) Stewart, testified that there was extrinsic substantial similarity based on the combination of five elements—some of which were protectable and some of which were in the public domain.” I would love for Dr. Stewart to read this and tell me what these five were.
The jury was also misinformed as to “originality” in that they were told that “common musical elements, such as descending chromatic scales, arpeggios or short sequences of three notes” are not protectable. And I would agree that this is overly broad, technically inaccurate, and particularly since I suspect a five note chromatic scale was the heart of the plaintiff’s argument, prejudicial.
The opinion continues on the misinstructions around originality, “Additionally, Jury Instruction No. 20 stated that “any elements from prior works or the public domain are not considered original parts and not protectable by copyright.” While this statement is not literally incorrect, it misleadingly suggests that public domain elements such as basic musical structures are not copyrightable even when they are arranged or modified in a creative, original way.” And here I disagree. I would argue that it doesn’t suggest the “selection and arrangement” thing, because that thing is, well, weird, and not to be assumed.
Okay, “weird” might not be the most useful argument. But someone’s gonna need to show me this “five elements some of which are public domain (that’s somewhere from one to four of em I guess?) and some not” argument, before I’ll start accepting that any jury instructions that don’t bend over backward paving a path in that direction are prejudicial.
Ninth also notes that the “inverse ratio rule” was not spelled out, and want it at least considered next time. This is the concept that the more access you had, the less you need to have jacked to be a crook. (Whether you are a good and thorough crook achieving “unlawful appropriation,” is a separate matter.) But they don’t think the plaintiff was harmed by its omission.
Hate to be the bustle in your hedgerow but…
I wrote a bit about my opinion that Stairway doesn’t infringe upon Taurus, predicted that Zeppelin would prevail, did a victory lap when they in fact did. Now I may have to reconsider for next time. Nah. The jury got it right; Stairway doesn’t infringe upon Taurus even though they sound a lot alike. But along the way, an imperfect system may have led them to that correct verdict for some not so great reasons.
Worse, this new trial we can argue is as flawed from the outset as was the first. Since the jury never heard Taurus’s nor Stairway To Heaven’s introductions, the first one wasn’t the trial it was meant to have been at all. This next one isn’t shaping up to be much better.
Katy Perry’s Dark Horse case appears to be going to court.
In 2015 an artist named Flame claimed Katy Perry’s “Dark Horse” was a copy of his own track “Joyful Noise.” That was a few years ago and unlike most three year old infringement cases, this one was neither settled nor otherwise made to go away, and according to latest reports is indeed going to trial.
Anything to see here?
Well, the judge evidently just called this “…an extremely close case,” and didn’t throw it out, so yeah, Katy has cause for concern! Infringement trials are a scary proposition for both sides.
“Dark Horse” was an awfully successful song for Perry; as the complaint says, “by any measure… a mega hit.” It went to #1 on Billboard, was nominated for a Grammy, and woulda sold more than any other single in 2014 if Pharrell hadn’t given us Happy. It’s a nice big fat target, no doubt.
Let’s compare and see if this should really be going to trial.
First here’s Dark Horse, though what with it being the runner up most popular song of the year a short while back, you’ve probably heard it plenty of times. But in case you were under a rock in 2014, here ya go.
Now have a listen to Joyful Noise, or at least a little bit of it. You needn’t listen to the whole track, the crux of the matter will be clear right away.
Obviously we get it, right? We’re looking at the very simple and catchy series of quarter notes that I’m a little surprised the complaint doesn’t refer to presumptuously as “the heart of the song!” (thank you for not doing that.)
The complaint goes on to say, “Plaintiffs never gave any of the Defendants permission, consent, or a license to use Joyful Noise for any purpose, including creation of a derivative work based on Joyful Noise.”
There’s no musicology work evident in the complaint whatsoever. It fails to mention any specific aspects of the song, like the similar synth hook — the only thing one should imagine they’re talking about. They went very broad. The complaint reads like “lock, stock and barrel;” as though Katy Perry literally recorded Joyful Noise,reached number one with it, got filthy rich, performed it at the Super Bowl, and all the while simply hoped nobody would notice.
But did Perry even “use”Joyful Noise at all?
It is possible, hard to disprove completely, but… I doubt it. It’s easier to believe the lawsuit was the first she’d heard of Joyful Noise, even though it does have some accolades to crow about. But before we get to why I think that, I’ll admit the obvious. There’s no question Joyful Noise’s synth line sounds like the idea from Dark Horse’s verse and pop drop, both significant parts of the song to be sure.
And we might as well get this in here now as well — Rapzilla posted
this article in which Flame DJ “Cho’zyn Boy” did a fine job of mashing them up for us. Here’s a link to that. https://rapzilla.com/2014-07-flames-explains-joyful-noise-katy-perry-dark-horse/
If this is even the second article of mine you’ve read, you likely already know how much I (don’t) love mashups as musicology. But I see why people do it, and understand that it sounds compelling to lots of people.
“Cho’zyn Boy”is quoted mid-article as saying, “it’s identical!” And he should know, right?
But, well, it just ain’t. Can’t go throwing around words like “identical.” You’ll get called on it.
Similar? Yes, I’ll give him similar for sure.
These are the actual notes.
So they’re plainly waysimilar. 75% identical to anyone with eyes, and as a musicologist I’d argue that even the non-identical notes are close enough to be called similar. They’re fairly interchangeable such that if “Dark Horse” were rerecorded using preciselythe same sixteen note pattern, identicalto that of “Joyful Noise,”nobody would blink. It would still be “Dark Horse.” 25% of the notes of the looping part are not identical nor quite equivalent, but something only a shade weaker than that. In other words, the differences just don’t matter that much. And this idea of relative equivalence can be a complex musical concept for laypersons. I’ll illustrate though.
Notes have impact, right? You hear a melody, and it impacts you in someway. It’s mellifluous, or it’s jarring, or it’s jagged, or it’s flowing; whatever. And each individual note in a melodic sequence works to steer that impact through it’s contextual purpose — how it relates to the notes that came before it and how it might lead to the notes that follow.
Each of the notes has purpose and composers have intent. With me so far?
Now suppose I am telling you a story about, I dunno, some water. I might tell you the water is “hot,” or “very warm,” or “the opposite of cold,” or “160 degrees.” Are these communicating precisely the same thing? No. But do these non-identical expressions have approximatelythe same impact? Sure they do.
Non-identical musicallanguage can have approximately the same impact too. Do you care especially which of those phrases I use to describe the water? You might. It depends. Very often though, you don’t.
Sounds like she’s in big trouble.
Shouldn’t be though. There’s something else going on here — the unprotectable quality of super simplicity. We are talking about a VERY simple line of music looped over and over and over.
So, how little creativity is enough to enjoy copyright protection? I’ve heard “a modicum.” And a modicum while in the eye of the beholder doesn’t sound like much at all. But such a purist’s argument can be, well, silly. In trap music, the simpler onto simplistic the bettermost of the time. As music goes, there’s scarcely any music in it. And don’t dismiss this as curmudgeonly longing for the days of Cole Porter. This is actually trap music’s charm.It’s the absence of music that makes it what it is. No judgement here. Compose what you like; listen to what you like. But that all creates a heck of a conundrum when you start trying to argue creativity and originality and modicums and “de minimis” in music and copyright. This contentious synth line is not really a melody and it’s barely even melodic.
So the prevalent argument is not that these sixteen notes are similar and interchangeable to and with each other. It’s that these sixteen notes don’t matter hardly at all to anything; not these specific notes anyway. They’re tantamount to a cowbell part — “TONK TONK TONK TONK” for four bars, looped. And you can’t copyright four bars of cowbell tonks, quarter notes, like a metronome. That would be like copyrighting the cowbell itself. Silly. There’s no reason to believe anybody would steal this particular musical idea, apart from the very broad idea of “absence of music in music.” And that idea is already out there. It’s what trap music is built upon.
Okay, never mind the actual notes, what about the soundof that synthesizer melody? It’s pretty much the same, isn’t it?
Yeah, let’s talk about that sound itself, because it matters to both the access argument AND the musicology argument. The sound in“Joyful Noise”is a synthesizer sound with “portamento,” which gives it its gliding pitch bending sound. This sort of synthesizer sound is a popular one in modern pop music. But it’s not super similar to Katy’s.
The sound in Dark Horseis almost certainly constructed from Katy’s own voice, sampled and manipulated into a synth patch. Nothing novel. Everybody does that with vocals nowadays. If we’re looking for an inspiration, we’d note that it’s reminiscent of the venerable Fairlight “Syn Vox” preset from the early eighties (Firelight was a crazy expensive piece of tech back then — one of the first sample based instruments.) That sound was on tons of recorded songs and inspired a hundred other “chaffy” “breathy” “flutey” voicelike sound presets on future synthesizers and those collectively were ubiquitous across pop and new wave music for a decade.
At the time it sounded soon cool; previous technology couldn’t make that timbre. But like anything else overused, once you were over it you were veryover it. I can actually rememberwatching Titanic, hearing that sound in James Horner’s soundtrack (“Take Her To Sea, Mr Murdoch”) and being unable to clear the annoyance from my mind for the rest of the movie. It’s still aggravating just thinking about and reliving it, but I digress.
Here’s perhaps the most classic example of the original Firelight Syn Vox. Art Of Noise’s Moments In Love.
Yeah, that’s kinda the same thing, right? What are we hearing over and over? This… 1-1-1-1-5-5-5-4-5-5-5-5-5-5-5-5
I expressed it this time as scale tone numbers. I might also have used solfége. #1 is “La,” in the world of Do, Re, Mi, Fa and so forth. 4 and 5 are “Re” and “Mi.” Anyway… kinda like our combatants, four measures of notes, sixteen in total, three pitches but mostly just one, all the same rhythmic value, in a minor key, playing throughout the tune, almost like percussion (pressing my cowbell analogy) but pitched just to follow the harmony. And thattrack by the way was employed all over the place, sampled for hip hop records left and right. WhoSampledshows over a hundred tracksthat used those four measures and put a beat under it. Lil Wayne, LL Cool J, J Dilla, Mya’s top ten hit It’s All About Me.from 1997 among them — it’s a pretty good list. This record was a known asset to music producers looking to put a pulse in their track. No offense to Art Of Noise, but there’s not much there. It’s quarter notes on a preset sound on an expensive synthesizer. More cowbell, albeit three differently pitched cowbells. It was cool in its simplicity. And it was widely used for its simplicity. Simplicity gave it versatility.
As for this sort of synth sound eventually becoming the most annoying thing you could put on a record, jump ahead thirty years and like so many things worn threadbare in the 80’s, it’s cool again today, especially if delivered with a touch of wit. Lady Gaga, reliably leading edge, opened Edge Of Glorywith it; put it right out there naked in the intro. Just quarter notes, heartbeat paced, simplistic.
I say again, cowbell. Tonk Tonk Tonk Tonk.
And just last night!
Before bed last nightI was watching Billionson Showtime, which by the way is scored wonderfully by an L.A. composer named Eskmo. I heard this sort of thing a number of times during episode one of season three. I actually grabbed my phone off the nightstand, “Siri, remind me in the morning about the Billions cue.” And now, in my studio, in real time, I’m gonna call up Showtime Anytime on my Apple TV, find that cue, and see how relevant it is… will take only a few min… (always takes longer than I expect, it’s been about 8 minutes, and…) Okay… it’s relevant. Got myself a drum machine and a synthesizer, recreated it for you, and this is pretty much the idea. The cue in Billionswent…
Eskmo’s cue actually sounds a lot better than that, but I don’t have all morning to mock it up more impressively. You get the idea. If you have Showtime, and wanna go check it out for real. It happens 44 min and 50 seconds in. What’s the point? Am I throwing Eskmo under a bus? No!I’m saying, this idea is just out there.I heard this in a TV show on the SAME DAY as the news broke that Katy is going to court! It’s commonplace. It’s just some fairly static pitches, in a robotic static rhythm, played on a breathy sounding synthesizer; extremely available and well traveled territory for composers; cliché. Sure, clichés can be used creatively to great effect, no question. But you don’t then go sue the next guy who employs the same cliché, do you? Can Eskmo sue the next guy who writes four bars of consonant chord tone quarter notes over vi – IV and loops it? It has certainly been done plenty since Billions Season 3 came out. Heck I’ll do it right now. (yep, more real time, step away for minute stuff…)
Minute and a half, actually.
I labeled that “My Own Cue To Which I’ll Never Give Another Thought.” Eskimo, Katy, Flame, all y’ll, come at me.
No, that would be silly.
On access, could the producers of Dark Horsehave heard Joyful Noise? Sure.
Could they just as easily have heard any of the other examples cited here or one of the 100+ tracks that sampled Art Of Noise at some point, such that the general idea was an available musical widget in their creative arsenal and the notes happened to strike Flame and Co as similar to Joyful Noise?
What did I have to hear to make my “four bars I’ll never think about again ever” or whatever I called it? Did I have to hear Art of Noise? Lady Gaga? Katy Perry? That cue from Billions? Nah. I would need only to have had an idea of tonk tonk tonk tonk on a breathy synth.
More importantly, on the notes, I’ve shown you a bunch of similar phrases. Who owns that — the tonk tonk tonk tonk, sixteen times, or eight times, or just four times, or however long you want to present a musical pulse? Nobody. It’s more presentation than composition; more idea than melody. It’s some musical language; a few words of a sentence, not a storyline. A “modicum” of originality? How small is a modicum? And originality in what form?
Is it even melody? Barely. It’s melod-ic,but in both Dark Horseand Joyful Noise, especiallyNoise, it’s at least as much accompaniment as melody. The melody of Dark Horseis what she sings overthis line in the verses. And an argument over specifics like the notes that are or aren’t identical is petty.
Copyright doesn’t protect ideas. And this is a tiny idea musically speaking — “de minims.” A trifle. But that said…
Will any of this save her from the vagaries of juries in a trial??
It ought to, but as simple as I try to make it, I realize this stuff is not simple. Gonna be interesting. Exposure? Yep, definitely exposure.
Rolling Stone Magazine has published the entire transcript from Jimmy Page’s testimony during the trial in June 2016 in which Led Zeppelin was sued for copyright infringement of the song “Taurus” by the band, Spirit, in Zeppelin’s iconic “Stairway To Heaven.”
Spirit were contemporaries of Zeppelin’s. The two bands appeared in concert together (on the same bill, that is) prior to the publishing of “Stairway To Heaven.” And as you can hear in these two short excerpts, the similarity between the two songs is obvious.
During the trial I posted my own analysis of this matter where you might be surprised to find that, while the two tracks sound alike in many ways, I found that Stairway does not plagiarize Taurus, nor does it infringe upon Taurus’s copyright.
Here I just want to share my favorite bits from Jimmy Page’s testimony on direct examination from the trial. The complete transcript will be interesting to anyone who either really loves litigation or really loves Led Zeppelin. Certainly there’s intrigue just because it’s Jimmy Page — blue chip rockstar. But be warned that it’s lengthy and gets bogged down at times — the questioning of Page went on for such a long time that the judge warned plaintiff’s attorney Francis Malofiy repeatedly that his total questioning time was limited and that he might want to move things along a bit or risk being timed out.
Also understand that in large part Spirit lost this case before trial even began when Zeppelin was granted a motion in limine that barred certain evidence from being introduced at trial. The jury never heard the two recordings themselves as you just did. The case was narrowly limited to the question of “Did “Stairway,” within the time statute of limitations, infringe upon the deposit copy of “Taurus,” filed with the U.S. Copyright Office. This “deposit copy” is the handwritten sheet music version of Taurus submitted with the copyright application, not the recording. This registered deposit copy of “Taurus” doesn’t include the guitar introduction that obviously links the two songs. It was all excluded.
By the way, the deposit copy of “Stairway” begins at “There’s a lady who’s sure…” There’s no famous guitar intro on Stairway’s copyright document either!
Reading the transcript is like riding along as the almost completely handcuffed plaintiff attorney Malofiy, can’t play the recording of “Taurus” for the jury, nor can he even talk about such recording hardly at all, tries to get Page to admit, first, that he might’ve heard Taurus somehow before he wrote Stairway, which he won’t admit, and secondly that the two sound similar, which he also won’t admit! Fun stuff.
Despite the motion in limine though, a remarkable thing happened that nobody else seems to have found remarkable. I’m reading along and all of the sudden I said aloud to myself, “he said what?!”
It happens when Page is recalling being shown a comparison of the two tracks from an internet site, just like any of us have. This he says was the first he’d heard of the controversy at all. He tells of how it was brought to his attention and so he listened. Malofiy quickly then tried to clarify just how much of Taurus was heard by Page in that internet recording. Malofiy needs to establish this right away because the guitar part in Taurus that you heard above doesn’t occur until 45 seconds in! But Page, evidently well coached and maybe realizing he’s about to misstep, frustrates Malofiy by referring to the irrelevant orchestral sounding stuff that begins Taurus. So Malofiy quickly pivots and asks…
Malofiy: “Now, once the acoustic guitar came in, isn’t it true the two songs are similar in that section?”
And there are objections and rulings ringing out from Page’s attorney and the judge but despite that… HOLY COW, Page answers!
Page: “Oh, I don’t think so.”
This for me may have very quietly been the highlight of the whole shebang, though I’ve never heard anyone mention it.
Jimmy Page said he doesn’t think the songs are similar in that section.
Seriously?! He might as well have flipped Malofiy the bird.
Thereafter Malofiy is on a short leash. He doesn’t get another clean shot. A lot of time is spent on the matter of “access” with Page denying that he has any recollection of ever having heard Taurus, nor of Zeppelin every being in concert alongside Spirit, which meanwhile is a documented fact. It’s all fun and makes you wish you could’ve been there.
As a musicologist the most interesting piece was this…
Page was asked about the structure of the famous guitar intro to Stairway. This seemed to forecast and set up a planned argument that Stairway has a peculiar similarity to Taurus in that Stairway’s intro descends chromatically from A to F (which it does) and then, Malofiy insists…
“avoids the fifth chord, the E?”
“does not go to the fifth?”
“skips over the fifth and goes back?”
Malofiy said it in each of those ways, asking Page to affirm. Page hems and haws perhaps being careful not to answer anything that wasn’t precisely asked. So Malofiy continued more insistently.
Malofiy: Okay. Does it ever go to the E before it resolves back to the A?
Page: The E chord or the E note?
Page: E note?
(there’s some debate then among the attorneys and judge as to procedure)
Malofiy: Okay. Is it your testimony that “Stairway to Heaven” does not descend the five pitches and avoid the fifth chord, the E?
It seems that Malofiy doesn’t quite understand what he’s asking, but is determined to get this in. He flips, as Page asks for clarification, back and forth between asking about the fifth degree of the scale ( a note) and a chord built upon the fifth degree of the scale.
Who told Malofiy that there was a foothold there and to press it? It appears he was counseled that, as is the case with Taurus, Stairway’s lowest voice descends chromatically from A down to F but then, significantly, ‘avoids’ the fifth,” and that this is such a good argument, Malofiy should go it himself and ask Page during direct and perhaps set up a gotcha moment later?
And I’m surprised at this because it’s weak at best.
To argue that Stairway “avoided” the fifth (whether the chord or the note but he seems to have meant chord) is to tenuously assume that the fifth is the default cadence. Stairway “avoided” a bunch of other notes and chords as well, every possibility that it did not employ. But let’s admit for a moment that the fifth, “E” might reasonably be expected. There’s still no gotcha here. The G that’s used there instead is, I’d argue, the next closest thing. They are functionally almost interchangeable. If I played Stairway for you, but swapped out those two notes, chords, both, you wouldn’t flinch. They’re very interchangeable.
What the plaintiff is calling attention to is something he should avoid like the plague. It seems like a case where musicologists saw something, seized upon it, and led their client astray.
Taurus meanwhile certainly does avoid the fifth, and I might add, does it awkwardly as all hell. Taurus diverges from from Stairway at this moment! Why on earth bring it up?! The plaintiff’s musicologist might myopically disagree and evidently did, but a jury would hear it my way plainly.
Musicology geeky explanation thing coming now… Taurus makes its way down to F, a subdominant function, and then doubles down on the “subdominant-ness” moving down to D, going considerably out of its way to employ an ethereally vague, not quite plagal but certainly NON-dominant to tonic cadence.
Stairway doesn’t employ the most dominant note available, but chooses a very similar substitute for it, and as I said, you wouldn’t even notice if I switched them out. It’s a dominant to tonic cadence. They’re just wrong.
Look for this too. At some point Page evidently admitted that “Chim Chim Cheree” from Mary Poppins contains similarities with Stairway, which it certainly does, but he couldn’t quite manage to see where Taurus is similar. Not on the stand anyway.
UPDATE: It took a while but a song theft lawsuit over “Say You Won’t Let Go” was evidently filed today (May 21, 2018) and look out, it’s Richard Busch for the plaintiffs. I’m going to take a close look at this one right away and give you the prediction.
Evidently The Script’s publishing company is deciding whether to bring an action here that would really rain on Arthur’s parade.
Arthur’s #1 hit song, “Say You Won’t Let Go” does indeed sound a lot like The Scripts #2 hit song, “The Man Who Can’t Be Moved.”
Reports say the publishing company that owns some of the rights to “The Man Who Can’t Be Moved,” has a consultant (someone like me) working on whether or not to sue. Guess we’ll see how that goes!
I haven’t followed James Arthur’s career, but by all accounts he needs a break, so I’m pleased to say that while I can certainly see the argument, on this matter he appears to me to be safe.
There will be a thoughtful and (sorry) likely technical explanation here soon. In the meantime the web is chockablock with mashups followed by comments and tweets about how they sound both exactly or nothing alike, how there are “only 12 notes,” how “you can’t copyright a chord progression,” how Adele’s “Someone Like You,” sounds exactly and nothing like both of these, and so forth.
All of that is half true, which is perhaps what The Script’s consultant is telling them right now. But the argument that’s on the nose will keep James Arthur’s #1 hit song safe. And I’ll share it as soon as I have time to lay it out. Maybe tomorrow. Certainly by mid-week. Or, if the Script’s guys wanna call, I’ll just spell it out for them. See if it matches what they’ve been told.
It’s been reported that the soon to be reuniting “One Direction” has been hit with a lawsuit and their tracks “Night Changes” and “Story of My Life” are named in the complaint. Unfortunately, more details are hard to get. The suit was filed in Ireland and is not public yet.
As soon as more is known about the plaintiff and their allegedly infringed upon tracks, I will get right to the task of analyzing whether One Direction stole one or both of these big hit songs.
On May 25, 2016 Justin Bieber and his co-conspirators got hit with a copyright lawsuit alleging that his mega-hit “Sorry” infringes upon White Hinterland’s track, “Ring The Bell.” You only have to listen to the first 10 seconds of each track to hear what the fuss is about.
As my eight-year old just succinctly put it, “They sound like the same thing.” What tiny measure of “Belieber” that remained in my daughter has just left the building. “Good for you, Girl. You sue him!” she just yelled, as she exited the room. She isn’t wrong. They do sound a lot like the same thing. The second biggest pop star in the world may well decide to pay and settle this quietly. But forensic musicology says, he shouldn’t.
Popular Musicology Opinion: Not guilty.
We’re going to explore this in great detail. The filed complaint is right in front of me and we’ll begin by looking at its claims one by one. The plaintiff’s arguments are in bold, and my comments follow in italics.
Getting right to it, they begin with…
Plaintiff’s “Ring the Bell” opens up with the signature and unique vocal riff, which provides the introduction and primary musical motive for the structure of the song. This vocal riff – also referred to as a loop, chant, or hook – is crucial to the sound recording and composition of “Ring the Bell,” creating the backbone for the composition and the song’s initial hook. After opening the song, the vocal riff repeats throughout, serving as a unifying thread for “Ring the Bell.”
That’s a whole series of claims and even though they’re talking about their OWN track, “Ring The Bell” it would be lazy to accept it all wholesale. Some of it though is simple fact. The riff in question is indeed the first thing you hear in both “Ring the Bell,” and “Sorry.” It would be hard to argue that the riff isn’t “the introduction” and “the song’s initial hook.”
Thereafter, they ask us to accept a lot. They call this riff the primary motive, the backbone, and the unifying thread, crucial to the record and the song. (The record and the song are different things, btw. See sidebar.) Is it?
On the one hand the veracity of these claims is partly linked to the composer’s intent. She alone knows for sure her own creative process. She knows what’s the chicken and what’s the egg. But we’re not in court, and we can speculate, and I say the riff is the egg, not the chicken. (The chicken really did come first you know.) It is very hard to imagine this introductory riff even came along early much less first in the creative process. The riff is most easily understood as an elaborate reflection of a recurring supporting element than as a basis itself.
I can foresee their larger argument and toward that, the most I would say is that yes, the track begins with it as an intro; then the rhythm the intro conveys is carried on in the accompanying rhythm section as the track continues and that this rhythmic figure is indeed core to the accompaniment and since it’s a somewhat uncommon rhythmic figure, it’s core to the character of much of the song. They’ve used the terms “backbone” and “unifying thread,” and rhythmically this is a defensible stretch. But is the melody of the intro a backbone or a unifying thread? No, that’s a reach. The intro figure doesn’t appear in the melody anywhere. It’s an accompanying role player. If we’re being very charitable, the shape and function of the intro’s melody is consistent with and enhances its rhythmic function. They should argue this. But the melody itself doesn’t figure throughout the song. It’s no more prominent than a counter melody in the accompaniment.
Bieber’s ostinato and White Hinterland’s are more melodically similar than rhythmically similar. So if we were to agree with the plaintiffs about the grand role that they are ascribing to this riff, all of that value is vested in the rhythmic information, not in the melodic information. That just directs our attention to the rhythm of the intro and away from the melody. It just points out how different they are. Let’s say for a moment that it IS the backbone, and the unifying thread, crucial to the record and the “Ring The Bell.”
Rhythmically it can be none of that in “Sorry.” It’s entirely dissimilar in its rhythmic function. The “Sorry” riff, rhythmically, is a much simpler riff. Indeed “Sorry” is a much simpler song. Every interesting rhythmic quality that “Ring The Bell” possesses, allegedly attributable to this riff, “Sorry” completely lacks. “Sorry” could not even accommodate the “Ring The Bell” riff’s without completely altering its intended rhythmic function, much less have it be an important component throughout.
The public has streamed “Ring the Bell” approximately 800,000 times on various platforms since the song’s release.
This is the “access” piece of the complaint. It’s standard. If you want to prove plagiarism, you must always show that the infringer had access to the infringed work. Is 800k is a lot.
By the way, while 800k streams is impressive, that sucker is as of this writing at nearly three and a half MILLION views on youtube alone. This copyright lawsuit has probably already benefitted White Hinterland quite a lot. None of which means she’s not entitled to more. But I’m just saying.
Here comes another similar access claim…
The April 10, 2014 edition of Rolling Stone magazine featured a print- review of Plaintiff’s album Baby. In that same edition, and only a few pages before the review of Baby, Defendant Skrillex’s album received a prominent review.
They had to have be ecstatic when they discovered this. But c’mon! Do I believe Skrillex got a copy of this Rolling Stone issue? Yes. But did he listen to all the other tracks mentioned in that same issue? Or any of them? I doubt it. They go on to make other “access” arguments, because they must. And I touch upon all of this because it’s interesting. But I digress at this point. It’s not musicology’s role to conclude that they likely did or didn’t hear “Ring The Bell” before they produced “Sorry.” Decide for yourself.
Prior to the creation of the music for “Sorry,” Skrillex, Diplo, and Blood all had access to, and upon information and belief, were familiar with Plaintiff’s “Ring the Bell” due to the widespread commercial release of “Ring the Bell,” the music press’s coverage and reviews of Plaintiff’s “Ring the Bell,” Diplo’s database of songs kept on his hard drive, Diplo’s and Plaintiff’s shared label family, and Rolling Stone magazine’s coverage of Plaintiff and Skrillex in the same issue on two separate occasions.
This is more of that same insistence that the defendants were familiar with the “Ring the Bell,” and that therefore this isn’t just a coincidental infringement. Apple Music and Spotify give everybody access to every song in the universe for 10 bucks a month. We’ve all got access to everything. Yes, Skrillex, Diplo, and Blood had access to “Ring the Bell.”
So legally it’s a minor point, but is it probable they heard it?
“Ring the Bell” was released, got some press and reviews.
The Rolling Stone magazine thing a few paragraphs ago
Diplo, is one of around 50 artists or bands connected to a particular record label. This label and four others like it are all under a parent label. White Hinterland is on one of those other four. This one is kinda funny. Let’s take a napkin and… 50 artists x 4 labels x 2 records each x 10 tracks per record, we’re just spitballing here… that’s 4000 tracks with which he maybe has a “shared label family”? Who cares?! This is tedious beyond the pale. It is at best neither likely nor unlikely that Skrillex, Diplo, or Justin Bieber had heard “Ring the Bell.” But sure, they had access.
Plaintiff owns a protectable copyright interest, both in the musical composition and the sound recording, to her original and unique song “Ring the Bell,” which includes the unique and original vocal sample and riff that appears throughout “Ring the Bell.”
The notes of the “Ring the Bell” vocal riff correspond with the tonic of the song without overstating its progression. The notes of the vocal riff foreshadow and set up the mood and feeling of the song. The vocal riff moves upward, giving the chant a certain open, uplifting freshness.
Voices are original and difficult to imitate. Plaintiff’s voice is a unique instrument. The timbre of Plaintiff’s voice is inextricably linked to her writing, especially in “Ring the Bell.”
Yes, to all three.
Plaintiff’s vocal riff in “Ring the Bell” is specific in terms of pitch, register, orchestration, and overall use, …
Yes, agreed. You’ll be sorry.
and it is the defining “hook” of the song and the seed from which the entire song grows.
No. It’s the intro, yes, but that doesn’t make it “the seed from which the song grows. As I’ve already said, this is an implausible claim.
Plaintiff positioned the signature vocal riff of “Ring the Bell” to introduce her song because she wanted to set the tone immediately and swiftly for what follows. The vocal riff grabs the listener and allows the listener to identify her song. It functions as a hook and a complement to the chorus. After the introduction, the vocal riff and sample repeat throughout “Ring the Bell.”
To write, create, produce, and record the song “Sorry,” the Defendants knowingly and unlawfully copied original, protectable elements of the musical composition of “Ring the Bell” and unlawfully sampled Plaintiff’s protectable sound recording of “Ring the Bell.”
Plaintiff’s protectable vocal riff is crucial to both “Ring the Bell” and “Sorry.”
Not crucial to “Ring the Bell.” It’s a bit part. It is the introduction and I’ll grant that its due significance, but it neither dictates the melody, nor likely even informs it. It matters very little to the rest of the track. Were one to make a list, this would be among the less crucial elements of the track.
The same however cannot be said of “Sorry.” It’s the intro and it’s half of the hook. It’s pretty critical. Here’s just a couple measures of the chorus.
The identical and/or striking similarity between “Sorry” and the protectable elements of “Ring the Bell” is obvious, such that an ordinary lay listener would instantly recognize the sample and similarity between the songs.
Remember, at this point, White Hinterland is under the impression that the actual recording was sampled and manipulated. So making the distinction that “lay listeners” would instantly recognize the sample and similarity is sorta funny. Sample aside, we still have similarity to deal with.
That’s the last of the interesting claims in the complaint.
Since the plaintiff’s dug a hole for themselves by falsely accusing Bieber and Skrillex of sampling “Ring the Bell,” we get to throw out a bunch of their poorly premised claims. The two intros do sound darned similar to the lay listener though. As my kid said, “They sound like the same thing.” The composition can still have been infringed upon.
Did they steal the musical idea? And is it protectable?
One theory the plaintiffs could float is that Skrillex, Diplo and Bieber admired “Ring the Bell,” so they lifted the idea for the high pitched voice and then adding insult to injury also used the same notes that she did, essentially making a sound-alike instead of clearing the sample. That’s done all the time, by the way, often by this guy, Ken Lewis. He’s awesome, and “sample recreation” (or “sample replays”) is an interesting area.
But it certainly doesn’t appear to be anything like that. As Skrillex demonstrated, making this high pitched vocal sound was a just few clicks for him. He’s using an app called Ableton Live, but any modern music software would let you change the pitch of a music segment and add some echo. There’s nothing proprietary or even clever about any of that. Every music producer in the world is copying audio phrases from within tracks, chopping the phrases into bits, rearranging the bits to make new phrases and using effects way more interestingly than this.
Here’s Calvin Harris’s and Rihanna’s huge hit, “This is What You Came For.” Hugely popular hit song with the hook that goes, “But she’s looking at you ou ou ou, you ou ou ou.”
Rihanna might never have sung anything like that in the studio. That line was put together in a computer. Every “ou” is the same recorded snippet. This is what’s in style now. We’ve moved beyond using computers-to-fix-imperfetions. “This I What You Came For” is made extra choppy and artificial sounding on purpose!
What the heck is Kiiara supposed to be singing in “Gold?” This is taking it a little far, but really, it’s just very common.
Most likely Skrillex was listening to the a cappella demo, looking around for bits and pieces of a female vocal that he could put to use in his production. She provided an interstitial non-lyrical phrase that she sang in the chorus after “Is it to late to say ‘Sorry?'” Again I would assert my guess that she probably meant to outline and imply the intended harmony (it does that) while adding a little vocal ornament to build toward the answering phrase, “Cuz i’m missing more than just your body.”
In Skrillex’s Twitter takedown, he showed us that he pitched her voice down four semitones and then up twelve semitones. Why not just pitch it up eight in the first place? Because it’s a short version of the story. She sang her demo in G major. But Justin’s track is in Eb. So the first thing Skrillex probably did is pitch down her whole demo by four semitones to get it all into Eb major. Then he went looking for things to chop to bits, found this appealing snippet and recalled, “Justin loved the production technique I did on ‘Where R U now?’ I could do something kinda similar here.” So he pitched up her vocal and turned up the echo and used it as a musical element in Justin’s track.
Let’s sidestep now, explain what that “Where R U Now” effect was, to make the relevant fundamental argument that nothing about White Hinterland’s echoey high pitched vocal treatment is protectable in the first place.
Justin reportedly couldn’t believe it when his voice got turned into a shakuhachi part by Skrillex for “Where R U Now?” It was a huge hit song, and the NY Times did a “making of” video that got shared around the music production world immediately. The part sounds like this:
The big philosophical argument would be that if Skrillex can turn Justin’s voice into a japanese wind instrument, he could probably have transformed him into an echoey high pitched female singer. Suppose he had, and similarly finds himself sued by White Hinterland because it sounds too much like her. That would be silly. It’s his own voice with all it’s unique characteristics. Suppose the intro to “Ring the Bell” was not her voice at all, but a flute playing those same four notes – high pitched, echoey, playing that same musical figure. And then suppose “Sorry’s” intro was a flute as well. Could she then say, “You copied my use of a flute!” Again, silly. It’s just a sound. Bieber would probably say, “I got my own live flute player here, and all flute tones are as unique as snowflakes.” Flute, shakuhachi, male voice, female voice, in an echo chamber or not — these are orchestration decisions and not protectable. In other words, Bieber is entitled to use any female voice not named “White Hinterland” and turn up the echo all he wants. White Hinterland can protect her own recording (irrelevant here because it wasn’t sampled) but she can’t conflate this with defending her composition. These are different concepts. They didn’t sample her record. And she doesn’t own echoey female vocal sounds.
That out of the way, all we have left is to look at the notes, on paper, and see if Bieber is stealing her song.
Going back to the plaintiff’s words…
The four notes of the sampled female vocal riff of both “Ring the Bell” and the infringing “Sorry” are Bb-C-Eb-F. The four pitches are of equal duration and are sung in a rapid succession by Plaintiff’s voice. The temporal spacing of the notes of the female vocal riff in both “Ring the Bell” and the infringing “Sorry” are the same. In both “Ring the Bell” and the infringing “Sorry,” these pitches function as a 5-6-1-2 pitch sequence in the key of Eb.
Essentially yes. They’re correct about the notes and their melodic function.
I have to keep reminding my readers to forget that although it’s a similar female vocal sound, that’s irrelevant here. We’re just looking at the notes, the pitches, Bb-C-Eb-F, an allegedly plagiarized musical phrase that would be no less plagiarized were it played on a kazoo.
Musical phrases have qualities — melody, rhythm and harmonic function. Triers of plagiarism cases assess similarities in these qualities. And then separately decide if the piece of material enjoys copyright protection under the law in the first place. Or conversely, they often find that it’s a common musical device, too broadly applicable to be the unique property of White Hinterland or anybody else?
“The opening phrase is similar, but Justin Bieber’s ends on a different note every time,” says Jeff Peretz, professor of music theory at NYU’s Clive Davis Institute of Recorded Music. “They are not the same melody. They are very similar, they have similar notes and a similar arc, but they are fundamentally not the exact same melody.”
Perhaps he was misquoted or misinterpreted, but the notes in question aren’t “similar,” they’re exactly the four notes the plaintiff’s say they are. And the opening phrase in “Sorry” ends on the same note as Ring The Bell’s every time. That note is “F.”
The differences lie elsewhere.
Skrillex apparently clipped his whole phrase verbatim from the chorus of the a cappella demo and decided it would work as an intro and a hook. The snippet is indeed comprised of the four notes the plaintiff’s say, Bb-C-Eb-F. And “Ring the Bell” uses it’s own sampled phrase, those same four notes, in that order, over and over. But Skrillex’s sample part from the “Sorry” demo is not a four note phrase. It’s a five note phrase, every time! It’s Bb-C-Eb-F and then another ‘F,’ — four sixteenth notes followed by a quarter note.
This is no minor detail.
SIDEBAR: Very quick rhythm lesson now. Music notation is mathematical. Most often music is in 4/4 time. 4/4 time is so prevalent in fact that it’s actually referred to as “common” time. If you find yourself tapping your foot and counting along with a song and thinking “1-2-3-4 1-2-3-4 1-2-3-4…,” that’s 4/4 time. Music is divided into “measures” – the vertical lines in sheet music. The numberator in 4/4 time means we’ve broken each measure into 4 beats and the denominator means each beat is represented by a quarter-note. Four quarters thus make a whole measure. It all kinda adds up.
The first four notes of “Sorry,” four sixteenth notes, begin on beat two (a “weak” beat as we’ll explain in a sec) leading up to the fifth note on the “strong” beat three, then the sample immediately repeats on the fourth leading to the strongest beat, beat one of the second measure. The real musical purpose of the phrase is to forecast and lead up to the last and most important note. The phrase has velocity and momentum. It begins on a weak beat and its momentum drives to a resolution as it lands on a strong beat. Let me describe what we mean by weak and strong beats and explain how they are like velocity and momentum.
SIDEBAR: Music has energy, momentum, velocity, direction. The manipulation of these is largely what gives music its purpose and intent.
So consider… the downbeats are the stronger beats and the upbeats are the weaker less emphasized ones. If I ask you to tap your foot as you count 1-2-3-4 you’ll tap your foot four times I expect, unless you’re a drummer. Then you’ll tap your foot on 1 and 3, the strong beats. So now you’re a drummer. Think like one. Bob your head, as you count 1-2-3-4, bob your head down on 1, up on 2, down on 3, up on four. Repeat. Now you understand down beats and up beats.
Now while you’re bobbing your head, imagine beats going by twice as fast, and four times as fast. You’re imagining eight notes and sixteenth notes. You still feel stronger downs and weaker ups. That’s the nature of music. The downs are emphasized, the ups have to lead to downs, like with gravity. This gives music direction, and therefore momentum.
Back to our example. “Sorry’s” phrase is four sixteenths, rhythmically down up down up, followed by a fifth note, the target note, down. Consider how unsatisfying the phrase would be if you took the last note away. There was momentum, and it was arrested.
The notes themselves matter too. Notes have meaning and function. Most analogous to rhythm’s “downbeat and upbeat” are notes that are “stable and unstable.” Some notes are more stable — notes you land on contentedly. Some are unstable, notes that feel as though teetering and beckon you to move elsewhere to more stable one.
In the world of “Do, a deer, a female deer,” the most stable notes are Do, Mi, and Sol. The least stable are Re, Fa and Ti. If I ask you to sing Do, Re, Mi, you’ll land contentedly. Likewise, up to Sol. If I ask you to sing Do, Re, and stop there, you’ll feel interrupted. And if I ask you to sing all the way to Ti and stop there, you’ll probably be so frustrated you’ll start to shake a little.
I’ll illustrate, playing a scale on a piano and denying you the last note that you expect.
The phrase ended on a weak beat and an unstable note, so it sounds very incomplete.
The entire musical thought is not just those four or five notes. The second repetition brings us into the second measure, and then an “answering” melody on a synthesizer completes the idea. I’ll play it on a piano for you with a hi hat tapping out the time for context. It’s this:
In the accompaniment the intro employs the same chords used throughout the song, both in the chorus and the verses. The chord progression is IV-vi-V. In the Key of Eb Major, those three chords are Ab Major, C minor, and Bb Major. Bb Major is defined as the notes Bb-D-F sounded together. And so, as the “Sorry”phrase plays it’s four sixteenth notes that lead up to the “F,” so too does the accompaniment lead to the Bb major chord with with that “F” will be consonant. (As one of the three pillars of the Bb Major chord, the “F” in the melody will sound harmonious.)
Let’s bear this in mind while we look at the very different usage from “Ring The Bell.”
First here’s “Ring The Bell’s” Intro.
You hear the four note sample repeated a few times, but not consistently placed. It’s hard to know exactly when it’s going to repeat. Try to hum along. It’s pretty futile. She purposely obscured the rhythm for the first couple of measures, an interesting creative decision. When other instruments enter, she extends the use of the sample to the form it will take throughout the song. Just as in “Sorry,” where the real phrase wasn’t the five notes, but ten.
The REAL phrase isn’t four notes, but eleven. Four notes, followed by the same four notes, followed by the first three. Often throughout the song it’s a longer phrase where the last three notes appear only every other measure.
It can be tricky to discern this rhythmic function. One way I thought I might clarify it was to add a drum part of my own design that emphasizes the rhythmic role of the vocals.
Then I’ll show you how this same rhythmic idea is carried throughout the track. Here, listen for just the snare drum, and try to ignore her vocal.
So while there are four notes in sequence in common, the phrases’ melodic rhythms are completely different.
Would you like to see how many times the two line up on paper?
Out of the eleven notes in the Ring The Bell figure, you could argue three are in sync. The three I’ve highlighted. Sixteens landing on beat four of the first measure. If I were more adversarial, I would show the just as common “Ring the Bell” circumstance in the song where the last three notes only occur in the second measure. Then there would be ZERO common notes.
That notation could be clearer. I’ll look to replace it with one that lines up the beats more obviously. It will do for now.
The key is this… When you look at the whole phrases, their melodic rhythms, the harmonies that support them and the function of the notes in the context of those harmonies, these phrases are very different.
We have spent a lot of time analyzing the similarities and dissimilarities. But really, once the wrongful accusation of sampling went out the window, you were left with four notes. Four notes isn’t much at all. And these four notes are not protectable. To illustrate, I will now make up a tune using the same four notes in the same order. And then at the very end I’ll overlay the vocal sample from “Ring The Bell” to remind you what the four notes sound like in her voice.
How long did it take me to write that song? That isn’t a song. That’s just an idea. And it was conceived in its entirety in less time than it took to play it, 30 seconds. I thought to myself, “I’m going to change the chords to this other “stock” thing, play a simple baseline and add drums to make it sound like something, and as a composer I already know the figure I’m trying to employ is going to work nicely throughout. That’s how unprotectable building blocks work.
This time though Sheeran didn’t do anything wrong and I’ll be disappointed if I hear of a settlement. This complaint says Sheeran plagiarized Marvin Gaye’s 1973 #1 hit song, “Let’s Get It On,” to write his #2 hit song, “Thinking Out Loud,” the “Song of the Year” at the 2016 Grammy Awards.
This action comes from the family and heirs of Gaye’s co-writer of “Let’s Get It On,” Ed Townsend. and not Marvin Gaye’s heirs and who famously last year won a $7.4M judgement against Robin Thicke and Pharell for jacking mega-hit, “Blurred Lines,” from Gaye’s “Got To Give It Up.”
Without further ado, here are the two tracks.
It’s not as though anyone is stunned to hear of a lawsuit. The similarity was noticed right away when “Thinking” was released. Someone even created this mashup showing very nicely that “Let’s Get It On” and “Thinking Out Loud” can be played right over top of one another.
And if that’s not bad enough, how about this next video? At around 4 min and 30 seconds Sheeran himselfbreaks into a chorus of “Let’s Get It On” over his Thinking Out Loud chords.
Why would he invite trouble? Is he just that smug? Of course not.
He’s just being funny; an innocent musical joke — Sheeran is justifiably comfortable that despite the obvious similarities, he didn’t steal anything that Gaye and Townsend really own in “Let’s Get It On.” Not everything in music is protected by copyright. I’ll explain.
What’s the essential similarity?
It’s a series of four chords, that simply repeats over and over throughout both songs. I’ll show you what that specific thing by itself sounds like in a moment but first, some basic terminology.
“Chords” are groups of three or four notes sounded together. When notes are sounded together we call the distance between the notes, “intervals,” and the sound they make together is “harmony.” A series of chords is called a “chord progression.” These two songs have the same “chord progression” running nearly throughout.
Their shared chord progression is “two measures long in 4/4 time.” We divide music into little time packets called “measures.” It’s what enables us to count beats as “one and two and three and four” and then cycle back to “one” instead of having to count to a thousand. The 4/4 time part means that each measure is four beats long (most common by far) and this progression fills two measures, so eight beats in total. It all takes place in about 6 seconds. And now finally you get to hear it.
Go back and listen to either of the two tracks; just the first ten seconds or so of each. What do we hear in both? We have groups of simultaneous notes making harmonies, played in a certain rhythm. We hear some tonal instruments that play notes along with some non-tonal percussion instruments. These combine to make what we call a “groove.” It’s kinda like the engine of the song, propelling the music. The groove is what you dance or just nod your head to. And then we also have Marvin Gaye and Ed Sheeran singing words and melodies along with that groove.
But ignore the vocal melody and lyrics for now, and let’s just take a good look at this groove and the harmony and rhythm that make it musical. Then we’ll really understand the similarity on a technical level.
Just the Chords Themselves
The eight beats use four different chords for about two beats each, and this repeats over and over. (Actually Sheehan’s first four bars has an extra chord at the very very end. Try to ignore that as an ornament, a guitar embellishment. It’s pretty irrelevant.)
I’m going to refer to these four chords in order as “one, three, four and five.” And I’ll represent them as roman numerals, “I, iii, IV, and V.” The “iii” is lower case because it’s a minor chord whereas the others are major chords. These numbers by the way are analogous to “Do, Mi, Fa and Sol.” the first, second, fourth and fifth notes of a major scale (where “Re” is notably missing, and would’ve been two, or “ii.” Get it?
I – iii – IV – V is a very familiar sound.
Here’s just the four chords, I-iii-IV-V, two beats each, played by me on a piano.
The Rhythm Component
Now let’s look at the rhythm. I’ll add a rhythm section of bass and drums to the piano part. The bass plays right along with the piano on the same beats. And drums are provided by music software playing a typical R&B (Rhythm and Blues) preset drum part.
Okay, now we’ve got a bit of a groove going. This is close, but not exactly the same rhythm used in the two tracks. Remember I said the four chords are “about two beats each?” In the example above, I played them “straight,” meaning EXACTLY two beats each.
In both “Let’s Get It On” and “Thinking Out Loud,” the four chords actually aren’t so uniform in length. They actually land on beat one, and on the “and of two.” If you count in your head, “ONE and TWO and THREE and FOUR and” as the music goes by, the chords will land on the that first beat, “one,” and then in between two and three, when we say “AND.” Perhaps you’ve heard of downbeats and upbeats? The full numbers are the downbeats and the “and’s” are upbeats. Usually, downbeats are the stronger and more emphasized. When “upbeats” are emphasized to some degree, we call this “syncopation.” In other words the second and last chord of our four are going to be played a little earlier.
We’ll change them one at a time, beginning with that last chord, the five (V) chord, so you can hear the change more easily. You’ll hear three chords the same as before, but then the fourth one will arrive a little earlier than in the last example.
And now we’ll move the second chord (iii) as well. That sounds like this…
This might be a good time to ask you, “Does this sound like a unique protectable idea? Or does it sound like a thousand other songs you’ve heard in your lifetime?
That’s the way the progression actually goes. We can sing most of both “Let’s Get It On” and “Thinking Out Loud” over just that 6 seconds of accompaniment repeating over and over.
At this point, you should pat yourself on the back. You have essentially just made it through one day of a collegiate “Music Theory 101” class, a course in which you’d spend the whole semester learning the essential building blocks of music, the devices, rules, conventions, and systems that are essential to the whole aesthetic of western music, developed from before the time of Bach and still evolving.
Nobody owns nor copyrights these basic building blocks any more than an architect like Frank Gehry would ever copyright marble slabs, or even sculpted sheet metal, although he’s certainly particularly known for that. We understand that architecture will often have common beginnings, like a foundation, and will involve common materials that are aesthetically pleasing and functional. Music is similar. The intellectual property begins on a level beyond those common structures and basic materials that hold together songs, and buildings.
To illustrate, let’s see what else we can do with this same sort of musical building block. If you listened to that mashup above all the way through, you might see this one coming.
Next I’ll just slow the four chords down a little and we get…
Transpose down a key, but still the same I-iii-IV-V and we get…
Slowing the tempo further, but still using the same chords in the same proportions, and then we have…
This is not a slam dunk argument, merely a good one. None of these are on the nose copies of the Let’s Get It On chord sequence. Sheeran’s song is a more precise match. But what I am saying is that the basic material is very rudimentary building block type material. You can see that this same chord progression is the basis for lots of other music. And I could probably do this all day. I’ll just sit and think of a few more…
I Won’t Last A Day Without You, Carpenters
Turn Around. (Where are you going my little one?), I don’t know who wrote it. I remember learning this song on guitar when I was six.
Captain Candy, Anthony Newley. You don’t know this one. It played in my house growing up all the time. My dad had a bunch of Anthony Newley albums. Newley co-wrote all the music from Willy Wonka — “The Candy Man” and such. I might be the only person alive who knows this Captain Candy song. But it’s a real thing and it’s these four chords.
Perhaps Love, John Denver, that duet he did with Placido Domingo. It was a top 20 hit 30 years ago.
All written over our I – iii – IV – V chord progression.
They don’t repeat the same four chords 100x in a row the way “Let’s” and “Thinking” do but they used the progression prominently, more than enough to prove the point. And that point is that you can’t copyright the use of that common progression once, twice, nor 75 times in a row. It isn’t in itself a unique nor substantial enough musical work to be owned by anyone. It’s public domain. It’s no more than a framework.
There are only 12 notes.
We sometimes hear it argued, usually in defense of not-very-unique melodies, that there are only 12 notes. That’s true. But the possibilities for unique chord progressions are far more confining. Sure, there are more chords than notes, there are hundreds of chords, but only a tiny fraction of them are really available to the pop music composer at any given time. I’m not out on a limb if I say there are no more than six chords readily available to most pop composers most of the time. Both “Thinking” and “Let’s” are covered by just six different chords each.
The complaint tries to get around this in part by saying that Thinking Out Loud takes the heard of Let’s Get It On. They’re “begging the question” in at least a couple of ways. They presume firstly that the groove is somehow the definitive “heart” of “Let’s Get It On.” And if allowed to make this giant leap, they’ve gone a long way toward implying that the rest of both “Let’s” and “Thinking” are somewhat less important. They’d like you to follow the logic that the “heart” isn’t merely a component, but that it significantly steered the creation of both songs, leading to the argument that “Thinking Out Loud” wouldn’t and couldn’t have been written at all if not for “Let’s.”
Smart of them. Copyright infringement is binary, you either infringe or you don’t. But the larger “Let’s Get It On” looms in the success of “Thinking Out Loud,” the greater the share of Sheeran’s profits they would be awarded.
But none of this is reasonable. Again…
brief generic musical thought
not unique to “Let’s Get It On”
present in lots of other songs
So, first, I’m saying they don’t own it.
But that’s not all by a long shot.
Second, if these tunes have a “heart”, that groove ain’t it. For comparison, let’s consider the supposedly less “hearty” features of these two songs.
The melodies of “Thinking Out Loud” are craftily composed and serve the lyric deftly. Each musical thought leads logically to the next, creating an ebb and flow, and directing the storytelling and emotional arcs of the song. The lyric and melody comprise a substantial and competent work that could likely be supported by several other chord progressions in the accompaniment, and still have been hit.
Here’s a recording of both of the two verses from “Thinking Out Loud” played over top of each other simultaneously. What I want you to notice is that I can layer the two performances, play them back together, and it sounds pretty good. I can do this because the shape is the essentially the same from one verse to the next. This melody has integrity. I’m not talking about moral integrity but structural integrity. The two verses aren’t 100% identical, and any performer of the song might make little modifications, improvisations, or ornamentations around this melody just to add interest, make it her own, Tony Bennett the hell out of it if desired, but the melody would maintain its musical meaning, its essential arc. It has substance.
And here we find the same integrity in the choruses. This is a stack of all three choruses from “Thinking Out Loud” with its “We found love right where we are” tag.
Again we find a deliberate, complete and very substantial melodic work. “Thinking Out Loud” is neither dominated nor significantly defined by the groove it shares with “Let’s Get It On.” In fact, I could install a different groove, an even more common one, and the song would remain intact and be hardly affected. The accompaniment is not its “heart.” The track’s value is mostly held in the wealth of material in these examples — catchy, clever, appealing, singable by a six year old after a couple of hearings, and completely composed by Ed Sheehan.
Of supreme importance, “Thinking Out Loud’s” melody and lyric contains nothing of consequence in common with “Let’s Get It On.” So it’s weird to be arguing substantial musical similarity at all. In prior musicology analysis I’ve talked about “how many notes in a row are common to both tunes,” and that sort of thing. Common notes in melodies are usually the primary cause for a complaint. Unbelievably here the plaintiffs might never even mention melody or notes. Imagine, they are going to argue pop song infringement while perhaps avoiding any discussion of melodies and lyrics since both are, if anything, exceptionally unalike.
I do predict they’ll take up time with a few pointless arguments. Musicologists get paid to notice things like, “both songs leave a few beats of space between phrases in the lyric.” Or “both songs have the same ‘Verse Verse Chorus Verse Bridge Chorus’ structure.” Never mind that half the songs in the history of pop music do both of those as well. They’ve got to make a showing with a few observations that even if not significant, are at least true.
Does Let’s Get It On have a better heart?
‘Let’s Get It On” is an iconic track that reached #1 on the Billboard Top 100. On paper it’s mostly a framework. It has a structure, but it’s a loose one. And it has melodies that have become familiar over time because it was a monster hit, but its melodies are rather meandering and fluid. Most of us can precisely sing that first line, “I’ve been really trying, Baby…” and we can join the chorus at “Let’s get in on,” and only if you know and love the song, you might add “We’re all sensitive people…” But much of it is an ethereal, stylized and improvisational sounding performance. These are among its charms but they happen to have nothing in common with “Thinking.”
“Let’s Get It On,” wasn’t defined by that groove anymore than “Thinking Out Loud” is. The groove fits the track and the track became iconic, but it’s not the driving force, not even close.
Ask yourself where Let’s Get It On and its groove would be without that warbly funk guitar throughout? Does anybody really think the studio musicians were in this session thinking, “Wow, I’ve never heard this awesome groove before; this is amazing.” “Who even needs Marvin singing about sex? We’re done here. Just put this groove out.” No, it needed Marvin to sing about sex. It was very little without that. That’s probably the “heart” of that tune.
Am I saying “Thinking Out Loud” is a novel, unique track, unlike anything you’ve heard before? Nah. It’s a conventional pop tune that employs lots of pleasing and clever but not unique “devices” including it’s these chords and rhythms that Let’s Get It On shares with it. The songs are copyrightable, but not every component within the songs can be. Building blocks like we’re describing are the musical and lyrical stuff from which “hooks” are made and from which we get hit records. It’s arguably what we look for most in pop music, the foundational elements, then with a bit of a unique twist.
This is not what copyright seeks to do. This is not what it seeks to protect. Unless we want to kill popular music altogether, we should be throwing cases like this out.
The latest lawsuit to hit Hollywood is that of Matt Cardle’s hit “Amazing” alleging infringement by Ed Sheeran and his hit “Photograph.” There are enough youtube videos with their audio mashups that illustrate the similarities of the two hit songs. But these are hard to sit through, aren’t they? I don’t want to hear the two songs played at the same time. That doesn’t tell the story. Thoughtfully applied musicology however does.
Some would argue, particularly after my Stairway To Heaven musicology analysis, that the modern day songwriter/musicologist is deaf to plagiarism. Some say musicologists approach every copyright lawsuit slightly biased against the plaintiffs. Musicologists they say can’t wait to spout, “There are only these twelve notes to work with!”
I can see where that is how it often appears. In an increasingly copyright lawsuit happy world I’m not sure it’s even wrong. Here though, we really try to call ’em like we see ’em, case by case. And here, this musicologist strongly recommends that Ed Sheeran cut a deal.
We are going to take the complaint, line by line pretty much, and evaluate the claims, right after I make a bunch of soapbox general arguments.
Ed Sheeran, in case you’ve been in a cave for a while, is a superstar singer who writes pleasant pop songs. Excellent ones — thoughtful, cute, and well-crafted. His “Photograph,” is thoughtful, cute and well-crafted. But man oh man the chorus sure sounds a helluva lot like the chorus of “X Factor” winner Matt Cardle’s “Amazing.” We’re talking’ a hell-uv-a lot. Way more than the copyright infringement standard of “substantially similar to the ordinary observer.”
That infringement standard by the way is woefully inadequate for modern day songwriting and for our ever more opportunistically litigious society. Inadequate because while any ordinary observer can certainly say for herself if she thinks two songs sound similar, she is probably less able to discern between significant similarities that make a legitimate case for a copyright lawsuit and insignificant similarities. Insignificant similarities would include compositional banalities that I could argue are public domain or otherwise “not copyrightable.” Also, they would include musically ambiguous devices, “vibe,” and recording, production and instrumentation techniques — all of which do not support the case for copyright infringement. They do however sound awfully fishy to the ordinary observer.
Led Zeppelin recently won its copyright lawsuit. That jury decided that “Stairway To Heaven” did not infringe upon Spirit’s “Taurus.” Those two songs sounded a lot alike too. We argued in our musicology analysis that the jury decision was correct. What’s different in the Cardle versus Sheeran lawsuit? Let’s look at the plaintiffs’ argument, apply some musicology and get to the truth.
First, I don’t watch X Factor and I’d never heard the Matt Cardle track before this plagiarism suit arose. The allegedly infringed upon track, “Amazing,” is a well crafted song and its songwriter plaintiffs Martin Harrington and Thomas Leonard are pros with a notable track record.
Their complaint, is right here, so lets assess. The plaintiff’s claims are shown below sometimes as paraphrased/interpreted by me to cut through some legalese and other times verbatim. They’re in bold, and my opinions follow in italics. Sorta like a question and answer format.
Here we go…
Plaintiffs: The chorus is very important to the song. Talk about “laying the groundwork.” You wouldn’t even think it needs to be said. Yup. Important. Sure is, especially to “Photograph,” I might add. And this matters, because it factors into the damages calculations.
The defendants intentionally and unlawfully copied the unique and original chorus from “Amazing.” Maybe! The originality and uniqueness of “Amazing” is arguable. And intent to plagiarize is a big leap. But despite this being a “maybe,” as I’ll explain later, this leap is an appropriate tactic. When you bring a copyright lawsuit there’s a bunch of stuff you do just because it’s what you do.
The choruses share 39 identical notes plus 4 other pretty darn close ones out of 64 total notes (70%). This is the crux of the “on paper” argument. This sort of headline number is overemphasized too often when we look at copyright lawsuits. Yeah yeah, lots of identical notes as the notation they provided (below) shows very clearly. Often as not the raw numbers mislead and this is an area where a musicologist can illuminate things in service of either side’s argument.
For example, see those first few notes, not in red? Collectively these are just a “pickup” — notes whose specifics are relatively less important that introduce and lead up to a much more meaningful note — the fourth one in this case. Importantly, these and nearly every other still black note on the page are what I refer to as “low value notes.” They matter very little to the “MEANING” of the musical phrase. They may or may not be identical pitches on identical beats. They don’t make much difference. These are inconsequential note choices that both songwriters. They’re chosen in most cases and in this one to support the peculiarities of the respective lyrics. These notes could be altered, embellished, or omitted. It would make very little difference to the song. Here’s it’s evidence of the essential sameness of these two tracks is that most of these low value notes could even be exchanged or traded between the two respective choruses, and the choruses recognizability would be almost completely unaffected.
How is that possible? It’s possible because of the very high value of other notes. High value notes are often the essence of the infringement. They tell the story.
If you’re building a copyright infringement lawsuit, be thoughtful about this. Their claim that the two songs are 70% identical is actually understating how alike these two tracks are.
They include this sheet music…
I would argue that there is only ONE high value note that’s different in the two choruses. Which is it? Can you guess?
It’s the quarter note on the third beat of the chorus’s first measure (not the pickup measure, the next one, labeled “5.”) The lyric is “me.” There’s little refuge for the defense in this critical note being a different pitch. Harmonically and melodically “Photograph’s” fifth scale degree here is THE MOST CLOSELY RELATED DIFFERENT PITCH AVAILABLE compared to “Amazing’s” third scale degree. This is where musicology really shines. Musical notes are not simply “alike” or “not alike.” Notes are like colors. They can be complementary or analogous. Notes are like language. They can be synonymous or antonymous. Here, of the eleven other notes that exist, Sheehan’s note is least different of the eleven non-identical possibilities.
But the way, this note is a high value note because of its location in the chorus and because of its lyrical, rhythmic and cadential treatment. It’s emphasized in every musical way. It’s actually one of the two highest value notes in the whole track – not identical, but as close as it gets.
This next one is almost humorous. Perhaps it’s in the boilerplate. Both the “Amazing” chorus, and the infringing “Photograph” chorus, utilize similar structures (both have verses followed by bridge and chorus sections), and the first chorus of each song is half as long as the chorus sections that follow. What?! No way!! In a pop tune, you say?? That’s true of nearly every pop tune, people.
The chorus of “Photograph” is 41% of Photograph. This is similar to their “the chorus is important” point. But it’s interesting because this isn’t really a part of the “they stole our song” argument. It’s really setting up the damages calculation. They’re will argue that they’re entitled to up to 41% ownership of Sheeran’s track. They’ll further argue that it actually should have a multiplier applied because it’s the hook. “The chorus is important,” they said. But for now, they’re getting it out there that it’s at least 41% of the notes on paper.
The chord progressions are essentially the same. There’s one chord that’s different, and it’s not very different. True, they’re the same as one another. They’re also the same as a great many other famous pop songs. In fact it might the most common progression in modern popular music. And as with the red and black notes of the melody, the single not-quite-red chord in the progression (imagine that in your head, because we don’t have a graphic) is not very different at all. Here again we will describe how chords, like notes, can be analogous. The chord in “Photograph” is what we call a “V” (five) chord. “Amazing’s” is a “iii” (three) chord. The upper case roman numeral denotes “major” chords, and the lower case denotes “minor” chords. These two have more common pitches than distinct ones and function similarly in the progression. They’re very analogous.
We often hear it said during these copyright lawsuits, “You can’t copyright a chord progression!” and no, indeed you can’t. But chord progressions are harmony in motion, and combinations of melody and harmony are expression. And expression has intent and meaning just as words taken in context are more often what you “meant” and not merely what you “said.” That expression, intent, and meaning is specific, definable, and copyrightable. So while the chord progression is not unique, and chord progressions in a vacuum are not protectable, they’re still part of a relevant argument for the plaintiff.
The chorus section of “Photograph” uses the same rhyming structure as the chorus section of “Amazing.” The measures 1, 5, 9, 11, and 13 all end in a similar “ee” sound. Measures 1, 9, and 13 actually end in the same word (“me”). They’ve moved over to talking about the lyric now and their claim is obviously true. It’s the simplest argument again, just the sheer number of alike occurrences. Here again, there are higher value moments and lesser value moments. They should stress the “me’s” that occur in measure 1 and measure 9 which predict or even dictate the “ee” sounds and “me’s” to follow. The two largely identical choruses are built from the same basic very similar building block. “See me,” and “Keep me,” respectively, sung in descending pitches on beats one and three — alike signature moments in both songs and the essence of the work!
Hey look, they’re about to say just that.
“The songs’ similarities reach the very essence of the work. The similarities go beyond substantial, which is itself sufficient to establish copyright infringement, and are in fact striking. The similarity of words, vocal style, vocal melody, melody, and rhythm are clear indicators, among other things, that “Photograph” copies “Amazing.”” Good for them. They sum it up quite well here. This is the strongest position — that the essence of the songs are identical. The high value notes are identical and so the “intent and meaning,” as I like to say, is musically identical. And so it’s infringement! The works are indeed substantially and essentially alike not just to an ordinary observer, but to an expert. That should be more than enough.
But “enough,” can vary from case to case. In copyright lawsuits, “enough” is somewhat a function of the defendants having had access to the song they duplicated, and whether they intentionally infringed. In other words, if Sheeran never heard “Amazing,” then the threshold for infringement moves a ton. And so you get arguments like the following…
(Defendants)… had access to the “Amazing” musical composition through (radio, youtube, etc). In addition, as discussed below, the sheer magnitude, and verbatim copying of “Amazing” by Defendants, is so blatant in both scale and degree, that it raises this matter to an unusual level of striking similarity where access is presumed. Yes, “Amazing” cracked the Top 100 in the U.K. and had a million views on YouTube as of June 2016. But I’d never heard it. And I’ve got more free time than Sheeran.
They go on to say that it’s assumed Sheeran had heard “Amazing,” because otherwise how could such a blatant ripoff have occurred?
They should forfeit a million right there for being so circular. Are you kidding me?
All in all, they’re quite right about everything.
Back of the napkin copyright lawsuit math time, I would make the argument that “Photograph’s” chorus comprises as much as 70% of the song’s total value, much more than the 41% implied by one of the plaintiff’s complaints; “Photograph’s” lyric though is particularly key to its chorus and therefore the song’s total value. Those lyrics are at most inspired by “Amazing.” I would calculate the infringement — the notes, chords, rhythmic treatments, etc. — to be no less than 50% of the chorus’s value. Therefore “Amazing’s” owners are entitled to 35% (half of 70%) of the profits from “Photograph.”
Calculating those profits is nearly as fun as dissecting the track itself. No, actually it’s not fun at all, but if you’re going to argue infringement that’s where these copyright lawsuits eventually have to go. Forensic accountants gotta eat.
The actual complaint is on Scribd, and it describes all the places the plaintiffs threaten to send their forensic accountants to find “Photograph’s” profits. The value of music has many more tentacles than most realize. Check it out at https://www.scribd.com/document/315183509/HaloSongs-Inc-v-Sheeran
Whereas an internet full of ordinary observers certainly didn’t. Nor did the ordinary observer friends that I personally polled on the matter. “Ordinary observer” by the way is the standard often used to help define infringement. That is, “does the allegedly infringing work appear or sound substantially similar to the ordinary observer?” And this as opposed to an observer more “expert.” Every single person for whom I played the two key segments agreed, “If Taurus came before Stairway, then Stairway was clearly stolen from Taurus,” with one friend adding for emphasis, “and nothing you say will convince me otherwise.”
I was sure there’d be a last minute confidential settlement. I couldn’t imagine why Zeppelin would chance a jury with this. But they did and they won.
Why did the jury reach a different conclusion from nearly everyone else? It’s unsettlingly simple. The jury wasn’t allowed to listen to the recordings. If they had, in my estimation, they’d have gotten it wrong like all my friends and most of the internet. The two respective recordings sure sounded “substantially similar” to these ordinary observers, and this would’ve overwhelmed all the right minded musicology I’m about to show you. This one factor alone swung the whole thing.
Instead, for the most part the jury had to look at the sheet music.
Now you’re thinking, “Who cares what the sheet music says?! If it sounds the same, it’s the same! We don’t play sheet music on the radio. Music is sound! How it sounds is what’s important!” And that’s certainly how Marvin Gaye’s estate won a big judgement against Thicke and Pharrell over “Blurred Lines” which sounded a lot like “Got To Give It Up.” But it was a big and wrong judgement.
Let’s mislead ourselves for a moment. Here is what this case sounds like.
Yup, Taurus and Stairway sound substantially similar. And they are substantially similar! But sometimes that standard is just dumb. On paper, on the sheet music, this case’s two most relevant analysis approaches lead to a Zeppelin verdict. And I’ll explain.
The first approach, simply stated, goes something like this… “Hey, there are a whole lot of similar notes in these few bars, so let’s count them up and see if it’s compelling.” I was going to write out the parts, but found that stevehoffman.tv already had so for now I’ll share his. See the notes he circled in red? Those are same notes falling on same beats.
I think this is the approach the plaintiffs probably took. See those first three notes? They’re identical. And if I play you those first three notes on a guitar, you’ll immediately recognize that I’m playing “Stairway.” But the problem with the “lots of similar notes” approach is that it looks at every picked guitar note as though they’re all musically significant, and thus invites the compelling counterargument as to the sort of notes many of these are. Not what notes they are, but what musical function they serve. They’re mostly arpeggiations of chords, which means they function to establish harmony over the course of a few musical beats, rather than being sounded simultaneously. It’s like guitar picking rather than guitar strumming, but they paint a similar color. They say, “this is the chord we’re using here to give the melody a context, harmonically and rhythmically.” In terms of composition this means a lot. I’d argue at least 75% of these notes are relatively insignificant and not protectable. It’s only a chord. Like a color. Even a series of chords can almost never reasonably be protected. Chords progressions like the one employed substantially by Taurus and by Stairway To Heaven but also by familiar tunes like My Funny Valentine and This Masquerade, are the building blocks of western music established over centuries. They’re not poetry. They’re the language itself.
This video shows similar language in varying degrees Stairway-like.
Let’s step back here and consider that musical language is exactly what you can write down on sheet music. Then someone might play that composition on a kazoo or a tuba or on a guitar. The jury wasn’t allowed to hear the similar arpeggios played in the same key on the same instrument in the two different songs. They were denied the confusion this might’ve created in their ordinary observer ears. The similarities of the acoustic guitars would’ve been a haze too thick for a jury. It’s being characterized as unjust, but it’s clarifying.
The other even more damning analysis would be to distill from all those arpeggios the key notes that might be the true melody notes — those that most define the musical phrases, separating them from the less meaningful arpeggio notes that are just spelling out harmony, reducing those to accompaniment. Then you’d have melody and you’d have accompaniment. This argument could be illustrated by playing a piano arrangement that hit those key notes faithfully, but altered all the others, applying some musicality all the while, and asking, perhaps of a Spirit fan, “Is that still Taurus?” And it would be. And then after your Stairway rendition, of that same Spirit fan “Is that still Stairway?” And again, it would be. But then the tolling blow, Taurus would find ALMOST ZERO common tones among those two distilled melodies.