clock menu more-arrow no yes

Filed under:

Music Copyright in the Age of Forgetting

In the post–“Blurred Lines” legal landscape, artists like Lorde are treading extra carefully when their music ends up sounding similar to someone else’s. But our brains can’t be trusted to notice when we steal an idea—and the problem is likely getting worse.

Ringer illustration

“Oh my god.” These were the words of Nick Thorburn, the main creative force of the band Islands (and composer of the original Serial theme), when someone on Twitter kindly informed him in June that he had covered someone else’s song without realizing it—and released it. “Carpenter,” the third track on this year’s Islands album, Islomania, was not, in fact, written by him at all. It was essentially a cover of the 2014 Julie Byrne track “Prism Song,” which, ironically enough, starts with a musical quote, of sorts, referencing a Tim Hardin line that has seeped deep into the Western world’s musical consciousness: “If I were a carpenter ...”

Thorburn explained in a statement to Stereogum that he had heard “Prism Song” years ago, likely on a streaming playlist, and decided to record a quick version of it on his phone. Then, when digging through his recordings, looking for inspiration in making an album, he found the recording, forgot its origin, and misattributed it to be from his own mind. “‘Oops’ does not suffice,” Thorburn wrote. “As is now blindingly evident, my memory has some pretty severe limits.” He took full responsibility, apologized to Byrne, and noted that she would be receiving 100 percent of the publishing rights for the song. (For her part, Byrne didn’t publicly comment; both Thorburn and Byrne declined interview requests for this article.)

This is a particularly wild story, but the nature of it is not unheard of—albeit usually in more subtle, complicated forms. The day Islomania came out this past June, Lorde admitted in an interview with Zane Lowe that the “blueprint” of her new single “Solar Power” was “Loaded,” a 1990 song from the genre-hopping Scottish band Primal Scream, which she said she had never heard before writing her song. (The implication here is that Lorde believes she and cowriter Jack Antonoff made something undeniably indebted to “Loaded,” but purely by happenstance.) At some point after “Solar Power” was made, but before it was released, someone in Lorde’s camp brought this issue up, and she addressed it head-on: “I reached out to Bobby [Gillespie, bandleader of Primal Scream], and he was so lovely about it,” Lorde told Lowe. “He was like, ‘You know, these things happen. You caught a vibe that we caught years ago.’ And he gave us his blessing.”

There’s a certain poeticism to “Loaded,” of all songs, being the one caught up in an originality discussion in 2021. The seven-minute ode to, well, getting loaded, was a defining hit in the bustling early-’90s dance scene in the U.K.—but it almost didn’t get made. Before its release, Primal Scream were struggling to make a name for themselves as a more traditional rock band, and, desperate to mix things up, they encouraged unproven DJ Andrew Weatherall to remix a song for them.

Weatherall, who was “full of piss and vinegar, full of the confidence of ignorance,” as he put it to the BBC a few years before his death in 2020, chose the song “I’m Losing More Than I’ll Ever Have,” a Stones-y ballad from 1989’s Primal Scream, and started messing around. The remix he put together was so adventurous and infectious that it could only be heard as a stand-alone work—an entirely singular song that, to this day, many listeners have no idea is a reimagining of another song. If there were ever a good example in modern pop that illustrates how fluid and unpredictable songwriting can be, it’s this one. Of course Bobby Gillespie gave Lorde his blessing.

Yet there was still a reason that people around Lorde brought up the issue in the first place. Historically, claims of copyright infringement—the legal issue that covers plagiarism of protected works—in music have tended to occur in situations where the melodic overlap is pretty sizable. But a 2015 ruling shook up the industry’s understanding of what constitutes a legitimate case, when Robin Thicke’s no. 1 hit, “Blurred Lines,” was found to have infringed upon Marvin Gaye’s classic “Got to Give It Up” despite the lack of a traditionally compelling musicological argument that the two songs were egregiously similar. (Nevertheless, there can be no doubt that “Blurred Lines” was inspired on a production level by “Got to Give It Up,” something cowriter Pharrell Williams plainly admitted.) This was a controversial decision, upheld on appeal in 2018, which many felt established a troubling legal precedent: that a song could be guilty of plagiarizing another song’s “feel.” It created a culture of fear, with songwriters and executives unsure of what is allowed in the act of writing and recording a song.

“People are more concerned than they were before,” says Joe Bennett, a professor at the Berklee College of Music and a forensic musicologist—someone who is hired to offer an expert opinion, either privately or in court, about similarities between two pieces of music. “I get a lot of calls from clients [lately] who want me to do a bit of preemptive work to just check that something isn’t too close to an earlier work, often inadvertently.”

We’re now squarely within a new era of music copyright litigation, signaled by a steep wave of fresh cases and settlements arriving on top of what was already a steadily rising tide. But while plagiarism has never been a larger industry issue than it is today, it also has never been more poorly defined. And given the way songwriters often borrow ideas without realizing that they’re borrowing—a documented artistic tendency that is likely increasing in frequency in our chaotic online world—this latest squall of disputes may be just the beginning of an even larger storm.

At least in the case of “Solar Power,” though, even if Primal Scream theoretically wanted to pursue litigation, the group probably would have a tough—if not impossible—road to legal victory. That’s not because the songs aren’t distinctly kindred; the outro/chorus of “Solar Power” and the main progression of “Loaded,” adjusted for key, can essentially be played over each other. But simple, repeating chord patterns (a.k.a. chord loops) like this one are, according to Bennett, not copyright protectable. “There are a bunch of chord loops that exist in the world,” Bennett explains, “and they’re standard building blocks that songwriters use.”

There are other details that might raise the eyebrows of those comparing the songs, such as the similar instrumentation in both—and the fact that the cover of Screamadelica, the album with “Loaded” on it, features an illustration of a sun, when Lorde has referred to Solar Power as being a “sun-worship album.” (OK, that one’s a stretch.) But in terms of “Loaded” being able to win against “Solar Power” in a hypothetical court of law, Bennett thinks it would be “far away from” a lock.

Part of the issue is also that it’s not clear how much of any aspect of “Loaded,” a melodically simple song with clear lineage to a variety of previous songs and genres, is undisputedly copyright protected in the first place: “Most of it is not,” says Charles Cronin, a lawyer and professor who founded the Music Copyright Infringement Resource, a comprehensive database of music copyright litigation maintained by George Washington University. “[‘Loaded’ is similar to ‘Solar Power’] rhythmically, yeah, and it has similar sounds. But musically, no, in part because I would argue that there’s so little original musical expression in either of them.”

Adding credence to this belief is the fact that “Solar Power” also has been noted for its comparability to another early-’90s hit: George Michael’s “Freedom! ’90.” (And that’s not even to mention the Lorde-acknowledged debt that “Solar Power” has to Robbie Williams’s 2000 song “Rock DJ,” which features a reference to A Tribe Called Quest’s “Can I Kick It?” that is prominently echoed in Lorde’s song.) Perhaps Lorde directly addressed the connection to “Loaded” simply because it came before George Michael’s hit—“Freedom! ’90” was released a mere eight months later, in October 1990—but the overlaps here also cannot be denied.

Broadly speaking, it’s the same chord loop and the same sunny, celebratory textures featured in “Loaded,” “Freedom! ’90,” and “Solar Power.” But at the center of all this is the fact that the progression and the “feel” in these songs is firmly rooted within the gospel tradition, and doesn’t belong to any of them. As Rembert Browne noted in Vulture in 2016, when explaining why he had such fondness for “Freedom! ’90” as a child: “It sounded like church.”

The week after “Solar Power” came out, George Michael’s estate issued a statement: “We are aware that many people are making a connection between [‘Freedom! ’90’ and ‘Solar Power’], which George would have been flattered to hear, so on behalf of one great artist to a fellow artist, we wish her every success with the single.”

Lorde’s cautious approach here is not an isolated incident in the contemporary music industry. In 2017, to cite another example, the group Right Said Fred were approached by Taylor Swift’s camp in advance of the release of her single “Look What You Made Me Do.” Swift’s song bore a distinct resemblance to their shirt-stripping manifesto “I’m Too Sexy,” and so a deal was made for an undisclosed percentage of the songwriting credit. (In the case of “Solar Power,” Primal Scream has not been given songwriting credit or any other form of compensation—a detail confirmed by a representative for Bobby Gillespie; a representative for Lorde did not reply to a request for comment.) Even if musicologists think a song is likely in the clear, as Bennett and Cronin believe with “Solar Power,” there’s still a level of concern floating around industry circles that’s led to an increase in advance consultations, agreements, and deals, just to avoid any possible future headache. (If you were wondering how a group like Animal Collective managed to get a writing credit on Beyoncé’s Lemonade, now you know.)

There also has been an increasing trend of artists quietly receiving secondary writing credits for successful songs after they’ve been released. That was the case with Mark Ronson’s “Uptown Funk,” when five performers and producers behind the Gap Band’s “Oops Upside Your Head” were formally added as songwriters to Ronson’s no. 1 song in 2015 without a trial. The move brought the total number of “Uptown Funk” songwriters to eleven, because the decision had been made to preemptively add Trinidad James and producer Devon Gallaspy, whose “All Gold Everything” had inspired the song’s post-chorus bridge.

And then just a few weeks back, it was revealed that Hayley Williams and Josh Farro from Paramore were suddenly being given writing credit for Olivia Rodrigo’s no. 1 song “Good 4 U” due to its similarity to “Misery Business.” The move followed two other incidents in which people in Taylor Swift’s camp were given writing credits for songs on Rodrigo’s debut album, Sour; one because of a deliberate interpretation that was settled preemptively and the other because of a post-release agreement. (Rodrigo faced some additional public speculation because the riff of her song “Brutal” resembles that of Elvis Costello’s “Pump It Up”; Costello himself dismissed that matter on Twitter: “It’s how rock and roll works. You take the broken pieces of another thrill and make a brand new toy. That’s what I did.”)

“It has been, and a little bit remains, the Wild West,” says Robert Jacobs, an attorney who specializes in music copyright cases. (In April, Jacobs won a prominent case for his client, Marshmello, whose song “Happier” was the target of a lawsuit by Arty, a Russian DJ, who claimed copyright infringement of his 2014 remix of OneRepublic’s “I Lived”; Arty’s attorney was Richard Busch, who also represented the Marvin Gaye estate in the “Blurred Lines” case, and who rose to power in the early 2000s as a leading figure in a wave of sampling lawsuits.) “I think since ‘Blurred Lines’ especially,” Jacobs says, “people have been more willing to go and attain licenses or forgo certain uses based on it.”

Jacobs points out that copyright cases are sui generis, meaning each case is assessed on its own merits, without clear benchmarks for what makes a valid claim. That slippery setup, mixed with Robin Thicke being forced to pay up, has led to a noticeable uptick of all kinds of cases. “It’s incredible what I’ve seen,” he says.

Recent copyright infringement victories for Led Zeppelin and Katy Perry have cooled some heads, but “Blurred Lines” continues to loom, particularly as Donald Glover appears headed to trial in defense of his Childish Gambino song “This Is America,” which is accused of having copied Kidd Wes’s “Made in America.” Most experts seem to agree that the musical similarities in the paradigm-shifting “Blurred Lines” case were not substantial enough for a conviction, but Judith Finell, a musicologist who testified on behalf of the Gaye estate, doesn’t think the takeaway should be that a similar “feel” can get you in hot water. (And as Gillespie phrased it to Lorde, “vibe” is at the center of the conversation about “Solar Power.”)

“That’s what the press says, but that’s not accurate at all,” Finell says. “The Marvin Gaye case was actually a very classic case of melodic and other kinds of imitation of the composition, and it was proven through very careful analysis and transcription of every single note and every single accompaniment line and bass line and lyric.” Finell equates the current situation to one in which people have been stealing cars for years without getting caught, and now that one car thief has been penalized, “all the people who’ve stolen cars are getting worried because they see it’s being enforced.”

Charles Cronin, the attorney/professor, doesn’t buy it: “I don’t believe [the Gaye estate’s musicological argument] for a moment,” he says. “You can find musical similarities in a song by Marvin Gaye and a symphony by Beethoven if you stretch things far enough.”

Cronin’s belief that the situation has gotten out of control stems from the fact that, in the scope of the country’s history, music copyright cases are on a constant rise, and have “exploded” in recent years. In the 19th century, music copyright cases in the U.S. were few and far in between, and were essentially claims of outright-stolen sheet music. Even heading into the recorded music era, songs were frequently indebted to other works—just listen to something like Hank Williams’s “Move It on Over” and Bill Haley’s “Rock Around the Clock”—but attitudes toward what was a fair re-interpretation were far less strict. Over time, however, the types of cases widened, and leniency waned. (Also not a coincidence: There was suddenly much more money up for grabs.)

And then everything changed in 1976. That was when George Harrison was found guilty of “subconsciously” copying the 1963 Chiffons song “He’s So Fine” with his 1970 song “My Sweet Lord,” which was the top-selling single of 1971 in the U.K. (The record that “My Sweet Lord” appears on, All Things Must Pass, received a 50th-anniversary reissue last month.) No one wanted to believe that Harrison, a goddamn Beatle, had deliberately plagiarized the iconic girl group, but it was difficult to deny that the songs were, melodically and structurally, very much the same. And it’s not like Harrison could claim to have never heard his accidental source material on this one; “He’s So Fine” had hit no. 1 on the Billboard Hot 100, where it stayed for four weeks.

The ruling brought up a strange question: Can you be held accountable for a crime that you didn’t realize you were committing? The answer is sort of: “Even though intent doesn’t matter,” says Jacobs, the attorney, “you still need to prove access.”

In this case, Harrison had plenty of access to the song—and in his 2015 biography, George Harrison: Behind the Locked Door, Graeme Thomson notes that several people around Harrison during the writing and recording of “My Sweet Lord” claim to have directly brought the connection to “He’s So Fine” up to him. (“Could it have been that, as a Beatle, Harrison simply thought he could get away with it?” Thomson asks in the book.) Regardless, the neverending legal battle was grueling for Harrison, who called it the “worst experience of my life,” and told Rolling Stone that he subsequently struggled to write music in the years after. (He parodied the situation in his 1976 song “This Song.”)

“I think what happens is we’re used to half-listening,” says Alan S. Brown, a now-retired psychology professor who, in 1989, spearheaded the first formal case study of cryptomnesia, the clinical term for accidental plagiarism. “If music is playing in the background on a radio station, it may float into your brain and stick there without you fully processing it. And then you pull it back later.” Through a series of tests asking subjects to come up with original information within a group setting, Brown’s research demonstrated that it’s common for people to copy others without being aware of it.

This research was expanded upon in 2015 by Gayle Dow, a psychology professor at Christopher Newport University, who implemented a study specifically about the way cryptomnesia affects the creative process. Dow asked subjects to do a variety of imaginative tasks—such as drawing a sketch of an alien—and found that, when people were given an example beforehand, they often copied some aspect of what they were shown. “It’s like a cognitive illusion that we fall prey to,” she says.

Brown believes the phenomenon of cryptomnesia is likely more acute in the creative world than it is in our day-to-day lives “because [artists are actively] searching for unique ideas.” Essentially, when drawing into the deep, murky songwriting well, musicians could be tapping into songs that they may not be consciously aware of. This is a likely explanation for how Sam Smith’s 2014 hit “Stay With Me” ended up strongly resembling Tom Petty’s 1989 radio staple “I Won’t Back Down,” a situation that was settled out of court. (Another possibility when two songs sound the same is that they’re the result of what lawyers call “independent creation,” which more or less means it’s a coincidence; this, again, is what Lorde claims to have happened with “Solar Power” and “Loaded.”) “You can easily say I’ve never heard it before,” says Dow, “when you might’ve heard it a dozen times and you just can’t remember.”

Cryptomnesia has been a recognized part of human behavior for over a hundred years; one notable example is from 1892, when Helen Keller, a miraculously talented writer, was found to have plagiarized a short story she wrote at the age of 11—an error that is generally accepted as having been accidental. But it seems that, as modern life continues to pick up speed, and humans ingest massive amounts of new information every day, the instances are accelerating. “Right now I have about seven tabs open—it’s too much!” says Dow. “The more that we process, the less likely we are going to be able to monitor the sources. So cryptomnesia should statistically increase.”

Brown agrees: “With the pandemic, we’ve just had a year and a half of sitting in front of a screen,” he considers. “Everything is kind of merging together a little bit, and it’s sort of becoming the same colors. And that is going to make things more challenging.”

An interesting detail regarding the Islands–Julie Byrne mishap is that “Carpenter” isn’t a strict cover of “Prism Song.” Thorburn’s work uses the distinct foundation of Byrne’s song—a lovely folk tune about how frighteningly easy it could’ve been to have never met someone important to you. But he also expands on it with his own lyrics in the second verse, in addition to a sparkling new outro. It’s as if Byrne and Thorburn had collaborated in a dream.

Maybe if Thorburn, a well-respected figure in indie rock, had a team of people around him in the same way that Lorde does, the accident would’ve been noticed by someone before the album was regrettably printed without Byrne’s deserved credit. And maybe at that point it would’ve been decided to not release the song at all. That would have been a shame. “Carpenter–Prism Song,” as it is now officially known, is likely the result of an honest mistake—it seems astronomically implausible that Thorburn would’ve stolen that much of a song deliberately—and is ultimately an excellent piece of music; the world is a better place with the song in it. Just as importantly, it’s also a fascinating window into the way our brains work—and perhaps a harbinger of the type of pitfalls that await us with rising frequency in the hyper-digital future.

At one point during the “He’s So Fine” scandal, George Harrison fantasized about the invention of a machine that you “can just play any new song into ... and [it] will say, ‘Sorry’ or, ‘Yes, OK,’” according to Behind the Locked Door. He was frustrated by the ambiguity of what crossed the line into plagiarism, and, in his memoir, I Me Mine, wrote that he didn’t “understand how the courts aren’t filled with similar cases—as 99 percent of the popular music that can be heard is reminiscent of something or other.” He had a point. As Bennett, the Berklee musicologist, puts it, in the world of songwriting, “we mostly keep coming back to fishing in this same pond.” (In 2000, just before his death, Harrison re-recorded “My Sweet Lord” with an adjusted vocal melody to better distinguish it from “He’s So Fine”; he said in a promotional interview that he “enjoyed singing the song again and not singing those notes in that order.”)

It turns out that the technology Harrison was fantasizing about is actively being developed—most prominently by Spotify, which recently filed a patent request for a music-recognition tool that goes beyond what’s currently available from services like Shazam and SoundHound. [Editor’s note: Spotify is the parent company of The Ringer.] But even if a program is developed that can effectively pick up on subtle musical similarities between a new song and an old song, it won’t be able to simply say “Sorry” or “Yes, OK.” That will remain impossible as long as the American legal system isn’t totally clear about what constitutes copyright infringement—about what aspects of someone’s work make it wholly “unique.” “I’ve been close to this field for maybe 20 years now,” says Bennett, “and I haven’t really gotten any closer to answering that question: ‘What is a song?’”

Pushing aside the floating definition of what makes a song, anyway, and what defines original work, music copyright cases are still continuing to multiply, with no sign of slowing down anytime soon. Ed Sheeran alone has been implicated in four separate copyright issues in the past few years, two of them related to the same song, “Shape of You.” And with every song a click away, and all of us swirling around in a soup of neverending media, the ability to reasonably use independent creation as a defense is becoming more difficult by the minute. “As long as we’re a country that believes in compensating people for their work and their contributions,” says Finnell, the musicologist, “I don’t see how [the high level of cases is] going to go away.”

Looking at the state of things, then, it’s not hard to understand why pop stars like Lorde are being advised to seek clearance ahead of time, out of an abundance of caution. The worst that happens in that case is that someone like Gillespie asks for a share of songwriting credit, and all parties move on without a painful and expensive trial.

Gayle Dow recommends that everyone remain especially vigilant in keeping track of their information sources these days in order to avoid committing any egregious accidental plagiarism. But to some degree, it will always be a screwup that’s impossible to totally avoid, particularly for anyone trying to produce something creative, like a song. “Cryptomnesia in itself could be viewed as [a component of] creativity,” she says.

One artist who has proved notably adept at avoiding accidental plagiarism is Paul McCartney, who, despite having written hundreds of the most scrutinized songs of all time, has never had a noteworthy, public copyright dispute directed at him. (The closest instance was when an acquaintance claimed to have ownership of the phrase “ob-la-di, ob-la-da”; the matter was settled out of court.) McCartney has likely avoided this trouble partially because of his inherent paranoia of it: In 1963, when he woke up from a dream with the melody to “Yesterday” in his head, he was convinced he must have stolen it from somewhere. Only after checking extensively with industry figures did he accept that “Yesterday” was truly his creation.

McCartney also looked out for those around him. When John Lennon showed up with the initial idea for “Come Together,” a song inspired by Chuck Berry’s “You Can’t Catch Me,” McCartney pointed out to him that it was too inspired by it. “I said, ‘Look, it’s a great song, I love it,’” McCartney remembers in the new Hulu series McCartney 3, 2, 1. “‘But we gotta do something to get away from that.’”

Moving it into a lower gear with his iconic bassline, McCartney helped restyle the song significantly—and yet, it still landed Lennon in a legal battle. The saga was drawn out and bizarre, and ended up with a settlement in the form of Lennon agreeing to record three covers of songs owned by the same publisher as “You Can’t Catch Me.”

It’s a shame that it got nasty, and maybe the whole mess could have been avoided by Lennon simply calling up Berry and asking for his blessing. (Or cutting him a check.) Any way you look at it, though, Berry does deserve some credit for “Come Together”; you can hear his original verse melody in the song, and the “here come ol’ flat-top” line is almost directly lifted. But 50-plus years later, no reasonable person would hear the final result of “Come Together” as being anything other than the work of true originals.

“That’s a nice fact of music,” McCartney says at one point in the Hulu series. “Even though you’re inspired by something, it’s going to sound like you.”

Nate Rogers is a writer and editor in Los Angeles. His writing has appeared in the Los Angeles Times, The Washington Post, Stereogum, and elsewhere.

Rap

Lil Wayne Lives Twice

The Press Box

How to be a Music Critic With The New Yorker’s Kelefa Sanneh

No Skips With Jinx and Shea

Breaking Down Future’s Confessional Masterpiece, ‘HNDRXX’

View all stories in Music