Songs Are Allowed to Sound The Same

…And The Courts Don’t Get It

On November 23, 1970, George Harrison released “My Sweet Lord”, a single off of his first post-Beatles album All Things Must Pass. The soulful folk song was a massive hit and its legacy has cemented it as one of the greatest songs of all time, as confirmed by Rolling Stone in their 2010 list. The song is inspired by Harrison’s relationship with the Hindu religion. It’s a product of his indulgence in spiritual songwriting, having previously written the gospel-infused “Sing One for the Lord” with American R&B musician Billy Preston. Given the history of this song’s inception, Harrison was surprised to be hit with a lawsuit by Bright Music Tunes Corporation, claiming that his song violated the copyright of Ronnie Mack’s song “He’s So Fine”, recorded by the 60’s girl group, The Chiffons.

When you listen to the two songs back-to-back (and I recommend you do because they’re both great songs), the likeness is uncanny, and Harrison thought so too. In his memoir I, Me, Mine, Harrison admits that the songs were very similar, while maintaining that he did not intentionally attempt to rip off Mack's song. The matter was ultimately settled privately, but Harrison was found guilty of subconsciously plagiarizing “He’s So Fine”, and that verdict became significant in the music copyright landscape.

“My Sweet Lord” is just one example of how easy it is to write a song that practically already exists. The act of hearing a song, internalizing it, and then a little later writing a very similar song that you fully believe you came up with on your own, is a more common occurrence for songwriters than you’d think. It’s something we see come up time and time again with these pop stars who get struck with lawsuits for their biggest singles.

On her 2021 hit “good 4 u”, Olivia Rodrigo gave songwriting credits to Haley Williams and Josh Farro of the pop punk band Paramore because of the song’s likeness to Paramore’s hit “Misery Business”. All music is derivative. Unlike other intellectual properties that can operate and conform to the constitutional parameters of copyright law, music is a different kind of art form. Creating a song that is completely your own, with zero influence from all the music that came before, is unheard of. Inspiration and appreciation are fundamental values of this kind of art and they shouldn’t be undermined by a legal system that isn’t built with that in mind.

Trying to apply songwriting to the existing copyright infringement laws in the U.S. is like trying to fit a square peg in a round hole. Despite the court's best efforts to bridge this gap– such as the implementation of “forensic musicologists” whose jobs it is to explain to the jury and legal council the technical music theory that relates to a given copyright infringement case– the occurrence of these cases has shown us again and again that there are certain aspects of what it means to make music that our legal system just doesn’t understand. Take the 2016 case of Ed Sheeran’s “Thinking Out Loud”, which was alleged to have copied Marvin Gaye’s 1973 track, “Let’s Get It On”. The suit was drawn out for years, and received significant media attention, making it a landmark case for many music copyright disputes to come. What made this case so compelling was in the DNA of the song’s themselves. Four chords. That’s it. The two songs used the same four chords. There are just twelve notes in the traditional Western scale of music, meaning there are only so many chords that you can make with those twelve pitches that sound pleasing to the human ear when arranged in a certain sequential pattern. While on trial, Sheeran brought his guitar to the courtroom to show how many well-known songs use that same sequence of four chords.

Sheeran ultimately won the dispute, but the influx of cases just like this one in the past few years has encouraged many music industry professionals to call for change. If we keep punishing artists for their innate ability to be inspired by the works of others, what message is that sending to new artists? Record labels are scared that they will release a song by a new artist, only for it to be hit with lawsuits for copyright infringement, jeopardizing the careers of young talent. Not to mention that the songwriting process is already incredibly different in today’s music industry. Increasingly we are seeing large teams of songwriters and producers working together to make the next Billboard top 10 hit, and so naturally it’s much harder to track inspiration. Regardless, this is all a pretty slippery slope. We’re dealing with real people, real artists and their livelihoods, the sustainability of an industry that has been around for well over a century, and even, the upholding of an American constitutional principle (copyright protection is included in Article 1, Section 8 of the Constitution!). So the solution is unknown. Perhaps it’s best to remove this from the jurisdiction of the courts as a whole, and to let the musicians constitute the music. Copyright exists because creators and artists deserve to have their work protected, meaning whatever the solution may be it’s vital that those core principles are upheld. Just maybe that place isn’t in the constantly-proving-it’s-flawed United States legal system.

Songs that were subject to copyright infringement suits to check out: (do you hear the similarities?)

“He’s So Fine” (1963) - Ronnie Mack v. “My Sweet Lord” (1970) - George Harrison

“Sugar Don’t Bite” (1984) - Sam Harris v “Papa Don’t Preach”(1986) - Madonna

“Got To Give It Up” (1977) - Marvin Gaye v “Blurred Lines” (2013) - Robin Thicke and Pharrell

“Let’s Get It On” (1973) - Marvin Gaye v “Thinking Out Loud” (2014) - Ed Sheeran

“Misery Business” (2007) - Paramore v “good 4 u” (2021) - Olivia Rodrigo