September 20, 2017 Latest News, Musicology, Opinion No Comments

Is this just another frivolous lawsuit? How can we tell?

accessToday we learned that canadian songwriters, now plaintiffs, Ronald McNeill and Georgia Lyons-Savage are suing Carrie Underwood and claim to have composed the chorus, melody and lyrics to “Something In The Water.” Carrie Underwood’s begins her greatest hits record (hard to believe she has one already) with THIS track.

As any reader of Musicologize knows, “access” is the first step when building an infringement argument. They say they pitched it to Underwood back in 2012. Specifically they say they pitched it to Underwood’s producer Mark Bright. So, the access argument is pretty much made. I’m reading that Underwood says she never heard the other track, but if Bright had access to it, this will be a difficult argument to make if the songs turn out to be similar.

Minor detail. In addition to “access,” you also need a “substantially similar” song, which is of course where musicology comes into play. However, I can’t find much of anything by McNeill and Lyons-Savage online and certainly nothing that contains that lyric. So I also can’t compare their track to Underwood’s. Maybe they’ll post a copy to get some public outrage going.

We can instead somewhat preemptively look at what’s required for this NOT to be a frivolous suit. Let’s look at what it will take for McNeill and Lyons-Savage’s track to be substantially similar.

Supposedly the hook is the same. 

According to an article in The Tennessean the complaint says, “The hook on the infringing work, as released on the album, is structurally and lyrically identical, and substantially similar melodically to plaintiffs’ composition of the same title,”

Let’s unpack that a bit.

“Substantially similar melody” is tough to dig into without a copy of the supposedly infringed song, but we’ll talk about it anyway in a bit. But first….

“Structurally?” What does that mean?

The structure of the hook is to say the line “There must’ve been something in the water,” twice, and do nothing except this. If that’s the crux of their structural argument, and indeed the two songs have that in common that’s like structural similarity by exclusion. They similarly lack more lines and more lyrics?

I’m not sure that’s worth much.

“Lyrically identical” counter intuitively might not be worth much either.

Consider that the hook is:

“There must’ve been something in the water
Oh, there must’ve been something in the water”

You don’t need to be a poetry expert to know the phrase “Must be something in the water.” It has universally understood meaning greater than “Hey there’s something in the water. There’s a fly in your glass.” It’s an expression that means you’ve been affected, usually in the same way as others who get their water from the same source. And neither party here invented the expression, so the lyric isn’t protectable by either of them. If someone else writes a tune called “Something In The Water,” which they have and will continue to do, they’ve little to fear from Carrie Underwood, unless they steal the notes too. (We’ll get to that shortly.)

This is how we want our music law to work! Especially if you’re a fan of country music. Heck, without familiar expressions, and cute little twists thereupon, there’d be practically no country music at all! Consider a current hit, “There’s A Last Time For Everything.” I wish I’d thought of that. That’s country music gold. It half writes itself, if you’re good. But it’s not the first time someone has taken “There’s a first time for everything” and flipped it on its head to make a new cute point. And I suppose the many who have over the years are probably thinking about suing somebody right now, but unless they have a lot more than that phrase, they’re probably going to get tossed out of court.

The twist in Underwood’s version of “Something In The Water” is that it’s a reference to baptism. Here again, this is Can’t. Miss. Gold. There are stories about how they were pinching themselves while writing it. Does the McNeill/Lyons-Savage track have that same concept? That’d be interesting, and impactful, but no slam dunk unless the execution is very similar.

I wish I knew if Ronald McNeill and Georgia Lyons-Savage mean they also have the two six-word precursor to the chorus,  “Now I’m Changed. Now I’m stronger?” Well, that would change everything. If they rhymed “Water” with “Stronger” then all of the sudden we have a slam dunk. Go get your money!

So there’s the first big question. When you say you wrote an identical hook, are you just talking about, “There must’ve been something in the water?” Lots of people wrote that before anybody in the complaint did. Next big question coming now…

You say your melody is “substantially similar.” Did you do that F sharp? Because that’d be great — that’s the MVN!

Am I really making a big deal about just one note? Yes! That one note would help a ton. Melodically, the silver bullet would be the F#, the MVN, the most valuable note.

What am I talking about? I’m talking about WAH. As in WAH-TER.

When Carrie Underwood sings, “WAH-” as in “there must be something in the WAH-ter,” that’s the single note that gives the chorus most of its character. It’s a long held dissonant tone, lingering uncomfortably, making you want the next note, G, the consonant tone that she sings to the next syllable “TER.”

It’s also big because there’s not that much else to talk about. That’s pretty much the chorus — a long uncomfortably “WAH” followed by “TER” on a more comfortable one. If she stole that, again, go get your money!

For now, we have to hypothesize, so we’ll wait. I certainly hope we get to hear the original “Something In The Water” soon. I’ll certainly put it up here right away and update this.

VERDICT: TBD

 

Written by brianmcbrearty