August 26, 2020 Musicology 5 Comments

The Yeasayer lawsuit against Lamar and The Weeknd went away. Rightly. For now. But another copyright infringement lawsuit is in the works for Kendrick Lamar this week. Terrance Hayes is suing because he believes “Loyalty,” the 2017 Lamar hit that features Rihanna infringes upon Hayes’s 2011 track, also entitled, “Loyalty.”

It’s unusual that I’m unable to get a copy of both songs when a suit is filed. But I don’t have the Terrance Hayes version, yet, (I don’t think anybody does) so I can’t fully do my musicologist thing. I can only hypothesize. However I do have a copy of the plaintiff’s complaint, filed a few days ago, and I think it provides plenty of clues as to what’s going on here.

If you know “Loyalty,” jump ahead. If you’ve never heard it, this is “Loyalty” by Kendrick Lamar feat. Rihanna. (Note that there’s a bad word or two in here.)

Let’s start with “How could Lamar possibly have heard Hayes’s 2011 “Loyalty” if I can’t find it anywhere?

To win a copyright infringement case, you need to be able to show that the accused infringer had “access” to your track before they wrote theirs. The plaintiffs have a theory: Hayes had worked with producer Josef Leimberg, and Leimberg was involved with an older Kendrik Lamar’s record, the Grammy Award-winning To Pimp a Butterfly, produced by Terrace Martin. It does not appear Leimberg worked on Lamar’s “Loyalty” record. But they do mention that Hayes once met Terrace Martin at Leimberg’s studio and that Hayes’s projects, including “Loyalty,” were stored on the computer there. Perhaps Martin or someone else involved with “Loyalty” got them that way.

Make your own judgment as to how reasonable all that sounds.

Most importantly, do the tracks sound alike?

The plaintiffs posit that the creators of Lamar’s “Loyalty” took Hayes version pretty much wholesale, and as they put it, “slowed it down through a synthesizer and combined it with another sample to disguise the copying.”

Ooooh kay. That’s a little shaky right there.

If they DID “slow it down through a synthesizer” — whatever that means — it’s not gonna terribly be hard to prove it; not the sort of thing you can disguise very easily especially from someone like me. If all else fails, there are tools for this sort of forensic musicology. Frankly, not the least of which goes something like: Click. Click. “Hey, it’s sped back up!” More on that later.

If any of this were true, then it would be another type of infringement. Sampling is distinct from copying the song. If you think they sampled your recording, maybe say so. That’d be pretty clean cut.

But going back to that “access” story for a second, at the risk of spouting a little “inverse ratio” thinking here, which I’m loathed to do, if the Hayes track turns out to sound exactly like Lamar’s but “slowed down a little by a synthesizer,” their access story is gonna start to sound pretty great. But we’re skeptical.

Anyway, moving on to more distinctly musicologist type stuff.

The complaint alleges “Both the Subject Track and the Infringing Song both songs use the same chord progressions, melodies and other aspects throughout, and neither song features any changes in the musical elements as the recordings progress toward their conclusions.”

That’s the vague overview claim. There are several key ways that one song can be meaningfully similar to another in this context, but tops among them are lyrics and melody, so that’s where we look first.

The lyric piece is gonna go quickly. Again, I don’t have a copy of the plaintiff’s track. But I don’t see where the complaint says any lines of the lyric are the same. So let’s assume for now that none are. Instead, it’s the subject matter, they point out, that is similar.” Both songs are about a man and a woman and loyalty, I suppose. That’s not significant.

They do however claim the melodies are alike. But which melodies? The plaintiffs provide examples in the filing that tell us where this thing is focused. They included transcriptions (they wrote out the notes) that would have us believe that fairly substantial and distinctive features from Lamar’s accompanying groove will indeed appear in the Hayes version if I ever get to hear it.

But the plaintiffs appear to be talking only about the melody lines of the underlying groove or accompaniment in Lamar’s track, and not the actual melody of the song — the parts sung by Kendrick Lamar or by Rhianna. (So in that regard, this would be a bit similar to the situation in the Katy Perry Dark Horse lawsuit where the “melody” in question was a repeating synthesizer ostinato that looped and over which Perry sang throughout most of the song.) And if any of this were true, there are a lot more notes in this groove than in the Dark Horse case. This would be substantial. Maybe all the notes they wrote out and which they claim appear identically in both tracks really will. That would certainly make sense if, in fact, the defendants copied it and “slowed it down with a synthesizer.”

But take it all with a grain of salt. Why?

First, the complaint also includes the claim that the chord progressions are the same. And as you likely just heard, a four-bar loop plays pretty much throughout Lamar’s entire track except for that part where Lamar and Rhianna are drowning in the sparkly black quicksand. The complaint includes the claim, “The chord progression of the Infringing Song is identical to the Subject Track progression, with one exception: In measure 3, the Infringing Song progression returns to Am for 3 beats before ascending to Em in an upper octave.”

There’s a hiccup here. The complaint includes a comparative notation where they wrote out the sheet music for each version’s accompaniments. And yes, the transcriptions show what they describe — two progressions that are very similar except for the third measure.

But, the thing is I would describe the four-bar chord progression from Lamar’s Loyalty progression more or less like this:

I might’ve named that Fm/A chord in the third measure differently, but in any case, there’s no Em in the third measure, nor anything especially close to it; and what’s more, hardly any of their chords look right to me. Still, none of this necessarily means that if and when I hear Hayes’s “Loyalty” I won’t hear the same progression as in Lamar’s. It does mean I disagree with their harmonic analysis of “Loyalty.”

And as for the melody, Lamar’s loop sounds like chipmunked vocals over synthesizer chords with lots of “choppy” edits and retriggers. There’s a reason for that.

Remind yourself how the first 15 seconds of Bruno Mars’ 24k Magic sounds. Then stop. I know… it’s hard to not listen to the whole fantastic track even though you’ve heard it a zillion times before. You can come back to that. Just listen to the intro.

Then imagine I take that auto-tuned “to-nighhhhhhhhht” melisma he does and I reverse it.

To-nighhhhhhhhhhhht.

That’s the chipmunky vocal melody you hear in Lamar’s “Loyalty” loop. And, yes, I’d need to do some work to get it to sound exactly right, but I’d have the entire “Loyalty” loop, synthesizer sounding stuff and all, in about 30 minutes. In its entirety, it’s 24k Magic, backwards.

And this sure appears to be the melody that’s written out in the complaint.

So let’s wait and see if we ever hear the Hayes composition. Perhaps there’s more to be considered. It’s possible.

Written by Brian McBrearty