August 15, 2019 Musicology No Comments

In the days following the Katy Perry Dark Horse verdict, my news feed was packed with articles about what a bad omen it was; how it sent chills down composers’ and songwriters’ spines and would hinder creativity. Also, it would herald an era of frivolous lawsuits where little-known artists would shakedown successful artists into nuisance settlements IN – A – WORLD where you don’t dare risk a jury trial no matter how spurious the claim?

Just days after that jury concluded (somehow) that Dark Horse infringed on Joyful Noise, a new ridiculous claim appeared and made headlines. Lady Gaga’s “Shallow,” the biggest song from A Star Is Born and a Billboard number one came under fire for being too similar to Steve Ronsen’s “Almost.”

Steve who? Who indeed. But that’s material for the access argument wherein Gaga will almost surely say she’s never heard of “Almost,” nor Ronsen.

I’ll cut to the chase. This is very silly. It really is. It’s sillier than Dark Horse.

Understand though that I wouldn’t accuse anyone of simply putting a frivolous threat out there and hoping it came back money. And when I don’t do so here, well, that really is the proof. I am a bit of a benefit of the doubt type, but moreover, my personal experience has been that accusers are almost always earnest and fully convinced that they’ve been wronged, stolen from, plagiarized; believing sincerely their work was somehow misappropriated.

That doesn’t mean they aren’t sometimes also fishing a little bit. As of the time of this writing my understanding is that no formal complaint exists but Mr. Ronsen’s claim has drawn a lot of attention. That alone is weird. I remember when Major League Baseball stopped showing streakers on TV because they didn’t wanna give them publicity and thus encourage the behavior. Did it not work? Seems like it. When was the last time you saw a streaker at a baseball game? 

Also, there’s the concept of “negative damages” as a result of, among other things, publicity, as though that might mitigate future awarded damages, rightly or wrongly. Negative damages are roughly analogous to rewards, I think.

So you already know I’m going to say this is stupid. What’s so stupid about it? 

Here’s his track on Soundcloud.

And here, of course, is “Shallow.”

You can hear it, right? It’s those very first three notes as he sings, “Can’t you see?” And later, “I can feel.” These are the same as the three notes in “Shallow’s” pre-chorus, where the lyric is “I’m Fall- Ing.” 

This part sounds the same because it is pretty much the same. It’s the same three melody notes (G – A – B) with more or less the same three guitar chords (Em – D – G) accompanying them, and more or less the same rhythm besides.  

So what’s so silly? First, it’s only three notes, a paucity I’d say of similarity. And not a particularly interesting three notes. These are three sequential notes in a scale, and when musicologists speak of things that aren’t protectable by copyright because they’re the “building blocks” or the “basic language” of music, we might mention scales before anything else. These three notes aren’t merely “from a scale;” they’re Do, Re, and Mi, in that order as in, “Doe a deer a female deer.” As in “simple as Do Re Mi, ABC, 1-2-3, Baby you and me.”

Yes, it’s also the same chords. That definitely adds to the similarity. Those chords, by the way, are E minor, D major/F#, and G major, more or less. There are a couple of subtle details we don’t need to get into. They don’t make it more similar.

I read somewhere that Gaga’s musicologists may have said it’s like “Dust In The Wind, by Kansas.” That’s partly true. The notes are the same. The chords are the same three, but in reverse order. It’s not as though the order doesn’t matter, but it’s also not a great stretch to think you might not notice either way.

These three chords in that order do appear in countless songs. It’s just a very common progression.  They are for example the three chords over which Tom Petty sings “Won’t back down.” As a matter of fact, when Bradley Cooper sings, “Tell me something, Girl” over those same three chords, he’s singing the same three pitches as in “Won’t Back Down.”

One thing though, in Shallow and Almost, the bass note over the D major chord is an F#. It’s a scalar idea. You’re on E, you’re headed to G, you can get there via a regular D chord, like in “Won’t Back Down” or you can get there via the scale tone between where you are and where you’re headed, That’s F#, one of the three notes in your D chord. It’s a smoother sound. All of this is also extremely easy to do by the way on an acoustic guitar if you write your song in E minor. That’s almost certainly WHY these songs are in the same key, and in turn, it’s why played back to back they sound very much alike to the layperson.

It occurs to me that in college my friend Dave’s friend, also Dave, was a good guitar player and he’d written this lovely little tune that I’ve remembered my whole life. It went exactly like that. Em D/F# G. It just falls under your hands if you’re a good guitar player.

I’d also argue that when two songs are in the same key and played on the same instrument, things are going to sound, particularly to the layperson, more significantly similar than they really are. Ask Led Zeppelin next month, when they’re back in court defending Stairway To Heaven, again.

I think it’s interesting. Ronsen seems to be a very competent musician. I have to imagine he knows this is nothing. He might just know it a little too deep down. Or maybe he’s hoping somebody will tell him he’s wrong and it’s something. And he’s entitled to someone trying, but I don’t think I can help him.

Written by Brian McBrearty