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 composer’s and songwriter’s spines and would hinder creativity. It would also 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?

It didn’t take long for that fear to prove well founded! 

Just days after a jury concluded, somehow, that Dark Horse infringed on Joyful Noise, an even more 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 for the access argument where Gaga will 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 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; their work somehow misappropriated.

That doesn’t mean they aren’t fishing a little though. As of the time of this writing my understanding is that no formal complaint exists, only the threat,  but Mr. Ronsen’s claim has drawn a lot of attention. That alone is a shame. I remember when Major League Baseball stopped showing streakers on TV. Didn’t wanna give them the publicity. Did it not work? When was the last time you saw a streaker at a baseball game? 

I have read this week the idea of negative damages as a result of ill gotten publicity as though that might mitigate future awarded damages, rightly or wrongly.

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

Here’s his track on Soundcloud.

And here of course is Shallow.

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

We don’t have to belabor this. It 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 in the same rhythm. 

So what’s so silly? I don’t have to belabor this either. First, it’s only three notes, a scarcity of similarity. And not particularly interesting notes. No, these are three sequential notes in a scale, and when we speak of things that aren’t protectable by copyright because they’re the “building blocks” or the “language” of music, we usually mention scales before anything else. They’re not just 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, 123, Baby you and me.”

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

I read somewhere that Gaga’s musicologists may have said it’s like Dust In The Wind, by Kansas. That’s mostly true. The notes are the same. The chords are the same three, but in reverse. Honestly you wouldn’t likely notice.

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 “Wont 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.

When two songs are in the same key, and played on the same instrument, things are going to sound more significantly similar than they really are. Ask Led Zeppelin, in a 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, something. But I can’t help him.

Written by Brian McBrearty