Could this be the biggest music copyright infringement payout of all time?
I’ll put on the musicologists hat in a second and break it down but really the musicology over infringement or non-infringement is fairly simple, and unless there’s a rabbit up someone’s sleeve, we could pretty much head straight to the more interesting musicology where we calculate just how much of the mega hit is actually the IP of Fredley Saurel (Freddie GZ), Maliki Sankoh and Roberson Bonjean.
Here though, I’ll just paraphrase the complaint, and tell you where the plaintiffs claims are dead on, and where they’re weak. Mostly, it’s the former.
I’d read through half of he complaint and hadn’t yet gotten to the musicology yet. The document lists tons of defendants, tons of “upon information and belief” clauses and plenty of “access” related arguments.
I’ll share this one interesting claim, the very last setup before they got to the musicology. They say… “Indeed, Whosampled.com lists the Infringing Work as having sampled Planiffs Original Work.”
The claim itself is accurate, but so what? Whosampled.com is based upon user-generated content, albeit moderated, and Whosampled.com’s site saying that one track sampled another does not make it so. And… indeed, it isn’t.
And now we come to the musicology. I’ll go through the complaint in the order in which the arguments appear. Claims from the complaint are in bold, and in many cases they’re interpreted and paraphrased by me for the sake of brevity versus lawyer-speak. My opinion and comments follow in italics. Since both tracks are called “Turn Down For What” I’m going to refer to them as “Plaintiffs’ Track” and “Defendants’ Track.” Let’s go.
Both tracks have a “steadily rising synth sound,” in the intros.
TRUE. Both tracks do indeed have a riser in the intro.
Both tracks are called “Turn Down For What.”
TRUE, and interesting that they didn’t mention this first.
Both works start the phrase “Turn Down For What” on the same beat and using the same rhythm.
Both works start on the same beat — “two eighth notes on the “and” of three followed by two sixteenths”
Still as TRUE as when they said it a paragraph before.
The voice drops in pitch on the word “what” in both.
I don’t hear that. Seems to me the Defendants’ Track just yells “What” in a natural way. The Plaintiff stylizes his pronunciation of “What” and it has a pitch shape that bends down as it decays. But the likeness to the Defendants’ Track in my opinion isn’t there and so now Claim #5 is, to steal Politifact.com useful terminology, MOSTLY FALSE.
The last three lyrics phrases “Turn Down For What” in both songs line up exactly.
This further builds upon the earlier claim. Now they’re saying, “not only do the rhythms of the syllables “Turn Down For What” match, but the phrase occurs repeatedly in the same position within the chorus. And once again, they’re right. This is TRUE.
The first instrumental hooks are substantially similar. The first instrumental hook is “at a minimum substantially similar and would be obviously similar to an ordinary listener.”
An aside, there’s an weird inaccuracy (unless I’m just not interpreting the point correctly) about the notes being “the exact same: e-c-b-f#-g.” I can’t imagine what that could accurately refer to, since only the plaintiff’s hook contains that figure. But it’s irrelevant.
They present the similarity in two ways, first in an effectively clear chart that compares the two tracks’ events on a grid, and then in standard notation.
THE BIG THING
The fact is that the first three notes are identical and the remaining notes, two and three note in the plaintiffs’ and defendants’ tracks respectively, are non-identical. The complaint argues the idea of “important weighted notes” and this is status is rhythmically attributed to all five of the plaintiff’s track’s notes, and they’re lined up against rhythmically identical notes in the defendants track. I take this as meaning, of the six notes in the defendants’ hook, the five that matter line up perfectly with the plaintiffs. But they’re wrong in my opinion about about the “importance and weight” of one — the fourth note in the defendants’ track. I don’t like to invite arguments like that myself, but’s this is quibbling.
Let’s get back to the significance of the first three notes for a second. This phrase — tonic, sixth, fifth — is not all that common. So I find it more than striking that two tracks called “Turn Down For What” have this phrase in common. What’s more, the remaining non-identical notes involve relative equivalence in that they are non chord tones resolving to chord tones. They are both rhythmically similar and melodically functionally similar. This melodic equivalence concept is one I try to explain a lot; it requires a bit of compositional understanding, but without getting too far into the weeds on it, I’ll just say there are notes that while non-identical are the next best thing to identical. This is such a case. So the first three notes are identical and the remaining notes are, I would assert, rather synonymous.
Both tracks contain the use of a short vocal repeated word on the “and’s” of the beats
They refer to this as “ “…another substantial, if not striking, similarity.
”Plaintiffs chorus says, “go,” on the upbeats and the Defendants’ track says, “hey.”
And Kris Kross said, “Jump. Jump.” This one is IRRELEVANT.
The structures are similar. The choruses are repeated three times in each song after two eight measure sections, and both songs end with instrumental sections. “This is very significant…” “… and not a common structure,” “…and the uses of eight measure sections are not common in rap songs.”
I would ask first, how can eight or sixteen measure sections be an uncommon structure in 4/4 time? That’s an interesting claim. The plaintiff’s track has 16 measure verses followed by choruses. The defendants’ track has two 8 measure “sections,” we might think of the first eight as verse-like, followed by that same 8 bar riser that’s in the intro, which here serves rather like a pre chorus. And then it hits the chorus. So it’s true that there are 16 measures followed by choruses, but that doesn’t seem significant, and while the claim seems numerically defensible, the structure is not clearly the same as the plaintiff’s. And while it’s true that the defendant’s track does end with an instrumental section, all of its verses (those 16 measure sections) are instrumentals too.
Also, the defendants’ end section is a little bit of a jam that ends without resolving — it ends after a four beat measure with a stutter snare that would ordinarily have resolved to a kick drum on the one. The plaintiff’s just stops singing and the accompaniment we’ve been hearing all along gets to be heard by itself until it ends, on the one, with a kick drum and a roland cymbal. Similar in some ways. Not in others. And in the end, yes, they’re both instrumentals, but on the whole this claim is both contestible and not very significant.
After wading through a couple of less substantive claims, I have to wonder if they think they had enough. They padded this complaint with some fluff. But in two main points alone, THEY HAVE PLENTY. The main lyrical hook “Turn Down For What,” and that nearly identical instrumental hook are all there is to it! While there are other melodies in DJ Snake and Li’l John’s track, a couple of them really cool and very familiar, if you were asked to hum the melody to “Turn Down For What,” there’s an excellent chance you’d hum the one they have in common.
Which leads us to a point made later in the complaint that the similarities “reach the very essence of the works at issue.” Thats TRUE. They do.
So that was a lot of musicology but after it all, we’re pretty much at the point of just getting to work on a number. It’s gonna be a whopper. “Upon information and belief” as they say, the track has made 15M.