May 14, 2019 Musicology No Comments

These guys have real names. Artem Stoliarov is suing Christopher Comstock. (he’s Marshmello.) 

The complaint, filed last week, says Marshmello’s huge hit song, “Happier,” infringes upon Arty’s remix of “I Lived,” by One Republic. So, why isn’t One Republic suing since I Lived is their song? It’s because the claimed infringement is of a melody by Arty, unique to Arty’s remix, not part of the original I Lived composition.

Arty in terms of fame and fortune is not Marshmello, but he’s a fairly successful artist. And just by the way, Arty is represented by Richard Busch, the attorney who represented the Marvin Gaye estate in their astonishingly successful suit against Pharrell Williams and Robin Thicke in the Blurred Lines case.  Marshmello is huge. “Happier?” also huge; the #2 song in America in February; 334 Million views on YouTube!

So did Marshmello copy Arty? Wanna hear it for yourself?

Can sure see where they’re coming from, right?

First consider that infringement is, as I’ve written here many times, a bit like a three-legged stool. Those legs are access, similarity, and whether the material is protected by copyright law. A plaintiff needs to argue all three.

Let’s take access first. You need to believe Marshmello heard Arty’s I Lived. The complaint argues that his remix was a big hit and pretty much everybody who likes dance music heard it, so Marshmello must have heard it. Also they say Marshmello performed at about a half dozen events over the past few years where Arty was also a performer, and “I Lived” was performed according to the complaint at as few as just one of them. (they phrased it more positively, saying “at least one” of them.) 

Also there are a few claims about their having various industry people in common.

So did Marshmello hear the track? Maybe. But it’s not a slam dunk like Ed Sheeran breaking into a chorus of Marvin Gaye’s “Let’s Get It On” in the middle of his performance of “Thinking Out Loud,” which may well play badly for Sheeran in court this fall.

As for similarity, on Page 21 of the complaint the plaintiffs begin to lay out their case starting with the fact that ordinary listeners on the internet have noticed the similarity. At least one fan tweeted about it and got a “like” from Marshmello himself. So, ordinary listeners can hear it.

What they hear is that Happier and I Lived contain very much the same catchy synthesizer melody and this melody is employed as a featured hook in both songs. The plaintiffs here have a valid point; these melodies are very similar, nearly identical as they’ll quantify. They say out that out of 20 notes taken from Happier (that’s Happier’s entire melody by the way) the order of the first 19 pitches is the same as the order of the first 19 in I Lived’s melody. And they’re correct. 

Then they say that 15 out of those 20 are the same pitch played at the same rhythmic value. This equates to saying, if you played the two melodies at the same time, 15 out of 20 pitches would be the same note sounding at the same time. And they’re correct there as well.

Lastly, in the note counting section, they say 11 of the 20 are the same pitch, occurring at the same time, and held for the same length of time. This too is correct, and to me, understates. Those 11 notes are of relatively high value to these melodies. So, don’t read that as 55% similar and 45% not similar. That would be selling it short.

This is an instrumental melody. There are no lyrics in this part of the song. In addition to verses and choruses, synthesizer melodic hook sections are very common across dance and pop style musics. So the next best place to explore is the chords. but they don’t dwell on it, wisely I think. Across those 20 notes that are so alike, they correctly point out that the first and last chords are the same. But the progressions are not meaningfully the same, and this matters a bit. Why? Because melody notes get their meaning and their intent from their context; that is, the notes that came before and those that will follow, and the accompanying chords against which they’re set. Here, the different chord progressions inform the meaning of their respective melodies differently, leaving the melodies less similar than they’d be in a vacuum.

The complaint drives it home saying these important similarities along with “undeniable access” make any claim of independent creation “dead on arrival.” Then they added that there’s no prior art substantially similar to Arty’s I Lived. 

So are they right?

It’s interesting. They’re certainly right about the melody being similar. It’s more than similar; the respective melodic hooks are essentially the same end to end; every bit as similar as the stats — 11 of 20 notes, 19 of 20 notes, 15 of 20 notes— are meant to convey.

But more generally, what these melodies really are is a super simple call and response. They’re two measures of one idea, a five-note musical phrase, two measures of a responding idea, two measures of the first idea again, and two measures of the response idea perhaps rephrased slightly as a sort of a “final word” on the matter. And this “final word” metaphor is as good an explanation as any for why the 20th note was dissimilar. That’s the musical device being employed here. 

Are they right about the access? Was Arty’s “I Lived” so widely heard that a very busy Marshmello must’ve heard it? I really don’t know. I’ve never heard it but that doesn’t mean EDM guys haven’t. I’ve sure heard enough of “Happier.”

But the real argument lies over here. This is a really straightforward little melody that works just fine as a hook beneath two different diatonic (read as “more simplicity) chord progressions. Is there really no prior art substantially similar to both of these super simple melodies? I find that very hard to believe but admit nothing springs to mind. I’ll bet if I had a couple of days to think of nothing but that, I could come up with stuff.

Lessee, when Carly Rae Jepsen sings Call Me Maybe, “But now you’re in my way,” those are the same notes as lines two and four of our melody. 

Hmm…

Don’t push me cuz I’m 

close to the edge, 

I’m try-in not to 

lose my head

Grandmaster Flash didn’t even sing, it’s just a similar rhythm. Been thinking about this all of 30 seconds. Give me some time. The point is, this is what this infringement case hangs on, not whether the melodies are similar. They are. The question will be whether or not the melody is protectable and whether it’s Arty’s in the first place.

Written by Brian McBrearty