It’s so funny. The other day, Ed Sheeran “slammed copyright lawsuits” because as you probably know, he had just suffered through a miserable one in which he was characterized as a serial plagiarist. A fantastically thorough and thoughtful judgment cleared Shape of You — the outcome predicted here. But the amusing part: After the wave of “Sheeran slams this and that” headlines ran their course, the subsequent wave was “Sheeran is gonna video all his songwriting sessions from now on so he can defend against such spurious lawsuits in the future,” or something to that effect.
Here we are, just a few days later, and Calvin Harris is getting sued because plaintiffs Mickael Zieben and Patrice Adekalom think “Slide,” a big song for Harris in 2017, infringes on their “How Is It Gonna Be,” from 2016. Here’s the complaint, filed I think in France? I haven’t read it yet. It’s late. I’m tired. And it’s in French.
What’s funny (to me) is I immediately saw that Harris at some point posted a “how I made this” type video for “Slide.” So the plaintiffs have that to deal with.
Mind you, I’m writing this quickly before listening to either of these tracks (I’ve heard “Slide,” but haven’t “listened” really.) and I also haven’t looked at the “making of” video. Let’s listen.
Here’s “Slide,” featuring Frank Ocean and Migos.
They’re suing Frank Ocean and Migos and a bunch of other contributors and record businesses as well by the way.
And here’s the plaintiffs’ track: “How Is It Gonna Be.”
Okay. Here goes.
In order to make your infringement case, you must establish both access and copying. Harris can’t have copied a song he has never heard. Coincidental similarity happens, and is not infringement. The plaintiffs’ video was evidently posted to YouTube on Sep 18, 2016, and has 830 total views. Make what you will of that. Is 830 a lot? Enough?
As for copying, well, nobody admits copying, so we get at it by inference. Say for example, I analyze the music and I provide an opinion that goes something like, “It is extremely unlikely that Song B could’ve been created without having been copied from Song A.” That’s the inference and it comes because the music is similar enough, in particular ways, over a long enough duration, that I believe it’s too much to be attributable to coincidence.
That’s not going to be my opinion here.
“Slide” is reliant upon a four-bar looping chord progression.
I’m doing this from my couch but it sounds like Slide goes:
||: IVmaj7 | iii7 vi11 | ii7 | iii7 IVmaj9 :|| over and over and over.
And “How Is It Gonna Be” goes…
||: IVmaj7 | iii7 | IVmaj | iii7 | and that last chord has an embellishment with an 11th in it so it’s arguably a iii11 chord in that fourth measure.
That’s the intro, at least. Then it jumps into its own repetitive groove, mostly the same thing except in the last bar the bass player jumps to vi and thus that last chord is more of a vi9. And this, a progression less similar to Slide is the one that loops throughout most of the track.
It’s not important that you know what any of those roman numerals mean. What they are is an adequately descriptive representation of the chords that play over and over throughout the two works. Those IV’s and iii’s they have in common are the reason we’re here. It’s not a good reason. These chord progressions are not the least bit novel, original, or unique to either of these works.
The plaintiffs can’t claim a monopoly on this chord progression and if Calvin Harris had employed more precisely the progression that appears in the “How Is It Gonna Be,” this on its own would still probably not be enough to conclude he copied it. Calvin Harris, it so happens, did NOT employ the same progression. They’re a bit similar, but not very.
Very much to Ed Sheeran’s point, I’m afraid, there’s not enough here.