August 15, 2019 Musicology No Comments

In the days following the Katy Perry Dark Horse verdict, my newsfeed 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, that it would herald an era of frivolous lawsuits where little-known artists would shakedown successful artists into nuisance settlements (deep voice now) IN – A – WORLD where you don’t dare risk a jury trial no matter how spurious the claim because juries are unpredictable.

Just days after a jury concluded that Dark Horse infringed on Joyful Noise, a new claim appeared, made headlines and has definitely been received by some as that sort of “reaching” suit. 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.”

I’ve alluded to this before. I’m a benefit of the doubt type by nature, but my personal experience has been that accusers are almost always earnest and sincere; they’ve been wronged, stolen from, plagiarized, or otherwise had their work misappropriated. They are not just trying to pull one over.

That doesn’t mean though that they aren’t sometimes also fishing, somewhat.

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. Some might see that alone as an incentive. There’s the concept of “negative damages,” attached to things like publicity gained just by raising the claim. A negative damages claim might mitigate future awarded damages.

Here’s by the way is Mr. Ronson’s 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 as well.  We can get into that a little…

This is not a long sequence though. It’s essentially just three notes; moreover, they’re three sequential notes from a scale. When musicologists speak of things that aren’t less protectable by copyright because they’re the “building blocks” or “basic language” of music, scales and scale fragments are among those. These three happen to be Do, Re, and Mi — in that order — as in, “Doe, a deer (a female deer).”

Adding meaningfully to the similarity, those three notes are accompanied by the same three different accompanying chords. Those chords are E minor, D major/F#, and G major.

I read somewhere that Gaga’s musicologists may have said it’s just like “Dust In The Wind, by Kansas.” That’s false.

But… it’s not wildly false. It’s the same three notes G – A – B, in that order, against the same three chords I just mentioned but the Dust In The Wind chords occur in reverse order. Dust In the Wind goes G major, D major/F#, E minor. If a musicologist did say Dust In The Wind is very similar, they’d have a point, but it’s not as though the order doesn’t matter.

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. The song is good. I have to imagine he knows this claim is about a small amount of music. But it’s a much different thing to say it’s not a lot as opposed to he’s wrong about what’s there. He’s not.

Bigger picture: is this a frivolous case, the sort of thing the Dark Horse and Blurred Lines cases are expected to bring about? I don’t think so. In fact, I don’t buy that whole idea. I think it’s just a case. Argue it. I said earlier I’m a benefit of the doubt person by nature. Something I’m NOT is a slippery slope fearing person by nature. And one thing I don’t want to see is a wave of questionably successful motions to dismiss that look at all like an overcorrection. It would be terrible if we begin to cast plaintiffs as grifters. I haven’t met that person yet.

Written by Brian McBrearty