September 22, 2023 Musicology No Comments

Zayn Malik, once of “One Direction” of course, has been sued for copyright infringement by Formal Entertainment, an extension of songwriter Patrick Simmons, who performs as “Havyn.” (Got all that?)

Let’s take ten minutes to consider the matter: First, there’s gonna need to be an explanation for how Zayn heard Havyn’s song, “Somebody Tonight,” before he wrote “Better,” (which came out a statutorily amusing three years ago) cuz you can’t copy something you’ve never heard; that would be coincidental similarity, and not infringement. Infringement requires copying, and copying requires access.

The “access” argument here is a version of one of the more common ones because songwriters pass around their songs and expect that people are listening beyond five seconds looking to steal songs. Maybe they are. The complaint explains that in early 2020, Simmons used a promotional company, Modern Music Marketing (MMM) to shop his songs and that “Somebody Tonight” was sent around to the company’s contacts.

That’s it evidently until Simmons, at some point, hears “Better.” In the fall of 2020, Simmons contacted the marketer to ask about it, and the complaint quotes the marketing contact as referring to Zayn’s “Better,” and saying that the company, “‘worked it’ implying that MMM promoted Zayn’s song.” In fact, there are text message screenshots of this back and forth in the complaint. And I’d say, yep, it implies that alright.

Is that enough to connect the dots and believe Zayn heard “Somebody Tonight?” Certainly not to me. I would need the songs to sound so much alike that there’s no other explanation. (and you can just scroll down to the end if you want the answer to that, or you can come along for the ride as we consider…)

Do they sound so much alike?

The complaint vaguely refers to “numerous significant compositional elements of “Somebody Tonight,” without which blatant copying, “Better” would never have come to exist…”

So it shouldn’t be hard to figure out what they’re talking about. Here goes…

Here’s Zayn’s Better and Havyn’s Somebody Tonight:

My first question is, “Did that marketing company get any traction from shopping this guy’s songs?” Not what I was expecting. Better by a lot.

And, you can probably hear what he’s talking about. He wrote that electric guitar part and the similar sounding melody, and both of those elements are in the Zayn track. But is that gonna do it?

The do-re-mi of this little melody over which Havyn sings “We, got in for free,” goes “Mi, mi fa sol mi.”

And when Zayn sings in his chorus, “Why? Why wait to fight?” yep he’s singing “Mi? Mi fa sol mi”

Do re mi’s are just pitches, so the pitch sequence of this figure is the same, and the rhythms are essentially the same too, as you surely noticed. A half note followed by four sixteens where the last semi-quaver (that’s aristocratic British musicologist for “sixteenth note”) is tied to and becomes the following half note and that rhythm repeats a few times.

The Captain And Tennille’s Do That To Me One More Time is pretty much the same figure. “Time” lands on Do, and not mi, but otherwise the same thing. Just the first thing that occurs.

Then I think, Neil Diamond’s “Sweet Caroline” begins “Where it began,” and that’s a half-note rest followed by what any jazz player would probably write as four swinging sixteenths, and the same thing where the last one is tied to the first beat in the next measure. So sure, this little melody is shared by both works as far as that goes, but I could find that in countless other songs.

And the underlying harmony is different.

Zayn is playing a very common progression, sometimes called the “50’s progression, with the first three chords being that “Heart and Soul” thing we all play when we find a piano in someone’s house, but for the last of the four chords, “Better” plays an unusual substitution chord, an Eb major where we’d expect an A major. It’s a little more complex actually — Zayn’s chord is an Ebmaj7, and the theory here is not complex, but it’s more complex than you wanna read right now, so we’ll move on.

“Heart and Soul,” “Stand By Me” and lots of other songs go “D Bm G A” and they do it over and over.

“Better” goes: D Bm G Ebmaj7.

In other words, it’s pretty ordinary except for that last chord. And that’s only half weird. A tiny bit of theory here: There are four notes in that last chord; Eb G Bb D. The latter three make up a G minor triad. The progression loops over and over throughout the whole miserable song, because that’s the world we live in now, and Gm going back to D is something you’ve heard a million times, it’s a minor-plagal cadence. It has a name. It’s a thing. An Eb as the root note is a bit less common. We could analyze that a bunch of ways any of which will put you to sleep, so… moving on. It’s unusual enough that if that last chord were the one that shows up in Havyn’s track, that would be a little conspicuous. But it doesn’t.

“Somebody Tonight” does a few different things, but it doesn’t even start on D. It starts on Em. And while they’re only a letter apart, they’re not so similar at all.

Somebody Tonight does something like this: Em F#m Em F#m Gm F#dim

This is the guitar figure at the beginning, and all the action in this one is at the end of the phrase as it was in “Better.” The verses get a slightly different treatment, but none of this is the same as “Better.”

So, you get the picture. And I’ve given this more than it’s due. Was gonna write less.

It’s a simple and brief idea. The melody is not protectable. The chord progression that gives that melody context and partly defines the guitar intro to “Somebody Tonight” is different and not particularly relatable to the one in “Better.” The melody appears in Zayn’s song, but only briefly and in a different context.

Is it interesting that both have these clean electric guitar parts and that both are turning their four-bar phrases around with something a little less expected harmonically and resolving down by a half-step? Sure. But they’re not the same.

“Hey look, I did something kinda cool and so did Zayn!”

No, that’s not a thing unless he substantially does the same cool thing.

Honestly, I’d rather listen to the plaintiff’s song than the defendant’s, and it isn’t remotely close. I’m sorry he thinks someone stole his song, but the melody we’re concentrating on is hardly original, the harmonic contexts are different, the lyrics are different, and the similar material is far less important to Zayn’s song than to the plaintiff’s. It appears only here and there in Better, and is paired with a couple of other similar figures that, like the ordinary and very common fragments they are, make a more interesting thought taken together in series.

You’ll recall that the complaint argues for “numerous significant compositional elements of “Somebody Tonight,” without which blatant copying, “Better” would never have come to exist…” But I’ll bet the elements are going to be not very compositional. The pitches and the rhythm are compositional but after that, it’s going to get thin. The fact that it’s a clean electric guitar sound? Instrumentation, timbre, and texture are more presentational than compositional. The form? Nah. It’s an intro. Songs have intros.

Let’s wrap it up: “Ordinary” and “common” are important words here. Are the parts of song A that are observable in song B original to and protectable by song A? No.

So, no, Zayn didn’t steal this song. He and the rest of the co-writer defendants deserve all the blame for “Better.”

Wow, that was gratuitous. I’ll probably return to delete it eventually.

Much will be made at first about whether Zayn had access to Somebody Tonight, but even if that gets hurdled, eventually you run into whether the observably common elements are protectable.

Written by Brian McBrearty