Got time for a quick story? Just last week my daughter all of the sudden wanted to learn acoustic guitar. Specifically, Paul McCartney’s “Blackbird.” Two days later, with a little help from me and a little from the internet, pretty much never having touched a guitar prior, she could play Blackbird. (Thanks to some youtube guy, she plays the “take these broken wings and learn to fly” section incorrectly. She found a simpler way. But it’s still “Blackbird.”) So, I’m both proud and impressed although, between you and me, Blackbird is easier than you’d think. But next, after a day of playing “Blackbird,” she noticed she could take down a Harry Styles track, “Sweet Creature,” just by using fragments from “Blackbird.” Now I’m more impressed; she heard “Sweet Creature’s” guitar part within “Blackbird” and just like that she’s got two songs figured out. My daughter is also a big Halsey fan. I’ve sat through a few Halsey concerts. Guess what my daughter played next.
Benny Blanco, Halsey, Ed Sheeran, Happy Perez, Khalid, and a handful of record companies are all getting sued because “Eastside” sounds a lot like another track, “Loveless,” by American XO.
Let’s hear em.
As ever, here are the two songs. Just listen to their respective guitar intros, which are all that matters. Once you hear the similarity, just stop.
And here’s “Loveless.”
So there it is. First, props to “Loveless.” It’s a pretty cool song with several good ideas in it. And indeed, one of them appears in “Eastside.” What is it, exactly?
This won’t take long.
It’s a short series of two-note figures; “dyad’s” if you like, four of them. The word “dyad” probably brings to mind “triad” which is three notes that can be stacked to form a “chord.” But just two notes are often enough that you can infer the intended or functioning harmony or chord. If for example, you play for me a D and an F# together, I might entertain the idea of any of several chords that would contain those two notes, consider their respective probabilities, and then when I hear the D and F# in context, I’d know their harmonic function. Like solving a Wheel Of Fortune puzzle, as you get more information, you can fill in the blanks.
The plaintiff’s complaint explains these four dyads in such detail that I think anyone who has ever even looked at a guitar could get pretty close to being able to play the part after reading though the claims. It tells you where to put your fingers and how to perform the part. The level of detail stretches the relevant material about as far it can go, but it’s not inaccurate; the four dyads that begin “Loveless,” do also begin “Eastside.”
When my daughter took down the Eastside guitar part, though, she didn’t repeat four dyads over and over. She repeated a series of six. She’s right. It’s a six dyad phrase, not four, that loops persistently throughout “Eastside.” Let’s call that inconvenient truth number one for the plaintiffs. They need to stress the first four dyads that are common to both, and minimize the importance of the two tacked on the end of “Eastside.” Memba when Vanilla Ice said he didn’t copy “Under Pressure” because…
They can make this sort of argument. The other two dyads not present in Loveless are less important than the first four. But the complaint avoids the matter altogether, pretty deftly too, providing notation of what it calls the “Eastside riff” and the “Loveless riff,” both of which are two-bar phrases, and their depiction ends without showing the latter half of the second bars where the similarities end and differences would appear.
Did all those rockstars hear Loveless before they wrote Eastside?
I’ve written before about the importance of “access” in cases like this. It’s not merely that access is a necessary component in infringement. It is, but I’ve observed that access gets as much attention as similarity in modern infringement cases and I think it’s worth considering what that means big picture.
Anyway, here they point out that Benny Blanco in an interview with VIBE, said:
“I draw inspiration from everyone. I listen to every type of music. I try to expose myself to 10, 12 new artists every day. I’m listening to everything … I try to spread it around because you never know. There could be something in one of those songs that gives me an idea to do something like this or something like that.”
Is that an argument? Does that mean he heard Loveless? Probably? Possibly? I don’t know. What do you think?
Rather an aside but before I forget to mention it, I’d say not enough was made of just how similar they sound. Ethereal isolated guitar parts employed as introductions with the same phrasing (the complaint does get into this by explaining the guitaristic techniques involved). I’d go so far as to say an ordinary observer might consider whether “Eastside” samples “Loveless.” Is that probative of copying?
Does that ultimately matter?
Copying or not, it’s four notes. Or chords. Or dyads, whatever. Even if we believe Blanco and the rest of them heard “Loveless,” is this unlawful appropriation?
How do you want to look at this? Four melody notes accompanied by four bass notes? Okay, then how original is the melody “C – B – E – A?” Here they are at the beginning of “Welcome To The Black Parade.”
The four notes are accompanied by different harmonies there than in Eastside and Loveless, which is important in analysis, but not to this case. The harmonies in this case are similar.
Another angle, do we have four dyads that imply, “A min – G maj – C maj – F maj?” They do. And the melody notes, if we call them that, are arguably just the highest pitches in a series of implied chords, triads therefore, in first inversion — meaning for example that the A minor is spelled E A C rather than A C E, a progression of four chords, all in the same inversion.
And in either case, you’re looking at scalar figures (alphabetical, for nonmusicians who I can’t believe would’ve read this far.) either a melody of C to B and eventually to A on the emphasized beats along with a disjunct leap to E on the weaker beat along the way to the A, or scalar descending chords of Am – G – F passing through C major on a weak beat on the way to the F.
Either way, it’s not a lot of music. Just a very brief phrase. That’s gotta be pretty obvious.
And that Blackbird business I described ain’t nothing either. The way Blackbird is played on guitar lends itself easily to a collection of other pleasant-sounding chord progressions. You just need two strings held down by two fingers of one hand, plucked with two fingers of the other hand, and you slide up and down the neck of the guitar, never moving those fingers except for sliding them up and down the neck, looking for pleasant intervals. My daughter has already discovered a few progressions. Sweet Creature and Loveless and Eastside and other songs you know are in there. But in the context of music as a whole, it’s a very limited set. The chances of my daughter “inventing” Loveless and Eastside independently without ever having heard either one? Not terribly remote.
Then again, this short progression is pretty much the entirety of Eastside’s accompaniment. That’s the nature of things now. And so are lawsuits around beats. So as usual anymore I find myself asking, “what kind of world do we want to live in?”
I bristle at the argument, “there are only twelve notes!” because twelve is enough to have nearly endless variety. Chord progressions though are different. You’ve perhaps heard, “you can’t copyright a chord progression,” but that’s practicality, not an absolute rule. We don’t protect short common progressions because creators need that vocabulary to build more music. We call them building blocks and public domain. Still, a sufficiently novel, lengthy, or otherwise involved chord progression may well deserve protection, and musicologists will argue about how common or uncommon certain shorter chord progression might be. But if we are going to have a century of music like “Eastside” that grooves over a short progression for the duration of the song, and not think of them as building blocks, we’re gonna run out of pleasant-sounding grooves.