Before we answer that, these guys have real names. Artem Stoliarov goes by Arty and he’s suing Christopher Comstock. He’s Marshmello. I probably won’t use their real names again.
The complaint, filed last week, says Marshmello’s monster 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 Arty composed for the remix to be its hook (a catchy synthesizer melody), and that melody is new material, not part of the original “I Lived” composition.
Marshmello is huge. “Happier?” also huge; the #2 song in America in February 2019 ; 334 Million views on YouTube! 33rd biggest song of the decade according to Billboard. Arty in terms of fame and fortune is no 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.
So did Marshmello copy Arty? See what your ears think.
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 that’s similar is sufficiently original to be protected by copyright. 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,” for which he’ll have to answer in court this fall. (scheduled at least).
As for similarity, on Page 21 of the complaint, the plaintiffs begin to lay out their musical claims with the fact that ordinary listeners on the internet have noticed the similarity. Reportedly one fan tweeted about it and got a “like” from Marshmello himself. So, ordinary listeners can hear it. You heard it, right?
What you and they hear is that “Happier” and “I Lived” contain catchy synthesizer melodies employed as a featured hook in both songs. The plaintiffs aren’t wrong. These melodies are nearly identical and they lay out how. 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. I would definitely argue that those 11 notes are of relatively high value to these melodies compared to the other nine. So, don’t read that as just 55% similar and 45% not similar. That would be selling it short.
There are no lyrics in this part of either song. It’s just a synthesizer melody with no lyric or vocal. Instrumental-only synthesizer melodic hook sections are very common across modern dance and pop music. So next the plaintiffs describe harmonic similarity.
But they don’t dwell on it. In the harmonies that accompany those 20 notes that are so alike, they correctly point out that the first and last chords are the same, but that leaves differences, and this matters. Melody notes get their meaning and their intent from their context; that is, the notes that came before, 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 somewhat less “similar” than they’d be taken alone.
The complaint concludes that these important similarities along with “undeniable access” make any claim of independent creation “dead on arrival.” Then they add that there’s no prior art substantially similar to Arty’s I Lived.
Is Arty right?
It’s interesting. They’re certainly right about the melody being similar. It’s more than similar; the respective melodic notes 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— would convey.
But more generally, what these melodies really are is a very simple question and answer type of device. They’re two measures of one idea, a five-note musical phrase that serves as the question, followed by two measures of a responding idea, then two measures of the first idea again, then two measures of the response idea perhaps rephrased slightly as a sort of a “final word” on the matter.
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 very straightforward little melody that would work nicely as a hook beneath lots of 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 I admit nothing springs to mind. I’ll bet if I took the afternoon I could unearth lots of 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.
“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 for all of 30 seconds. 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.