November 7, 2023 Musicology 2 Comments

Mariah Carey’s “All I Want For Christmas Is You,” is by most metrics the top Christmas song of all time. And where there’s a hit, as they say, there’s a writ. Headlines are blaring: “Was Carey inspired by another song of the same name? Did she plagiarize it? Does it infringe?”

No. Not even close. Let’s make quick work of this.

Andy Stone, who performs as Vince Vance, sued Mariah Carey for copyright infringement. You certainly know her song all too well, and you may well recognize his too. Here’s Vince Vance & The Valiants, the plaintiffs. And let me get this out of the way… I’ve always liked this song! It’s on my holiday playlist. I much prefer it to Mariah’s.

Great vocal. I had to look it up. There’s a Wikipedia page for this song, and that terrific voice belongs to Lisa Layne. Glad to know it.

And here for the thousandth time, Mariah Carey’s.

You’re thinking, “They don’t sound very much alike.” AND THEY SURE DON’T. So why are we here? We shouldn’t be.

Forget three minutes — Gimme ten seconds.

If I had just ten seconds I’d simply say:

  1. Copyright generally doesn’t protect short common phrases be they lyrical, or musical, or titles.
  2. These two songs contain no music, melodies, or harmonies that are significantly alike.
  3. Inconsequential similarities claimed here can also be found in lots of other songs.

As a forensic musicologist, when I say “these two works contain no elements, melodic, harmonic, lyrical, etc, that are “significantly” or “substantially” alike,” it doesn’t mean there aren’t similarities. It means that whatever similarities a would-be plaintiff might observe are of elements either too commonplace to be protectable by copyright, not original to or protectable by the plaintiff, so minor as to be trifling, or plain old mistaken observations.

TLDR for three minutes?

We could blow a few minutes trying to see this from all sides.

Lyrics

They share a title that also appears in the lyric. This doesn’t begin to move the needle.

I’m regularly contacted by would-be plaintiffs who’ve heard another song that contains the same ideas and themes as theirs, and they begin to entertain the notion that someone started with their song, changed a few words to cover their tracks, but still stole the song. I’m asked to reconnect the dots. That’s a weak premise to start with, but here, as in many holiday songs, these two are packed with cliches and tropes that are not original and not the stuff of copyright because they’re cliches and tropes! Things are bound to be underneath or atop a Christmas tree; that’s Christmas trees for ya! Mariah didn’t need to “take” that from anywhere. When we deal with cliches, which can be lyrical or musical by the way, the threshold for conspicuous and substantial similarity rises. Yes, I might call out a whole series of cliches, or similarities that are lengthy or interestingly identical in both works. But without added breadth and precision, coincidence becomes the more available explanation instead of copying. And infringement requires copying. Coincidence is not an infringement. It’s often misunderstood, that if two people independently write identical songs, theoretically, that’s not going to be an infringement.

Melody and Harmony

Infringement requires that similarities between “Song A” and “Song B” are “substantial” which is somewhat a matter of degree, specificity, and originality all of which quite logically oppose the likelihood of chance. So a big part of the work as a forensic musicologist is evaluating originality in musical works because it informs both of the key questions: “Was it copied?” “And if so, did that copying amount to unlawful appropriation?”

My research will often point me to relatable examples in prior works. Here, let’s set aside the Christmasy lyrics for a minute to focus on the music. I find relatively little in the music of Vince Vance & The Valiants’ “All I Want for Christmas is You” that I cannot find or closely relate to “You Belong To Me” by Jo Stafford.

If I took the time to sketch out this melody and juxtapose it with Vince Vance’s “All I Want For Christmas Is You,” perhaps highlighting all the melodic notes, pitch contours, and accompanying chords that are occurring at identical or closely equivalent times, it’d be readily obvious that these two songs are a TON MORE SIMILAR in terms of the notes than these two Christmas songs are to each other.

Want another?

A very similar melody and harmony. The plaintiff’s Xmas song is far more similar to “My Heart Belongs To Only You” than Carey’s song is to theirs; it’s not remotely close.

And the plaintiffs have a musicologist! Consider this claim as reported by Yahoo:

Specifically, the songs share a similar syncopated chord pattern. Using the same harmonic language for the C and G and diminished C-6 chords throughout the two songs and that dulcet harmony directly lifted from Plaintiffs’ original.

Yahoo/Jezebel link

That’s irrelevant. It’s not Vance’s harmonic language to protect. That chord choice is in Jo Stafford’s “You Belong To Me,” along with nearly every other chord in Vance’s song!

Moreover, the melodies and rhythms at the ends of the plaintiff’s phrases — the longer notes to which Lisa Layne sings “Mis-tle-toe” and “San-ta Claus;” which are VERY much the same as the ends of “You Belong To Me’s” phrases, “along the Nile” and “all the while” as well as Vinton’s phrases “on-ly you” and “in me burning!”

So, again, the lyrics aside, the plaintiffs musical composition has almost nothing in common with the defendants, but, and I’m not overstating this, it has almost everything in common with these other pretty darn well-known songs.”

That was probably four or five minutes. I type quickly.

If you have more time… let me google a couple of things for you; a couple of legal concepts (with actual legalese names) that one might consider along with the lyrics.

Scenes a faire.

Idea/Expression Dicotomy.

If I sat and worked at this I’d imagine I’d find a ton of other prior art examples. Here’s a weaker but still interesting one that occurs to me.

I said I’d consider all sides, but I’m finding it hard. Maybe I’m overthinking this. Maybe the plaintiff knows his song is the same as lots of others and he still thinks he has this one point to make:

Can this be about as little as this USA Today quote makes it sound?

“The phrase ‘all I want for Christmas is you’ may seem like a common parlance today, in 1988 it was, in context, distinctive. Moreover, the combination of the specific chord progression in the melody paired with the verbatim hook was a greater than 50% clone of Vance’s original work, in both lyric choice and chord expressions.”




Link to USA Today article

I think that’s wrong, but if it were right, is that enough to support an infringement claim?

This phrase being “In 1988, and in context, distinctive” is not the strongest expression of originality, but the bar is low. The law requires a “modicum of originality.” And the claim that the “specific chord progression in the melody paired with the verbatim hook was greater than 50% clone” seems to imply that we are focused mostly or perhaps only on the title lyric and the chords that accompany it. If that’s just the lyric, “All I want for Christmas Is You,” and its accompanying harmony:

First problem:

Titles aren’t protectable by copyright.

Copyright.gov US Copyright Office

As evidenced by the 177 songs reportedly registered under the name “All I Want For Christmas Is You.” And titles and lyrics are two different things, but we don’t allow protection of titles mostly because they tend to be short common phrases. And I’m not going to check, but I have to imagine the title appears in the lyrics of approximately ever single one of these other 176.

Distinctiveness is relative and open to interpretation, isn’t it? The first six of the seven words in this phrase are not distinctive from the ones in “All I Want For Christmas Is My Two Front Teeth.”

The chords that accompany that phrase are just three; in the plaintiff’s song “Dm G C,” and in Carey’s, they’re “Dm Fm/G C.” And you can see that the middle one is different, but musicologically, it’s not terribly different. However, it’s just three chords, and a musicologist or most musicians worth their salt would tell you these are both “two five one” progressions, which are sooooo common they have their own Wikipedia page. Besides, it’s often said that chord progressions aren’t protectable. I don’t like to overgeneralize (except when I do) instead preferring to say chord progressions are not ownable unless they’re extremely involved or novel. A progression with its own Wikipedia page is the opposite of that. This is just three chords, one of the most common series there is, and the middle chord of the three isn’t even identical.

You’ve come this far. Wanna know why it’s a two five one? This’ll take 30 seconds. Learn a really simple, really useful bit of music theory!

Why do we use numbers?? A real quick Do Re Mi theory explanation is that we’re in the key of C, which means C = ‘do,” and “Do Re Mi Fa Sol La Ti Do” = “C D E F G A B C” and if you numbered those eight letters 1-8, then C = 1, D = 2, G = 5. Chords built on and named for those tones get referred to as “one, two and five” chords. That’s it. Lesson over. (If you want a slightly longer but still really quick theory lesson, here’s one of my most popular webpages. In 10 minutes you’ll know 80% of a first year music theory course.)

Although a musicological analysis can take a lot of paths, it has its conventions. We generally transpose the songs into the same key, write out the notes, and compare the melodies, harmonies, rhythms and lyrics if there are any, along with a few other lesser considerations. And as I’ve explained, we somewhat discount certain things when we’re substantiating the similarities we find. Some musicologists call this “filtering;” I sometimes say “distilling.” There’s precedent that demands this of music experts. We’re often asked to ignore, but I prefer to discount, for example, music elements that might be observed in both works, but aren’t the plaintiff’s to defend, usually either because they’re basic elements of musical language — the equivalent of letters, words, and short familiar phrases in spoken language — or because they’re someone else’s first. We call that prior art. I used the “You Belong To Me” example above, but I was speaking about the song more broadly and here we’re focused on the parts of the songs where the lyric is “All I Want For Christmas is you.”

Again we’re interpreting and focusing on this particular claim; USA Today quotes the suit as alleging the following:

“The phrase ‘all I want for Christmas is you’ may seem like a common parlance today, in 1988 it was, in context, distinctive. Moreover, the combinationof the specific chord progression in the melody paired with the verbatim hook was a greater than 50% clone of Vance’s original work, in both lyric choice and chord expressions.”


USA Today (link to story)

“All I Want for Christmas Is My Two Front Teeth” was written in 1944, so, of the seven words in this title, the first six are pretty well established. The idea that All I Want For Christmas is… love, peace, family, to be home, whatever. How many songs and poems have been titled “All I Want Is You?” Lots. U2 has one on Rattle and Hum. Carly Simon had one. Some band, stupid name, “The Beatles?” They had one.

And again, short phrases and titles are generally not protectable by copyright. Trademark? Sure. Copyright, no. Copyright (I like to personify copyright because I find copyright noble) does not want to protect titles. They are not in the gotcha business. They are in the “promote creativity” business. They will not easily protect Mariah Carey’s line either. There are evidently 177 songs by that name. That’s what copyright law wants.

With regard to the lyrics and the themes they describe, I mentioned these two concepts earlier, “Scenes A Faire” and “Idea/Expression Dichotomy.” If you didn’t google them, I’ll explain a little…

Scenes a fair is French for “How the hell are you supposed to avoid saying these things in a song about Christmas?” Christmas lyrics, stories, poems, and movies, are going to involve presents, possibly wrapped with bows, trees, snow, holly, mistletoe, letters, and lists for Santa, North Poles, lights, angels, stars, peace on earth, and turkey, and that’s before you even get into spiritual imagery and stories. All of this is scenes a fair; cliches that copyright won’t be bothered with.

To refocus, I would argue, that if you’re going to write a Christmas song about “All I Want Is You,”  by definition that means at the exclusion of everything on the above list of Christmas cliches and tropes.

Someone by all means tell me why I’m wrong about any of this. Comments. Emails. DM’s. Bring it. That’s the whole point.

I hope she summons her inner Ed Sheeran.

Written by Brian McBrearty