“All I Want For Christmas Is You,” depending on what list you read, might be the top Christmas song of all time. And where there’s a hit, there’s a lawsuit, or something like that. Headlines are blaring: “Was Carey inspired by another song of the same name? Did she plagiarize it? Does it infringe?”
Let’s make quick work of this.
Andy Stone, who performs as Vince Vance, is suing Mariah Carey for copyright infringement. You certainly know here 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 like this song! Always have! I’d much rather listen to this than Mariah’s. And I don’t know who Vince’s singer is, but what a terrific vocal she put on here:
I couldn’t say that and then not look her up. There’s a Wikipedia page for this song. And that terrific voice belongs to Lisa Layne.
And here’s Mariah Carey’s.
You’re thinking, “They don’t sound very much alike.” And they don’t. So why are we here? I don’t need to bury the lede. We shouldn’t be here. But we ARE here, so what’s going on?
Three minutes is a lot. If I had just ten seconds I’d simply say:
As a forensic musicologist, when I express a finding such as that second one — that “these two works contain no elements, melodic, harmonic, lyrical, etc, that are “significantly” or “substantially” alike,” it doesn’t mean there aren’t any similarities at all. It means that whatever similarities a would-be plaintiff might observe are likely of elements too commonplace to be protectable by copyright, not original to or ownable by the plaintiff, so minor as to be trifling, or they could certainly be plain old mistaken observations.
Did mention three minutes is a lot? This might only take two. Let’s stretch and try to see this from all sides.
They have in common a title that appears in the lyric. This doesn’t move the needle.
The threshold is considerably higher than that, but I’m regularly contacted by would-be plaintiffs who heard another song that contains the same ideas and themes as theirs, and they begin to entertain the idea that someone started with and stole their song, changed a few words, and thus covered their tracks. I’m asked to reconnect the dots. But as with a lot of holiday songs, these two are filled with cliches and tropes that by definition are not original 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, the reasonable threshold for conspicuous similarity rises. Yes, I will be impressed by a particular series of cliches, or similarities that are very lengthy and nearly identical in both works. But without added breadth and precision, coincidence becomes the more available explanation, as opposed to 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.
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?”
In substantiating a finding that an element is unoriginal, a musicologist will often point 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.
Maybe they sound extremely the same to you, and maybe not. But 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.
So when the plaintiff argues that Walter Afanasieff, Carey’s co-writer who I imagine is responsible for all or most of this music, may have arrived at certain chord choices by copying the plaintiff’s work, as in this claim 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 chord choice can be found in, you guessed it, Jo Stafford’s “You Belong To Me,” along with nearly every other chord in Vance’s song. Moreover, melodic and harmonic similarities occur at particularly key spots, such as the melodies and rhythms at the ends of the 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, “(a) long the nile” and “all the while?” Just one example.
So, again, the lyrics aside, the plaintiffs musical composition has almost nothing in common with the defendants, but almost everything in common with “You Belong To Me.”
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.
And then returning to the music, “You Belong To Me” won’t be a unique situation. It’s just the first thing I thought of, and a little bit of brainstorming didn’t produce a stronger example. Here’s a weaker but still interesting one.
And I said I’d consider all sides, though as you’ll expect, I’m finding it hard. Maybe I’m overthinking this somewhat. Maybe the plaintiff knows his song is the same as lots of others and he still thinks he has this one point to make:
“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.”
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.
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.”
“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.
2 Comments
From rhe beginning of time, many people say to their spouses something in the nature of: please don’t get me anything, all I want is you. It is a common sentiment. It is ridiculous to think one could copyright that.
Thx for your thoughts David.
Copyright doesn’t protect ideas, only expression. So yes, as you said, nobody can monopolize the sentiment, only an original way of expressing it.