On May 25, 2016 Justin Bieber and his co-conspirators got hit with a copyright lawsuit alleging that his mega-hit “Sorry” infringes upon White Hinterland’s track, “Ring The Bell.” You only have to listen to the first 10 seconds of each track to hear what the fuss is about.
As my eight-year old just succinctly put it, “They sound like the same thing.” What tiny measure of “Belieber” that remained in my daughter has just left the building. “Good for you, Girl. You sue him!” she just yelled, as she exited the room. She isn’t wrong. They do sound a lot like the same thing. The second biggest pop star in the world may well decide to pay and settle this quietly. But forensic musicology says, he shouldn’t.
Popular Musicology Opinion: Not guilty.
We’re going to explore this in great detail. The filed complaint is right in front of me and we’ll begin by looking at its claims one by one. The plaintiff’s arguments are in bold, and my comments follow in italics.
Getting right to it, they begin with…
Plaintiff’s “Ring the Bell” opens up with the signature and unique vocal riff, which provides the introduction and primary musical motive for the structure of the song. This vocal riff – also referred to as a loop, chant, or hook – is crucial to the sound recording and composition of “Ring the Bell,” creating the backbone for the composition and the song’s initial hook. After opening the song, the vocal riff repeats throughout, serving as a unifying thread for “Ring the Bell.”
That’s a lot of claims all at once, and while certainly they’re talking about their OWN track and are advantaged when it comes to knowing the intro motif’s intent, it would be lazy to accept it all of these claims wholesale. So to deconstruct it a bit… Some of it is simple fact: The riff in question is indeed the first thing you hear in both “Ring the Bell,” and “Sorry.” It would be hard to argue that the riff isn’t “the introduction” and “the song’s initial hook.”
They call this riff the primary motive, the backbone, and the unifying thread, crucial to the record and the song. (The record and the song are different things, btw. See sidebar.) Is it all of those things?
Again, the veracity is partly linked to the composer’s intent. She alone knows for sure her own creative process. She knows what’s the chicken and what’s the egg. But we can speculate, and I say the riff is the egg, not the chicken. (The chicken really did come first you know.) It is very hard to imagine this introductory riff even came along early much less first in the creative process. The riff is most easily understood as an elaborate reflection of a recurring supporting element than as a basis itself.
I can foresee their larger argument and toward that, the most I would say is that yes, the track begins with the motif as an intro; and yes, the rhythm the intro conveys is carried on in the accompanying rhythm section as the track continues and that this rhythmic figure is indeed core to the accompaniment. Partly because it’s a somewhat uncommon rhythmic figure, yes, it’s core to the character of much of the song. They’ve used the terms “backbone” and “unifying thread,” and rhythmically I’d call this a defensible stretch. But is the melody of the intro a backbone or a unifying thread? No, that’s a broader reach. The intro figure doesn’t appear in the melody anywhere. It’s an accompanying role player. If we’re being very charitable, the shape and function of the intro’s melody is consistent with and enhances its rhythmic function. They could argue this. But the melody itself doesn’t figure throughout the song. It’s no more prominent than a counter melody in the accompaniment.
Bieber’s ostinato and White Hinterland’s are more melodically similar than rhythmically similar. So if we were to agree with the plaintiffs about the grand role that they are ascribing to this riff, all of that value is vested in the rhythmic information, not in the melodic information. That just directs our attention to the rhythm of the intro and away from the melody. It just points out how different they are. Let’s say for a moment that it IS the backbone, and the unifying thread, crucial to the record and the “Ring The Bell.”
Rhythmically it can be none of that in “Sorry.” It’s entirely dissimilar in its rhythmic function. The “Sorry” riff, rhythmically, is a much simpler riff. Indeed “Sorry” is a much simpler song. Every interesting rhythmic quality that “Ring The Bell” possesses, allegedly attributable to this riff, “Sorry” completely lacks. “Sorry” could not even accommodate the “Ring The Bell” riff’s without completely altering its intended rhythmic function, much less have it be an important component throughout.
The public has streamed “Ring the Bell” approximately 800,000 times on various platforms since the song’s release.
This is the “access” piece of the complaint. It’s standard. If you want to prove plagiarism, you must always show that the infringer had access to the infringed work. Is 800k is a lot.
By the way, while 800k streams is impressive, that sucker is as of this writing at nearly three and a half MILLION views on youtube alone. This copyright lawsuit has probably already benefitted White Hinterland quite a lot. None of which means she’s not entitled to more. But I’m just saying.
Here comes another similar access claim…
The April 10, 2014 edition of Rolling Stone magazine featured a print- review of Plaintiff’s album Baby. In that same edition, and only a few pages before the review of Baby, Defendant Skrillex’s album received a prominent review.
They had to have be ecstatic when they discovered this. But c’mon! Do I believe Skrillex got a copy of this Rolling Stone issue? Yes. But did he listen to all the other tracks mentioned in that same issue? Or any of them? I doubt it. They go on to make other “access” arguments, because they must. And I touch upon all of this because it’s interesting. But I digress at this point. It’s not musicology’s role to conclude that they likely did or didn’t hear “Ring The Bell” before they produced “Sorry.” Decide for yourself.
Prior to the creation of the music for “Sorry,” Skrillex, Diplo, and Blood all had access to, and upon information and belief, were familiar with Plaintiff’s “Ring the Bell” due to the widespread commercial release of “Ring the Bell,” the music press’s coverage and reviews of Plaintiff’s “Ring the Bell,” Diplo’s database of songs kept on his hard drive, Diplo’s and Plaintiff’s shared label family, and Rolling Stone magazine’s coverage of Plaintiff and Skrillex in the same issue on two separate occasions.
This is more of that same insistence that the defendants were familiar with the “Ring the Bell,” and that therefore this isn’t just a coincidental infringement. Apple Music and Spotify give everybody access to every song in the universe for 10 bucks a month. We’ve all got access to everything. Yes, Skrillex, Diplo, and Blood had access to “Ring the Bell.”
So legally it’s a minor point, but is it probable they heard it?
- “Ring the Bell” was released, got some press and reviews.
- The Rolling Stone magazine thing a few paragraphs ago
- Diplo, is one of around 50 artists or bands connected to a particular record label. This label and four others like it are all under a parent label. White Hinterland is on one of those other four. This one is kinda funny. Let’s take a napkin and… 50 artists x 4 labels x 2 records each x 10 tracks per record, we’re just spitballing here… that’s 4000 tracks with which he maybe has a “shared label family”? Who cares?! This is tedious beyond the pale. It is at best neither likely nor unlikely that Skrillex, Diplo, or Justin Bieber had heard “Ring the Bell.” But sure, they had access.
Plaintiff owns a protectable copyright interest, both in the musical composition and the sound recording, to her original and unique song “Ring the Bell,” which includes the unique and original vocal sample and riff that appears throughout “Ring the Bell.”
The notes of the “Ring the Bell” vocal riff correspond with the tonic of the song without overstating its progression. The notes of the vocal riff foreshadow and set up the mood and feeling of the song. The vocal riff moves upward, giving the chant a certain open, uplifting freshness.
Voices are original and difficult to imitate. Plaintiff’s voice is a unique instrument. The timbre of Plaintiff’s voice is inextricably linked to her writing, especially in “Ring the Bell.”
Yes, to all three.
Plaintiff’s vocal riff in “Ring the Bell” is specific in terms of pitch, register, orchestration, and overall use, …
Yes, agreed. You’ll be sorry.
and it is the defining “hook” of the song and the seed from which the entire song grows.
No. It’s the intro, yes, but that doesn’t make it “the seed from which the song grows. As I’ve already said, this is an implausible claim.
Plaintiff positioned the signature vocal riff of “Ring the Bell” to introduce her song because she wanted to set the tone immediately and swiftly for what follows. The vocal riff grabs the listener and allows the listener to identify her song. It functions as a hook and a complement to the chorus. After the introduction, the vocal riff and sample repeat throughout “Ring the Bell.”
To write, create, produce, and record the song “Sorry,” the Defendants knowingly and unlawfully copied original, protectable elements of the musical composition of “Ring the Bell”
and unlawfully sampled Plaintiff’s protectable sound recording of “Ring the Bell.” AND Defendants manipulated and/or altered Plaintiff’s sound recording by adding additional effects. AND Defendants failed to secure a license to sample and exploit Plaintiff’s “Ring the Bell.”
SORRY but we didnt steal this 🙏🏻 @justinbieber @bloodpop pic.twitter.com/9897j9sfY7
— SKRILLEX (@Skrillex) May 27, 2016
Plaintiff’s protectable vocal riff is crucial to both “Ring the Bell” and “Sorry.”
Not crucial to “Ring the Bell.” It’s a bit part. It is the introduction and I’ll grant that its due significance, but it neither dictates the melody, nor likely even informs it. It matters very little to the rest of the track. Were one to make a list, this would be among the less crucial elements of the track.
The same however cannot be said of “Sorry.” It’s the intro and it’s half of the hook. It’s pretty critical. Here’s just a couple measures of the chorus.
The identical and/or striking similarity between “Sorry” and the protectable elements of “Ring the Bell” is obvious, such that an ordinary lay listener would instantly recognize the sample and similarity between the songs.
Remember, at this point, White Hinterland is under the impression that the actual recording was sampled and manipulated. So making the distinction that “lay listeners” would instantly recognize the sample and similarity is sorta funny. Sample aside, we still have similarity to deal with.
That’s the last of the interesting claims in the complaint.
Since the plaintiff’s dug a hole for themselves by falsely accusing Bieber and Skrillex of sampling “Ring the Bell,” we get to throw out a bunch of their poorly premised claims. The two intros do sound darned similar to the lay listener though. As my kid said, “They sound like the same thing.” The composition can still have been infringed upon.
Did they steal the musical idea? And is it protectable?
One theory the plaintiffs could float is that Skrillex, Diplo and Bieber admired “Ring the Bell,” so they lifted the idea for the high pitched voice and then adding insult to injury also used the same notes that she did, essentially making a sound-alike instead of clearing the sample. That’s done all the time, by the way, often by this guy, Ken Lewis. He’s awesome, and “sample recreation” (or “sample replays”) is an interesting area.
But it certainly doesn’t appear to be anything like that. As Skrillex demonstrated, making this high pitched vocal sound was a just few clicks for him. He’s using an app called Ableton Live, but any modern music software would let you change the pitch of a music segment and add some echo. There’s nothing proprietary or even clever about any of that. Every music producer in the world is copying audio phrases from within tracks, chopping the phrases into bits, rearranging the bits to make new phrases and using effects way more interestingly than this.
Here’s Calvin Harris’s and Rihanna’s huge hit, “This is What You Came For.” Hugely popular hit song with the hook that goes, “But she’s looking at you ou ou ou, you ou ou ou.”
Rihanna might never have sung anything like that in the studio. That line was put together in a computer. Every “ou” is the same recorded snippet. This is what’s in style now. We’ve moved beyond using computers-to-fix-imperfetions. “This I What You Came For” is made extra choppy and artificial sounding on purpose!
What the heck is Kiiara supposed to be singing in “Gold?” This is taking it a little far, but really, it’s just very common.
Most likely Skrillex was listening to the a cappella demo, looking around for bits and pieces of a female vocal that he could put to use in his production. She provided an interstitial non-lyrical phrase that she sang in the chorus after “Is it to late to say ‘Sorry?'” Again I would assert my guess that she probably meant to outline and imply the intended harmony (it does that) while adding a little vocal ornament to build toward the answering phrase, “Cuz i’m missing more than just your body.”
In Skrillex’s Twitter takedown, he showed us that he pitched her voice down four semitones and then up twelve semitones. Why not just pitch it up eight in the first place? Because it’s a short version of the story. She sang her demo in G major. But Justin’s track is in Eb. So the first thing Skrillex probably did is pitch down her whole demo by four semitones to get it all into Eb major. Then he went looking for things to chop to bits, found this appealing snippet and recalled, “Justin loved the production technique I did on ‘Where R U now?’ I could do something kinda similar here.” So he pitched up her vocal and turned up the echo and used it as a musical element in Justin’s track.
Let’s sidestep now, explain what that “Where R U Now” effect was, to make the relevant fundamental argument that nothing about White Hinterland’s echoey high pitched vocal treatment is protectable in the first place.
Justin reportedly couldn’t believe it when his voice got turned into a shakuhachi part by Skrillex for “Where R U Now?” It was a huge hit song, and the NY Times did a “making of” video that got shared around the music production world immediately. The part sounds like this:
The big philosophical argument would be that if Skrillex can turn Justin’s voice into a japanese wind instrument, he could probably have transformed him into an echoey high pitched female singer. Suppose he had, and similarly finds himself sued by White Hinterland because it sounds too much like her. That would be silly. It’s his own voice with all it’s unique characteristics. Suppose the intro to “Ring the Bell” was not her voice at all, but a flute playing those same four notes – high pitched, echoey, playing that same musical figure. And then suppose “Sorry’s” intro was a flute as well. Could she then say, “You copied my use of a flute!” Again, silly. It’s just a sound. Bieber would probably say, “I got my own live flute player here, and all flute tones are as unique as snowflakes.” Flute, shakuhachi, male voice, female voice, in an echo chamber or not — these are orchestration decisions and not protectable. In other words, Bieber is entitled to use any female voice not named “White Hinterland” and turn up the echo all he wants. White Hinterland can protect her own recording (irrelevant here because it wasn’t sampled) but she can’t conflate this with defending her composition. These are different concepts. They didn’t sample her record. And she doesn’t own echoey female vocal sounds.
That out of the way, all we have left is to look at the notes, on paper, and see if Bieber is stealing her song.
Going back to the plaintiff’s words…
The four notes of the sampled female vocal riff of both “Ring the Bell” and the infringing “Sorry” are Bb-C-Eb-F. The four pitches are of equal duration and are sung in a rapid succession
by Plaintiff’s voice. The temporal spacing of the notes of the female vocal riff in both “Ring the Bell” and the infringing “Sorry” are the same. In both “Ring the Bell” and the infringing “Sorry,” these pitches function as a 5-6-1-2 pitch sequence in the key of Eb.
Essentially yes. They’re correct about the notes and their melodic function.
I have to keep reminding my readers to forget that although it’s a similar female vocal sound, that’s irrelevant here. We’re just looking at the notes, the pitches, Bb-C-Eb-F, an allegedly plagiarized musical phrase that would be no less plagiarized were it played on a kazoo.
Musical phrases have qualities — melody, rhythm and harmonic function. Triers of plagiarism cases assess similarities in these qualities. And then separately decide if the piece of material enjoys copyright protection under the law in the first place. Or conversely, they often find that it’s a common musical device, too broadly applicable to be the unique property of White Hinterland or anybody else?
First, the melody itself. A post I read on Pitchfork quotes another musicologist as saying:
“The opening phrase is similar, but Justin Bieber’s ends on a different note every time,” says Jeff Peretz, professor of music theory at NYU’s Clive Davis Institute of Recorded Music. “They are not the same melody. They are very similar, they have similar notes and a similar arc, but they are fundamentally not the exact same melody.”
Perhaps he was misquoted or misinterpreted, but the notes in question aren’t “similar,” they’re exactly the four notes the plaintiff’s say they are. And the opening phrase in “Sorry” ends on the same note as Ring The Bell’s every time. That note is “F.”
The differences lie elsewhere.
Skrillex apparently clipped his whole phrase verbatim from the chorus of the a cappella demo and decided it would work as an intro and a hook. The snippet is indeed comprised of the four notes the plaintiff’s say, Bb-C-Eb-F. And “Ring the Bell” uses it’s own sampled phrase, those same four notes, in that order, over and over. But Skrillex’s sample part from the “Sorry” demo is not a four note phrase. It’s a five note phrase, every time! It’s Bb-C-Eb-F and then another ‘F,’ — four sixteenth notes followed by a quarter note.
This is no minor detail.
SIDEBAR: Very quick rhythm lesson now. Music notation is mathematical. Most often music is in 4/4 time. 4/4 time is so prevalent in fact that it’s actually referred to as “common” time. If you find yourself tapping your foot and counting along with a song and thinking “1-2-3-4 1-2-3-4 1-2-3-4…,” that’s 4/4 time. Music is divided into “measures” – the vertical lines in sheet music. The numberator in 4/4 time means we’ve broken each measure into 4 beats and the denominator means each beat is represented by a quarter-note. Four quarters thus make a whole measure. It all kinda adds up.
The first four notes of “Sorry,” four sixteenth notes, begin on beat two (a “weak” beat as we’ll explain in a sec) leading up to the fifth note on the “strong” beat three, then the sample immediately repeats on the fourth leading to the strongest beat, beat one of the second measure. The real musical purpose of the phrase is to forecast and lead up to the last and most important note. The phrase has velocity and momentum. It begins on a weak beat and its momentum drives to a resolution as it lands on a strong beat. Let me describe what we mean by weak and strong beats and explain how they are like velocity and momentum.
SIDEBAR: Music has energy, momentum, velocity, direction. The manipulation of these is largely what gives music its purpose and intent.
So consider… the downbeats are the stronger beats and the upbeats are the weaker less emphasized ones. If I ask you to tap your foot as you count 1-2-3-4 you’ll tap your foot four times I expect, unless you’re a drummer. Then you’ll tap your foot on 1 and 3, the strong beats. So now you’re a drummer. Think like one. Bob your head, as you count 1-2-3-4, bob your head down on 1, up on 2, down on 3, up on four. Repeat. Now you understand down beats and up beats.
Now while you’re bobbing your head, imagine beats going by twice as fast, and four times as fast. You’re imagining eight notes and sixteenth notes. You still feel stronger downs and weaker ups. That’s the nature of music. The downs are emphasized, the ups have to lead to downs, like with gravity. This gives music direction, and therefore momentum.
Back to our example. “Sorry’s” phrase is four sixteenths, rhythmically down up down up, followed by a fifth note, the target note, down. Consider how unsatisfying the phrase would be if you took the last note away. There was momentum, and it was arrested.
The notes themselves matter too. Notes have meaning and function. Most analogous to rhythm’s “downbeat and upbeat” are notes that are “stable and unstable.” Some notes are more stable — notes you land on contentedly. Some are unstable, notes that feel as though teetering and beckon you to move elsewhere to more stable one.
In the world of “Do, a deer, a female deer,” the most stable notes are Do, Mi, and Sol. The least stable are Re, Fa and Ti. If I ask you to sing Do, Re, Mi, you’ll land contentedly. Likewise, up to Sol. If I ask you to sing Do, Re, and stop there, you’ll feel interrupted. And if I ask you to sing all the way to Ti and stop there, you’ll probably be so frustrated you’ll start to shake a little.
I’ll illustrate, playing a scale on a piano and denying you the last note that you expect.
The phrase ended on a weak beat and an unstable note, so it sounds very incomplete.
The entire musical thought is not just those four or five notes. The second repetition brings us into the second measure, and then an “answering” melody on a synthesizer completes the idea. I’ll play it on a piano for you with a hi hat tapping out the time for context. It’s this:
In the accompaniment the intro employs the same chords used throughout the song, both in the chorus and the verses. The chord progression is IV-vi-V. In the Key of Eb Major, those three chords are Ab Major, C minor, and Bb Major. Bb Major is defined as the notes Bb-D-F sounded together. And so, as the “Sorry”phrase plays it’s four sixteenth notes that lead up to the “F,” so too does the accompaniment lead to the Bb major chord with with that “F” will be consonant. (As one of the three pillars of the Bb Major chord, the “F” in the melody will sound harmonious.)
Let’s bear this in mind while we look at the very different usage from “Ring The Bell.”
First here’s “Ring The Bell’s” Intro.
You hear the four note sample repeated a few times, but not consistently placed. It’s hard to know exactly when it’s going to repeat. Try to hum along. It’s pretty futile. She purposely obscured the rhythm for the first couple of measures, an interesting creative decision. When other instruments enter, she extends the use of the sample to the form it will take throughout the song. Just as in “Sorry,” where the real phrase wasn’t the five notes, but ten.
The REAL phrase isn’t four notes, but eleven. Four notes, followed by the same four notes, followed by the first three. Often throughout the song it’s a longer phrase where the last three notes appear only every other measure.
It can be tricky to discern this rhythmic function. One way I thought I might clarify it was to add a drum part of my own design that emphasizes the rhythmic role of the vocals.
Then I’ll show you how this same rhythmic idea is carried throughout the track. Here, listen for just the snare drum, and try to ignore her vocal.
How long did it take me to write that song? That isn’t a song. That’s just an idea. And it was conceived in its entirety in less time than it took to play it, 30 seconds. I thought to myself, “I’m going to change the chords to this other “stock” thing, play a simple baseline and add drums to make it sound like something, and as a composer I already know the figure I’m trying to employ is going to work nicely throughout. That’s how unprotectable building blocks work.