There’s a lot riding on the verdict of this soundalike infringement case that could go either way.
The Eminem “Lose Yourself” case is a bit funny, but it’s by no means trivial. I think it’s very possible that this soundalike is going to be found to infringe upon Eminem’s “Lose Yourself,” and that makes it a big deal. Let’s get way into it.
But first, the funny part — videos of a very formal New Zealand court listening to “yo, his palms are sweaty, knees weak, arms are heavy, there’s vomit on his sweater already, mom’s spaghetti” and so forth, slight smiles on their faces. Last night HBO’s John Oliver was talking about it on Last Week Tonight.
Funny as heck-ness aside, this is going to be an interesting verdict that one hopes will illuminate the math and the morality of “soundalikes” and the line between influence and infringement.
One can hope, but it probably won’t illuminate anything. Lay listeners will hear both tracks and say, “sounds almost exactly the same,” and “why would anyone write such a close copy?”
Here’s why: Soundalikes happen because advertisers, game publishers, movie trailer production houses, and the like commission them. Producers or directors often have a song or a sound in their heads from the start, but of course, they can’t or don’t want to pay the hefty licensing fee for that Randy Newman song or that John Williams theme, so they ask a composer to provide the same “vibe” for less, way way less, a couple of zeros less.
But then the questions naturally arise, “How similar can we make it?” and “Could we get sued for this?”
Regardless of the answer to the first, the answer to the second will always be, “you sure can.”
Last week, Garry Williams, the lawyer for Eminem’s music publishers (just one of the plaintiffs) quoted from National Party emails, including one in which the song is referred to as a “sound-alike” and another in which someone thoughtfully said “I guess the question we’re asking, if everyone thinks it’s Eminem, and it’s listed as “Eminem Esque,” how can we be confident that Eminem doesn’t say we’re ripping him off?” Williams said the emails showed it was “utterly clear” the party knew it was using a copyrighted song.
But no. It doesn’t show that at all. What it shows is that they knew it was questionable. So I wonder if they questioned it, either to an IP lawyer or a musicologist. Had I been asked about the soundalike in question, titled as John Oliver pointed out, “Eminem Esque,” I would’ve sounded the alarm and made suggestions to get them out of this danger zone. There’s nothing wrong with writing something Eminem-esque, per se.
What does a musicologist look at when considering the similarity of two tracks? Let’s walk through it a little bit and consider some pertinent issues — the ones that should’ve been analyzed in the first place, and the ones that this case might (but probably won’t) turn on.
First, Eminem’s “Lose Yourself,” like most things worthy of the “soundalike” treatment in the first place, is absolutely iconic. It’s my 13-year-old son’s hands-down-favorite song of all time. Good chance it’s well-liked by some of the robe-wearing folks in that New Zealand courtroom. And whenever you’re dealing with an iconic track — as Led Zeppelin could tell you — as soon as listeners hear the sound of the record, just the first few notes perhaps, they recognize the track! People hear the first three notes of “Stairway To Heaven” and it’s “Stairway.” (Unless it’s “Taurus” which sounds almost exactly the same as “Stairway” for the first few seconds.)
Sounding alike and being alike are confoundingly very different things. And this is by the way is exactly what a good soundalike composer is asked to exploit — perilous though it might be.
Let’s hear this soundalike. Here’s a youtube video, published by the NZ National Party in its campaign.
If you know “Lose Yourself,” this is instantly recognizable as “pretty much Lose Yourself,” but a little different. You know you’re not listening to the recording you’re familiar with. Indeed nobody is suing anybody for using the recording without permission. This is about the song, “Lose Yourself.” Recordings and songs are two separate things, particularly in terms of copyright. There’s only one original recording of “Lose Yourself” by the original artist, Eminem. That’s the famous track you know. The song however could exist in lots of different recordings. “Yesterday,” by The Beatles has been covered over 3000 times, and they don’t all begin with the same acoustic guitar strum that the original does. It’s still the song Yesterday even if you play it on a kazoo.
We hear that chugging electric guitar at the beginning of the video, and we react. But an important question would be, if we play “Lose Yourself” on clarinets, is it still “Lose Yourself?” The answer I want you to say is “yes, it is.” Then the next question is, “if we play this other track, “Eminem-esque” on clarinets as well, without the signature guitar chunk chunk chunk chunk, is it substantially the same as “Lose Yourself?” Let’s consider it.
Both tracks begin with eighth notes, 8 to the bar more or less, playing an interval (that’s two notes of a certain distance apart) The figure is essentially two notes: The note “A” along with either an “E” or an “F.” (transposed)
E-E-E-E E-E-E-E | F-F-F-F F-F-F-F | E-E-E-E E-E-E-E | F-F-F-F F-F-F-F A - - - - - - -> - - - - - - - -> - - - - - - - -> - - - - - - - -> The A note persists throughout and chugs along with either the E or the F above it.
There are no lyrics, so, is this a melody? Yes! If you’re humming the tune at breakfast as I did this morning you hum just those E’s and F’s. They’re the melody. And by the way, what happened in my kitchen when I got to the end of humming those four bars to myself this morning? My eleven-year-old muttered, “Yo, his palms are sweaty, knees weak, arms are heavy,” and smiled. Iconic.
What if I hummed the not identical “Eminem-esque” intro?
E-E-E-E E-E-E-E | D_D_D_D F-F-F-F | E-E-E-E E-E-E-E | D_D_D_D B_B_B_B A - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
If I hummed the “Eminem-esque” eighth notes, would my kid still have said, “Yo…” despite the 37.5% note disparity? Perhaps not.
“Wait there’s more!” says a musicologist, “Are we going to count all those repeating E’s at full value?
What if instead, I argued for a distillation that devalues the mere repetitions and looks like this?”
Lose Yourself. E - - - - - - - | F - - - F - - - | E - - - - - - - | F - - - F - - - | Eminem Esque. E - - - - - - - | D - - - F - - - | E - - - - - - - | D - - - B - - - |
Here, with the repetitions ignored, only half the notes are the same, or as we might put it, “half of the significant musical choices were different.” This is the first or second thing the defense’s musicologist is likely to say.
What’s the other?
She’s going to question the substance and originality of this section of music. Because it’s not much at all, perfunctory to be charitable. It’s just the chords A minor and D minor. I’m reminded here of a well-circulated but fictitious story that Metallica (reputedly litigious rockstars) once sued another band for using E and F in succession. This was a concocted hoax meant to be ridiculous — comedy website mocked up a webpage to look like MTV news’s site reporting the following:
“MONTREAL – Metallica are taking legal action against independent Canadian rock band Unfaith over what they feel is unsanctioned usage of two chords the band has been using since 1982: E and F.”
(It went on, as taken from Snopes.com:) ”We’re not saying we own those two chords, individually,” said drummer Lars Ulrich in Ashley’s spoof. “That would be ridiculous,” the faux quote continued. “We’re just saying that in that specific order, people have grown to associate E, F with our music.”
Whoever came up with the hoax had his finger on what is now taking place in New Zealand. The notes in the Metallica hoax are even pretty much the same notes involved here: E’s going to F’s. If Metallica could be satirized as claiming the chord progression E to F, then what might we say about this case? Can the writers of “Lose Yourself” own the even thinner IP involved here? It’s an interval of a perfect fifth moving to the interval of a minor sixth or an Am going to a Dm, more or less for the entire track! There’s more to it, a few swung sixteenth notes here and there, but not a ton more. (The defense’s musicologist should make a lot of those sixteenths by the way.)
Most of all the defense’s expert is going to say they cannot own intervals of a fifth moving to intervals of a sixth in a mostly static rhythm. And they might be helped along by the words of the plaintiff himself, co-writer of “Lose Yourself,” and Detroit based musician and producer Jeff Bass who says the song is a “blatant rip-off” of Eminem’s track, but then he goes on to say that he one day began playing the now-famous guitar riff for Eminem and “At that time, I didn’t know if it was a song or not.”
Well, Mr Bass was thinking that day is pretty much what every songwriter thinks at the outset of writing a tune when all he has down is a pleasing but common and unoriginal idea that while perhaps the starting point for developing something substantial and original, isn’t either of those things on its own at all.
Let’s quickly look at harmony. Key center doesn’t matter that much, but it just so happens, shocker, they’re in exactly the same key. Nice touch guys; well done.
And now the chord progressions. In that first section. with just the electric guitar…
Lose Yourself: Am - - - | Dm - - - | Am - - - | Dm - - - | Eminem Esque Am - - - | Dm - - - | Am - - - | Dm - - Bm7b5|
Not identical, but don’t go thinking that the weird-looking chord on the end is very different from a Dm. It’s just a Dm with a “B” added to it. Worse for the defendants, in the first verse when the lyrics to “Lose Yourself” begin, a piano joins the guitar and then the chords ARE identical — the piano plays that Bm7b5 just as Eminem Esque did from the outset. Jeff Bass throughout the song changed the chords in clever, subtle, barely noticeable ways to keep Lose Yourself interesting, so a full transcription would be lengthy, but that Bm7b5 choice is the same one employed in Lose Yourself for the beginning of every verse.
What about arrangement and orchestration? These are lesser standards than is melody, even less than harmony, somewhat more related to the recording than to the underlying composition. But what happens when your orchestration and arrangement are nearly identical? Why don’t you ask Robin Thicke and Pharrell Williams that question.
First, we have the obvious, the electric guitar. Would be tough to do a soundalike without that. Fine. But then you add the drums… are they identical? No. But they kept the swing! I find this astonishing. Swing is when you play eighth notes pairs unevenly. You add a little time to the first eighth note and steal it from the second one. Here’s I’ll demonstrate…
In the first track you hear 16 regular (straight) hi hat taps followed immediately by 16 “swinging” taps. There, now you know what swinging is. Then in the second track you hear a swinging bass drum 16th at the end of the musical phrase. This is what “Lose Yourself” does. And it’s the musical choice made in Eminem Esque as well.
It’s not as though the writers of “Lose Yourself” own swing music. There’s a swing button on drum machines for a reason. It’s not enough to say it’s common. That’s all true and reasonable. But “Eminem Esque” didn’t need that little bit of swing. If I’m the musicologist, at this point I say something like, “you’re asking for trouble, and to no great benefit. So change it.”
The only other important elements are the piano and the string synthesizer parts, and both tracks have them. The harmonies aren’t identical. This is where “‘Esque” separated a bit more from “Lose Yourself,” but the orchestrations are pretty much the same.
Too Close to the Sun
Here, I’d say, is the last straw… the third section of the National Party video where we introduce the familiar tinkling piano. The notes are different, but the rhythms are the same. If swinging the hi-hats was asking for it, this is like putting your head right down onto the chopping block.
The intent isn’t really even in question. The title of the track makes the intent perfectly clear. It’s not intended to infringe though. That’s a leap. Only an intent to sound very similar is clear. Intent to actually be mistaken for the famous track? That’s a bit of a leap too in my opinion.
“But why on earth did they name the track something so damning?!” you might ask. Here, I suspect, is why: It’s because the track was written as production music for a music library, intended to be licensed by various ends — commercials, games, tv shows, or political ads. For those potential customers to ever find this track, it was meant to pop up when a customer went shopping and typed “Eminem” or “Lose Yourself” into the music library website’s search engine. Search engines look at titles first. The composer was probably just trying to give his track the best chance at getting licensed.
But hey, if Mr. Thicke and Mr. Pharell are still around then ask them this too, “Gentlemen, you were wronged, but tell me, what does a jury do when you tell them straight out you had that other track in your head?”