September 24, 2021 Musicology No Comments

The biggest record in the world, Olivia Rodrigo’s “Sour” has been under constant fire since it came out at the beginning of summer. Early on, she gave Taylor Swift a songwriting credit for “deja vu,” Sour’s third track? After that it was pretty much open season. Next, the promotional art was too much like a Courtney Love cover. The first track, “Brutal,” sounded too much like Elvis Costello. The first single jumped immediately to #1 on Billboard and  before long she’d added Paramore members Hayley Williams and Josh Farroas as interpolation credits because “Good 4 U” sounds like their 2007 hit “Misery Business.”

So what is this? Is she that scared of litigation? Is she that easy going? Honest? Indifferent? Is this just good business? Is this good for copyright as an institution? Is this good for future creators and creativity?

Maybe. Maybe this how we account for inspiration in a more thoughtful future.

I suppose if you and I are writing a song together and you come up with a riff that makes it into the song, I don’t consider whether your riff was entirely original before I share songwriting credits with you; we’re in the room together making contributions, so we wrote it together.  Maybe it follows that if you’re figuratively in the figurative room because I’ve heard “Pump It Up,” it’s in my subconscious, or even my conscious, and then some aspect of it makes it onto my record. I can either recognize it, or the possibility of it, and then it’s nice to give Elvis Costello some credit.

No. This is a little wacky. Everything that came before is in the room too. Our mental accounting sucks. This is how “Uptown Funk” wound up with a hundred and fifty songwriters in the credits.

(update: holy cow, I didn’t know there’d be another “Uptown Funk” lawsuit this very week; quite a coincidence.)

What really got me going was the sympathetic colleagues, well-meaning, I think that’s obvious, empathizing with and apologizing for Rodrigo and for themselves and their industry. First example: famously, a civilian named Billy Edwards @biiilyedwards tweeted that “Brutal” is a ripoff of “Pump It Up,” and was probably fairly amazed when Elvis himself quickly tweeted back that he was cool with it.

This is fine by me, Billy. It’s how rock and roll works. You take the broken pieces of another thrill and make a brand new toy. That’s what I did. #subterreaneanhomesickblues #toomuchmonkeybusiness

First, I don’t know if “broken pieces of another thrill and make a brand new toy,” is a song lyric yet, but wow, that’s awesome. And don’t entirely mistake me, Costello was terrific here. Gracious. It’s not his responsibility to say what I want him to say — that “Brutal” isn’t “Pump It Up” and that a three-note guitar riff that’s simply, if wonderfully, three chromatic pitches in a row deserves no more than the thinnest copyright protection there is and therefore since the “Brutal’s” rhythm and usage are different, it’s simply not infringement.

I’m saying it. “Brutal” is fine, period.

Rodrigo didn’t rip off “Pump It Up,” nor necessarily allude to it. She employs the same three-note chromaticism that Elvis Costello did. If the riff included the three notes it has in common with “Pump It Up” but then went one chromatic note further, we might not even be having this conversation; it would sound so much less like “Pump It Up,” that nobody would give it much of a thought. Good for “Pump It Up” to have planted a flag in the use of F, E, Eb. But this is precisely something that Copyright Law should never protect.

Adam Levine put a note on his instagram defending Rodrigo, perhaps about the whole collection of plagiarism claims. Levine offered:

“There’s all this drama about Olivia Rodrigo. Look, these are tricky things, and anyone who’s ever written a song knows that sometimes you rip something off inadvertently, and it makes it to tape, and then it gets released, and then there’s a lawsuit. It’s a natural thing for it to happen, and sometimes it gets ugly, and sometimes it’s warranted that people take legal action. Sometimes it’s not warranted that people take legal action, and … the gray area has reared its ugly head these days.”

That’s great, but a “ripoff” is a “ripoff” whether you do it inadvertently or not. Intentional? Sure that’d be worse. That’ll get you statutory judgement or an especially punishing actual damages award perhaps.  But if you rip someone off, it’ll be quite warranted when they take legal action. “Ripoff” is not gray. He seems to have said, “whoops, she ripped something off and it made it to the record. Let’s be understanding. It happens.”

She didn’t. “Good 4 U” is not “Misery Business.” Lots of similarities? Sure. It’s not like I don’t know what anyone’s talking about. Both very good songs, plenty of similarities, but none of them musicologically significant, unless you’re the “let’s find a lot of smoke and then yell “fire,” type. No, the way it works, to milk the metaphor, is you find actual fire, then you can go on to point out the bits of smoke here and there because fire has probably been there too.

Inspired by Misery Business which was a hit before Olivia was in kindergarten? Maybe. But it’s not infringement because the music isn’t the same. She owes them nothing. If she wants to give them a songwriting credit, that’s her business. But right now, in a post Blurred Lines world, we need more of that like a hole in the head.

Consideration is nice and kind and I’ll admit all of this has me at least reconsidering my position on songwriter credits. But it doesn’t have me rethinking infringement. The former is a thoughtful gesture that has as an added benefit that it may fend off what would’ve been a specious lawsuit. (You don’t suppose that’s the main reason for it, do you?) The latter is a line in the sand that we as a society draw because we think it’s important to protect copyright owner’s rights and in so doing encourage creativity so that we get talented people making great art for us all to enjoy!

It’s a bit circular, but we don’t want all this plagiarism outrage. Music is life. And runamok overreach is what can kill it. The threshold for infringement, the height of the bar, the line in the sand, gets put where we want to put it — it’s societal. And for almost ten years we’ve been setting that bar lower and lower. It’s intellectual property climate change. It’s getting rapidaly hotter. Hopefully it’s transitory.

Written by Brian McBrearty