March 20, 2022 Musicology No Comments

There has been a lot going on lately. As I’m writing this, Ed Sheehan is the defendant in not one, but two lawsuits. Dua Lipa is also presently a defendant in not one, but two lawsuits. And today, we’re looking at Sam Smith and Normani’s 2019 hit, “Dancing With A Stranger,” because a songwriter named Jordan Vincent, along with his co-writers, Christopher Miranda and Rosco Banlaoi, think “Dancing With A Stranger” sounds too much like their 2015 track, “Dancing With Strangers,” in which the lyric “Dancing With A Stranger” appears repeatedly.

The list of defendants is lengthy. Like many modern hit songs, “Dancing With A Stranger” is the collective effort of many co-writers. I’ve been known to find cause and effect in this, but here, I just see silliness.

Interestingly enough, Vincent’s attorney is Francis Malofiy who was involved in the ultimately unsatisfying “Stairway To Heaven” trial a few years ago. In that case, as readers of Musicologize know, Mr. Malofiy won my sympathy to some degree along the way. I’m not saying I think he should’ve won. I don’t. I just think he might’ve been afforded a better crack at it and we all might’ve come away with more in the end. Alas.

Today is another day. I’ve no sympathy for this one.

Here, the complaint states that, “In both songs, the title, hook, chorus, lyrics, and musical composition are all the same…” and elsewhere in the complaint that elements are “nearly identical.” I guess we’re differentiating between “same” and “nearly identical?”

Regardless, neither “same” nor “nearly identical” is nearly accurate.

First on the list, the titles are not the same, merely similar. Regardless, names, titles, slogans, and short phrases are unprotectable by copyright.

One interesting claim is that if you take the plaintiff’s track and slow it down from its 122 beats per minute tempo to the 103 bpm of Sam Smith’s, the keys of the two songs are the same. That would strike me as an interesting coincidence, though not enough to matter in this context. I can’t be bothered checking, but I’ll risk being presumptuous. I’m very skeptical. At any rate, this is no smoking gun. We don’t care much if it’s true; it won’t make the notes the same.

I also don’t care much about their claim that the music videos are similar, because this is not my area. But they care, so I’ve mention it.

Let’s look at what does matter. Access, copying and unlawful appropriation.

What about ACCESS?

Copyright infringement requires “access,” meaning the creator of Song B must have had an opportunity to hear Song A to have copied it; otherwise, the similarities would be coincidental. Accidental or subconscious copying would still be copying, but coincidental likenesses would not be. In this case, the plaintiffs claim to have had 500,000 listens on SoundCloud and a lot of Youtube views before Sam Smith’s track was created. They list other plausible ways their track could’ve found its way to the defendants’ ears too. Plausibility though is not the standard.

But as for SIMILARITY?

It seems to me, initially at least, that the only parts of the songs that really matter are where the lyric is “dancing with a stranger,” which DOES happen several times in both songs.

The melodies are, in fact, neither “the same,” nor “nearly identical.” They are no better than somewhat similar. They begin on the same pitch and descend. Since they descend, they can be said by a forensic musicologist to have the same melodic shape or contour. It’s “downward.” But this matters little. More importantly the lyric that matters is six syllables, and how many of those syllables are sung to identical pitches? Half of them are — just three.

Rhythmically (meaning in terms of the placement and duration of the notes in the melodies), the lines are similar. Vincent’s version contains the lyric, “Dancing With A Stranger” appearing as the second and fourth lines of its four-line stanza, and it employs the same rhythm in each case, but changes the melody’s pitches between the two, they’re not identical to each other. In Smith’s track, “Dancing With A Stranger” appears only in the fourth line of the stanza. This phrase in both works is essentially alike in terms of rhythm.

As for harmony, while chord progressions are often said to be unprotectable (true in most circumstances), harmony still matters a great deal. Melodies are given meaning through the harmony that accompanies and contextualizes them.

Jordan’s four-bar chord progression could be expressed as

|| vi | iii | IV | V ||

and in our key of Bb, that’s “Gm, Dm, Eb, and F.”

Smith’s is

|| IV | IV V | vi | I ||

and in the key of Bb, that’s “Eb, F, Gm, Bb.”

They’re obviously not “the same,” in fact every chord is different. It would be hard to find or even contort them to be all equivalent or even very relatable. There’s no event in these two melodies where the chord progression that accompanies them is the same. And let’s recall, the melodies themselves are not the same to begin with.

So what we have here are two fairly short non-identical melodies accompanied by different chords.

What are we doing here??

Forensic musicology is a lot of music theory, production, and copyright know-how applied to something rather like a probability determination. You collect data to which you assign layers of probabilities that certain similarities could result from either copying or coincidence — and if possible, make a reasonable inference when you have enough good data. The data has dimensions, metaphorically akin to height, width, and depth. A similarity might be, in a sense, a mile high but only a micron wide, and in total, therefore, not amount to much. Musicologists consider the duration and number of similarities, the “density” of similarity, and the novelty or rarity of similar features. It’s simple at the ground level; two people have the same Bic pen, that’s no great coincidence, but if they have the same polka-dotted Mont Blancs, that’s a considerably greater coincidence.

Back to the music at hand. Lyrically, the phrase is identical as far as it goes. Both tracks employ the phrase “Dancing With A Stranger.” How novel is that, and is it protectable? I’d say no more than a tiny bit novel, and a little bit protectable.” Cyndi Lauper wrote a song called “Dancing With A Stranger.” There’s a movie by that name. There’s tons of poetry out there with the phrase “dancing with a stranger.” It’s a familiar enough idea, right? There’s a useful idea in copyright law called “thin protection,” and I tend to think “thin protection” is increasingly the sort of protection popular music should enjoy as it becomes ever simpler, more derivative, and more loop-based. Thin protection raises the bar, asking us to demand extremely high levels of similarity before we infer copying. It just makes sense.

So again, rapid-fire:

Melody: In terms of pitch? Different. Six syllables, three on the same pitch, three not. It’s NOT the same.

In terms of rhythm? Identical.

Harmony: Different. No similarities. And remember that harmony gives context and meaning to melody. So in effect, the melody is made more different here by the dissimilar harmony.

And nothing else about the lyrics or the rest of the songs strikes me as particularly relevant.

Sam Smith’s whole lyric, by the way, leads reasonably to the lament, “I’m dancing with a stranger.” He complains about his former love, says he doesn’t want to be alone tonight, and says it’s the former love’s fault that he’s with somebody new and “dancing with a stranger.” It all makes perfect sense.

Jordan Vincent’s lyric is about a girl who was on fire from the get-go, never had to let go, who said time passes so slow and everything’s in slow-mo. And she said she’s gonna die dancing with a stranger. There’s a continuity in there, but it’s not as plain nor certainly at all the same logic as Smith’s.

I see no compelling reasons to believe Sam Smith copied the Jordan Vincent song. The similarity merely of the rhythm and the use of the line “dancing with a stranger” are far more likely just a coincidence. There’s no reason to infer that Sam Smith needed to have heard the plaintiff’s work to have written the same line. It’s too common. Moreover, even if Smith did hear the plaintiff’s work at some point — say he freely admitted it, it’s just not enough to matter.

If you have a dancing with a stranger song in you, go write it. Ask me to check it before release if you want. But write it. Society wants to hear more original songs about dancing with a stranger. That idea, like all ideas, are not protected by copyright.


Written by Brian McBrearty