March 20, 2022 Musicology No Comments

There is just a TON going on in the world of high-profile music copyright infringement this year. Ed Sheehan is the defendant in not one but two lawsuits. Dua Lipa is a defendant in not one but two lawsuits. And today we’re looking at Sam Smith and Normani’s huge 2019 hit, “Dancing With A Stranger,” because a songwriter named Jordan Vincent, along with his co-writers, Christopher Miranda and Rosco Banlaoi, believe “Dancing With A Stranger” infringes upon their 2015 track, “Dancing With Strangers,” in which the lyric “Dancing With A Stranger” appears repeatedly. The list of defendants is long by the way. Like many hit songs these days, “Dancing With A Stranger” lists a lot of co-writers.

Interestingly enough, Vincent’s attorney is Francis Malofiy, who represented the plaintiffs in (and I think he’d agree with me here) the altogether unsatisfying Stairway To Heaven trial a few years ago. And as readers of Musicologize know, he had my sympathy to some degree at a number of points along the way.

This complaint makes the claim that “In both songs, the title, hook, chorus, lyrics, and musical composition are all the same…” but elsewhere changes to the claim that elements are “nearly identical.” So perhaps “same” and “identical” do not mean the same or identical thing?? 

Let’s look at a few specific claims and more generally look at how identical these two works are or aren’t.

The first interesting claim is that the plaintiffs track, when slowed from its natural 122 beats per minute tempo to the 103 bpm of Sam Smith’s, the key of the two songs are then the same. That would strike me as an interesting coincidence and we’ll have to look at that. But even if its true, it won’t make the notes the same. They are or they aren’t.

I also don’t much care about their claim that the music videos are similar. This is not my area.

ACCESS

Copyright infringement of course first requires “access,” meaning the creator of Song B needs to have had an opportunity to hear Song A in order to have copied it. Otherwise, your similarities would be coincidental. Accidental or subconscious copying might be an infringement, but coincidental likenesses would not be. So in this case, the plaintiffs claim to have had 500,000 listens on SoundCloud along with a lot of youtube views before Sam Smith’s track was created. The complaint lists other plausible ways their track could’ve found it’s way to the defendants as well.

SIMILARITY

It is standard musicological procedure to identify and transcribe the relevant parts of both tracks, and it seems fairly clear to me, initially at least, that the only part of the songs that matters is where the lyric is, “dancing with a stranger.” It appears several times in both songs, and I don’t see any other areas that could be particularly relevant. So let’s look at that.

The melodies are in fact NOT “the same.” But they are similar in that they begin on the same pitch and descend. Since they descend, they can be said to have the same melodic shape or contour. It’s “downward.” But the lyric is just six syllables. And how many of those syllables land on identical pitches? Half of them do. Just three. 

What about rhythmic similarity? Rhythmically, the lines do land the same way. Vincent’s version contains the lyric, “Dancing With A Stranger” as the second and fourth lines of its four-line stanza’s and employs the same rhythms but changes the pitches between the two. In Smith’s track, Dancing With A Stranger appears only in the fourth line of the stanza. 

Chord progressions are often said to be unprotectable, and its usually true, but harmony matters. Melodies though are given meaning through the harmony that accompanies and contextualizes them. So…

Jordan’s four-bar chord progression is vi, iii, IV, V. In the key of Bb, that’s Gm Dm Eb F

Smith’s is IV, IV V, vi, I. In the key of Bb that’s Eb, Eb F, Gm, Bb.

Very different. There’s no point in these two melodies where the chord progression that accompanies them is the same. And remember, the melodies are not identical to begin with.

So what we have here are short, six-syllable, non-identical melodies accompanied by different chords.

Forensic musicology is rather like a probability determination. You collect data to which you assign layers of probabilities, the probabilities that certain similarities could result from either copying or from coincidence, and you make a reasonable inference when you have enough data. The greater the similarity, obviously, the greater the likelihood of copying. But the data has dimensions, akin to height, width, and depth. A similarity can be, in a sense, a mile high but only a micron wide, and in total not amount to much. So we consider duration, number of similarities, density of similarity, and novelty or rarity of similar items. If 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 one.

Back to music. Lyrically, the phrase is identical, as far as it goes. The phrase in both tracks is “Dancing With A Stranger.” How novel is that and is it protectable? And my judgment is, “a little bit novel, and a little bit protectable.” Cyndi Lauper wrote a song called Dancing With A Stranger. Search for poems by that name, plenty pop up in a web search.

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

In terms of rhythm? Identical.

Harmony: No similarities.

And nothing else about the lyrics or the rest of the songs strikes me as in any way 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, says it’s the former love’s fault that he’s with somebody new and “dancing with a stranger.” It 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.

I see no compelling reason to believe Sam Smith copied the Jordan Vincent song. The similarity of the rhythm and the use of the line “dancing with a stranger” are more likely coincidental in my opinion.

 

Written by Brian McBrearty