March 20, 2022 Musicology No Comments

Lots going on in the world of high-profile music copyright infringement. As I’m writing this, Ed Sheehan is the defendant in not one but two lawsuits. Dua Lipa too, yep, a defendant in not one but two lawsuits. And today, we’re taking a look 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, believe “Dancing With A Stranger” sounds too much like their 2015 track, “Dancing With Strangers,” in which the lyric “Dancing With A Stranger” appears repeatedly.

Like many hit songs these days, “Dancing With A Stranger” is the collective effort of many co-writers. The list of defendants is loooong.

Interestingly enough, Vincent’s attorney is Francis Malofiy, who represented the plaintiffs in (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, Mr. Malofiy had my sympathy to some degree at a number of points along the way.

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.” Perhaps “same” and “identical” do not mean the same or identical thing?? I dunno.

How identical are they? Let’s take a quick look at a few of the claims from the filings.

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 then the same. That would strike me as an interesting coincidence. But offhand, I’m skeptical of this claim, well, just because I am. And moreover, even if it’s true, it won’t make the notes the same.

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

What about ACCESS?

Copyright infringement first requires “access,” meaning the creator of Song B must have had an opportunity to hear Song A in order 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 along with a lot of Youtube views before Sam Smith’s track was created. They lists other plausible ways their track could’ve found its way to the defendants as well. Form your own conclusions.

And as for SIMILARITY?

It seems to me, initially at least, that the only parts of the songs that matter is where the lyric is “dancing with a stranger” which happens several times in both songs. I hear no other elements that seem particularly relevant. So let’s just look at that.

The melodies are, in fact, NOT “the same.” But they are indeed similar in that they begin on the same pitch and descend. Since they descend, they can be said perhaps 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. 

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 and employs the same rhythms in each case, but changes the melodies 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 it’s usually true, but harmony matters. Melodies though are given meaning through the harmony that accompanies and contextualizes them. Let’s look at that…

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 fairly short 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 if possible, 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, therefore, not amount to much. So you consider the duration and number of similarities, and the “density” of similarity, if you will, and the 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, “no more than a little bit novel, and a little bit protectable.” There’s an idea 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. 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?

So again…

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

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, and 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. There’s a continuity in there, but it’s not the same one as Smith’s.

I see no compelling reasons 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, in my opinion, more likely just a coincidence.

 

Written by Brian McBrearty