September 21, 2021 Musicology 1 Comment

I know, we can’t even hear Vibeking, but I’ll explain and you’ll understand and it’ll all take about four minutes. Here we go…

The Weekend (Weeknd) is getting sued for copyright infringement. Yes, again. This time by a pair of composer/producers named Suniel Fox and Henry Strange, collectively “Epikker” (awesome name), who think “Call Out My Name” was plagiarized from their track, “Vibeking.” And let me just add, Fox and Strange sued everyone involved on this, labels, publishers, broadcasters, etc. I think it’s the longest list of “defendants” I’ve ever seen.

“Call Out My Name” was a pretty big hit, so you probably know it, but just in case, here it is. You can just listen to the first twenty seconds or sit through the whole thing; it makes no difference for our purposes since it just grooves over the same four bars over and over.

And as for “Vibeking” which The Weeknd allegedly copied, I can’t even find it anywhere on the internet. I’ll keep looking. (If you find it, by all means, do tell me where.) We dont really need it.

So with that understanding, we can charge on through anyway.

We have the complaint itself which sets it out — “quantitatively and qualitatively similar material in their respective lead guitar and vocal hooks, including melodic, harmonic, and rhythmic elements” type of language. That’s mostly standard. But thankfully, they also wrote out some actual notes and made fairly specific claims which I imagine are musicologically accurate as far as they go.

They dont go far. And in the end I also think it won’t matter much.

Lets take the plaintiffs at their word and assume that indeed their song goes just as they say it goes. If I understand them correctly, this side-by-side transcription (mine) of both melodies illustrates the key similarities they’d like us to know about.

Weeknd Call Out My Name comparison to Vibeking transcription sheet music notes written out.

Here’s what those notes tell us, and these are some of the observations most stressed in the complaint:

  • Both songs are in 6/8 which is less common than some other time signatures.
  • Both songs oscillate between two chords throughout. They’re shown on the very top of the transcription, common to both works, as Am7 and Dm7.
  • Both songs have in common four notes that you can see beginning halfway through the second measure. These are identical pitches occuring at identical rhythmic placements.
  • These are the notes on which The Weeknd sings the title of the song, “Call Out My Name.” So, as notes of the song go, these are pretty important ones.

Fine, give them all that.

I’m guessing from reading the complaint that there are no lyrics to “Vibeking,” and if there are, that nothing is sung to this particular melody? Because otherwise, surely they’d so state, wouldn’t they? From the aforementioned, “quantitatively and qualitatively similar material in their respective lead guitar and vocal hooks,” we can surmise these notes from “Vibeking” must be a guitar part. Gold standard of lyrical similarity and melodic similarity appears to be unavailable. We’re talking about a guitar part. And moreover, I’m under the impression that the guitar part isn’t exactly this throughout the tune so much as, it’s something kinda like this, because there’s this footnote.

“There are occasional variations within those ten occurrences, whereby the hook is embellished with interim scale degrees on the sustained tones.”

And maybe that’s perfectly reasonable? I’ll happily concede the obvious — that this is hard to evaluate without hearing the track. But it certainly gives rise to a suspicion that we’ve cherry-picked the three bars above.

What about “access?”

You can’t copy another’s work unless you’ve heard it. And again, I can’t find a copy of “Vibeking” anywhere, which suggests that if The Weeknd had access to “Vibeking,” he would need to have gotten a demo or something. And indeed that’s the story the complaint tells — the producers of “Vibeking” know people who collaborate with The Weeknd. There’s a short version account of the story on the (excellent) Complete Music Update site. Or you can read the long version.

But then we hit the uphill climb stage.

Let’s say, for the heck of it, that The Weeknd may have heard “Vibeking” at some point, and over time forgot where he’d heard it. Or better yet, let’s say he didn’t forget, and set out to write a song with a similar vibe. The plaintiffs would still run into issues around “originality.” Copyright infringement always asks, “Did the alleged infringer hear the older song, and then is the allegedly infringed part original to the older song and protected by copyright?”

Stay with me for two minutes of musicologizing now? Here’s the beef.

Both of these songs just vibe back and forth between two chords, right? — the i chord and the iv chord; the “one” and the “four,” the tonic and the subdominant. And the complaint reads: This minimalistic harmonic variation is a distinctive compositional element of VIBEKING.” Fine, “call it distinctive.” But if, as they say, “you can’t copyright a chord progression,” which is true for the most part, you sure as heck can’t copyright one that just goes back and forth between THE most obviously available chord and the third most obviously available chord. Amen! to anyone who gets the joke.

(also I used “copyright” as a verb just now. I’m gonna hear it from any number of lawyers. “Copyright” is not a verb.)

And the “variation” of these two ‘distinctive’ chords? “Call Out My Name” inherits those two chords from the recording it samples, “Killing Time” by Nicolas Jaar, into which I’m now going to drop you at the three-minute mark:

Just trying to be extra thorough here, “Killing Time” came out in 2016. The complaint claims that while “Vibeking” was first published in 2017, it was actually created in 2015. So I suppose they could be saying “Killing Time” is a copy of “Vibeking” too? Because, well, can you get from here to there without saying that??

“Sure,” you say, “but what about those four (4) notes that are exactly the same? The ones over which The Weeknd sings the title of the song: the beginning of the chorus?”

What, these notes?

That’s “Still Got The Blues” from the late and great “Gary Moore.” He plays that four-note figure to transition between the same chords in the same 6/8 time like a gazillion times in this tune. It’s from 1990.

And even if he hadn’t, countless others have. There’s nothing distinctive about this four note melodic figure.

  • The first commonly shared note (in the lyric “Call Out My Name,”) is the root note for which the A minor chord is named, “A.”
  • The “out” and the “my” are “C” and “E,” which are the other two notes in that A minor triad chord. So thus far we have an “arpeggio,” a chord that’s played one note at a time rather than all struck together. “A, C, and E”
  • And the fourth note, “D,” is the root of that second chord, D minor.

In other words, that melody is, I’d say, comprised of the most automatically selected note, followed by the next two most automatic, followed by the most automatic note that arises when we change to the other chord.

Okay, we can quibble over what notes are actually “the most automatic,” but take the point! Copyright expressly doesn’t protect scales, chords, or arpeggios — they’re the building blocks of music, shared by all creators.

This. has. no. shot.

Wanna argue with me? Have at it. I’m on Twitter.

Written by Brian McBrearty