July 24, 2020 Musicology, Opinion No Comments

(Update: Weeknd was granted summary judgment. See note at bottom of this month old post.)

For The Weeknd, one much-publicized lawsuit went away, but another comes back around to take its place. The band, “Yeasayer” had claimed The Weeknd’s “Pray For Me” (a collaboration with Kendrick Lamar that appeared in the Black Panther soundtrack) sampled without permission their 2007 track called “Sunrise.”

Here’s that complaint. It was rather a weird claim, in my opinion. I could easily enough hear what Yeasayer was talking about. But it was quickly evident to me that the audio snippets in question, while similar, were different; that is, not of the same derivation. Anyway, that’s over. A joint filing from both sides says they’ve agreed it wasn’t an infringement.

But there’s another existing suit, filed in 2019, that should begin to make news again soon. This one, a bit stickier I’d say.

Three British songwriters – Brian Clover, Scott McCulloch, and Billy Smith are suing The Weekend, whose real name is Abel Tesfaye, because “A Lonely Night” from The Weeknd’s huge “Starboy” album sounds way too much like a 2004 track of theirs called “I Need To Love.”

And the newer complaint includes an “access” explanation that involves the three songwriters having had a publishing deal with a company called “Big Life Music” who showed their songs around for years. “Big Life” was eventually bought by Universal, which: never found an artist to “exploit” the songwriters’ songs, evidently told them so, and relinquished its claim to those songs. Not long after though, Universal put out ‘Starboy” which included “A Lonely Night,” which to the plaintiffs’ ears, sounded like one of their tracks, “I Need To Love.” This is no smoking gun, but I’ve been surprised by the stickiness of access arguments before. Access is not musicological; not directly at least. We look at the notes.

As far as I can tell “I Need To Love” was never published. Here though is a youtube video that purports to play the two tracks back to back. Since I haven’t found a copy of “I Need To Love,” in the wild, I can’t say for sure what, if anything, has been done to make them sound more alike. It is my opinion that “I Need To Love” has been manipulated here, but not in a way that is musicologically significant. In other words, it’s still apples to apples, even if they’re selling it a bit. And the similarity is plainly obvious. Listen for yourself.

As the complaint reads, “Subjectively, I believe these similarities are so clear as to be obvious even to a casual listener.” Yep, that’s fair.

Objectively, while I haven’t transcribed the respective phrases for you to view here (I have done it in my head), if I were to write it out for you, believe me, they’re going to look very nearly identical for eight bars. Also, I’m guessing these are the chorus hooks in both tracks. I’m further guessing that these nearly identical phrases appear very many times. And one last guess: no other similarities of note will emerge, though an industrious musicologist will point to less notable ones nevertheless. This is the melody we’re concerned with, I’m quite confident. The rest will be noise.

This one should be interesting. Do they sound similar? Yes. Did the plaintiff’s song come out first? Yes. Did the accused infringer have access? Plausibly, I guess, kinda? Is the material protectable by copyright? THAT’S where it gets interesting.

Again, I haven’t gotten into this on any sort of molecular level, I’m doing it in my head, but I suspect it’s one of those times where you can begin to think of lots of songs that use this same melodic and harmonic vocabulary. This is what we call “prior art.”

First to mind, consider Rota’s “Love Theme From The Godfather,” or if you like, its lyrical version, “Speak Softly Love,” (which by the way was lyric’d up by the same fellow who put the words “A Time For Us” — more Andy Williams for y’all today! — to Rota’s and Henry Mancini’s “Romeo and Juliet” theme, and thusly got a hat tip from Dire Straits in their “Romeo and Juliet.” and Lana Del Rey, always looking for trouble (I’m thinking of the recent Radiohead issue, and also, I’m kidding.) taps it a bit for Old Money. Wow, I really went off on a tangent. Back to business now…) Rhythmically “Godfather” is not like our two combatant songs, and it passes between its two harmonic tonalities at different points in its four bars, but they are the same two tonalities. And melodically, the shape is the same. The “blue chip notes,” as I like to call them — the ones that give the melody its character more than the others — are pretty much the same.

Similarly, when I distill these two melodies down to their “blue chip notes,” I find I can begin to think of lots of songs that use that melodic device when passing between these very common chords. And it’s worth noting that all of the note-for-note similarity between these two tracks, which will look so impressive when expressed by a musicologist as a percentage of identical pitches falling on identical beat subdivisions, is arguably driven or dictated by the number of syllables in the respective lyrics and the natural shape of human language that songwriters have to accommodate (good songwriters anyway). One story I just read mentioned Blondie’s “Heart Of Glass,” and that’s somewhat apt. “Heart Of Glass,” however, is in a major key, so the analysis might look pretty different on paper, and I don’t love this as a prior art example mostly because I think key is important here. But with just a bit of musicological consideration, you can draw lots of relatable parallels even beyond the nearly identical rhythms. Maybe I’ll write some of that out and post it here later.

Someone mentioned a James Bond theme as well, and that’s going to be persuasive. It’s going to be a situation where the most high-value single note of all (Would those be black or purple chips at casino tables nowadays?) in these two songs, the sixth degree of the minor scale, is a familiar element in James Bond themes, in the one I’m recalling it’s an octave lower, but no matter, really. I’m not sure what movie(s) it’s from, nor am I necessarily thinking of the same Bond theme that’s being argued. At any rate, it’s a James Bond music device, and it’s a valid point.

So I’ll look forward to seeing how this goes. And I’ll try to come back and fortify this with some written examples of my thinking. But leaving it here for now, and of course, welcome your thoughts.

**** Already I can update this a little… the James Bond theme that’s relevant is from “The World Is Not Enough.” The “someone” who mentioned it was “Complete Music Update” (great site), and indeed it’s relevant as expected.

***** And now, July 24th, I can update it further still… The defense got SUMMARY JUDGMENT. What?! This went away too easily, especially in the present environment where everything gets to take a shot. The musicology is debatable, but if, as it appears, it’s pretty much just Blondie’s Heart of Glass and Garbage’s James Bond being argued, that’s not enough to negate fourteen consecutive notes in a chorus; not as a matter of fact. Something here doesn’t gel for me.

***** And now nearly a year later, after reading the judgment here it’s not much less confounding, except in that the plaintiffs may have had some procedural problems. Musicologically though, if I’m reading this right, the defense successfully persuaded the court that “Heart of Glass” is meaningfully the same as these two works. And then they ran a “prior parts” strategy in which you ask, “If you strip away everything that’s prior art and therefore not original to your song, then do you still find substantial similarity in what remains?” Such that if you take the relevant phrases from A Lonely Night and I Need To Love, but filter from both everything that’s “Heart Of Glass” then you’re left with only a few notes to discuss. Next, you reason that the recent Stairway ruling says three notes won’t cut the mustard. That’s a valid way to argue prior art, but here’s the thing… If I take those phrases and filter away what’s “Heart Of Glass,” the allegedly infringing phrases are intact. (I never liked the Heart Of Glass argument, and I view it through my own lens in which the defense’s argument is wrong. I do get it. I did get it. It worked. But, it wasn’t true IMO.

This, I should clarify, is not to say I’ve concluded that the defense should ultimately have lost this case. I’m only saying the musicological reasoning that seems to have ended it where it ended is, to me, unsatisfying.

Written by Brian McBrearty