Mariah Carey is being sued by a musician named Andy Stone because he claims “All I Want For Christmas Is You” is an infringement. Stone wrote a song by the same name not long before. Musicologize has already characterized this case as “silly,” and the main reason was simply that apart from the title, there are no interesting similarities between the two works. And the complaint filed by Stone, who performs as Vince Vance, contained no real arguments otherwise. Titles, guess what, are generally not protectable by copyright. Evidently though, there’s an amended complaint from the plaintiff that describes “how” Carey’s “All I Want For Christmas Is you” is similar to Vince Vance’s “All I Want For Xmas Is You.”
Let’s look. Maybe I was too hasty? (I wasn’t.)
The New More Specific Claims
(Interpreting and paraphrasing from the new complaint. These aren’t direct quotes.)
50% of Vance’s lyrics were copied or modified.
I think this is the core of their belief, and I do think they’re sincere. If indeed the lyrics were half alike, that would be a ton. But lumping together “copied” and “modified” is vague and begging. “Copying,” the first pillar of infringement, is proven when the material is so similar that after considering, say, the number or duration of the similarities, the novelty of the similarity, and such, it becomes clear that the similarity is not the result of independent creation or coincidence but of copying. “Modified” is not remotely the same. “Modified” here seems to assume that the best explanation for there being almost no lyrical similarities between the two works is that Carey and her co-writer intentionally wrote different but equivalent lyrics. It’s plausible of course. But the question should be, is it reasonable? And next up they illustrate, I think, why it’s not reasonable.
They tell the same story of not wanting “material things or seasonal comforts.”
This is very much the crux. And it’s not a particularly musicological one. It’s the question of “where’s the similarity and where’s the protectable material in it?”
The problem is that “All I Want For Christmas” is an “idea,” whether the only think wanted is “you,” or “my two front teeth,” or “peace on earth,” or a zillion other things that are not a bunch of presents wrapped and placed “underneath the Christmas tree.” This dichotomy will continue to be expressed, contrasting certain “material things or seasonal comforts.” with the “one thing you want,” in poems and songs forever.
Here the only time it’s expressed in the same way is in the lyric and title, “All I Want For Xmas Is You.” And this sounds to me like what the Ninth Circuit addressed in the “Merger Doctrine,” which says (I’ll paraphrase this as well, for better or worse) if the expression and the idea are inseparable because there are only so many ways to express the idea, then the expression isn’t protectable either.”
There’s a finite list of things we associate with Christmas, right? Snow, lights, cold, trees, presents, feasts, family, friends, stars in the east and so forth? All fair game if you want to write a holiday track that makes 60 million like Mariah. Can poets go on contrasting the want of all those things with just wanting our loved one? Or is that idea the plaintiff’s to keep?
Doesn’t seem at all an interesting question to me.
But none of that is very musicological. Let’s see what’s coming at us from that angle…
The hook has the same contour, the last three notes are identical, and the accompaniment is the same.
No, yes, and yeah, but so what? The hook to which they refer is the “All I Want For Christmas Is You” but of those eight syllables, only the last three are the same in pitch or even contour. The first five are about as dissimilar in both contour and pitch as they could be. As for the accompanying chords, yes, at “All I Want For Christmas,” the phrase that concludes the choruses of both works, the accompaniment is pretty much the same three chords in both works. But it’s also true that this is about as common a three-chord “concluding” progression as there is. And it’s also true that chords aren’t very protectable.
The melodic phrasing is comparable.
So what? It’s reasonably true that there are similarities in the contours here and there, in some of the lines in the verses for example. But the bar for similarity in melody is not remotely this. These melodies are dissimilar. There are no chains of identical notes.
Carey’s song shares the chord progression of Vance’s, including the ii-V-I beneath “All I Want For Christmas” and other similar chords and chord substitutions.
No, there are also no chains of similar chords.
Both contain “vi” and “minor-subdominant ‘if’ chords with an added sixth.”
I assume an ‘if’ chord is a chord you play under the one utterance of “if” in your lyric?
They want to make something of the fact that both songs employ this chord because it’s a “borrowed” chord and not as common as some others, but it’s not at all novel or rare, and it’s not an interesting observation. Neither is the idea that they “share a harmonic language.” Language is shared. That’s its job.
“Several aspects of rhythm and meter are substantially similar”
They don’t tell us which several they’re talking about. They only mention the eighth notes in the piano. This is the Fats Domino Blueberry Hill type of figure — high piano notes that tap out the rhythm. The Don Henley Christmas tune, Please Come Home For Christmas does this. Tons of songs do. This too, not an interesting observation.
None of these similarities are interesting and they don’t add to the discussion. The question remains, is “All I Want For Christmas Is You,” as a lyric and a title protectable? And the answer is, “No, that would be silly.”