June 19, 2022 Musicology 4 Comments

It’s that “Standing Outside The Fire” by Garth Brooks sounds a ton like “Conviction Of The Heart” by Kenny Loggins. And this conflict came to a supposedly “amicable” settlement many years ago. But Loggins put out a memoir recently and brought up the whole thing again and it sounds a bit less amicable.

Settlements don’t always include an admission of wrongdoing. In fact, sometimes the fact of a settlement itself can remain a secret. But, when Garth came out, reportedly, and said something like, “sometimes you gotta pay to get someone off your back,” or words to that effect, that’s more than “not admitting guilt” that’s implying your innocence, I think. Was he wrongly accused?

These are a couple of 1990’s tracks that you might not have heard in a while, so here’s your refresher.

Of course, sounding alike doesn’t mean one song needs to have been copied. Similarities come in different types and with varying degrees of probative gravity. Rarely does anyone admit copying. So usually, I look for sufficient evidence to infer copying regardless of a denial. Infringement requires copying, even if it’s unintentional copying, or “cryptomnesia,” which is kinda like when you’ve forgotten that a memory is a memory and you think you’re writing something original. This might have been how George Harrison wrote “My Sweet Lord” so similarly to “He’s So Fine” and gave us a great song as well as one of the most famous infringement cases of all time.

Or two composers might simply have written very similar songs. The language of music, especially popular music, is relatively scarce. Pleasing chord progressions and short melodies are in limited supply. There’s a reason for this “Axis of Awesome” video, which teaches us that we can play a zillion familiar hit songs with just four chords, in one particular order, no less, played repeatedly.

So, for example, if two songs share that chord progression, that similarity has only modest probative gravity.

This, though, is not that.

Let’s look at the notes and ask, do the notes lead us to conclude “Conviction Of The Heart” was copied, if perhaps unintentionally, to create “Standing Outside The Fire?” Evidently, it’s still sticking in their respective craws, so it’s worth getting into.

It’s going to be a little bit like the My Sweet Lord/He’s So Fine case in that it wasn’t just a few notes that those three words were sung to. It was Harrison’s series of compositional elections.

Consider that probability is math to begin with. It becomes many things with some thought, but it starts as math. And the math begins fairly intuitive for us, but progressively becomes less so. For example: we all know that a coin flip is a fifty-fifty example, everyone gets it. If you and your friend both flip a coin, you each have a fifty-fifty chance of tails. But the likelihood of you BOTH flipping tails is only one in four. And the likelihood of your doing it a second time drops to one in sixteen. And a third time, one in sixty-four. (Yes, we’re multiplying by four each time.) 256, 1024, 2048, etc. It gets less intuitive as it goes.

The likelihood that you and your friend write the same melody is much more complex with the very first note. Since we can transpose, and since melody is more about “relative pitch” than “absolute pitch,” the likelihood of that first note being the same as your friend’s is, let’s say, 100%. The next note is arguably a 1 out of 25 choice. (I’m offering 12 up and 12 down from where you started.) And the next coincidentally identical choice after that, is around 500-1 if my math is matching. “Do, A Deer, A Female Deer” is seven notes, and seven identical note choices puts us around 30 million possibilities.

High school algebra students learn to calculate the likelihood of any number in the chain up to infinity.

Oh, but that doesn’t even account for rhythm. We assumed only pitch choices. Wanna see just how “not intuitive” this can get? Here’s a website by a musician and maths wiz that explored the whole thing.

Prospective clients who believe they’ve been stolen from often propose such math. “Do you know, Brian, what the chances are that her seven notes would be the same as mine? It’s in the zillions!” But no, it isn’t. Because while one might for a second note, and a third, and so on, select any of the twelve notes available, there are far fewer practical choices available. So just as the math gets ridiculously BIG if you indulge every possibility, it gets much smaller, just as unintuitively perhaps, when you discount the impracticality of the “less available” notes. I don’t want to listen to a melody composed by a randomizing algorithm.

Let’s return to Loggins and Brooks. And let’s assume Brooks has no memory of having heard “Conviction Of The Heart.” The tempos are about the same. Instrumentation is about the same. But it’s melody, harmony, and rhythms we’re chiefly concerned with.

Listen to the beginning of both verses. That first melody is what made Loggins’s ears perk up. (Or actually, I guess it was his co-writer, Guy Thomas.)

Ignore for now how Brooks begins “We Call Them Cool.” Move onto “those hearts that have no scars to show,” and hear that it’s the same melody as Loggins’s “Where are the dreams that we once had?” These are eight-note melodies. Same pitches, same rhythmic placements, the melodies are the same. And they stay mostly the same through the next couple of restatements. The next few lines of the verses have a similar shape. But what caught the ear next were the elections in harmony. The first few measures of both had been the I chord and the IV chord, going back and forth. So both the melody and the harmony were very very similar. But then the next election was to go to a vi chord, albeit in slightly different ways. And then they both go to the ii chord, on their way to V chords and circling back to the beginning of the verse material. I’m sure I”m losing you, so let’s move onto how to think about this. Is there anything really novel about these chords? No. But at this point, we are through two 8-bar phrases of Standing Outside The Fire, and the songs have been roughly the same melody and harmony over a pretty long stretch of time. The similar compositional choices are piling up. Then quickly comes another. In measure seventeen, “Standing” behaves similarly to “Conviction” by going from the vi chord to the V/^3 on its way to IV and V. Loggins’s expression is more drawn out, and the chords aren’t really the same. But the device is similar in both — stepping through chords with a bassline that’s going stepwise up or down a scale — and then it leads ultimately to the same sort of place, the pinnacle where everyone at the Garth Brooks concert sings along, “Just to STAND OUTSIDE THE FIRE,” which is more bombastic but a lot the same as Loggins’s “To talk with conviction of THE HEART.” And the band kicks in similarly in both.

Is it the same? Sometimes. Other times just in the ballpark. Is it a lot alike over a long period of time? Yeah, it is, but some of those similarities wade into the “ideas” area more than the “expression” area, and we’re mostly concerned with the latter. So what’s the probability analysis? It would be involved, and might never lead to a “conviction of the heart.” Innocent until proven guilty? That’s a thing, right? Sometimes you don’t have enough hard evidence to reach conviction of the heart.

The story goes, as I understand it, that Brooks was approached by Loggins and said something like, “Yeah, I totally stole your song.” But then didn’t like being sued over it, and after settling, Brooks expressed his resentment. And that makes perfect sense to me, because there’s a scenario I think where although Loggins isn’t wrong about the many similarities, Brooks’s melodic and harmonic choices were, I’m gonna use that word again, very “available” songwriting options. And those chords with the upward stepwise bass parts, which might’ve seemed to Loggins or Thomas as the last straw? Not the same notes, more the same “idea.” I wasn’t there, but I’ll bet Brooks meant “I stole that song,” very light-heartedly and probably congenially. And then it became, “Wait, you’re seriously going to sue me?” And the attitude shifted.

And then much later when Brooks had to decide whether to chance a jury trial, he evidently wrote the check.

Like I said, they sound a lot alike.

Written by Brian McBrearty