And the musical litigation continues

Hot on the heels of the court ruling that a descending minor-scale motif in Katy Perry’s song ‘Dark Horse’ infringed a descending minor-scale motif in somebody else’s, comes news of another threatened lawsuit, this time involving Lady Gaga’s song ‘Shallow’. Allegedly this ripped off a three-note progression from a song by an unknown artist whose piece had reportedly received around 300 listens to that point. The notes? The most basic major-scale progression: G, A and B. Yup. Do-ray-mi.

To me, both pieces actually sound a lot like Kansas’ ‘Dust In The Wind’, and with good reason; they’re all using the same chord progression, played on the same instrument with similar playing technique. But that doesn’t constitute infringement, and the fact that all of them are distinct and original pieces of music is also clear. So what’s going on here? Does this mean that I infringe somebody else every time I practice a scale in C or G major?

Part of my vintage Micromoog after I’d cleaned (most) of the dust off. With it I can create sounds that are unlikely to be subject to an infringement lawsuit. Unless I do R2D2.

More to the point, where has all of this come from? Irrespective of individual grievances, I think the main origin of the issue is to do with what happens when corporate profit margins are squeezed. Let me explain. These days, high-end hit songs are often a corporate product. They are written and produced by teams of experts, of whom the named artist is only one member. All of which goes in to making the song what it is.

In a way it’s a return to the 1950s studio ‘product’, although I think the roots of the current system can be traced more to the way modern music stylings evolved in symbiosis with evolving technologies. In the late 1960s, the producer George Martin was often called the ‘fifth Beatle’ because of the influence he had on the shape of their music, via the capabilities of the Abbey Road studios. Alan Parsons, a sound engineer, had due effect on Pink Floyd’s ‘Dark Side of the Moon’. Giorgio Moroder – as producer – had a lot to do with the classic late-seventies ‘disco’ sound, in part via the Moog synthesiser (Donna Summer’s ‘I Feel Love’ is classic). And a decade later, much of the characteristic ‘sound’ of Frankie Goes To Hollywood was actually generated by producers Lol Crème and Trevor Horn on the Fairlight CMI. Meanwhile, from his home in Laurel Canyon, Frank Zappa was busy writing, recording and producing all his own material. He had huge repute within the industry for his all-round capabilities.

However, all that changed. The mainstream commercial music world, from the 1990s onwards, was increasingly one in which hit songs became collaborative efforts between the artist and a creative team in the studio, and where skilled auteur-producers – such as Moroder, Parsons, Horn, Zappa and others – increasingly fell out of the limelight in favour of a team effort geared to create commercial ‘products’.

What I am getting at is that such a team effort – in effect, ‘music by focus group’ – is inevitably going to blend specialist expertise in all the areas where it is needed, producing a product of astonishing technical quality – professionally written, slick, note-perfect, impeccably recorded, with honed lyrics and all the rest. Individual artists still put their stamp on things – in effect, have a ‘brand sound’, which may well be created for them – but that doesn’t reduce the slickness of the music as product. Everybody involved in it is a professional expert who knows what they are doing.

The fact that such a commercial product is just that – product – meaning it’s often homogenous and bland – can’t be avoided. But that isn’t to reduce the skills and expertise that go into producing it. So why the lawsuits? In the world of commercial music, particularly, there are sharp constraints on what sounds ‘acceptable’ – as in, commercially viable. Those constraints feed into the parameters of the ‘focus group’ professional production approach, and so there are bound to be similarities between songs. But it cannot be intentional; the people involved are professionals at the top of the game; and they are perfectly capable of creating original content – not simply imitating something that sounds good.

There remains the issue of having an idea in your head and not quite knowing if it’s created or heard. That happens. But I’d expect that if a coincidental similarity with some prior piece was picked up, the writers would immediately amend their material to avoid risk of infringement. And that gives weight to what I find the most interesting part of the lawsuits. According to the news reports, the lawsuits so far relate to use of ordinary musical building blocks, such as standard minor or major scales. (Do-ray-mi-fah-so-la-ti-do. So sue me.)

To me that speaks volumes. When the fight over the dollar – which is what this amounts to – gets down to the level of sniping each other over the basic building blocks of the art, there has to be more involved than an attempt to call similarities between such material deliberate ‘copying’.

My suspicion is that it’s driven by the way the financial scale of the music industry as a whole has been contracting. Into that mix we have to add the fact that, as far as I can tell, much of this litigation is driven at corporate level and in that sense is a function of large-scale corporate culture where the bottom line remains returns to shareholders. It appears that many of those in it have been reduced to fighting over the remaining pieces of a dwindling pie, and the choice of battleground – down, now, to the basic building blocks of music that feature in odd verses or bars of today’s hit songs – tells us the degree to which that struggle has become desperate.

To me it’s quite a long way from the pleasure of creating music. Meanwhile, just so you know, I am but two degrees of separation from Stefani Germanotta (Lady Gaga) – a few years back I worked with someone who taught her at high school in NY. And because I’m a long-time Kansas fan, here’s their take on do-ray-mi:

Copyright © Matthew Wright 2019

6 thoughts on “And the musical litigation continues

  1. I’ve been following your take on this issue with interest, and a strange sense of ‘end of days’. I stopped listening to commercial music years ago, mostly because it started to be really, really boring. Variations on a theme rather than truly innovative. The innovation all seems to be happening in the Indie camp, and these days my favourite composers are all Indies. They get their start on Soundcloud and often make their names producing ‘trailer’ music for movies and games.
    I won’t miss commercial music at all. I won’t miss corporatism at all either, although I do worry a little about how painful the final transition becomes.

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    1. I think the commercial music direction is symptomatic of where a lot of stuff has gone – the intrusion of neo-liberal theory and ‘market’ principles into areas where they are an ill-fit. It’s happened, I suspect, more by osmosis than deliberate intent. And, as always, the real creativity in terms of innovation is, as you say, with the indies. I suspect you’re right about it being end-game territory; to me, we’re at the end of the neo-liberal cycle generally, it’s ending pretty disgracefully, and whatever follows will alter the approaches. I’m not sure where that will go, but the ability of the internet to democratise creativity – albeit at the cost of near-anonymity – suggest a direction. Yah… the indies will win…

      For myself, incidentally, I do listen to a bit of the current ‘product’ and have to admire its slickness, though the listening experience is not entirely unlike a vanilla ice-cream: plain. I’m an enthusiast for virtually every kind of music (except rap, country and, of course, western) – I’ll happily listen to everything from classical through to most of the current genres, including metal, synth-pop, prog-rock, rock, etc etc.


      1. Have to agree. The blind optimist in me hopes that we’ll get wherever we’re going as painlessly as possible. The pragmatist is worried. Even without Climate Change, we seem to be in a seriously self destructive mood. The sci-fi writers wishes she enjoyed post apocalyptic stories more. :/


  2. FYI, Alan Parsons Project is one of my all-time favorite groups.

    Yesterday I was forced to listen to some contemporary “country-western” or whatever they call it nowadays, and suddenly started listening a little more closely when I realized it was all starting to sound the same. After I listened to a few more songs, I was pretty convinced of it. And in your post today you have the perfect description: “homogeneous and bland.”

    Your take on the corporate aspect of these lawsuits is quite intriguing and, given the cost of litigation, probably correct. Perhaps the best result here would be an implosion of the present music industry, and the emergence of new talent in the “post-apocalypse” music world!

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    1. Alan Parsons Project are fantastic – inevitably, I now have ‘I Robot’ going through my head, with all its polyrhythms… Thinking about it, I now recall an intriguing side-point to the issue of corporate homogenisation in music – I am a long-time Frank Zappa fan. One of his comments was that in the 1950s and early 1960s record companies were producing increasingly bland ‘product’ that they knew would sell. But then the baby boomers entered the picture, there was a social discontinuity, and record companies didn’t know what to sell to them. Zappa always felt this made his career possible – they picked him up despite his own musical approach, which was heavily experimental. His ‘Joe’s Garage’ album (1979), among other things, warned of the way music (and all commercial products) could get ‘epoxied over’ by blandness. What I am getting at is it’s not a new thing for the industry, however it’s been intensified of late by the way commercialism has gone, by technology (‘Autotune’ – blech!) and the extremes into which western ideology is falling. This last also predicted by Zappa, oddly enough.

      I’ll put some more thought into this – just writing this, I get a suspicion that a lot of the approach – commoditisation of large-scale produced products, focused to sell, and some of the analytical techniques that go with that, and so on – probably originated with the commercialisation of the car industry in the First World War period, a ‘social’ outcome of the Second Industrial Revolution. I know planned obsolescence did. I’ll look into it.


  3. Very interesting – it is also the breakdown of the ‘star’ economy, but too much to say really. I love good contemporary music of all sorts but I still listen to too much Zappa or Bowie – both dead. Where the genius now?


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