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