Who Wrote The Songs? (Lawsuits)[updates]

Lately, there have been lawsuits over…Who wrote the songs?

Did Randy California of the band Spirit write “Stairway To Heaven”?

Did Robin Thicke and Pharrell Williams rip off Marvin Gaye’s “Got To Give It Up” with their song “Blurred Lines”?

Does the organist for Procol Harum deserve credit for writing “A Whiter Shade Of Pale”, because he came up with the organ introduction and solo?

All of these would be easily answered if the decision was based solely on the melody and lyrics of the song itself, not on a chord progression or instrumental accompaniment.

For instance, most people know the Temptations’ song “My Girl” (written by Smokey Robinson).  When we hear the record, we recognize what song it is by the opening bass part of just three notes repeating.  The first note is longer and higher than the next two…kind of like:  dumm dum-dum, dumm dum-dum,  dumm dum-dum, dumm dum-dum.  Then the guitar comes in dahh dah dah dah dah dah, dahh dah dah dah dah dah.  Finally the vocalist…”I’ve got sunshine on a cloudy day.”

The point is this.  Those bass and guitar parts were developed by the amazing session players at Motown.  They were paid to be excellent, and to add to the recordings, and they were great.  But…they are part of the arrangement of the song.  They didn’t write the song.  Sure we know what the song is going to be by hearing those first bass and guitar parts, but we’re recognizing the recording, not the song.

The song could be (and has been) sung  a cappella by the Temptations.  That melody and those words can stand alone, without the bass and guitar, and it’s the same song.  Therefore, no, the session players did not write the song, anymore than the organist wrote “A Whiter Shade Of Pale”.  The recordings of “My Girl” and “A Whiter Shade Of Pale” would not have been the same (and probably not as good) without those arrangements, but the songs remain the same.

With “Stairway To Heaven”, the disputed part is the famous long guitar introduction.  Yes, it sounds very similar to the introduction to Spirit’s “Taurus” (the song itself sounds nothing like “Stairway”), but as great as the intro is, that’s all it is.  The song starts with the melody and the words “There’s a lady who’s sure…”, and it was written by Jimmy Page and Robert Plant.  The lawsuit was settled in their favor, but you never know about future appeals.

Update 10/5/2020:  The Supreme Court declined to hear an appeal, so Led Zeppelin retains the sole rights to “Stairway To Heaven”.

The “Blurred Lines” case is even scarier, because it seems the jury decided to make the award over “Blurred Lines” having a similar sound and vibe to the Marvin Gaye song.  We could have lawsuits all day long over songs that gave off similar “vibes” to other songs.  Hopefully the judgement in favor of Marvin Gaye’s estate will be overturned.

Update 3/21/18:  A three judge panel upheld the ruling against “Blurred Lines” on a 2 to 1 vote.  The dissenting judge said the two songs aren’t similar in melody, harmony, or rhythm, and that the decision is too broadly allowing the copyright of a style of music.  (Later a settlement agreement was reached for $5-million.)

The organist for “A Whiter Shade Of Pale”, Mathew Fisher,  won his suit to be credited as one of the writers.  He’ll receive a portion of future royalties for the 1967 song.  To be fair, his organ part is brilliant and set the mood of the recording.  George Martin’s string arrangement for Eleanor Rigby is also brilliant and set the mood.  George Martin didn’t write Eleanor Rigby either.

Can you imagine how many keyboardists, guitarists, or other instrumentalists could claim their solos or intros mean they deserve a writing credit?  There has not been a rash of other band members suing their songwriters…yet.

If such lawsuits become more common, it might be best if the decisions were made by panels of people with musical backgrounds, or specialized judges, instead of easily swayed juries or judges without expertise in such matters.  Otherwise, decisions could be made on the “vibe” or “Yeah, that sounds similar.”

Update:  Now the owners of Marvin Gaye’s song rights are attempting to get money from Ed Sheeran.  They say his “Thinking Out Loud” infringes on Gaye’s “Let’s Get It On”.  Sheeran says the songs are not similar, and is hoping to get the case dismissed.  In 2022, Ed Sheeran won a court case over his song “Shape Of You”.  He expressed exasperation over songwriters having to face so many baseless lawsuits.  He says there are only 12 notes and a limited number of chords, so there are bound to be some similarities among the millions of songs.  He now video records all of his songwriting sessions, to have clear evidence for any future disputes.

Update:  In 2019, Katy Perry had a copyright decision go against her for over 2-million dollars.  The decision was surprising, because the case seemed weak.  Katy Perry won an appeal in 2020.  The judge said the lawsuit had no merit.  An appeals court in 2022 also found in favor of Katy Perry.  The suit was over Perry’s song “Dark Horse”.

Update:  Maybe some people will be less likely to bring a frivolous suit thanks to a 2022 decision.  Ed Sheeran won a case, and the judge ordered the artists who sued him to pay over a million dollars for Sheeran’s legal fees, which only seems fair.

Update:  Some feedback I received suggested that even though session musicians didn’t actually write the songs, they should be compensated fairly if they played a significant part in creating a recording.  Hopefully, most of the musicians have been appropriately paid, but there is no system set up to guarantee they would be paid more than “scale”.  Non-songwriting members of successful groups should earn very good money through live performances and sales.

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