Music Copyright in the Age of Forgetting

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From The Ringer:

Oh“Oh my god.” These were the words of Nick Thorburn, the main creative force of the band Islands (and composer of the original Serial theme), when someone on Twitter kindly informed him in June that he had covered someone else’s song without realizing it—and released it. “Carpenter,” the third track on this year’s Islands album, Islomania, was not, in fact, written by him at all. It was essentially a cover of the 2014 Julie Byrne track “Prism Song,” which, ironically enough, starts with a musical quote, of sorts, referencing a Tim Hardin line that has seeped deep into the Western world’s musical consciousness: “If I were a carpenter …”

Thorburn explained in a statement to Stereogum that he had heard “Prism Song” years ago, likely on a streaming playlist, and decided to record a quick version of it on his phone. Then, when digging through his recordings, looking for inspiration in making an album, he found the recording, forgot its origin, and misattributed it to be from his own mind. “‘Oops’ does not suffice,” Thorburn wrote. “As is now blindingly evident, my memory has some pretty severe limits.” He took full responsibility, apologized to Byrne, and noted that she would be receiving 100 percent of the publishing rights for the song. (For her part, Byrne didn’t publicly comment; both Thorburn and Byrne declined interview requests for this article.)

This is a particularly wild story, but the nature of it is not unheard of—albeit usually in more subtle, complicated forms. The day Islomania came out this past June, Lorde admitted in an interview with Zane Lowe that the “blueprint” of her new single “Solar Power” was “Loaded,” a 1990 song from the genre-hopping Scottish band Primal Scream, which she said she had never heard before writing her song. (The implication here is that Lorde believes she and cowriter Jack Antonoff made something undeniably indebted to “Loaded,” but purely by happenstance.) At some point after “Solar Power” was made, but before it was released, someone in Lorde’s camp brought this issue up, and she addressed it head-on: “I reached out to Bobby [Gillespie, bandleader of Primal Scream], and he was so lovely about it,” Lorde told Lowe. “He was like, ‘You know, these things happen. You caught a vibe that we caught years ago.’ And he gave us his blessing.”

. . . .

Yet there was still a reason that people around Lorde brought up the issue in the first place. Historically, claims of copyright infringement—the legal issue that covers plagiarism of protected works—in music have tended to occur in situations where the melodic overlap is pretty sizable. But a 2015 ruling shook up the industry’s understanding of what constitutes a legitimate case, when Robin Thicke’s no. 1 hit, “Blurred Lines,” was found to have infringed upon Marvin Gaye’s classic “Got to Give It Up” despite the lack of a traditionally compelling musicological argument that the two songs were egregiously similar. (Nevertheless, there can be no doubt that “Blurred Lines” was inspired on a production level by “Got to Give It Up,” something cowriter Pharrell Williams plainly admitted.) This was a controversial decision, upheld on appeal in 2018, which many felt established a troubling legal precedent: that a song could be guilty of plagiarizing another song’s “feel.” It created a culture of fear, with songwriters and executives unsure of what is allowed in the act of writing and recording a song.

“People are more concerned than they were before,” says Joe Bennett, a professor at the Berklee College of Music and a forensic musicologist—someone who is hired to offer an expert opinion, either privately or in court, about similarities between two pieces of music. “I get a lot of calls from clients [lately] who want me to do a bit of preemptive work to just check that something isn’t too close to an earlier work, often inadvertently.”

We’re now squarely within a new era of music copyright litigation, signaled by a steep wave of fresh cases and settlements arriving on top of what was already a steadily rising tide. But while plagiarism has never been a larger industry issue than it is today, it also has never been more poorly defined. And given the way songwriters often borrow ideas without realizing that they’re borrowing—a documented artistic tendency that is likely increasing in frequency in our chaotic online world—this latest squall of disputes may be just the beginning of an even larger storm.

At least in the case of “Solar Power,” though, even if Primal Scream theoretically wanted to pursue litigation, the group probably would have a tough—if not impossible—road to legal victory. That’s not because the songs aren’t distinctly kindred; the outro/chorus of “Solar Power” and the main progression of “Loaded,” adjusted for key, can essentially be played over each other. But simple, repeating chord patterns (a.k.a. chord loops) like this one are, according to Bennett, not copyright protectable. “There are a bunch of chord loops that exist in the world,” Bennett explains, “and they’re standard building blocks that songwriters use.”

There are other details that might raise the eyebrows of those comparing the songs, such as the similar instrumentation in both—and the fact that the cover of Screamadelica, the album with “Loaded” on it, features an illustration of a sun, when Lorde has referred to Solar Power as being a “sun-worship album.” (OK, that one’s a stretch.) But in terms of “Loaded” being able to win against “Solar Power” in a hypothetical court of law, Bennett thinks it would be “far away from” a lock.

Part of the issue is also that it’s not clear how much of any aspect of “Loaded,” a melodically simple song with clear lineage to a variety of previous songs and genres, is undisputedly copyright protected in the first place: “Most of it is not,” says Charles Cronin, a lawyer and professor who founded the Music Copyright Infringement Resource, a comprehensive database of music copyright litigation maintained by George Washington University. “[‘Loaded’ is similar to ‘Solar Power’] rhythmically, yeah, and it has similar sounds. But musically, no, in part because I would argue that there’s so little original musical expression in either of them.”

Adding credence to this belief is the fact that “Solar Power” also has been noted for its comparability to another early-’90s hit: George Michael’s “Freedom! ’90.” (And that’s not even to mention the Lorde-acknowledged debt that “Solar Power” has to Robbie Williams’s 2000 song “Rock DJ,” which features a reference to A Tribe Called Quest’s “Can I Kick It?” that is prominently echoed in Lorde’s song.) Perhaps Lorde directly addressed the connection to “Loaded” simply because it came before George Michael’s hit—“Freedom! ’90” was released a mere eight months later, in October 1990—but the overlaps here also cannot be denied.

Broadly speaking, it’s the same chord loop and the same sunny, celebratory textures featured in “Loaded,” “Freedom! ’90,” and “Solar Power.” But at the center of all this is the fact that the progression and the “feel” in these songs is firmly rooted within the gospel tradition, and doesn’t belong to any of them. As Rembert Browne noted in Vulture in 2016, when explaining why he had such fondness for “Freedom! ’90” as a child: “It sounded like church.”

The week after “Solar Power” came out, George Michael’s estate issued a statement: “We are aware that many people are making a connection between [‘Freedom! ’90’ and ‘Solar Power’], which George would have been flattered to hear, so on behalf of one great artist to a fellow artist, we wish her every success with the single.”

Link to the rest at The Ringer