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WHERE THERE'S A HIT, THERE'S (ANOTHER) WRIT

Should people who know nothing about music be deciding copyright infringement cases worth millions of dollars?

In a story that surfaced 8/8 but was likely percolating for several months, the latest song facing a copyright-infringement lawsuit threat is Lady Gaga and Bradley Cooper's hit "Shallow," from the 2018 film A Star Is Born. The claim against "Shallow," written by Gaga, Mark Ronson, Anthony Rossomondo and Andrew Wyatt, comes from Steve Ronsen, a relatively unknown Nashville songwriter who claims his 2012 song "Almost" shares a three-note ascending melody.

Three-chord ascensions are commonplace in pop; see Kansas' 1977 hit "Dust in the Wind," among countless other examples. So: Is it infringement? Typically both sides in such cases bring in musicologists to bolster their claims. But the ultimate decision is made by a jury of supposed peers.

Lady Gaga is being represented by attorney Orin Snyder, who described the suit to ET as "shameful and wrong," not to mention "opportunistic."

Ronsen’s attorney, Mark D. Shirian, told Page Six he'd provided Gaga's team with "an official report from a renowned and respected musicologist and professor who determined that there are significant tempo, melodic, rhythmic and harmonic similarities between the two ‘hooks’ of the songs at issue," and had not received a response.

On 7/29, Katy Perry and co-writers of her hit "Dark Horse" lost their infringement trial to Christian rapper Marcus Gray, aka Flame, though an appeal may be forthcoming. And in 2018 Robin Thicke and Pharrell Williams lost their "Blurred Lines" appeal trial to the estate of Marvin Gaye. Some have argued though that neither case technically qualified as infringement, and that instead it was the inexperience of the jury in each case that led to those verdicts. 

"If these songs are worthy of a lawsuit then any song is vulnerable.”—Scott Cutler, Pulse

Because our legal knowledge roughly matches that of a kitchen sponge, we reached out to several esteemed music attorneys and publishers for their thoughts on the matter. 

Howard King at King, Holmes, Paterno & Soriano, who represented Thicke and Williams in the "Blurred Lines" case, had this to say: “Music Infringement claims should never get to a jury if there are no substantial similarities in notes, lyrics, chords or melody. Unfortunately, if the judges fail to act as gatekeepers and the case proceeds to trial, the artists are at the mercy of jurors with little or no knowledge of music, who often make their decisions based upon which musicologist they liked best. The recent music cases demonstrate the lack of predictability of juries.”  

"Copyright infringement claims regarding music will increase over the next years," predicted Jeffrey Light at Myman, Greenspan, Fox, Rosenberg, Mobasser, Younger & Light. "Plaintiffs have been emboldened by the Robin Thicke 'Blurred Lines' and Katy Perry 'Dark Horse' cases. There is little to no downside to plaintiffs in bringing these cases since they typically use contingency lawyers; they don’t have to spend a nickel to go to court. As defense costs increase, legitimate artists, publishers and labels will be pushed into settlements that will inhibit the creative process and bring the influence of musicologists and lawyers into the recording studio, which is the last place on earth they should be."

"We seem to have hit a point in copyright claims that could be likened to ambulance chasing."—Richard Stumpf, Atlas

“We seem to have hit a point in copyright claims that could be likened to ambulance chasing," agreed Richard Stumpf, CEO at Atlas Music Publishing. "It will only serve to stifle creativity. Nobody should have an exclusive license over what most musicologists would consider building blocks of music. The result will be a very fearful creative and music business community. I also don’t think these cases should be heard by traditional jurors, but rather by a jury of experts (i.e. musicologists)."

Meanwhile, Scott Cutler, CEO at Pulse Music Group put matters even more directly: “'Dark Horse' is not infringing and neither is 'Shallow.' There need to be more sophisticated folks on the jury when trying to get to the bottom of a music infringement case. If these songs are worthy of a lawsuit then any song is vulnerable.”

The appeal trial against Led Zeppelin's "Stairway to Heaven" is presently pending outcome. That descending chord progression has been said by musicologist Lawrence Ferrara to have its roots in a common 17th Century Baroque music riff by composer Giovanni Battista Granata entitled "Sonata di Chitarra," which is public domain (wait for the :30 mark for the Tolkien to kick in). If that's accurate, then perhaps both Led Zep and claimant Randy Wolfe from Spirit may have been influenced by it, no harm no foul.

In other news, we keep hearing imaginary voices in our head that bear similarity to "Pop Goes the Weasel," but we're not planning to sue anyone.

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