untung99.art: Good 4 who How music copyright has gone too far

We are trying something a little different on this episode of Decoder — we’re doing a little crossover with one of my favorite podcasts, Switched on Pop, a show about how popular music is made. I asked my friend Charlie Harding, one of the co-hosts, to come on Decoder and walk me through a particularly big change to the business of pop music that’s come about in the streaming era.

Specifically, I wanted to understand why so many people keep coming for Olivia Rodrigo, an 18-year-old singer songwriter whose debut album Sour is one of the biggest hits of the year. Olivia, like any good, interesting young artist, has talked a lot about her influences as she’s promoted the album. But then something strange started happening: a lot of people started talking about similarities between Sour and work from other, older artists. Courtney Love got mad about the cover art. People have said she ripped off Elvis Costello, although Elvis Costello disagreed. A lot of people made comparisons to the band Paramore. 

And then, Olivia started handing out writing credits. In July, she gave Taylor Swift a writing credit on a track called “deja vu,” and just recently Paramore got a credit on “good 4 u.”

I wanted to have Charlie on Decoder to talk about all this for two reasons. First, because there’s a direct relationship between how artists and songwriters make money in the streaming era and this wave of pushing for credits on songs. And second, because you can actually trace all of this back to a single lawsuit from the Marvin Gaye estate over similarities between the song “Blurred Lines” by Robin Thicke, TI, and Pharrell Williams and “Got To Give It Up” by Marvin Gaye.

What has always fascinated me about copyright law is that in the end, it’s just a bunch of made up rules about what bits of culture you can and cannot own.

Charlie and I listened to a bunch of songs that were the subject of legal action, and talked through it. There’s a little bit of everything in this one, including a surprise Michael Bolton controversy. We’ve collected all of the songs we discussed in playlists on Spotify and Apple Music, and you’ll find them embedded in the transcript below.

It’s hard to wrap your head around. But Charlie’s going to help. Here we go.

This transcript has been lightly edited for clarity.

Charlie Harding, you are a musician. You’re also the host of Vulture’s music podcast, Switched on Pop. Welcome to Decoder.

So happy to be chatting with you, Nilay. This is going to be a really fascinating conversation.

Charlie and I know each other — we’ve seen each other at events over the years — and I feel like we’ve been building up to a conversation like this. But the thing that kicked it off for me is that Olivia Rodrigo released an album called Sour. It is very good.

And I encourage everybody to go listen to it.

The album and the subsequent singles from the album have been followed by a wave of authorship controversies. People have claimed Olivia Rodrigo ripped off various artists and she’s been adding writing credits to some of her songs. Most famously, she just added a writer credit for the band Paramore on one of the songs after some online controversy.

It occurred to me that this is a pattern that has been building in the music industry. There are also specific court cases and decisions that have come down that end up affecting Olivia Rodrigo. And I think it’s important to talk about the shape of the music industry and how the business of music has changed from physical distribution to streaming, how artists make money now.

This is a really good moment in time, with this album, Sour, to talk about where we are, what’s happened, and kind of how we got here. So I’m excited to talk to you about that.

Before we get into any of that conversation, I think we need to share some definitions. So help me explain to the audience a few words. When artists make a song, there’s ways they can use material from other songs.

The simplest one I think we’re all kind of familiar with is called sampling. Tell people what sampling is.

Sampling is when you directly take a piece of the recorded material and you recontextualize it in a new song. It is the basis on which much of hip hop is built, and all contemporary music at this point. There’s a subset of sampling, which is called interpolation, where you might not actually take the recording of the thing, but you might use pieces of it and rerecord it yourself. A really great case of interpolation would be MIA’s “Paper Planes.” It uses a sample from The Clash, but it’s not actually a sample, it’s a rerecorded interpolation. 

Just to be clear, they brought musicians into a studio and said “Play this Clash song.”

Exactly. But it’s the same thing, it sounds more or less the same. So that’s an interpolation. Interpolation is important because I think it gets to two other essential definitions, which are around publishing rights and master rights. When you record a song there are actually two different copyrights. There is the copyright for the recording itself, that’s often called the master. Then you have the copyright for the song composition, often called the publishing. So in the case of MIA, they had to pay for the publishing rights, because that’s the composition of the Clash song, but they didn’t have to pay for the master recording because they didn’t actually use the recording. Each one has a different license and a different payment scheme.

So just to put this in context of another music industry controversy, Taylor Swift famously does not own the masters to a number of her songs, but she owns the publishing.

That’s right. She owns her publishing and she might share it with other songwriters who participated in songwriting sessions on individual songs. And she also may share a portion with a publisher, which is a company that basically says, “Hey we’re going to give you advances and help you out in exchange for a portion of your publishing.” But, yes, generally songwriters own their publishing and artists are always wanting to own more and more of their masters, which are primarily owned by music labels.

Listen along to the songs Nilay and Charlie discussed in this episode on Spotify or Apple Music:

So when Taylor Swift is mad at her old label for not releasing the masters and she’s rerecording all of her songs, she’s allowed to do that because she wrote the songs, she owns enough of the publishing to just go off and do that, but she can’t, obviously, rerelease her old recordings.

That’s right. In a lot of cases the new recordings sound better.  Most people won’t be able to tell the difference. I think her hope is that people start streaming and using the rerecorded version so she starts collecting royalties off of those master recordings.

All of this circles around a very difficult concept, but one I’m hoping we can kind of unpack here, which is there are multiple copyrights on the songs and there are multiple ways to make money from a song. Depending on which of the two copyrights you own, your chances to make money change pretty dramatically.

That’s right. You can sort of boil it down to three main revenue sources. There are many, but the main three are: streaming, which is the main revenue source at this point, it has exceeded all other music revenues. In streaming, the vast majority of the royalty is for the master recording, so you want to own the actual recording itself. The next meaningful chunk of recording revenues is in performance royalties. Performance royalties equate to publishing. The biggest portion of that would probably be for radio. Technically, when a song is played on the radio, then it’s a performance of that piece and the songwriters who own the publishing collect revenues from that. There’s also a very small part of the music industry called synchronization rights, which is where you put music to video. That is a split between both the master and the publishing. But, in general, if you look at overall music revenues, the master right is where the biggest chunk of the money is.

This is really interesting because I think most people don’t make any distinction between hearing a song on commercial FM radio and streaming it from Spotify or Pandora. But those rate structures are totally different.

Famously, in the United States, recording artists don’t get paid when their songs are played on the radio. The songwriters get paid.

If you, as the recording artist, also have a songwriting credit, then you get paid, yes. But just the master right doesn’t get paid out, meaning the labels don’t get paid, it’s only the actual performance, the publishing, the songwriters.

That is flipped in streaming?

Yeah. In streaming it works totally different, more than 80 percent of the royalty payouts go to the master recording, whereas the publishing royalties are usually hovering around 12 to 13 percent.

Fundamentally, it’s fascinating to me that the technology that distributes the music is what determines the rate structure. And that’s all just made up.

Entirely. These are business structures and they have huge consequences for how music is made, who is getting paid, even how songs are structured and how they sound.

So that’s all the set-up. I just wanted to start there. I realize it was a little in the weeds, but this idea that how you get the music, whether it’s FM radio waves, or packets on the internet coming over Spotify, or in the background of a commercial on television, all of that determines who gets paid and when and how much they might get paid. That’s a big idea that’s going to carry through our entire conversation. That said, let’s talk about Olivia Rodrigo.

There’s a lot of controversy around this album. I think it helps explain a lot of things. What’s going on there?

Well, Olivia Rodrigo made a great album full of extremely catchy songs with really great narratives. They’re fun songs. There are a lot of different genres that appeal to people from different generations. There’s a critical consensus this is a really good album and it has sold and streamed exceptionally well. As it has done better and better, as the album has rolled out more singles and those songs have succeeded at radio and streaming, people on the internet start to notice some similarities with her influences. Connections to Taylor Swift songs, connections to Paramore songs, connections to songs by Elvis Costello. They’re more sort of hints — I would call it mostly influence. The chatter on the internet then turns into actually handing over songwriting credit to a number of these artists. 

Yeah, I have a list here. When the album was released, Taylor Swift and Jack Antonoff had a credit on the song “1 Step Forward and 3 Steps Back.” I think Taylor Swift and Olivia Rodrigo — they like each other.

Oh yeah, they’re friendly.

Then in July, Taylor Swift and her co-writers were added to the songwriting credits of a song called “Deja Vu.” That’s after release. Hayley Williams and Josh Farro from Paramore were added to “Good 4 U” after release. This is probably because of the internet activity.

We covered this story weeks ago, maybe months ago at this point, when it was just people on TikTok saying “Hey, these songs kind of match up, this is clearly theft,” which is an interesting point of conversation. Then that public campaign turns into actually, supposedly they were in touch beforehand. You never know really. We can only speculate as to if they were really in touch with each other’s publishers beforehand. But yeah, Paramore after the fact gets a credit, and it’s turned into a much larger discourse on intellectual theft and, I think, important conversations of sexism and who gets accused of theft. You have a very divided internet right now over whether or not Olivia Rodrigo is making original creative works or she’s simply taking from preexisting material.

Dancing among the wreckage of Western civilization. I will point out that someone did go and ask Elvis Costello if his song “Pump It Up” had been ripped off. He was like, “What are you talking about? This is how rock and roll works.” Much to his credit, he was like, “I’m not getting involved in this.” 

Let’s listen to some of these tracks and try to pull them apart. Before we do that, obviously courts and juries and music executives don’t listen to songs the way we do. They’re not just like “That’s a cool song.” How should we listen to these songs?

So when a court listens to a song currently, they apply a two-part test to determine whether or not something is borrowing, if you will. First, there’s an extrinsic test which basically says, let’s get an expert musicologist to look at the objective elements of songwriting to figure out whether or not the thing we’re listening to is truly an original construction. Then, if it’s determined that the two pieces at hand share things that are objectively similar, then it would also go to an intrinsic test. An intrinsic test is basically the subjective, “Do these things sound alike to you, jury?” If those tests are met, usually a decision is made.

So I think we should do the same. We should look at things objectively and say, is the thing that we’re listening to objectively an original musical creation? Also, just the gut check; does this feel alike?

All right, let’s start. This is “Deja Vu” by Olivia Rodrigo.

Okay, and here is “Cruel Summer” by Taylor Swift.

Okay. I was somebody who played music once upon a time, if you asked me, “Are those the same song?” I would just say “no.”

It has similarities, they obviously sort of reference each other, but they’re not the same song.

No. The material in particular that we’re listening to is that moment of yelling, where there’s a high level of angst, both artists are sort of yelling, in declarative, mostly quarter-note statements on the root note of the key. It’s a very common musical expression. I think it would be very hard to say that that even meets the intrinsic test. Neither of these things are particularly wholly original outside of the lyric. The actual musical component of yelling in that kind of way feels like yeah, anybody can do that.

Yeah, okay, let’s listen to another example. Here’s “Good 4 U” by Olivia Rodrigo.

And here is “Misery Business” by Paramore.

All right, I have the same reaction to that.

Interesting, yeah, tell me.

That is the sort of stuff when, I don’t know, kids learn to DJ, they might fade one of those things into the other because it’s a cool little mashup, it’s a cool little transition, but the guitar tones aren’t the same. Nothing about that to me says these are the same song except they have a referential quality to each other.

Yeah. That’s exactly what happened. People went on TikTok, they started doing mashups. “Look how well these songs go together.” There’s particularly good reasons why. They’re almost in the same key. They use the exact same chord progression. They’re both roughly about issues of heartbreak and misery of teenage relationships, if you will. They have a common melodic contour, the melody’s doing a roughly mi, re, do, descent slowly over a melodic phrase with a lot of syncopation. There’s common musical elements, but they of course are distinct lyrics. They are not quite in the same genre, as you pointed out, the guitar tones are pretty different and they obviously have different melodies. They’re similar-ish, they work well together, but they’re fundamentally different.

“Good 4 U” uses a notably undistorted guitar tone for a song that most people think of as being pretty punk rock. Like, they’re very different to me. I’m wondering, “Why the push to get a songwriting credit?” What does Paramore get out of a songwriting credit on “Good 4 U?”

This has a lot to do with what you were saying at the beginning of the episode, which is major shifts in the music industry. A song like “Misery Business,” by Paramore, is no longer getting CD sales. Streaming doesn’t necessarily pay that well, especially if you don’t own your masters. And so any legacy song benefits from getting a songwriting credit on a song which is doing extremely well at US radio. There’s a lot of money in getting a credit.

An interpolation credit means a song copied an idea from another song, as opposed to a piece of the song itself

Here they were given an interpolation credit, which is to say they didn’t copy anything from the song, they copied the idea of the song, and this credit was handed over voluntarily in a non-court decision. This was negotiated between two different parties, but it’s entirely a financial decision. This song is doing well. We had a song like it, let’s see if we can get a piece of the song. We see this over and over and over again.

When you say interpolation credit, is that a different payment structure than a standard writing credit? Is it a lower percentage? How does that work?

All credits are going to be negotiated privately unless decided by a court. Typically, an interpolation credit is a lesser songwriting credit than an actual songwriting credit. People don’t distinguish these very well. I think it’s important to culturally understand, regardless of how we feel, whether an interpolation credit was deserved. An interpolation credit for me does not feel like a co-writer of the song, and oftentime is the way that people write bad headlines around this. They’ll say, “Paramore co-wrote ‘Good 4 U.’” And you’re like, no, if anything, at best it was inspired by, and because of the success of the song, they were required to give some credit to the inspiration because they feared going to court. And so the people who wrote “Misery Business” deserve a nod, if you will.

It feels much more like a nod to me than like, you are equal co-writers, even if the deal negotiated requires a 50 percent cut. But I think it’s really important to distinguish the legal structure and the payment structure from the actual cultural perspective on how we view interpolation. “Good 4 U” is its own song, there’s no doubt about that.

What’s really interesting to me is, you brought up CD sales. The music business used to be about physical media and distribution. You would record a song onto tape and that tape would get shipped to a facility where it’d be transferred onto a wax disk that would then get transferred onto vinyl records. And then the vinyl records will be trucked all over the country and sold to people. That obviously moved to cassettes, to CDs, but at the end of the day, what you were selling was physical products, and the song and the physical product were inextricably tied together.

So if you had a song like “Good 4 U” come out, and people were like, “That sounds like that Paramore song,” what Paramore might see is an uptick in sales of their record, and that might be worth it, and they might just be happy about that. 

Now you’re like, “Hey, there’s a song called ‘Good 4 U,’ it sounds like ‘Misery Business.’” Fundamentally, what they’re seeing is an uptick in streaming, and streaming does not pay nearly as well as CD sales or record sales or what have you. It’s not worth it to them. But because the song is a hit on the radio, they’re like, we want an interpolation writing credit to get a chunk of the radio money because that’s the money that’s available to us.

Yeah, that’s about right. We have seen a shift where the music industry has gone from being a physical goods business to an intellectual property business. When a song starts to succeed, we see all kinds of public lawsuits and private settlements to make sure that in order to recoup on your intellectual property, which is currently earning probably negligible revenue in streaming and other places, but when there’s an opportunity for a big thing that has hit at radio or might have a big sync license in a film, yeah, you’re going to go and see if you can get a piece of it. If you look at the public record of songs which are currently under litigation, they’re only songs which are succeeding overwhelmingly. It’s very clear that the motivation here is, “Let’s get a piece of something which is a giant treasure chest.” It’s not about fairness and, “Hey, this is my song.” Those cases aren’t happening, not publicly anyway.

Specifically the treasure chest is US radio publishing royalties.

Definitely. It’s still a very large industry. Many billions of dollars.

That’s just wild to me that everyone knows, more like “knows,” is that Spotify and the other streaming services don’t pay artists as much as they like. I don’t think anyone thinks about songwriting royalties from US FM radio airplay as being the pot of gold that everyone is chasing instead.

There’s a ton of money there. To put it in context, I spoke with the songwriter Emily Warren, who has written songs for Dua Lipa and The Chainsmokers. What she told me is that basically, if you’re a songwriter and you get one or two major songs at US radio, Top 40 radio, you’re pretty set to retire.

Well, I got to get to work.

Yeah, let’s start a band. You have a guitar.

They’re all in the closet. I haven’t touched them in years. We could do it.

You brought up that these additional songwriting credits are all private settlements. They’re not necessarily all going to court. There’s not a lot of value in going to court, you end up in a big, messy fight. But some of these cases have gone to court and they have created the opportunity for more of this to happen. The one that comes to mind, I think the moment in time that we can pinpoint, is the “Blurred Lines” case.

Explain what the “Blurred Lines” case and controversy is.

Right. The “Blurred Lines” case is where Pharrell Williams and Robin Thicke put out their morally questionable song, “Blurred Lines.”

Infamous song, “Blurred Lines.”

Yeah. Thank you. In 2015, there are a set of public lawsuits with the Marvin Gaye estate over his song “Got to Give It Up.” This case changed everything because if you try to apply the extrinsic test, “Are these things objectively the same? Are they substantively the same? Do they have objectively unique creative material?” The answer is, “Eh!” They might share a vibe, a groove, but they don’t share the same chords. They don’t share the same melody. They share elements that are not protectable under copyright, like some percussion sounds and a feel. Yet the jury sides with the Marvin Gaye estate and sets up this challenging precedent about whether or not other songs that are copying someone else’s style might be set for a lawsuit in the future.

All right. Well, let’s listen. Here’s “Blurred Lines” by Robin Thicke, TI, and Pharrell Williams.

Do you know that every single Pharrell Williams hit, more or less, starts with four quarter notes at the very beginning of the beat? It’s his signature.

I did not know that, that’s amazing.

I know that they all have vocal percussion though. That’s what I always catch. Ok, here is “Got To Give It Up” by Marvin Gaye.

All right. I’m going to flip this on you. What do you hear when you listen to those two songs?

I hear songs which are obviously in conversation with each other. I hear some pretty clear inspiration from “Blurred Lines” to “Got To Give It Up.” You have cowbell rhythms, an electric keyboard jumping on the offbeat. You have a similar kind of groove. The reason why a lot of people are really wanting to avoid going to court is that an uneducated jury might say, “Hey, those sound the same to me.” But as a musician, I would say, “Yeah, those are two similar grooves, and other people have made other similar grooves.” Courts have more or less in the past upheld that you can’t copyright drum production, you can’t copyright chords. You can’t copyright instrumentation and choices of those things. And so this has gotten people really all riled up between those who think that well, yeah, those things sound alike. But in reality I don’t think that this passes the “these things are objectively unique and protectable under copyright law.”

What’s interesting to me compared to the other songs is, I hear that and I am that lay listener. I’m like, oh, I get it. Robin Thicke looked at Pharrell and said, “I want to make a Marvin Gaye song,” and then made something that sounds very close to Marvin Gaye.

I don’t know where the line is, but they definitely tried, in a way that I do not think Olivia Rodrigo looked at her producers and said, “I want to make a Paramore song.”

I think it’s worth coming back at some point to the Paramore-Olivia Rodrigo case, because there are actually more similarities between those songs than there are to the Gaye and Thicke case. Because if you look at the Marvin Gaye melody and hook, it’s really not the same as “Blurred Lines.” Yes, they share some interesting drum production, but to me it might suggest that, I don’t mean to offend, but, like, Nilay, maybe your listening isn’t super dedicated in this genre. And so if you don’t know the genre well, you might think they sound alike. We could probably go and find plenty of other grooves which are in the same feel. Whether or not you could, there’s a question of whether or not the groove, the style, is something that we should be able to copyright? Go back to the doo-wop era. Doo-wop bands might sound very similar to other people.

Actually, I take that pretty directly. I think this relates to, yeah, there’s courts and lawyers and copyright experts. There’s also the internet and the pressure of millions of people casually listening to things and then saying, “Oh, they should get a credit. Oh, you stole it. This is theft.” In a way that maybe isn’t related to the more technical listening.

That’s right. The argument that the Marvin Gaye estate made was basically that these songs sound alike. “Sound alike” meaning that they borrow a common constellation of elements, the harmony, the rhythm, the keyboard, the percussion, all that stuff, not that they copy verbatim lyrics or whole strings of long melodies.

Importantly, the Marvin Gaye estate wins this case. They win it at trial, it’s appealed, they win again.

Pharrell and Robin Thicke have to pay Marvin Gaye’s family. This leads to an explosion. This is a sea change in the music business. This wasn’t how it was before. You couldn’t copyright a vibe, now it appears you can.

Importantly — the ex-copyright attorney in me feels compelled to say this — fair use decisions are supposed to be case by case. You’re supposed to wipe the slate clean and start over every time. That is just not how it works in practice. Now there’s this precedent that you can copyright a vibe in a song, or a “constellation” of vibes. This leads to an explosion of these cases.

It’s an important distinction. Most of the case is decided on procedural issues. There was no determination about why the Marvin Gaye song was objectively a piece of original, protectable material. And so the concern is that you can copyright a vibe, but the court didn’t actually say how or when or under what circumstances. It left things big, open, and into this gray area. But yeah, the following couple of years, copyright cases explode because people see an opportunity.

You’ve got an explosion of lawsuits after “Blurred Lines,” and the industry is in a place where maybe you can copyright the vibe of the song, the court hasn’t really said, but the opportunity is clearly there to get paid. And now Olivia Rodrigo is handing out credits for interpolation because she’s worried you can copyright very tiny building blocks of chord progressions and screaming your lyrics on quarter notes. There’s not a lot of song left for you to make.

What can you do that’s original at this point?

That is the overarching concern I think of every musician who is paying attention to these cases, that a lot of these decisions are being made over fundamental building blocks. So can a melody which is just mi, re, do, or a chord progression that uses the four most common chords in pop music, as the Olivia Rodrigo and Paramore songs both do — can we start to say that these are original creations? That’s the great concern, because we know that copyright is set up to protect the development of the arts and sciences.

The question for me, when you say “incentivize development of the arts and sciences,” to me that means if you make something, you should get to own it and sell it however you can sell it, and make money from it.

Right. That creates an incentive to make more things. That all makes sense to me. But now we’re narrowing the definition of what you can own. So if you can own the building blocks, it is very hard to come up with new building blocks.

That’s exactly what the “Blurred Lines” case does, is that it suggests that maybe a vibe or the building blocks can be copyrightable material, but that starts to change or be questioned in the following years.

All right. So after “Blurred Lines,” there’s a string of cases. People who think, “Oh, we can chase songs that have similar vibes to my songs. We can try to get money from other hit songs.” There are two cases in the following year that importantly stepped back the “Blurred Lines” consequences.

One is with Katy Perry, and one is with Led Zeppelin. The Led Zeppelin case was filed first, but it only got resolved in 2020. Katy Perry’s a little simpler, so we’ll start there. It’s Katy Perry versus a Christian rock band called Flame — which is a great name for a band, honestly, I’ll just give it to them. But here’s “Dark Horse” by Katy Perry.

And here is “Joyful Noise” by Flame.

Katy Perry is somewhat famously Christian — I don’t know what her relationship to her faith is anymore, but there was a time when she held herself out as being Christian — and now her song gets linked to this Christian rock band. That song, “Joyful Noise,” had 300 plays on SoundCloud when the suit was filed. Afterwards, it went up to a quarter million. So the attention worked for them. 

I get how you can say they sound the same, but does it matter that Katy Perry probably had never heard that song before?

Yes. Courts do consider whether or not someone has had access to the prior work, or whether or not these were independent co-creations of the same idea. That is a factor, actually less and less now, in how courts decide cases. But it is a piece of it. The bigger issue here is, do they share an original piece of musical material, which is objectively creative and protectable?

“If we start copyrighting the building blocks, can we keep developing new material?”

And in this case you might say, “Well, subjectively, they sound alike.” But the objective decision in the case is that the core little synth melody that sounds alike is not a unique enough creative expression to be protected by copyright law. And I think this is a very wise decision. Because you basically have a mi-re-do sort of melody descending over a very common rhythm. And plenty of great analysis has been done about this; I especially point to the YouTuber Adam Neely who shows that Bach has used this exact same melody. Countless people have used melodies just like it. And the idea of writing songs over a simple common little riff like this, called an ostinato, has precedent going all the way back to the Renaissance where composers would intentionally take other people’s bass lines and write new original material over them.

So basically, the court says these eight notes don’t get protection. And the way in which they’re used is not substantially similar. These are not the same songs. Katy Perry initially loses, but wins in appeal.

So on the one hand you’ve got “Blurred Lines,” saying, “You don’t use any of the same notes or chord progressions, but the vibe is enough.”

A little bit later, you’ve got a court saying that Katy Perry, even though it is the same notes in the same progression in this well-known style, that’s not enough. You’re free and clear.

Yeah. And especially because they were used differently. The riff is used all the way through the “Joyful Noise” song, but Katy Perry only uses it in the verse. So it’s not the core part of the song, the chorus is. This suggests that both because of the usage and the actual amount of material used, and the kind of material, these are not the same song. And so it sets up this case where we have to think about, can a simple eight-note musical phrase be something open to copyright?

So then here’s the other case that walks back “Blurred Lines.” Here is “Stairway to Heaven” by Led Zeppelin.

We’re getting kicked out of Guitar Center right now.

Okay. So that was “Stairway to Heaven” by Led Zeppelin. Maybe one of the most famous rock songs of all time. It came out in 1971. In 2014, a band called Spirit sued Led Zeppelin. This is “Taurus” by Spirit.

A lot of spooky guitar tones in the ’70s.

So that riff has a similarity, but it ends very differently.

Yeah. What’s your gut check on this one?

There’s only so many ways to make guitar tinkles.

Yeah. And that’s exactly what is basically decided here, that these two descending four-note chromatic lines over an A minor chord are the same. But the melody on top, not the same. And the piece that might make you think, “Hey, they sound alike,” is again, not protectable by copyright because it’s so fundamental. This goes back to the question of building blocks. And just for the sake of it, when I think about playing guitar, A minor is one of those first chords that a guitarist learns. There’s only so many ways around that style.

And I think this is a case for musicians where they’re like, “Thank goodness.” Because that idea of going down those four notes is so common that nobody should be able to own that.

So here’s the back-and-forth. The “Blurred Lines” case happens and we get an explosion of litigation and attempts to settle for credits. One of those is Led Zeppelin; they won in 2016. There was an appeal. The Led Zeppelin case only came to a close in 2020, which is an extraordinarily long time to discuss some very basic guitar progressions, and they won again. As we mentioned with “Dark Horse,” Katy Perry won.

At the same time, Olivia Rodrigo had a hit, and the internet decided that Paramore needed a credit, and she handed off the credit. It seems like she could have taken this to court and won. Right?

This is an interesting case because I think the main concern here is about whether or not people want to deal with what can happen in court. Court is expensive. Court can destroy someone’s public perception — better to get in front of things and just give a small percentage of credit up front. Say, “Hey, I was inspired by this thing,” and just deal with it that way, rather than all the potential blowback, including setting up new precedent that could hurt artists in future cases.

And so when you ask, “Would she win this one in court?,” I don’t know. Not just because a jury is likely to be musically uneducated and say, “Hey, these things sound alike. Sure. Let’s award it to Paramore.” But because there is one other very important case that brings all of this into question — it brings us to Michael Bolton.

Yeah, the dramatic ballad singer from the ’90s, Michael Bolton. The song is “Love Is A Wonderful Thing.”

Let’s play the two songs. Here is “Love is a Wonderful Thing” by Michael Bolton.

All right. Okay. And who did Michael Bolton fight with?

The Isley Brothers. They had a song called “Love is a Wonderful Thing” from many decades prior.

All right. Here’s “Love is a Wonderful Thing” by the Isley Brothers.

I can see that. What happened there?

What happens here is that you have a case of what we call “thin copyright.” So it’s not a concept in the copyright code, but it’s something that judges talk about a lot. The idea that all of the elements of a song that you’re trying to claim may individually be not protectable by copyright — a 12-bar blues progression; an idea like that love is a wonderful thing, a pretty common statement; how they are structurally placed —  but the confluence of all of those elements together ends up creating a unique copyrightable, protectable work and it’s given a thin copyright. 

And the thin copyright test says that if someone was to borrow from the Isley Brothers, like Michael Bolton supposedly does, that they would need to be substantively similar. They would have to use many of those same elements. If someone were to just use “Love is a Wonderful Thing” as a title, that’s fine, other people can use it. But if you also are using a 12-bar blues progression, and if you also fade your song out in the same way, then all of those things together may lead the court to say, “Michael Bolton, you might not have even meant to, but you have infringed on the thin copyright of the Isley Brothers.”

So you might be thinking, what does this have to do with Olivia Rodrigo?

If we go back to the case of “Good 4 U” and Paramore’s “Misery Business,” there are more similarities. They share more or less the same song structure. They’re both about issues of heartbreak. They have similar melodic contours. They’re in somewhat similar-ish, or adjacent, genres. The chord progressions change in a really similar way. The verse chord progression is the same in both songs. The chorus chord progression is the same in both songs. The choruses both start on the same melodic note. They both use a lot of rhythmic syncopation.

So if you were to argue this in court, you’d probably say, “Well, all of these things combined, the structuring of all of these disparate elements, which are probably themselves not protectable, together, the curation of them is protectable.” And under that world of copyright, a jury could very well say, “Yeah. Well, this was infringed.” And you might have to hand over all of the song rather than just give an interpolation credit.

I think that is the fear. It’s the fear of Michael Bolton. I apologize. It’s the fear of the case that Michael Bolton versus the Isley Brothers sets up. This idea of thin copyright, and the idea that you might be copyrighting the curation of all of these different elements together.

I think there’s also just litigation risk. You might lose.

Litigation risk, always. You might lose. But as I said, the worst thing is you might lose, and you might get a new precedent that might fundamentally alter the music business. So if you’re a publisher, and you own pieces of these songs, you might not want to expose yourself to not just this risk, but all of the future risks that this case might create.

So this is playing out now in the music industry in a variety of ways. Let’s start with Taylor Swift again. When the Reputation album came out, her first single was called, “Look What You Made Me Do.” Proactively, she was like, “I sampled ‘I’m Too Sexy’ by Right Said Fred. I want you to explain it, but let’s listen to it first. Here’s “Look What You Made Me Do” by Taylor Swift.

And here’s, “I’m Too Sexy,” by Right Said Fred.

First of all, what’s actually very funny about this is Drake’s new album is out now.

It actually samples this directly, yeah.

He directly samples “I’m Too Sexy.”

Which is an unsample-able song, even for Drake. I don’t think it worked for him.

As for Taylor Swift, to me, it feels like they ended up on this riff for “Look What You Made Me Do,” and then they realized that it was very close to “I’m Too Sexy.” So they called Right Said Fred, before the single was even released, and said, “Do you want to make some money and be relevant again?” 

Right Said Fred was like, “Hell yeah.”

Right? That’s not a sample. Going back to building blocks, that’s a pretty basic little building block of a riff there.

Yeah. Generally, I think so. I think rhythms are hard to copyright. It’s why something like the Migos flow can’t get copyright protection. Every drummer does that same thing. And I’m sure other people have used that exact rhythm. So we are getting into situations of building blocks. However, one of the things that is always going to be looked at is, “How is that piece of material used?”

And the fact that it’s the main hook in both songs is going to definitely raise the hackles of any music publisher and make them say, “We really want to get ahead of this one, because, again, we don’t know how a jury is going to decide this. Let’s just hand over a credit immediately. Let’s get ahead of the press cycle and make sure that Right Said Fred puts out a press release about how excited they are to participate with Taylor Swift.” I would be too if I was going to get a meaningful portion of this song. They handled this one expertly to just avoid any potential conflict.

Another similar case was between SZA and Doja Cat, and Olivia Newton-John. So here’s “Kiss Me More” by SZA and Doja Cat.

All right. And here is “Let’s Get Physical” by Olivia Newton-John.

She’s got a credit. They gave Olivia Newton-John the credit on “Kiss Me More.”

They gave her the credit.

That seems way over the line, to me. 

They gave her the interpolation credit. Yeah. We’re talking about five notes here, right? I did not at all hear it until I played them back to back. And I was like, “Oh yeah, that’s kind of the same melody. I get it.” And I think it was just determined that they should get ahead of it because it occurs in the exact same rhythmic placement going exactly into the same place of both choruses, and could be argued as sort of the main hook or most memorable moment.

Now, does that make people equal songwriters? No. Do I think that you should probably be able to interpolate these things because they’re basic building blocks and pretty hard to distinguish? I mean, it’s getting pretty gnarly, a pretty gray area here. But because it could be confused, I’m sure that there was a decision, “Let’s make sure that credit is given.” Or, maybe “We got a phone call.” I’m entirely speculating about how it happened. I don’t know how it happened, it hasn’t been reported. But yeah, Olivia Newton-John has a credit on this song for something which is, some courts might argue, de minimis. It’s such a small usage of a thing, which is not actually protectable under copyright. It’s just something you don’t want to have to litigate. So that’s probably why they’re making this decision.

And you don’t want to be in a fight with Olivia Newton-John.

Who wants to fight Olivia Newton-John? Hell no.

She’s very fit, or so I’m told by the song. Is this a case where there’s only a handful of publishers and record labels, and they’re just managing the cash flow through their businesses in a way that reduces their risk?

I wish that I had deeper reporting to answer that very specific question, but yeah, there are three major labels. The three major labels are also the three biggest music publishers, so I’m sure they’re constantly getting on phone calls with each other. But it’s important to note also, Nilay, that these publishers are also often intentionally interpolating old hits to try to create new ones. So you could look at a song like Anne-Marie’s “2002.”

This is a song we’ve talked about on our show a bunch, but if you go to the chorus, it’s literally, “Oops, I got 99 problems, singing bye, bye, bye. Hold up if you want to go and take a ride with me. Better hit me, baby, one more time.” It’s like, boom, boom, boom, ‘90s reference, ‘90s reference, ‘90s reference, or I guess 2002s reference, if you will. And this is clearly a situation where you’re like, “Let’s interpolate on that lyrical idea in order to use that former intellectual property to get people excited, nostalgic, etc.” 

Ok, here’s Anne-Marie, “2002.”

2002 was not a good personal year for me, so all of that just makes me feel bad, but I’m sure a lot of people get really excited when they hear all those references.

I mean, look, nostalgia sells. So you’re saying the song is constructed to, what? To pay out to those artists, to pay out to publishing, to spur sales of those songs?

I don’t know exactly how this song was constructed, but Rolling Stone has actually just recently reported that publishers are putting together songwriting camps where they’re saying, “Hey, bunch of songwriters, here’s some songs we own. Go create interpolations off of those and see if we can create new hits.” So that is definitely an active strategy that publishers are taking right now. I don’t know exactly how the Anne-Marie song was written.

So here’s the situation in the music industry where having a hit song is very complicated. You don’t know who might come at you for writing credits. You don’t know who might come at you for a vibe. You might not even really know how you’re going to make money, right?

You don’t know if streaming is going to pay you out. You’re hoping you can get a radio hit. What is the state of play for artists and songwriters right now? How are they even approaching this? Because it seems remarkably unstable.

What I hear from my reporting is that songwriters are more nervous than ever, and songwriters and artists are speaking a lot less candidly about who their influences are because of a fear of a Olivia Rodrigo-type situation. Talk about your influences, you’re going to have to pay them. And I think that we are seeing songwriters deeply anxious about whether or not they are unintentionally borrowing and are going to lose the potential fortunes that they could make off of US radio hits.

What does this mean for creativity? I think that any time that we are starting to litigate the building blocks of an art form, we start to inhibit the way in which people express themselves. To me, that goes directly counter to the purpose of setting up copyright protection — which is there to incentivize the creation of new modes of expression, not to tamp down free speech.

When you look at where the industry is, it’s obviously deeply consolidated. It’s heavily reliant on a handful of streaming services, which are themselves giant tech companies. Is there any meaningful back and forth that’s happening around this conversation? Or is it, “This is how it is. We’re just going to wait for the next lawsuit to restructure some of this”?

I can’t speak to the discourse back and forth between tech and music, but what I can say is that we are seeing the financialization of the music industry. In its consolidation, there has been a lot of new capital moving around. People are realizing that these digital assets might have a long life, because every single time someone does a dance on TikTok to a song, you might capture a stream. So you see publishers selling their publishing catalogs to huge private equity firms, where investors are getting basically derivatives of ownership of parts of songs. You and I can literally go to a website right now called Royalty Exchange and start to purchase tiny portions of publishers’ catalogs and participate in the streaming payouts of those songs and other publishing rights.

“Musical creativity is dealing with the most difficult forces of finance and capitalism.”

If I had to summarize, musical creativity is dealing with the most difficult forces of finance and capitalism. And they’re kind of at a standstill. We’re in a moment, still deciding where to look for future court cases that are going to decide, “What can you artistically express without having to pay somebody?” That’s what I’m looking out for.

Do you know if blockchain will fix it? I have to ask, we’re at the end of a tech show. Can the blockchain fix this?

Can the blockchain fix this? It can fix all known problems, Nilay.

I had to throw it out there. To be clear, I do not think it can fix this. I think what you own and how you can make money from it is just always going to be up for debate. Especially now that songs are fundamentally just digital goods. And what we’re really talking about here is a very synthetic situation. These are just people deciding what the boundaries of ownership and music are over and over and over again. And nothing — no technology — can solve that problem.

No. Because we’re talking about contractual obligations set up by humans deciding who’s getting paid out. And so often the music industry acts like it’s a zero sum game, where the best way to innovate is to get more of your rights and get as much of the pie as you possibly can, out of fear that you could end up in a situation like 1999 again, where Napster destroys the entire music industry and all revenues disappear. 

And so, if humans are acting like that and they’re creating contracts that are constantly trying to weasel songwriters out of payments, then you’re going to have weird situations where people are getting sued left and right to try to claim intellectual property placements in places where money is flowing. It’s incredibly distorted, and I don’t think technology is going to fix this problem.

All right. You just did an episode that’s related to this on Switched on Pop. Tell people about that, and then we’ll let you get out of here.

I did a piece recently on “The worst kept secret in pop music,” which is that artists who don’t participate in songwriting are often asking or requiring that songwriters give over their publishing credit. It’s a really fun conversation with one of today’s biggest songwriters, Emily Warren. And you’ll learn all about how this is actually changing the structure and the sound of music in addition to the business structures.

All right. Well, Charlie, this has been an amazing conversation, a long time coming. We’ll have to have you back soon. Thank you so much for being on Decoder.

Thank you so much, Nilay. This has been really so much fun.

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