“What happened? I conclude that the composer, in seeking musical materials to clothe his thoughts, was working with various possibilities. As he tried this possibility and that, there came to the surface of his mind a particular combination that pleased him as being one he felt would be appealing to a prospective listener; in other words, that this combination of sounds would work. Why? Because his subconscious knew it already had worked in a song that his conscious mind did not remember. Having arrived at this pleasing combination of sounds, the recording was made, the lead sheet prepared for copyright and the song became an enormous success.” Judge Richard Owen, Bright Tunes Music v. Harrisongs Music 420 F.Supp 177 (1976)
I am in the process of preparing to teach my Music Business law class tonight and re-reading my notes on copyright infringement. Taking an ill advised break to look at Facebook, I see that British singer songwriter Sam Smith has apparently settled an infringement claim by Tom Petty and Jeff Lynne over his song “Stay With Me” and Petty’s “I Won’t Back Down”. According to an article posted on the Consequence of Sound website, Petty and Lynne now share a 25% interest in Smith’s “Stay With Me”.
Since there was no lawsuit, we have no record of what happened but my guess is that Petty and his lawyers, armed with at least one expert witness musicologist made a demand upon Smith et. al. claiming infringement of the Petty composition. It probably helped that Petty is known for not backing down. An equitable settlement was reached.
The quote above is from the trial Judge in the well known case involving Petty and Lynne’ s fellow Wilbury George Harrison, in which the plaintiff proved that Harrison subconsciously infringed upon the hit “He’s So Fine.” I don’t know if the general public is aware of the fact that subconscious infringement is a viable cause of action. As Judge Owen concluded in the Bright Tunes case, “Did Harrison deliberately use the music of “He’s So Fine”? I do not believe he did so deliberately. Nevertheless, it is clear that “My Sweet Lord” is the same song as “He’s So Fine” with different words….That is, under the law, infringement of copyright and is no less so even though subconsciously accomplished.”
The two songs are similar. The two things you need to prove in a copyright infringement case are access and substantial similarity. Clearly, Smith had access to “I Won’t Back Down”. Had the case continued the battle would have been waged over the legal elements of substantial similarity and it would have involved musicologists arguing about the similarities between the two songs and most important, whether those alleged similarities are capable of copyright protection? In other words, just because we can hear similarities between the two songs, it does not mean that they are “substantially similar” from a legal standpoint. Many litigants have learned this the hard way.
The case would have been ugly and expensive with no clear cut result. All involved should be commended for settling this dispute. On another note, this gives me the opportunity to post my favorite Petty video of my favorite Petty song:https://www.youtube.com/watch?v=nvlTJrNJ5lA