Testifying Out Loud

“There’s only so many notes and very few chords used in pop music. Coincidence is bound to happen.” So said ED SHEERAN a year ago this month, after beating a plagiarism case against his song “SHAPE OF YOU,” whose similarities to a little-known song by the British artist SAMI SWITCH were very plausibly coincidental and almost certainly not worth the money it cost either party to argue the case in court. And yet here we go again. Sheeran is back in court, this time in New York, defending his “THINKING OUT LOUD” against a claim from the family of the late ED TOWNSEND, who co-wrote MARVIN GAYE’s classic sex jam “LET’S GET IT ON,” whose similarities to Sheeran’s song are very plausibly *not* coincidental.

Which is also OK if you’re asking me, as opposed to, say, asking a lawyer.

Pop is a wonderful and mysterious jumble of melodic, rhythmic, sonic and lyrical noncoincidences, the result of everyone working with the same 12 notes, the same basic rules of harmony, the same plug-ins and the same overlapping circles of cultural history and memory. In writing a song over a four-chord pattern that countless songwriters in countless genres in countless cultures have used, it wouldn’t be unusual if Sheeran had subconsciously drawn on bits of a melody from one of the previous ones he’d heard dozens of times—possibly one that’s much, much better than his—nor would it be strange if he also found himself subconsciously drawn to the rhythmic feel of one of the tunes floating in our collective air and/or lodged in his particular head. That’s one of the ways songwriting works. Familiarity breeds content. If the songwriter figures out precisely where the melody (or some other borrowed element) came from and/or if it seems corny or on-the-nose, it might get quickly tossed or rewritten. But if it sounds great? Those are keepers. Call it influence, call it homage, call it collective consciousness, call it folk, call it pop, call it whatever you want. If it sounds familiar and new at the same time, our songwriter might be on to something.

We listeners get the benefit, too. We get the new songs and we still get to listen to the old ones, while appreciating the similarities as well as the differences. If the similarities are so obvious, so egregious and so clearly purposeful that you don’t need a judge or jury to decide, those are the cases, if you ask me, that warrant a court date. If the lines are a little, um, blurrier—if it’s going to take a few years of legal discovery and a few weeks of expert testimony to make your case—maybe that isn’t plagiarism, per se. Maybe that’s just pop. And so maybe let’s not get it on in court.

This has been me, not a lawyer, thinking out loud. In kind of sort of related news, here are actual lawyers talking about the ex-girlfriend whose voice BAD BUNNY has sampled on two songs (she’s suing for $40 million) and the (copy)rights of AI songwriters/producers.

Etc Etc Etc

LIZZO drags Tennessee... ADELE takes JAMES CORDEN and CARPOOL KARAOKE on a final spin... The British government proclaims royal skeptics the PROCLAIMERS unfit for KING CHARLES’ coronation playlist... “I like the idea of open sourcing all art and and killing copyright,” says GRIMES, who invites you to use her voice in your AI generated song for a 50/50 split (even though killing all copyright presumably means that split would be entirely up to you).

Rest in Peace

MARK STEWART, who fronted the skittery, funky, dubby, way-ahead-of-its-time post-punk band the Pop Group in the late 1970s and continued kicking down rock’s (and reggae’s and disco’s and jazz’s) invisible doors and walls for decades afterward with the New Age Steppers and Mark Stewart & the Maffia. “You know when bands walk on to stage and make a show of tuning their guitars and adjusting their drum stools and rearranging their crotches and stuff?,” wrote Nick Cave, one of Stewart’s many disciples. “Well, The Pop Group would have none of that. The Pop Group strode onto stage and ploughed into the opening song with such indomitable force and such sudden visceral rage that I could barely breathe. It was the most exciting and ferocious concert of my young life—everything changed at that moment”... ISAAC “IKE” WILEY, drummer for ‘70s and ’80 funk group the Dazz Band... Country songwriter and session musician KEITH GATTIS.