American Madness

Intelligent Criticism in the Service of a Better Nation

What is due to two men who,
when whistling on either sides of the earth,
the same tune unearth?

Posted by Josh Friedlander | 9 Comments

First, the plaintiff needs to show that the defendant had access to the pirated material. And second, the defendant had to have improperly appropriated the material. Even without proof of “access,” however, a plaintiff may prevail if the similarities between songs are “so striking as to preclude the possibility that the plaintiff and the defendant independently arrived at the same result.”
- “Sue Me, Sue You: Musical Plagiarism in Court” by Carl Horowitz

Is it fair for Coldplay to keep all the revenue from Viva La Vida despite employing a melodic line that is nearly identical to one used by Joe Satriani in an earlier and less popular song?

Guitarist Joe Satriani is seeking “any and all profits” from Viva La Vida, which he says rips off If I Could Fly, an instrumental song he released in 2004. Since the songs’ melodic lines are so clearly the same, this raises many questions for me about how one might systematically deal with similar creative output. Who gets the credit and who gets the profit?

Malcolm Gladwell’s latest book, Outliers, discusses how seemingly random outcomes are often less a product of individual brilliance than of shared circumstances and similar environments. Liebnitz and Newton discovering calculus nearly simultaneously is a common example, but Gladwell funds some awesome updates (how come an unusual number of great defense attorneys are Jewish children of garment industry workers?).

This has become a much bigger problem from a fairness standpoint now that the combined wisdom of mankind has become almost instantly accessible online. The most visible result of information aggregation is homogenization. A very fashion-conscious acquaintance of mine notes that transplants to New York no longer arrive with their own styles, but have already seen and copied the prevailing styles of the city. Television and music videos began this homogenization, but the Internet increased its velocity.

And that power to conform operates in reverse. If an idea seems to have an antecedent, one can more quickly hunt its origin online. Is it so hard to believe that publishers will soon be able to analyze all writing/songs/art to determine significant similarities with ones where they have an economic interest? Perhaps this is fair play, and deliberate plagiarism is odious, but how much of creation fails to overlap and what do we lose when insisting upon too high a level of separateness?

How much is Joe owed?
I hope we can agree that in the absence of decisive proof of a malicious motive, even if plagiarism were established, it’s hard to conclude that Satriani deserves all, or even most, of Coldplay’s profits. To my mind, he might deserve some of the profits, but how does one determine a percentage?

Start from the possibility that Coldplay is innocent of deliberate copying. Does that mean Joe deserves nothing? Even if it could be proved that Coldplay could not possibly have ever heard Satriani’s melodic line, as a society I think we want to guard against plausible circumstantial excuses for actions that nonetheless result in harm.

We wouldn’t want to run the risk that someone came along from out of nowhere to make gads of money off someone’s small and not widely distributed work of genius, even if the thief could prove he’d never known of his infringement. But it is equally unfair to deprive someone of the full material benefit of what might honestly be an independent work of art subsequently revealed as a copy.

Does Satriani deserve something between zero and full compensation for someone else having had his idea? Does Coldplay deserve to have their pockets picked if they inadvertently copied? What if they never had heard his song? It is certainly in keeping, melodically, with their other work, at least to my ear. If one could prove malice on their part, the case becomes simple to reconcile, but I doubt any such malice. Certainly, given their success there would have been no reason for Coldplay to not reach a financial arrangement with Satriani before their song’s release.

Absent malice, do we expect our courts to weigh in on skillfulness or relative interpretive value of a musical idea: basslines and vocals and tonality? And then, an interesting problem: Suppose one could prove Coldplay wrote their song without ever having heard Satriani’s. Does that mean they might both owe each other money from the profits on their separate songs? Do we reward an idea only when it is conceived first? Does it then become a matter of finding a first draft or do we determine ownership based on a release date? Or is an idea deserving of compensation independent of its date of origin or of its various creators, which would result in the absurd scenario whereby 10 people might have an identical idea at a near identical time and seek a fair split. Is that thought so absurd? Remember homogenization. The day Spitzer quit as governor, several people began posting “Client #9″ T-shirts online. There’s no reason to believe similar crowd-think doesn’t consistently invade videos, music, writing.

If an idea might legitimately be had by many, to what extent is execution a factor in discerning its value? Is a melody even an idea or, if interpreted a hundred different ways, does it become subject matter, so that to sue over its appropriation would be like Monet suing me for taking a picture of the houses of Parliament, which he so skillfully painted? I despise resent Billy Joel for setting the Moonlight Sonata Pathetique to words in This Night (once again, the Tragedy of the Commons), but, were it possible, should Joel’s appropriation give Beethoven a moral stance in asking for a share of the song’s royalties?

Satriani’s song, given its style, even if more extensively marketed, probably never would have been a chart topper to equal Viva La Vida. Coldplay had more than branding and marketing to help them. They have a very particular sound that appeals to a wider range of people than Satriani’s harsher musicality (and I don’t mean harsh as a pejorative). How does one distinguish creation from interpretation and appropriation from theft? And how do we assign value?


9 Responses to “What is due to two men who,
when whistling on either sides of the earth,
the same tune unearth?”

  1. Josh Friedlander
    December 8th, 2008 @

    BTW, they should totally settle this and do an Aerosmith-Run DMC Walk This Way performance. The mashup is great:

  2. Amy M.
    December 8th, 2008 @

    Have you heard that a local Brooklyn band who call themselves the “Creaky Boards” are also making a similar claim of purported theft of the same song! Check it out:

    Strange eh? Perhaps they are BOTH ripping off Satriani? Also interesting is the fact that the Creaky Boards chorus is about “songs I didn’t write.” Supposedly however, it’s been proven that Chris Martin wasn’t actually at that CMJ show where Creaky Boards claimed to have seen him in the audience, or so says Martin’s agent…

  3. Pam
    December 8th, 2008 @

    Most people hear thousands upon thousands of snippets, piece of music and melodies which come in and out of the course of their lives. If you are a composer, you are made up of all you have heard and all that your inner voice reveals to you.

    We could “guess” all day long about whether Coldplay did indeed hear this piece before and consciously or unconsciously base their hit single, “Vida La Vida,” on it, without any positive proof of malice or bad intent.

    In the music sample presented here, the overlapping similarities are obvious but if you listen to the beginning of the Satriani piece, you will notice that the progression is entirely different from Coldplay’s.

    With hundreds of years of musical tradition in which bits and pieces are “borrowed” from one source for another, it becomes difficult if not impossible to say with any musical certainty that this was plagiarized.

    My advice is settle it. Give a mention or credit that “Viva La Vida” contains a melodic line from Satriani’s piece and be done with it. Coldplay will not be broke from a small settlement and Satriani will feel justice has been done. I am not at all happy with this solution as I have big doubts as to whether Coldplay ever heard any of Satriani’s piece before they wrote theirs, but whether this was copyright infringement or just a case of musical “coincidence,” Coldplay should pay and credit him.

    The Colplay piece in its entirety has a similar tempo and chord progressions (at least in the overlapping parts we hear on this video). Much of the rest of their song is entirely unique in presentation and sound from Satriani’s piece.

    It does no good to really evaluate these pieces musically as enough of the major chorus is similar enough to raise eyebrows and ears.

    Like I said, pay Satriani and be done with it. This could get worse for Coldplay if they decide to see it through the legal system.

  4. Josh Friedlander
    December 8th, 2008 @

    Pam: here is a full version of the two songs creatively inter spliced:

  5. Rob
    December 8th, 2008 @

    Did Coldplay deliberately copy Joe Satriani?

    I don’t know. Here is an objective musical anaylsis that showst thematic material is duplicated among the two songs.

    A settlement should be reached.

  6. Terry Moran
    December 8th, 2008 @

    Billy Joel did not set the ‘Moonlight Sonata’ to words. The Beethoven piece he chose to write lyrics to was the ‘Pathetique’ sonata. He also pointedly credited L.V. Beethoven with the music in the liner notes on his album and publicly spoke enthusiastically about incorporating Beethoven’s music in his song. His intention was to bring Beethoven’s music to the attention of an audience that was probably completely unfamiliar with it. And Ludwig would have loved it. He always wanted his music to be performed for the less priveledged classes and encouraged contemporary librettists to utilize his compositions in their popular productions -much like Mozart did. Since Beethoven’s work has been public domain for over a hundred years, Joel can certainly not be accused of ’stealing’ anything. In fact, sales of Beethoven’s recordings and sheet music of the ‘Pathetique’ sonata rose considerably after Joel’s recording was released. All Billy Joel did was to prove how relevant, vital, and contemporary the music of Beethoven is and always will be. And Joel has donated millions of dollars to music education programs that give young people the opportunity to learn the music of Beethoven and other great composers. Any debt owed by Billy Joel to Ludwig von Beethoven has been repaid in spades. Your statement that you “despise Billy Joel for setting The Moonlight Sonata to words in This Night” is ill-informed, elitist, and just plain dumb.

  7. Josh Friedlander
    December 8th, 2008 @

    Terry: I love Billy Joel’s music. However, whenever I hear that tune — the Pathetique (god forgive my error!) — I now can’t help but hear his lyrics. It’s awful that I have to suffer from that association, whatever Joel’s intent.

    “Since Beethoven’s work has been public domain for over a hundred years, Joel can certainly not be accused of ’stealing’ anything.”
    Terry: My point is not what current law says (I am not ignorant of the concept of public domain in U.S. law), but what would be ethical “were it possible,” as I say, for Beethoven to bring a cause for infringement. I’m being tongue-in-cheek to illuminate a point.

    “Any debt owed by Billy Joel to Ludwig von Beethoven has been repaid in spades.”
    This is very much much in contention, if you want to debate the issue. It’s nice that you think Beethoven would be happy to have his song appropriated, but we haven’t heard from him on the subject. What we do agree is that, as he is long dead, Beethoven’s work entered the public domain long ago and can be appropriated, with all the benefits of that appropriation accruing to whomever makes good use of the original work (Joel in this case).

    Clearly, we value Joel’s appropriation (well, you do anyway, and I do in theory, just not in this instance). So, why not allow Coldplay to appropriate Satriani’s tune, even supposing they did it maliciously? As you point out, Joel brought a new audience to Beethoven’s works. Coldplay, as a result of their popularity and of this lawsuit, has already brought a great deal of attention to Satriani. Should he be thankful for the attention? If Coldplay could prove that the attention led to increased sales of Satriani’s records, would his cause of action have less merit? These are the questions I’m trying to raise.

    I’m sorry to piss you off. I don’t even think This Night is a bad song (it’s a good song on its own merits), but I would be equally peeved if someone set the Rach 2 to words and I had to spend the rest of my life fighting against my brain’s associative abilities. There’s a whole separate argument here about the imperfection and lack of immediateness of lyrical music. Kierkegaard argued that Don Giovanni was nearly a perfect opera, except for its having a libretto.

    “Your statement that you “despise Billy Joel for setting The Moonlight Sonata to words in This Night” is ill-informed, elitist, and just plain dumb.”
    I’ll grant you ill-informed and elitist. I’ll argue dumb.

    I’ll also argue that you’re unlikely to change many opinions by attacking the person whose opinion you are trying to change, but I understand; music gets the blood up.

    BTW, did you catch Billy Joel’s 1977 concert on PBS the other day? Absolutely awesome.

  8. Terry Moran
    December 9th, 2008 @

    Point taken. However, we will never know if dead composers are spinning in their graves or smiling benevolently down from heaven. Either way, their publishing and copyrights have long expired. In the case of Satriani/Coldplay, the issue may, unfortunately, be decided in a courtroom, and won by the more skilled litigator, despite moral equivalence or musical evidence. I’ll accept that ‘dumb’ was a bad choice of word. But then wouldn’t ‘resent’ been a better word than ‘despise’?

  9. Josh Friedlander
    December 9th, 2008 @

    Terry: yes. Change made.

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