Anyone who has ever tried their hand at music composition has had that moment. That self-deprecating cringe, when after you’ve come up with a melody or a groove or a hook, someone overhears and comments, “Oh I love that song! It’s ____!”
We tell ourselves that there’s only 12 notes in a (western European) chromatic scale - eventually the chosen set of notes will overlap. Considering only 8-note phrases (the first half of a musical phrase in 4/4 time, say), that means 429,981,696 possible combinations, but the overwhelming majority of those are atrocious melodies that don’t actually work. And, for reference, there are over 100 million songs on Spotify. How could we NOT duplicate each other after this much music history has passed?
And that’s just melodies. Harmony on the other hand, the way it works in any cultural setting, has combinations that are “expected.” Rhythmic feelings make up a groove with an ebb and flow of tension and release. We’re taking the listener somewhere, and we want them to know where they’re going - or not, but either way it’s deliberate.
With all that being said, what is the point at which a piece of music belongs to one creator? With such a strong sense of ownership that, if it’s duplicated, the owner of that piece should even have a right to sue if it’s used by someone else?
Ed Sheeran is now thankfully out of court, after having been stuck with that massive question.
Was his song Thinking Out Loud too close to Marvin Gaye’s Let’s Get It On? It should be noted that the estate of Ed Townsend, the song’s co-writer, filed the lawsuit alleging plagiarism. Expert witnesses were called by the estate’s representation. Many articles breaking down the case were published. But the facts at hand were tough to clearly explain.
Songwriter Elizabeth Nelson, in an op-ed for the Washington Post, suggests it would be like telling a painter they can’t use the color red because someone else used it first. But “red” is such an understandable concept - toddlers can identify it. You and three other artists can walk into Michael’s today and buy the same red paint, use it, sell your artwork, and not have any claim against each other. You’d be unlikely to mix the same shade of red on your own as another artist, but it’s entirely possible you could come very close to the same shade independently - that’s the equivalent of composing the same thing.
The genesis of a piece of music is a little more opaque to the majority of the world than the creation of a painting. There’s no musical equivalent of Bob Ross, showing the step-by-step process on public television. If one gets a degree in western classical music, even if they’re not planning to compose, they spend a minimum of two years learning the “rules” of its construction - they’re that influential. The chart below is so ingrained that I jotted it down from memory for this story, and I spent many semesters encouraging my own students to do the same. This is the one for major keys - a sort of “can’t miss” flowchart for putting chords together.
Simply put, this formula is all over western music, as is its minor key counterpart. Which makes it all the more audacious that the music theorists called as expert witnesses sided with Townsend/Gaye. They surely have taught the exact same chart.
This isn’t new to our time - and plagiarism does indeed happen. Just like writers and public speakers, musicians have absolutely stolen from each other in very clear-cut ways.
The most egregious modern victim I can think of is Katherine K. Davis, who you have likely never heard of. But if I said “pa rum pa pum pum?” I think you’d know the song. Davis wrote Carol of the Drum in 1941 for a girls school where she taught. A short series of recordings later, Davis’s name was completely removed, with choir director Harry Simeone and 20th Century Fox Records head Henry Onorati taking full credit for the song, now titled The Little Drummer Boy. Davis sued, but was only ever able to receive partial ownership of the song. The song she had written on her own.
Throughout history many composers recycled their own work, and absolutely repeated what they had heard from others. This wasn’t a crime. The idea of a copyright is only as old as the printing press, and the law surrounding it only dates to the 18th and 19th centuries depending on the country. The earliest limits were enacted to protect the printers, not the creators.
A note from my colleague Kiana Del: “This is so interesting to me because in jazz you're encouraged to borrow... it's considered impressive how many other melodies you can quote over a different set of changes during improvisation. When you're learning jazz, transcription is the most important key. You have to learn how to “speak Ella” or “speak Louie” or Coltrane before you can start to develop your own voice. I can quote Wynton Marsalis' “Caravan” solo from top to bottom. In jazz there are also contrafacts, where a new melody is written over a pre-existing set of changes. Music is very communal in the jazz world.”
I’ve always wondered how a composer in the classical period could have stolen from one of their contemporaries. It couldn’t have been easy. Today we’re constantly bombarded with music and sound everywhere we go, and really can’t escape the recording industry. But Bach or Monteverdi would have had to hear something enough times for it to become ingrained - not the most practical feat without a recording on hand, even for the musically inclined.
But, steal they did. For the entirety of the 15th century masses were set with existing songs and chants as a melodic start. The secular medieval song l’homme armé was used as material for at least 40 Renaissance masses. By the 16th century masses were often composed with borrowed harmonies too - from chansons and motets. Giovanni Pierluigi da Palestrina wrote at least 50 masses in that way - it came to be known as a “parody mass.”
The Catholic Church supposedly attempted to keep the illusion of a hold on one particular piece, and failed. Giorgio Allegri’s Miserere was said to only have a limited number of copies in existence. Though it had certainly been performed outside the Vatican, Leopold Mozart circulated the story that young Wolfgang had transcribed the 9-part vocal work upon one hearing on a visit to Rome. It was a rumor in like parts dramatic and unlikely.
George Frederic Handel’s rivalry with Giovanni Bononcini included a ripping accusation of plagiarism as well. The two composers had the favor of rival members of the English monarchy, leading to such public scandal that the two composers were called (pre Lewis Carroll) “Tweedledee and Tweedledum” in the London newspaper. Handel came out on top as Bononcini was run out of town when it was proven he had stolen an aria from fellow Italian composer Antonio Lotti.
Bononcini’s original music was then repurposed by Handel himself as material for Xerse. And Franz Liszt (admittedly, a good bit of time later) also used a song by Bononcini in his Années de pèlerinage: Deuxième année: Italie.
Bononcini’s story was about an entire song. But a chord progression? What action could Johann Pachelbel have taken? The bass line of his famed Canon in D is so ubiquitous now that it’s been studied by the National Institute of Health.
Musical plagiarism has been a very real problem in the past, with actual disingenuous behavior being pretty easy to identify throughout history. Not to mention, as Townsend’s estate rightly pointed out, music by Black artists has repeatedly been stolen and appropriated. But tributes, nods, and references have always been part of the language of the art form as well. And had it succeeded, the shaky ground of the Townsend accusation would not have left a firm foundation for other artists with more solid claims.
As long as music has been performed and especially written down, it’s been comparable to other music. How much? It’s hard to say. Creativity doesn’t lend itself to objective measurement, which lawsuits demand. Meanwhile, as Ed Sheeran sits in court, somewhere an AI is generating a suggestion of “I, iii, IV, V” to an unsuspecting songwriter.
With very real originality obstacles like AI to come in the future, surely the questionable ones don’t need to be in court - for those, maybe we can just discuss them with each other - perhaps by just thinking out loud.
Can you hear it? Find out with this playlist full of open musical mimicry.
