In recent days, you may have read about HaloSongs inc vs Sheeran. Songwriters Harrington and Leonard are bringing a $20m lawsuit against Ed Sheeran and co-writer Jonny McDaid, accusing them of copyright infringement. The case relates to the choruses of AMAZING by H&L and Sheeran's 2015 hit, PHOTOGRAPH. H&L allege that the chorus of PHOTOGRAPH contains 39 "identical" notes to the chorus of AMAZING, and say that Sheeran and McDaid are "participating in a scheme aiding, inducing, and contributing to copyright ingringement in the US." Paragrpah 89 of the document reads: "To write and record the song “Photograph,” Defendants intentionally and unlawfully copied the unique and original chorus from 'Amazing.'"
Now, I'm not for one second going to try and argue that the songs don't sound similar. In fact, let's all just agree now that they sound remarkably similar. And yes, I'm afraid that those 39 notes are indeed identical. However, I will try and argue that the chorus of AMAZING is neither "unique" nor "original" and, by delving a little bit deeper into the songs, their wider-compositional context, and throwing in a smattering of musical theory, I hope to show that, in all probability, there's nothing at all intentional in the similarity between the songs. Far more likely it's an unfortunate coincidence, and an inevitable outcome of a mainstream music industry who have too often chosen to monetise mediocrity over pouring funds into genuine originality.
Any song can be broadly broken down into three key elements: harmony, melody and lyrics. As the lyrics aren't being called into question in this case, I'll just look at the harmony and the melody of both songs.
Let's put aside for a second the fact that the chord sequence of PHOTOGRAPH's chorus is similar to that of AMAZING's, and let's think about the fact that the chord sequence of AMAZING's chorus is almost exactly the same as that of the chorus of Snow Patrol's RUN (see figure a).
Wait...What!?...Seriously?!...Quick, somebody call the lawyers!
Hang on a second. Let's all just calm down and take a minute to actually think about this. Is this actually that surprising? Look at the chord sequence in question (second row, figure a): Eb Bb Cm Ab. Fine. In the home key of Eb, this is written as I V vi IV (one five six four). Ok. Look, this is not exactly ground breaking. In fact, anyone who's ever stumbled across Australian comedy trio Axis of Awesome's Four Chord Song video will know that it's actually one of the most common chord sequences in pop music, and can be found in literally LOTS of songs (and I'm talking the high end of 'lots'. Like, 'lots and lots'. Probably even 'lots and lots and lots').*
This is not a bad thing in itself. The emotional tension and resolution contained within these four changes clearly resonates with both composers and listeners alike. But to call in the lawyers and accuse someone of copyright infringement in part for using this chord sequence, when you yourself are rambling indiscriminately down a well-trodden harmonic path, is madness. With this in mind, let's all just agree that we can throw this side of the argument out of court. No questions asked. No hard feelings.
I guess it's already fairly safe to say final goodbyes to our old friends "unique" and "original". But while we're at it, why don't we have a look at the melody of the two choruses and see if we can't hammer another nail or two into those coffins?
So, how likely is it that Sheeran and McDaid stole this melody from Harrington and Leonard?
As you can see from figure b, as well as sharing similar notes, the two melodies are structured very similarly. In each two bar phrase, you have two longer notes in the first full bar, followed by a linking phrase in the second bar, leading to the next two long notes in the third bar, which are followed again by a further linking phrase in bar four, etc. Again, it seems pretty cut and dry that Sheeran and McDaid have stolen this device. But dig a little deeper, and you'll find that this is actually an extremely common melodic device which has appeared time and time again throughout pop history. Unfortunately there's no easy Youtube video to share, but I have tried to illustrate this in figure b using Radiohead's NO SURPRISES, The divine Comedy's SOMETHING FOR THE WEEKEND, and - why not - Snow Patrol's RUN. (figure c)
Add to this the fact that Sheeran actually has form in this melodic regard (figure d). Think of his song THE A TEAM, and the lyric "They say she's in the class A-team stuck in her day dream, been this way since eighteen but lately her face seems slowly sinking wasting, crumbling like pastries". Now consider his song THINKING OUT LOUD, and in particular the melody of "baby I'll be loving you til we're seventy, and baby my heart could still fall as hard at 23". I could go on. Suddenly it looks less like intellectual theft, and more like a bonafide part of his compositional technique.
With all this in mind, I would like to suggest that, rather than hearing AMAZING and stealing it, Sheeran and McDaid stumbled across the chord sequence (a hugely common chord sequence) and melody (a fairly common melodic device) completely independently of Harrington and Leonard. And the fact that they are pretty much exactly the same is unfortunate coincidence, and says more about how these writers feel they have to write, than it does about copyright infringement.
If this is the case (and I'd eat all my cycling caps if it isn't) it obviously raises the issue of whether or not something is still copyright infringement if the defendant created something completely independently of the plaintiff's original work. Maybe that's something for the philosophers to get stuck into (but please god not the lawyers).
This is, of course, all a worrying symptom of a mainstream music scene that is more often than not un-accepting of anything outside a very narrow set of parameters when it comes to melody, harmony, and lyrics. Composers are forced to (subconsciously?) rehash chord sequences and melodies because that's what the mainstream listenership wants, right? RIGHT?!
On the subject of "unique and original": can there ever be another Bohemian Rhapsody? Another Space Oddity? Paranoid Android? Blackbird?
Throughout this whole case, the most obvious question seems to have been missed by everyone. It's a question that convinces me more than any of the above that this was a case of coincidence rather than theft: Who in their right mind would copy a song which has a major label release (albeit only peaking at no.85 in the UK), and then release it as a major label single for one of the biggest artists in the world? It's like pulling off a massive jewel heist and then telling everyone where you've stashed the bounty, and which airport you'll be fleeing the country from. There's literally nowhere to hide in doing that, you're always going to get found out.
Hopefully the court will see sense before this gets too far. Maybe H&L could take a leaf out of Tom Petty's book here. Petty (somewhat ironically named), after noticing that Sam Smith's 2014 hit, STAY WITH ME sounded very similar to his own (somewhat ironically titled) I WON'T BACK DOWN, contacted Smith and the pair mutually agreed upon a co-write. Easy.
Before I finish, I'd like to take just a quick look at the last 'victim' of these lawyers. Pharrell Williams and his song BLURRED LINES. Pharrell and cowriter Robin Thicke were forced to pay $7.4m to Marvin Gaye's family because of alleged similarities between their 2013 hit, and Gaye's 1977 song GOT TO GIVE IT UP.
On the one hand, I think the outcome of this case was the Universe reaping it's revenge upon what is surely one of the most despicable mainstream popular songs of all time: lyrics which read like the opening chapter of 101 Rape Excuses, and a video which I wont give the honour of describing in these hallowed pages.
On the other, and in a purely musical way, I think the outcome was a travesty, and has set a horrible, horrible precedent. Again, it was a generic chord sequence (chord I (one) followed by chord IV (four), for crying out loud) coupled with some retro sounding drums and a percussion rhythm which, at worst, only vaguely resembled the Marvin Gaye track. There was no case here.
This injustice was particularly disturbing because Pharrell, throughout his career (BLURRED LINES notwithstanding) has been on the edge of contemporary music, pushing boundaries forward as far as the mainstream would let him, and constantly challenging listeners, all the while managing to monetise this prolific, unique creativity. This has been evident from his earlier career with N.E.R.D. right through to the chorus of the feel-good hit of 2014, HAPPY. Its changes of VIb v I (the major seven chord on the flattened sixth degree of the scale, five minor, and one) aren't exactly a four-chord singalong in the park. They're seriously out of the box. Like, SERIOUSLY.
But these lawyers won, and now they're on the rampage again. They must be stopped, the music industry is doing a good enough job destroying itself from the inside out, without these unscrupulous scumbags getting involved as well.
*By the way, a brilliant side fact here is that this chord sequence can also be found in the chorus of another song called AMAZING - it's by Alex Lloyd. Google it.