Here we are 175 years later, and those questions are more contested in the courts than ever. This month alone the US Supreme Court finally dismissed a long-running claim that Led Zeppelin plagiarised the introduction of “Stairway to Heaven” (1971) from Spirit’s instrumental “Taurus” (1968) but high-stakes copyright lawsuits against Katy Perry, Ed Sheeran and Taylor Swift continue to move through the legal system. Even in the midst of a pandemic, the vital business of deciding whether some songs sound too much like other songs goes on.

There is something inherently ludicrous at the best of times about judges and juries assessing copyright infringement claims based on the testimony of rival musicologists (“proverbially discordant among themselves,” as Carusi’s attorney put it) and their own inexpert understanding of the creative process, and these are not the best of times. The business of sueing over plagiarism — and it is a business — has been in overdrive since 2015, when a jury found that Robin Thicke’s and Pharrell Williams’ hit “Blurred Lines” (2013) had stolen from Marvin Gaye’s 1977 hit “Got to Give It Up”.

Even though the two basslines used different notes, rhythms, phrasing and scales, the jury decided, to the tune of $7.4m, that having a similar vibe was enough. It was a shocking, chilling verdict, and when Thicke and Williams lost an appeal in 2018, the author of the dissenting opinion stated that the verdict “allows the Gayes to accomplish what no one has before: copyright a musical style”. The judge added that the decision “establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere”.

Musicians and legal experts agree that this lousy decision has created a climate of fear, with artists awarding credits left, right and centre in order to fend off the faintest possibility of a lawsuit. Almost as soon as some listeners noticed that the chorus of Taylor Swift’s “Look What You Made Me Do” (2017) was amusingly similar to that of Right Said Fred’s “I’m Too Sexy” (1991), Swift credited the British band, even though nobody seriously thought that she plundered 90s novelty hits for melodies. If you’ve ever wondered why modern hits seem to have so many songwriters, then this neurotic credit inflation is one reason. Credits are becoming more a legal fiction than an accurate account of a song’s creation because it is easier to settle even a frivolous claim than to risk years of costly litigation.

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Yesterday, the Beatles and why talent isn't enough

By Dorian Lynskey

The “Blurred Lines” verdict was unusually hostile but it exposed the underlying weaknesses of copyright law as it relates to music. Other artforms have a much more mature relationship with the nature of influence. While a screenwriter or director can’t just plagiarise someone else’s work wholesale, the likes of Quentin Tarantino and Ryan Murphy are free to stuff their work with homages and allusions. Nobody would claim that a Mexican stand-off, or a socially awkward detective, or a pram rolling down steps, or a serial killer who makes costumes from human skin are legally-protected concepts. And every Shakespeare-lover knows that he took raw material from extant sources without being a mere copyist. Art should be a lively conversation between past and present, with the minimum of obstacles.

Not so for music, where litigation has little to do with the reality of creativity. For a start, most instances of “plagiarism” are unintentional. Songwriters are human jukeboxes whose instinct for realising when a new melody resembles an old one can never be infallible. After Sam Smith gave a cut of “Stay with Me” (2014) to Tom Petty for its inadvertent resemblance to “I Won’t Back Down” (1989), Petty was sympathetic: “All my years of songwriting have shown me these things can happen. Most times you catch it before it gets out the studio door but in this case it got by… A musical accident, no more no less.”

Unfortunately, the judge who ruled in 1976 that George Harrison had plagiarised the Chiffons on “My Sweet Lord” (1971) set a precedent that did not allow for accidents: “Did Harrison deliberately use the music of ‘He’s So Fine’? I do not believe he did so deliberately. Nevertheless… this is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.”

Some elements of copyright law are hopelessly outdated. The old defence that the defendant did not have “access” to the plaintiff’s song is meaningless in an era of streaming. The song is on Spotify or YouTube? Then you have access, whether or not you know it exists. Nor has the law kept pace with songwriting norms. Most hits are now constructed by several specialists: the beatmaker, the topline melody writer, and so on. Yet when a jury ruled (dubiously) that Katy Perry’s “Dark Horse” (2014) had copied the beat from Flame’s “Joyful Noise” (2008), even the lyricists were ordered to pay damages. The ongoing suit against Taylor Swift is of a different order of stupidity: her song “Shake It Off” (2014) bears no resemblance to 3LW’s “Playas Gon’ Play” (2000) except the common phrases “Players gonna play” and “haters gonna hate.” The writers of Playas Gon’ Play are claiming ownership of figures of speech.

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The historical amnesia of culture warriors

By Dorian Lynskey

The history of popular music skews towards the free flow of ideas, from the melodic recycling of the folk tradition to the cheerful repurposing of old songs in sample collages and mash-ups. Yet the law keeps getting in the way. The notorious 1991 case Grand Upright Music, Ltd. v. Warner Bros. Records Inc. destroyed the tradition that gave us freewheeling, sample-happy records like the Beastie Boys’ Paul’s Boutique and De La Soul’s 3 Feet High and Rising. Even now, uncleared samples bar De La Soul’s classic work from streaming services. Samples are at least demonstrably someone else’s work but how can you own a generic beat or common chord progression? As Katy Perry’s lawyer Christine Lepera complained in court, the writers of Joyful Noise were “trying to own basic building blocks of music — the alphabet of music that should be available to everyone”.

Who benefits from strangling creativity in this way? Certainly not music fans. The most compelling case for copyright law is protection for the little guy. It feels ethically right that struggling blues musicians won songwriting credits from Led Zeppelin in the 1970s and tragic that the drummer Gregory Coleman died homeless in 2006 even as his performance on the Winstons’ “Amen, Brother” (1969) became the most sampled breakbeat of all time. The idea that songwriters shouldn’t starve while others grow fat off their work has an instinctive moral appeal.

Most plagiarism suits, however, have less uplifting consequences. Bridgeport Music, the second plaintiff in the Blurred Lines case, has made millions of dollars from hundreds of suits over unlicensed samples without any benefit to the original songwriters. The 2005 case Bridgeport Music, Inc. v Dimension Films (2005) overturned the de minimis defence of sampling, making even an unrecognisably altered two-second sample a matter for litigation, yet the composer of the sampled song, George Clinton, didn’t get a cent because, he claimed, Bridgeport “stole” his publishing rights (although the courts ruled it legal).

Copyright acquisition can lead to Kafkaesque scenarios. John Fogerty was sued by his former record label over a resemblance between his song “The Old Man Down the Road” (1985) and one of his hits for Creedence Clearwater Revival 15 years earlier. Because the label owned Creedence’s publishing rights, Fogerty became the only person ever to be sued for plagiarising himself. “It was very cruel,” he reflected.

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This year’s economic turbulence has seen a boom in investors scooping up song catalogues. While this is primarily to profit from streaming revenues (“Music and booze are only two industries that flourish when people are both happy and sad,” one wealth manager told Billboard), the potential for a bonanza lawsuit will not be lost on them. One of the plaintiffs sueing Ed Sheeran is a company called Structured Asset Sale. So much for the little guy.

There needs to be some legal deterrence against bad actors flooding Spotify with note-for-note replicas of classic songs, or big stars stealing demos submitted by hopeful young songwriters, but the bar should be extremely high. Currently, the typical case is a cynical waste of time and money which gives the public the false impression that artists are amoral thieves without two original ideas to rub together. A successful song is both an artwork and a commercial asset but the plagiarism-suit racket perverts the art. Old songs become roadblocks to new ones. The natural process of being influenced, consciously or subconsciously, is recast as larceny.

This was never the intention. “The immediate effect of our copyright law is to secure a fair return for an ‘author’’s creative labour,” said Supreme Court Justice Potter Stewart in 1975. “But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” The post-“Blurred Lines” epidemic of litigation and nervous celf-censorship makes a travesty of that aim by suppressing creativity. Enough. Throw all of these cases out, reform copyright legislation, and let art do what it does. And you know what? Carusi’s version of “The Old Arm Chair” was better.

Last week, struggling screenwriter Jack Barth told Uproxx how, in 2012, he wrote a screenplay called Cover Version about an unsuccessful singer-songwriter who — you’ve guessed it — is the only person who remembers the Beatles and presents their songs as his own. But while Yesterday’s Jack Malik, the latest in a long line of sweet but emotionally inept Curtismen, hits the big time, Barth’s protagonist does not.

Barth sold the screenplay to producer Matthew Wilkinson in 2013 and worked on a version with Mackenzie Crook (The Office, The Detectorists), before Wilkinson and co-producer Lee Brazier approached Richard Curtis three years later. “We worked quite intensely with Jack on the script but thought we might need a bigger writer for it,” Brazier told Screen Daily last year. Curtis’s star power quickly brought Boyle, Beatles rights-holders Apple Corps and co-star Ed Sheeran on board.

Barth’s role in the film wasn’t exactly secret but the Uproxx story struck a nerve, triggering news stories and social media uproar. Perhaps it’s down to the irony of the writer of a film about taking credit for someone else’s work apparently taking credit for someone else’s work, or perhaps a lot of people just hate Richard Curtis, but it was widely read as a plagiarism scandal. It’s not. Barth’s idea was bought and paid for, and he received a “story by” credit.

Even if the presence of certain key scenes in Barth’s draft — Jack playing ‘Yesterday’ to his startled friends, John Lennon’s appearance as a humble fisherman, the final gag — casts doubt on Curtis’s claim that he never read it and took nothing but a “one-line plot” from Barth, the film-makers’ only real offence was to shut Barth out of the promotional narrative, thus robbing a man in his 60s of a desperately-needed career boost.

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The idea itself was not unique. You only have to consider the number of novels in which Nazi Germany has won the Second World War to see that historical turning points breed counterfactuals, and similar ideas involving the Beatles appear in Australian author Nick Milligan’s 2013 ebook Enormity and Eddie Robson’s Doctor Who audiobook 1963: Fanfare for the Common Men (both published after Barth wrote his screenplay).

The same year, David Quantick’s TV drama Snodgrass imagined a timeline in which John Lennon stormed out of the Beatles in 1962. In a 1996 episode of the sitcom Goodnight Sweetheart, George Formby’s agent attempts to buy ‘When I’m Sixty-Four’ from Nicholas Lyndhurst’s time traveller. The differences are more interesting than the similarities. If you gave the same general concept — the Beatles’ music minus the Beatles themselves — to 10 writers, you’d end up with 10 distinct stories angles on the relationship between creativity and success.

The Curtis theory, as demonstrated in Yesterday, is that the Beatles’ songbook is so objectively, undeniably, timelessly great that, even in the hands of a modestly talented schmoe, it would rule the world. This is partly because Curtis wanted to write a conventional romcom about a man torn between the treacherous delights of fame and saintly schoolteacher Lily James rather than a high-concept comedy in the tradition of Groundhog Day; Wembley Stadium is a better venue for one of his trademark public confessions than the backroom of a pub.

But it’s also because success is the water in which he swims. “I think that the reason that Richard turned him into the most successful songwriter of all time is because that’s how Richard’s life is going,” Barth told Uproxx: “he’s never been knocked out, as far as I know.” It isn’t entirely true that Curtis doesn’t understand failure — The Boat That Rocked, his horny 2009 love letter to pirate radio, sank without trace — but he’s certainly more familiar with its opposite.

Curtis, who once waited for three hours to see the Beatles appear on the balcony of a Stockholm hotel when he was eight, must know that songs aren’t everything, but high achievers are great believers in meritocracy and boomers are typically steadfast in their conviction that their childhood faves could go toe to toe with any subsequent pop star. To Curtis, the idea that the magic of the Beatles would not work in 2019 is heresy.

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The Barth theory, as far as I can tell without being able to read his screenplay, is that success is contingent on several factors — timing, momentum, charisma, connections, luck — of which inspiration is not necessarily the most important. “I was lying in bed one night thinking, if Star Wars hadn’t been made and I just came up with the idea for Star Wars, I bet I wouldn’t be able to sell it,” said Barth, who had 25 unproduced screenplays under his belt. “Carry that on to the Beatles, if I knew all the Beatles songs, I bet I couldn’t be successful with it.”

Anyone with a significant interest in the history of pop music knows this to be true. Simply compare the reputations of The Velvet Underground and the Bay City Rollers, then and now, to see the difference between talent and success. The Beatles, in being both the biggest band in the world and the best, were a miraculous exception. But remove the context of the 1960s, subtract John, Paul, George and Ringo, and there’s no chance that the songs alone would pull off that coup. OK, I could imagine ‘Something’ or ‘Hey Jude’ being hits if Coldplay (who wouldn’t exist without the Beatles but let’s shelve that thought) released them tomorrow, but ‘Back in the USSR’? A Cold War Beach Boys pastiche about a country that no longer exists? Nyet. ‘I Am the Walrus’? Not a hope.

While there are vestigial traces of this possibility in Yesterday — Jack’s family interrupting the world’s first performance of ‘Let It Be’, the record label laughing off his idea of calling his album Sgt Pepper’s Lonely Hearts Club Band — the basic assumption is that the Beatles’ songs are too good to fail. Barth’s take, in which the singer achieves nothing more than a cult following, reminds me of a brilliant Catherine Tate sketch, spoofing Goodnight Sweetheart, in which a time traveller lodging with a family in wartime London treats them to a poignant rendition of ‘Let It Be’. “What a bleedin’ racket!” interrupts Tate’s cockney matriarch. “You tryin’ to deafen us all?”

The possibility that a classic song might go unloved in the wrong context — like ‘Johnny B Goode’ in Back to the Future — is far more provocative and, I think, credible. If you’ve ever heard a bad Beatles cover version (and they are legion), then you know that the singer is as important as the song.

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The entertainment industry, naturally, prefers the Curtis theory. Films about missed chances and thwarted ambition, like Inside Llewyn Davis, are doomed to be niche because they’re fundamentally depressing. Who wants to be told that talent and ambition aren’t enough and you can follow your dreams down a dead end?

Barth’s Cover Version would most likely have been an eccentric indie movie even if Apple Corps had somehow been persuaded to license the world’s most zealously-guarded back catalogue to a film that diminished its power. Yesterday wouldn’t exist, at least not on this scale, if it were not partially an advertisement for the deathless magic of the Fab Four.

Yet Barth’s experience proves that, in fact, his theory is correct. It’s the narrative of Yesterday flipped on its head: a relative unknown has a brilliant idea but not the status to make it happen. It takes celebrity and influence to bring it to a mass audience. Success begats success while the unknown remains unknown. That’s not an uplifting story — you wouldn’t turn it into a hit movie — but it’s showbusiness.