|
This article was originally published in Law360's Expert Analysis column: link All that plaintiffs Andy Stone and Troy Powers want for Christmas this year are damages in the order of $20 million dollars from defendant Mariah Carey. In 1989, the country band Vince Vance and The Valiants, led by Andy Stone, released the song "All I Want For Christmas Is You." Now, plaintiffs are claiming in Stone v. Carey, filed in the U.S. District Court for the Central District of California, that Mariah Carey's 1994 smash hit song of the same title infringed on theirs.[1] Access Could Be Hard to Prove One of the most important elements of a winning music copyright infringement case is that the plaintiff can demonstrate access: in other words, proving that the defendant actually heard the plaintiff's song.[2] To my mind, it is doubtful that Carey would have necessarily even heard Stone's song at all. Prior to Carey's song, the highest peak that Stone's song had attained was No. 55 on the Billboard Hot Country chart.[3] Is it likely that Carey, immersed in the New York City R&B scene, was listening to deep cuts on the country charts? The Song Title — Far From Distinctive But even if access can be proven, the plaintiffs will have a steep uphill battle in demonstrating "substantial similarity" between the two songs. Let's talk first about the title, which is also the signature chorus lyric shared between the two songs. According to the complaint, "The phrase 'all I want for Christmas is you' may seem like a common parlance today, in 1988 it was, in context, distinctive."[4] However, a brief search on catalogue websites such as Discogs and AllMusic reveals that the song title is anything but distinctive. Below, I have collected numerous examples of records dating back to the 1930s with the same or similar title as both Stone and Carey's songs. All of them predate the plaintiff:  Songs with the title "All I Want For Christmas Is You" (or similar), that predate Plaintiff (source: Dr. Ethan Lustig) Comparing the Melodies So, we've established that naming your song "All I Want For Christmas Is You," while a nice turn of phrase, isn't exactly the discovery of penicillin. But what about their melodies? It's possible that, even if the title and signature lyric aren't original or protectable per se, the two songs may still have very similar melodies. If so, that could still suggest unlawful copying. We start with pitch. "Pitch" refers to what we think of as "the notes" — in standard Western music there are 12 of them: A, A#, B, C, etc.[5] In the following diagram, red lines show the corresponding notes.[6] We can see that there are four shared notes, which gives us a pitch similarity score of 47%:[7]  Pitch similarity between the two songs' signature phrases (source: Dr. Ethan Lustig) 47% is in fact a relatively high pitch similarity, compared to chance alone. To put this in perspective, even "Hot Cross Buns" and "Mary Had A Little Lamb" — two highly similar- sounding nursery rhymes — only have a pitch similarity score of 19%.[8] Does this mean, therefore, that Carey copied these pitches from Stone? As I will show below, this apparent resemblance between Stone's and Carey's hooks can be debunked using prior art research. But for now, let's move on to rhythm.[9] As we can see above, Stone's melody is using triplets, or what is called a "12/8 feel," sometimes thought of as a fast waltz, to deliver the vocal rhythm. However, Carey's vocal delivery is straight — while her instrumental accompaniment is indeed in a fast 12/8, her vocal rhythm here is not. They are therefore two totally different rhythmic feels. Finally, we can look at the shapes or contours of the two melodies.[10] Stone's melody begins by moving up by step; Carey's moves down. Entirely different trajectories. Prior Art Research As we saw above, although the two songs' hooks begin very differently, they do end in quite similar fashions, as seen below:  Closing gesture of the two songs' signature phrases, simplified (source: Dr. Ethan Lustig) The critical question then becomes: To what extent is this musical gesture unique in the preexisting musical repertoire? In other words, is there prior art that can demonstrate that this pattern predates both songs in question? Or is it something unique that originated with Stone and Powers' song? To answer this question, I conducted a search in my personal prior art database, which contains hundreds of thousands of notes, rhythms and chords across many genres and centuries. The result: dozens of exact matches in my database for the above pitch-rhythmic pattern. The fact that this pattern occurs dozens of times in music predating both the plaintiff and the defendant serves as potentially strong evidence that, although that stretch of three notes is indeed similar between the two songs, it may not in itself be a uniquely protectable element in either song. Instead, it is a gesture that can be found at the ends of myriad musical phrases, or cadences, rather than unique and original material. Conclusion As I have shown through my brief — and admittedly preliminary — analysis, access may be difficult to prove. The song title, and thus the signature chorus lyric, is hardly Stone and Powers' invention. The two signature chorus melodies have important differences in pitch, rhythm and contour, and what is similar between the two melodies — their ending — can be dismissed through dozens of prior art examples. In my opinion, Stone and Powers would be wise to ask Santa for something less litigious this year — perhaps a warm pair of socks — because the outcome for the plaintiff in this case is looking more naughty than nice. [1] Stone v. Carey, 2:23-cv-09216, (C.D. Cal.).
[2] Disclaimer: I am not an attorney. In this article I opine on matters of access and protectability, but I am fully aware that neither are the domain of the expert musicologist; I provide my thoughts in an unofficial capacity, only to paint a fuller and more interesting commentary. [3] https://en.wikipedia.org/wiki/All_I_Want_for_Christmas_Is_You_(Vince_Vance_%26_the_Valiants_song). [4] See Stone v. Carey, 2:23-cv-09216, (C.D. Cal.), Document 1, Filed 11/01/23, Page 6. [5] For an easy-to-understand "cheat sheet" on the musical elements important for copyright cases, see my article "Copyright Cheat Sheet: Finding Substantially Similar Songs" (https://www.law360.com/articles/1712559). [6] Both melodies have been transposed to the same key (C major) for ease of comparison; transposition to a common key is musicologically standard practice. [7] 8 notes in Vince Vance, and 9 notes in Carey, for an average of 8.5 notes. 4/8.5 = 47%. [8] You can explore my melodic similarity checker at EthanLustig.com/musiccopyrightchecker. [9] "Rhythm" refers to the durations of events in music. It is the aspect that can be expressed by a percussion instrument, or by clapping or tapping. For more details, see my article "Copyright Cheat Sheet: Finding Substantially Similar Songs" (https://www.law360.com/articles/1712559). [10] "Contour" refers to the shape or direction of a melody. When we describe a melody as going up, down, or any other shape, we are describing its contour. If you keep the pitch and rhythm the same, but you change the contour, a melody can become completely unrecognizable. For more details, see my article "Copyright Cheat Sheet: Finding Substantially Similar Songs" (https://www.law360.com/articles/1712559).
0 Comments
Leave a Reply. |
