Did Gretchen Wilson infringe the Black Crowes?
I want to continue from what I had introduced in my February 28, 2013 post – Preying On Songwriters…
From February 28, 2013:
Songwriter A’s publisher and/or attorney receive(s) a letter from songwriter B’s publisher and/or lawyer telling Songwriter A that her new song has ripped off or infringed or copied or stolen Songwriter B’s song. Publisher A/Attorney A informs Songwriter A that we better fix this. The way to fix this? Songwriter A simply and quickly needs to fork over half of A’s copyright and future royalties on her song, and make sure that Songwriter B’s name appears everywhere that Songwriter A’s name appears on this song. All future royalties will be split between A and B.
Or another sharing scheme could be worked out. If not 50/50, perhaps 55/45, 60/40, 65/35, 75/25, etc., and the larger percentages could be assigned to Songwriter B. Songwriter A might not only lose a lot now and for generations of nameless/faceless descendants (copyright is nearly eternal in length), but Songwriter A might get marked as an easy mark for others to attack in the future.
Why should this happen? Can someone simply assert that you, the Songwriter, have stolen someone else’s music? Does the fact that someone alleges theft make it a theft? Are you guilty because someone with more (A) power, (B) influence or (C) money (A, B, C, A+B, A+C, B+C, A+B+C) asserts so? Does that more powerful person have any alternate and/or better idea(s)? Has that more powerful person investigated other solutions? What can you, the Songwriter, do? Do you admit to the “facts” with which you have been confronted? Is there a loved one, friend or family member who can help? Do you need emotional help? Do you need financial help? Do you need legal help? Do you need MUSICAL help? Or do you need every kind of help just mentioned and more?
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The post in essence came down to this situation involving two songs and two songwriters (or two sets of songwriters):
“Songwriter A’s publisher and/or attorney receive(s) a letter from songwriter B’s publisher and/or lawyer telling Songwriter A that her new song has ripped off or infringed or copied or stolen Songwriter B’s song.”
Next, what are the options for the Accused, i.e., Songwriter A.
Here are a few:
Songwriter A ignores this and Songwriter B abandons the idea. It’s too much trouble for Songwriter B and everything is forgotten. This was just a hollow threat from Songwriter B and/or Songwriter B’s publisher (or B’s publisher and/or lawyer).
Songwriter A wants this matter to go away. Songwriter A decides to give Songwriter B 50% of all future royalties. Songwriter B is happier than Songwriter A, but the problem has been resolved and the problem goes away.
Songwriter A discusses other options with one or two associates (or more – her team, or her team that becomes wisely supplemented) and then negotiates a better solution.
Songwriter A explores options that could include disagreement with Songwriter B’s team and the exercise of A’s legal rights.
Songwriter B could, at any point, “up the ante,” “lawyer up,” “throw more at the wall and hope something sticks,” or more. (Insert your own cliches, tired or not, to describe/predict the next steps for Songwriter B.)
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Earlier this year I was told that Gretchen Wilson had to part with some of the copyright ownership/publishing of her song,
This was supposedly due to the fact that Gretchen Wilson’s Work Hard, Play Harder infringed the Black Crowes song, Jealous Again.
If her song infringed their song, it would follow that Jealous Again was written before Work Hard, Play Harder and that Gretchen Wilson had the opportunity to hear the Black Crowes song. Is it reasonable to believe that Gretchen could have had the opportunity to hear the Black Crowes song?
And if a significant portion of her copyright (50%, possibly) was transferred to the Black Crowes because she supposedly infringed their song, then it would follow that one would hear the Black Crowes song when one plays the Gretchen Wilson song.
And it should follow that one would strongly be able to hear Gretchen Wilson’s song when one plays the Black Crowes’ song.
And it should follow that in order for half of Gretchen Wilson’s copyright and publishing and royalties to be transferred to the Black Crowes, a substantive amount of the Black Crowes song was copied by Gretchen Wilson.
Here is Gretchen Wilson’s song: Work Hard, Play Harder
Here is the Black Crowes’ song: Jealous Again
Listening to these two songs, can you hear what was infringed? Can you hear what was copied without permission? If you can hear what was copied, is what was copied significant? If you can hear what was copied, is the copied expression protected by copyright, or is it not protected by copyright?
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On a different note and one that might be illustrative later, I have many other questions about the beginning of this accusation – you did me wrong, now pay me – process.
Who was the first person to claim that there was an unauthorized copying problem?
Did this person work for the Black Crowes?
Did this person work for the Black Crowes’ publisher?
Does this person work for the Black Crowes’ management?
Does this person work for the Black Crowes’ lawyer?
Did this person know someone who worked for the Black Crowes?
Was this person a fan of the Black Crowes?
I would like to leave the reader with a few questions I posed above. Please feel free to state your opinion. I know mine very well but I want the input/opinion of others. I really want the input/opinion of others. I am not just being polite – I want the input/opinion of others. (I’ve just stated that three times – surely I mean it!)
Listening to these two songs, can you hear what was infringed?
Can you hear what was copied without permission?
If you can hear what was copied, is what was copied significant?
If you can hear what was copied, is the copied expression protected by copyright, or is it not protected by copyright?
This conversation will continue very soon.
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The Black Crowes song sounds very cookie cutter and derivative of many songs. It specifically reminds me of something, but I have to clear out the middle age cobwebs in my brain to remember it!
I agree with you, Zuke. It is a blah song.
I hope you can remember the song of which it reminds you. I’ll discuss similarities between Gretchen Wilson and Black Crowes songs in my next post (Thursday, I think). I’m looking forward to hearing from others.
I live in a bubble, relatively speaking, and need to hear others’ opinions.
Thanks for your post, Zuke!
It sounds like the issue is the melody of the verses. Gretchen Wilson seems to use four lines verses and more verses; The Black Crows only two before a rise or something, moving into a chorus maybe. But the melody sounds almost identical to my naked ear, on a few listens. So I say she actually makes a verse heavy song, with the melody to that verse being the same as at least the first few bars of the Black Crow song. (Maybe more, it’s running together now.) So I guess we have infringement?
Jody:
Thank for writing. I understand how one can hear the similarity.
If you read other posts about this subject, you’ll see that that little 3-5-3-2-1-6 phrase did NOT originate with the Black Crowes. It is, in my opinion, too short and not original enough for copyright protection.
But it seems that her side (maybe attorney and publisher) threw in the towel immediately and forked over 50% of the copyright due to a melody that accounted for less than 2%, temporally, of the Black Crowes song.
Hello Dr Harrington
After reading your analysis above I would be interested to hear your views on Jimmy Eat World The Middle 2001 v Kelly Clarkson The Heartbeat Song 2015.
In your expert opinion are there more or less similarities based on the phrasing.