Should Badfinger Sue XTC?


The 3rd “SHOULD” post.  The 3rd “You stole my 3-4-5-8” post.

Two of my last posts have featured pairs of songs that feature the same four (4) notes –  3-4-5-8  -prominently in their choruses/hooks.  The songs from the February 27, 2014 post:

XTC’s Then She Appeared (1992)

Toby Keith – Red Solo Cup (2011)

The songs from the post before that (February 24, 2014):

Toby Keith – Red Solo Cup (2011)

Sebastian Mikael – Last Night ft. Wale (2013)

I raised the possibilities and reasons why these songs could be in litigation. I did NOT advocate that a lawsuit should happen and I did NOT take a side – my purpose was to be illustrative and solicit responses.  I heard “Last Night” by Sebastian Mikael for the first time as I was driving home from the airport in Nashville Sunday night (February 23, 2014) and couldn’t help but notice the 3-4-5-8’s jumping out of the car radio.  That led to an investigation of the 3-4-5-8 melody as well as the music of Sebastian Mikael, Toby Keith, XTC and now Badfinger.


Today I ask a related question and what would be a precedent to the XTC v. Toby Keith case which was a precedent for the Toby Keith v. Sebastian Mikael possibility  – namely, should Badfinger sue XTC for stealing “Badfinger’s” 3-4-5-8?

Badfinger’s Come And Get It (1970)

XTC’s Then She Appeared (1992)

The 3-4-5-8 occurs frequently and prominently in Badfinger’s Come And Get It although slightly modified with a repeated “5” and “8”  –   3-4-5-5-8-8-8.  (As the song progresses, the  3-4-5-8 that usually features the lyrics “if you want it here it is” and “if you want it anytime” changes from 3-4-5-8 to 8-6-5-5 and other non-3-4-5-8 melodies.)

Badfinger’s Come And Get It (1970, U.S. release)

0.05  if you want it here it is

0.15  if you want it any time

0.38  if you want it here it is

0.51  if you want it here it is

1.02  if you want it any time

XTC’s  Then She Appeared (1992) is a song written and recorded almost twenty (20) years before Toby Keith’s Red Solo Cup (2011) but more than twenty (20) AFTER Badfinger’s Come And Get It (1970).  It also prominently features the 3-4-5-8 melody.  The 3-4-5-8 is the opening vocal and the hook throughout the entire song.

The thirteen (13) examples of 3-4-5-8 in Then She Appeared, complete with associated lyrics, are heard here:

XTC – Then She Appeared  (1992)

0.22  then she appeared

0.31  then she appeared

0.50  cherubim cheered

0.59  then she appeared

1.08  then she appeared

1.26  know it sounds weird

2.02  then she appeared

2.11  then she appeared

2.30  all Edward leared

3.06  then she appeared

3.15  then she appeared

3.24  then she appeared

3.33  then she appeared


Are four (4) prominent and clearly-heard notes in common between songs reason enough to instigate a copyright infringement lawsuit?  As mentioned before, one answer could be found in comparing this hypothetical (or not) Badfinger v. XTC music copyright infringement case to the actual Marvin Gaye v. Robin Thicke copyright infringement case in which NO notes were in common between the songs.

If one can sue when the similarity is only STYLE and NOT melody, surely one is even more likely to sue when the similarity is MELODY and not STYLE.

(Do any/all the tags in this post have any bearing on the merit of this potential copyright infringement lawsuit?)

As always, I welcome your comments.

7 Replies to “Should Badfinger Sue XTC?”

  1. So, is there really any original music being made anymore???? Are these melodies and styles so ubiquitous that they permeate the subconscious of the apparently (hopefully?) unaware artists and composers?

  2. That’s a great question, Dave!

    I think original music has been and will continue to be created. One of the things I believe causes the problems that lead to litigants suing over alleged copyright infringement is that so many of these potential, and actual, plaintiffs are examining very small melodic snippets. As I hope I have shown throughout these last posts, several songs (at least) have this 3-4-5-8, or as they could be designated using solfège syllables, “mi fa sol do,” in common. ( That in itself means little. We – the popular music listeners – expect familiarity with music. If music is too foreign, abstract or unfamiliar, many tune out and stop listening.

    At its smallest level – for example, one note followed by another note, followed by a 3rd note – there is likely little or NO originality. But when one “zooms out” and listens to 30 or 40 notes, the entire 30 or 40 notes are likely to be original.

    Original expression, in my opinion, consists of moments of unoriginal expression strung together in a specific to eventually create original expression. For example, it could take only a few mounts to reach “original,” or several or many unoriginal moments to reach original.

    unoriginal + unoriginal + unoriginal = original


    unoriginal + unoriginal + unoriginal unoriginal + unoriginal + unoriginal = original

    In the English language, for example, when the letter “Q” is at the beginning of a word, there is no doubt what the next letter will be – “U.” There will NOT be 100% certainty as to the 3rd letter. After Q and U will come another vowel, not a consonant. It seems likely that that vowel (the 3rd letter in the word we are observing/creating) will be “E,” “I,” “A,” or “O.” It will, however, be a vowel.

    And after the word we create beginning with the letter “Q,” there are many more options for the next word, the word after that, and so on.

    It is similar with music. Some pitches are expected to follow others. Some chords are expected to follow others. Understanding and being able to predict the structure and likelihood of the notes and chords to follow is important to understanding the nature of the expression.

    Back to the 3-4-5-8. When one hears 3-4-5 in popular Western music, it is more likely that one will hear “5,” “4,” “3,” or “6” after the “5,” than to hear “8.” But, 3-4-5-8 is not very surprising or too unexpected. If the sequence of musical notes was 3-4-5-b2, it would be surprising and much less expected. And so on. (This gets into information theory, probability, Markovian chains and other great stuff I’ve been studying since high school. This also is near the core of what advanced music theory can and should encompass.)

    I hope I’ve come to addressing your very profound question. I think it might take many more words and some demonstrations at a musical instrument over some time. And maybe wine. 🙂

    Thank you so much for your thoughts!

  3. I apologize about that last response – one thing led to another! (I’m glad I wrote this in the morning. Had this been late at night, it might have still been going on!)

    Yes, wine/caiprinahas/whatever you choose and hanging out will work! And we’ll bring music to spin. You’ve got so much to learn me on too, good doctor!

    Hope to see you in the near future!

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