Switched on Pop - Deja Vu: Why Olivia Rodrigo keeps giving up songwriting credits

Episode Date: September 21, 2021

In the last few years music copyright claims have skyrocketed. More and more artists are giving songwriting credits away. Frequently, credits are given retroactively to avoid the cost of long jury trials like when Sam Smith credited Tom Petty. Smith’s melody for “Stay With Me” clearly drew from Petty’s “I Won’t Back Down.” On rare occasions these cases go to court, where music litigation is at an all time high. In the last ten years there have been 190 public cases, up over 350% from the prior decade, according to The George Washington University & Columbia Law School Music Copyright Infringement Resource. This story has come in and out of the news cycle in closely watched jury trials including artists like Marvin Gaye, Led Zeppelin, and Katie Perry. Historically, courts have extended copyright to only unique combinations of words and music, not rhythms, chords, instruments. But recent cases increasingly litigate the core building blocks of music. Many artists fear that a bad court outcome could let an artist copyright a “vibe” using commonly used musical language.   The question of whether someone can borrow a vibe resurfaced when Olivia Rodrigo shared songwriting credits on her hit 2021 album Sour with Taylor Swift, and comparisons have been made to the art of Courtney Love and music of Elvis Costello. Many listeners have commented on Rodrigo’s more obvious influences on social media. Viral TikTok videos compared Rodrigo’s “Good 4 U” to Paramore’s “Misery Business,” which share a common chord progression and vibe. This online campaign likely contributed to Rodrigo handing songwriting credits, also known as publishing, to Hayley Williams and Josh Farro of the band Paramore.  This week we are airing the conversation Switched On Pop’s Charlie Harding had on the podcast Decoder with host Nilay Patel who is also editor and chief of The Verge. Together we try to understand how the byzantine music copyright system works, and how its rules affect the sound of pop music today and in the future.  SONGS DISCUSSED - Spotify Playlist Sam Smith - Stay With Me Tom Petty - I Won’t Back Down  M.I.A. - Paper Planes The Clash - Straight To Hell Olivia Rodrigo - deja vu Taylor Swift - Cruel Summer Olivia Rodrigo - good 4 u Paramore - Misery Business Robin Thick, T.I., Pharrell Williams - Blurred Lines Marvin Gaye - Got To Give It Up Katy Perry, Juicy J - Dark Horse FLAME , Lecrae, John Reilly - Joyful Noise Led Zeppelin - Stairway to Heaven Spirit - Taurus Michael Bolton - Love Is a Wonderful Thing The Isley Brothers - Love Is A Wonderful Thing Taylor Swift - Look What You Made Me Do Right Said Fred - I’m Too Sexy Doja Cat, SZA - Kiss Me More Olivia Newton-John - Physical Anne-Marie - 2002 Learn more about your ad choices. Visit podcastchoices.com/adchoices

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It's free for iOS users. Welcome to Switched on Pop. I'm songwriter Charlie Harding. In the last few years, music copyright claims have skyrocketed. More and more artists are giving songwriting credits away frequently. Credits are given retroactively to avoid the cost of long jury trials. For example, when Sam Smith credited Tom Petty, Smith's melody for Stay With Me, clearly drew from Petty's I Won't Back Down. They settled privately.

But on rare occasion, these cases make it to court, where music litigation is at an all-time high. In the last decade, to my count, there have been 190 cases that's up over 350% from the prior decade. And the story comes in and out of the news cycle and closely watched jury trials, including artists like Marvin Gay, Bud Zeppelin, Katie Perry.

Historically, courts have extended copyright to only unique combinations of words and music, not rhythms, chords, instruments, but recent cases increasingly litigate the core building blocks of music. Many artists fear that a bad court outcome could let an artist copyright a vibe using commonly used musical language. The question of whether someone can borrow a vibe resurfaced recently when Olivia Rodriguez shared, songwriting credits on her hit 2021 album Sauer, where she credited Taylor Swift and comparisons have been made

to the art of Courtney Love and music of Elvis Costello. Many listeners have also commented on Rodrigo's more obvious influences on social media. Viral TikTok videos compared Rodriguez's Good for You to Paramore's misery business,

which share a common chord progression and vibe, and this online campaign likely contributed to Rodrigo handing songwriting credits, also known as publishing, to Haley Williams and Josh Farrow of the band Paramore. This week, we're airing the conversation that I had on the podcast Decoder with host Nelai Patel, who's also the editor-in-chief of The Verge, where we try to understand how the Byzantine music copyright system works and how its rules affect the sound of pop music today and in the future. Here's that.

conversation with Nelai on Decoder. Charlie Harding, you are a musician. You're also the host of Vulture's music podcast, switched on pop. Welcome to Decoder. So happy to be chatting with you, I'm going to be a really fascinating conversation. I feel like this is a long time. Charlie and I know each other. We've obviously seen each other at a bunch of events over the years, and I feel like we've

been building up to a conversation like this. But the thing that kicked it off for me is Olivia Rodriguez, just released an album called Sauer, which is very good. Definitely. I encourage everybody to go listen to it. It's a Bob. And release the album and the subsequent hit songs for the album, followed by a wave of authorship controversies.

People have claimed that she's ripped off various artists. She's been adding writing credits most famously. She just added a writer's credit for the band Paramour on one of the songs after some online controversy. And it occurred to me that this is a pattern. And it's a pattern we can talk about and explain. It's been building. There are specific.

moments in time with various court cases and decisions that have come down. And there's also the shape of the music industry and how the business of music has changed around going from physical distribution to streaming how artists make money now. And this is a really good moment in time with this album Sauer to talk about where we were, what's happened, and kind of how we got here. So I'm excited to talk to you about that. Before we do that, I think, In order to have that conversation, we need to share some definitions. So help me explain to the audience a few words. When artists make a song, there's ways they can use material from other songs.

Right. The simplest one, I think we're all kind of familiar with. It's called sampling. Tell people what sampling is. Yeah, sampling is when you directly take a piece of the recorded material and you re-contextualize it in a new song, right? It is the basis of which much of hip-hop is built off of and all contemporary music at this point. There's a subset of sampling, which is called interpolation, where you might not actually take the recording of the thing, but you might use pieces of it and re-record it yourself.

A really great case of interpolation would be MIA's paper planes, uses a sample from the clash, but it's not actually. a sample. It's a re-recorded interpolation. So just to be clear, so what they did there, they brought in new musicians and said, play this clash song. Exactly. But it's the same thing. It sounds more or less the same. And so that's an interpolation. And the interpolation is important because I think it gets to two other essential definitions, which are around publishing rights and master rights, which is that when you record a song, there's actually two different copyrights. There is the copy rights. There is the for the recording itself. That's often called the master. And then you have the copyright for the song composition, often called the publishing. So in the case of like MIA, they had to pay for

the publishing rights because that's the composition of the clash song, but they didn't have to pay for the master recording because they didn't actually use the recording. And each one has a different license in a different payment scheme. So just to put this in context of another music industry controversy. Taylor Swift famously does not own the masters to a number of her songs, but she owns the publishing. Yes, so she owns her publishing, and she might share it with other songwriters who participated in songwriting sessions on individual songs, and also may share a portion with a publisher, which is a company that basically says, hey, we're going to maybe give you advances and help you out in exchange for a portion of your publishing. But yes, generally, songwriters own their publishing,

and artists are always wanting to own more and more of their masters, which is primarily owned by music labels. So when Taylor Swift is mad at her old label for not releasing the masters, and she's re-recording all of her songs, she's allowed to do that because she wrote the songs. She owns enough of the publishing to just go off and do that, but she can't obviously re-release her old recordings. That's right.

And, you know, in a lot of cases, the new recordings sound better. And frankly, most people won't be able to tell the difference. And I think her hope is that people start streaming and using the re-recorded version so that she starts collecting royalties off of those master recordings. All of this circles around like a very difficult concept, but one that I'm hoping we can kind of unpack here, which is there are multiple copyrights in the songs. And then there's multiple ways to make money from a song. And depending on which of the two copyrights you own, your chances to make money change pretty dramatically. That's right. You can sort of boil it down to three main revenue sources.

There is many, but you have streaming, which is the main revenue source at this point. It has exceeded all other music revenues. And in streaming, the vast majority of the royalty is for the master recording. So you want to own the actual recording itself. The next meaningful chunk of recording revenues is in performance royalties. and performance royalties equate to publishing. The biggest portion of that would probably be for radio. Technically, when a song is played on the radio,

it's a performance of that piece, and the songwriters who own the publishing collect revenues from that. There's also a very small part of the music industry called synchronization rights, which is where you put music to video. That is a split between both the master and the publishing. But in general, if you look at overall music revenues, the master right is where the chunk of the money is. This is really interesting because I think most people don't make any distinction between hearing a song on commercial FM radio and streaming it from Spotify or Pandora.

But those rate structures are totally different. Radically different. And famously in the United States, artists don't get paid when their songs are played on the radio. The songwriters get paid, but the recording artists don't get paid. If you as the recording artists also have a songwriting credit, then you get paid, yes. But just for the master write does not get paid out, meaning the labels don't get paid. It's only the actual performance, the publishing. Yes, the songwriters.

And that is flipped and streaming. Yeah, in streaming, it works totally different. More than 80% of the royalty payouts go to the master recording, whereas the publishing royalties are usually hovering around like 12, 13%. fundamentally that's fascinating to me that technology that distributes the music is what determines the rate structure and that's all just made up it is entirely these are business structures and they have huge consequences for how music is made who's getting paid even how songs are structured and how they sound okay so that's all the setup and i i just wanted to start there i realize

it was a little in the weeds but this idea that how you get the music whether it's FM radio airwaves or, you know, packets on the internet coming over Spotify or in the background of a commercial on television, all of that determines who gets paid and when and how much they might get paid. Radically different. That's a big idea that it's going to carry through our entire conversation. That said, let's talk about Olivia Rodriguez. There's a lot of controversy around this album. I think it helps explain a lot of things.

What's going on there? Olivia Rodriguez. made a great album full of extremely catchy songs with really great narratives. They're fun songs. There's a lot of different genres that appeal to people of lots of different generations. There's a critical consensus. This is a really good album. And it's done exceptionally well.

And as the album has rolled out more singles and those songs have succeeded at radio and streaming. And so people on the internet start to notice some similarities with her influences. Connections to Taylor Swift songs. Connections to Paramore songs. Connections to songs even by Elvis Costello. Little sort of like hints of, I would call it mostly influence. The chatter on the internet then turns into actually handing over songwriting credit to a number of these artists. Yeah.

And so the list here is. Taylor Swift and Jack Antonoff have a credit on one of the songs. That was at the time of release. I think Taylor Swift and Olivia Rodrigo, they like each other. Yeah. Oh, yeah. They're friendly. And then Taylor Swift and our co-writers were added to the songwriting credits of a song called Deja Vu after release.

Haley Williams and Josh Pereira from Paramore were added to Good for You. After release. And this is probably because of the internet. We covered this story weeks ago, maybe months ago, maybe months ago at this. point when it was just people on TikTok saying, hey, these songs kind of mash up. Like, this is clearly theft, which is an interesting point of conversation. And then that sort of public campaign turns into, actually, supposedly they were in touch beforehand. You never know, really, you can only speculate as to like, were they really in touch beforehand with each other's

publishers? But yeah, Paramour after the fact gets a credit and has turned into a much larger discourse on intellectual theft and I think important conversations of sexism and who gets a accused of theft, but you have a very divided internet right now over whether or not Olivia Rodrigo is making original creative works or she's simply taking from pre-existing material. Dancing among the wreckage of Western civilization. I will point out that someone did go and ask Elvis Costello if his song Pump It Up had been ripped off and he was like, what are you talking about? This is how rock and roll works. Much to his credit, he was like, I don't, I'm not get involved in this. Let's listen to some of these tracks and try to pull them apart. Before we do that,

obviously courts and juries and music executives, they don't listen to songs the way that we do. They're not just like, that's a cool song. How should we listen to this stuff? When a court listens to a song, currently they apply a two-part test to determine whether or not something is borrowing, if you will. First, there's an extrinsic test, which basically says, let's get an expert musicologist to look at the objective elements of songwriting to figure out whether or not the thing that we're listening to is truly an original construction. And then if it's determined that the two pieces at hand share things that are objectively similar, then it also will go to an intrinsic test.

And the intrinsic test is basically this objective, like, do these things sound alike to you, jury, and if those tests are met, usually a decision is made. So I think we should do the same. We should look at things objectively and say, like, is the thing that we're listening to objectively an original musical creation? And also just like the gut check. Does this feel all like? All right, let's start.

This is Dejavu by Olivia Rodriguez. Okay, and here is Cruel Summer by Taylor Swift. Okay, if you asked me, and I was somebody who played music once in a time, you're a musician. If you asked me, are those the same song? I would just say no. Definitely. They have similarities.

They obviously sort of reference each other, but they're not the same song. No. The material in particular that we're listening to is that moment of yelling, where there's a high level of angst. Both artists are sort of yelling in declarative, mostly quarter note statements on the root note of the key. It's a very common musical expression.

I think it would be very hard to say that that even meets the intrinsic test. Either of these things are particularly wholly original outside of the lyric. Like the actual musical component of yelling in that kind of way feels like, yeah, but anybody can do that. Yeah. Okay, let's listen to another example. Here's Good for You by Ilya Rodriguez. You could be a better man for your brand new girl. And here is Misery Business by Paramour. All right. I have the same reaction to that. Interesting. Yeah. Tell me. That is the sort of stuff when, I don't know, kids learn to DJ. They might fade one of those things into the other because it's a cool little mashup.

It's a cool little transition. But like the guitar tones aren't the same. Nothing about that to me says these are the same song, except they have a referential quality to each other. Yeah, and that's exactly what happened, right? People went on TikTok, they started doing mashups, look how well these songs go together. And there's particularly good reasons why. They're almost in the same key. They use the exact same chord progression. They're both roughly about issues of heartbreak and misery of the teenage relationships, if you will. And they have a common. common melodic contour, like the melodies doing a roughly like, me, reto, kind of like, descent slowly over a melodic phrase with a lot of syncopation. There's common musical elements, but they, of course, are distinct lyrics. They are not quite in the same genre, as you pointed, like the guitar tones are pretty different. and they obviously have different melodies. They're similar-ish.

They work well together, but they're fundamentally different. Good for you is like a notably undistorted guitar tone for a song that most people think of is being pretty punk rock. Like, they're very different to me. I'm wondering why the push to get a songwriting credit? What does Paramore get out of a songwriting credit on Good For You? Well, this has a lot to do with what you were saying at the moment. beginning of the episode, which is major shifts in the music industry, a song like Misery Business by Paramour is no longer getting CD sales. Streaming doesn't necessarily pay

that well, especially if you don't own your masters. And so any legacy song benefits from getting a songwriting credit on a song which is doing extremely well at US radio. There's a lot of money in getting a credit. And here, they're given an interpolation credit, which is to say, you didn't really copy anything from the song. You sort of copied the idea of the song. And this credit was handed over voluntarily in a, you know, non-court decision. This was, this was negotiated between two different parties. But it's entirely a financial decision. This song is doing well. We had a song that was kind of like it. Let's see if we can get a piece of this song. We see this over and over and over again. When you say interpolation credit, is that a different payment structure than I

standard writing credit? Is it a lower percentage? How does that work? Yeah, I mean, all all credits are going to be negotiated privately, unless, you know, decided by a court. And typically an interpolation credit is a lesser songwriting credit than an actual songwriting credit. People don't distinguish these very well. I think it's important to culturally understand, regardless of how we feel whether an interpolation credit was deserved, interpolation credit for me does not feel like a co-writer of the song. And oftentimes, the way, way that people write bad headlines around this. It's like, Paramore co-wrote, good for you. And you're like, no, no, no, no, no, no. Like, if anything at best, it was inspired by and because of the success

of the song, they were required to give some credit to the inspiration because they feared going to court. And so the people who wrote misery business deserve a nod, if you will. It feels much more like a nod to me than like, you are equal co-writers, even if the deal negotiated requires a 50% But I think it's really important to distinguish the sort of legal structure and the payment structure from the actual cultural perspective on how we view interpolation. Like, good for you is its own song. There's no doubt about that. So what's really interesting to me is you brought up CD sales. The music business used to be about physical media distribution.

You would record a song onto tape and that tape would get shipped to a facility where it would be transferred onto a wax disc that would then. get transferred onto vinyl records, and then the vinyl records would be trucked all over the country and sold to people. That obviously moved to whatever, cassettes, to CDs, but at the end of the day, what you were selling was physical products, and the song and the physical product were sort of inextricably tied together. And so if you had a song, like, good for you, come out, and people say, oh, that sounds like that Paramore song, what Paramore might see is an uptick in sales of their record and that might be worth it and they might just be happy about that. Now you're like, hey, there's a song called Good for You. It sounds like misery business. Fundamentally, what they're

seeing is an uptick in streaming. And streaming does not pay nearly as well as CD sales or record sales or what have you. And it's not worth it to them. But because the song is a hit on the radio, they're like, we want a interpolation writing credit to get a chunk of the radio money because that's the money that's available to us. Yeah, that's about right. We have seen a shift where the music industry has gone from being a physical goods business to an intellectual property business. And when a song starts to succeed, we see all kinds of public lawsuits and private settlements in order to recoup on your intellectual property, which is currently earning probably negligible revenue and streaming in other places. But when there's an opportunity for a big thing that has hit

at radio or might have a big sync license in a film, yeah, you're going to go and see if you can get a piece of it. And if you look at the public record of songs which are currently under litigation, they're only songs which are succeeding overwhelmingly. It's very clear that the motivation here is let's get a piece of something which is a giant treasure chest. It's not about fairness and hey, this is my song. Those kind of cases aren't happening. Not publicly anyway. Specifically, the treasure chest is U.S. radio publishing royalties. Definitely. It's still a very large industry, many billions of dollars.

That's just wild to me that everyone knows, in quotation marks, that Spotify and the other streaming services don't pay artists as much as they like. I don't think anyone thinks about songwriting royalties from U.S. FM radio airplay as being the pot of gold that everyone is chasing instead. There's a ton of money there. To put it in context, I spoke with the songwriter Emily Warren, who has written songs for Duolipa and the chain smokers. And what she told me is that basically, if you're a songwriter and you get one or two major songs at US Radio, Top 40 Radio, you're pretty set to retire. Well, I got to get to work. Neil, let's start a band. Let's get a guitar out.

They're all in the closet. I haven't touched them in years. We could do it. What's equally interesting to me is you brought up that these are all private settlements. They're not necessarily all going to court. There's not a lot of value in going to court. You end up in a big, messy fight. But some of these cases have gone to court, and they have created the opportunity for more of this to happen.

And the one that comes to mind, I think the moment in time that we can pinpoint is the blurred lines case. Of course. So explain what the blurred lines case in controversy. is. Right. So the blurred lines case is where Frell Williams and Robin Thick put out their morally questionable song, Blurred Lines. Infamous song Blurred Lines. Yeah. Thank you. And in 2015, there are a set of public lawsuits with the Marvin Gay estate over his song, got to give it up. This case changed everything because if you try to apply the extrinsic test, are they substantively the same. Do they have objectively unique creative material?

They might share a vibe, a groove, but they don't share the same chords. They don't share the same melody. They share elements that are not protectable under copyright, like some percussion sounds and a feel. Yet, the jury sides with the Marvin Gay estate and sets up this challenging precedent about whether or not other songs that are copying someone else's style might be set for a lawsuit in the future. All right. Well, let's listen. Here's blurred lines by Robin Thick, T.I. and Frell Williams. Okay, well, quick pause. Yeah. Do you know that every single Frell Williams hit more or less starts with four quarter notes at the very beginning of the beat? It's his signature? I did not know that, but we should, that's amazing. That's not fun. Okay, sorry. I know that they all

have like vocal percussion in them. That's my, it's the one I was catching. All right. Very common. Hit play. Okay. And then here is Got to Give It Up by Marvin Gay. All right, I'm going to flip this on you.

What do you hear when you hear those two? I hear songs which are obviously in conversation with each other. I hear some pretty clear inspiration from blurred lines to Got to Give It Up. You have cowbell rhythms, an offbeat, electric keyboard, jumping on the offbeat, you have a similar kind of groove. And the reason why a lot of people are really wanting to avoid going to court is that an uneducated jury might say, hey, those sound the same to me. But as a musician, I would say, yeah, those are two similar grooves and other people have

made other similar grooves. And courts have more or less in the past upheld that you can't copyright drum production, you can't copyright chords. You can't copyright the instrumentation and choices of those things. And so this has gotten people really all riled up between those who think that, well, yeah, those things sound alike. But in reality, I don't think that this passes the, these things are objectively unique and protectable under copyright law. So what's interesting to me compared to the other songs is I hear that, and I am kind of that lay listener. And I'm like, I get it.

Yeah. Robin Thick looked at Feral and said, I want to make a Marvin Gaye song. And they made something that sounds very close to a Marvin Gay song. They definitely did. I don't know where the line is, but they definitely tried in a way that I do not think Olivia Rodriguez looked at her producers and said, I want to make a Paramour song. I think it's worth coming back at some point to the Paramore, Olivia Rodriguez case, because there are actually maybe even more similarities between those songs than there are to the

gay and Thick case. because if you look at the Marvin Gay melody and hook, it's really not the same as blurred lines. Yes, they share some interesting drum production. But to me, it might suggest that I don't mean to offend, but like, Neelai, like, maybe your listening isn't, like, super dedicated in this genre. And so if you don't know the genre, well, I'm like, yeah, they sound alike,

but we could probably go and find plenty of other grooves, which are, you know, kind of in the same kind of feel. And whether or not you could, there's a question of whether or not a groove, a style is something that we should be able to copyright. You know, go back to like the duop era. Duop bands might sound very similar to other people. Actually, I take that pretty directly. Like, I think this relates to, yep, there's courts and lawyers and copyright experts.

There's also the internet and the pressure of millions of people casually listening to things and then saying, oh, they should get a credit. Oh, you stole it. This is theft in a way that maybe isn't related to the more technical listening. That's right. And the argument that the Marvin Gay Estate made was basically that these songs sound alike. Sound alike, meaning that they borrow a common constellation of elements, the harmony, the rhythm, the keyboard, the percussion, all that kind of stuff. Not that they copied verbatim lyrics or whole strings of long melodies. Importantly, the Marvin Gay Estate wins this case.

They win it at trial. It's appealed. They win again, right? Yes. Ferell and Robin Thick, they got to pay Marvin Gay's family. This leads to an explosion. This is a sea change in the music business. This wasn't how it was before.

You can't copyright a vibe. Now it appears you can. Importantly, this is the ex-copyright attorney in me feels compelled to say this. Fair use decisions are supposed to be capable. case by case. You're supposed to wipe the slate clean and start over every time. That is just not how it works in practice. Now there's this precedent that you can copyright a vibe and a song, a constellation of vibes. And this leads to like an explosion of these cases. This is an important distinction here. It's actually most of the case is decided on procedural issues. And there was no determination about why the Marvin Gaye song was objectively a piece of original protectable. material. And so the concern is that you can copyright a vibe, but the court didn't actually say how or when or under what circumstances. So it left things sort of like big, open and into this

gray area. But yeah, the following couple of years, copyright cases explode because people see an opportunity. So you've got an explosion of lawsuits after blurred lines. And just sort of overall, we're in a place where maybe you can copyright the vibe of a song. The court hasn't really said, but the opportunity is clearly there to get paid. And then with the Olivia Rodrigo interpolation stuff, maybe you can copyright very tiny building blocks of chord progressions and screaming your lyrics on quarter notes. There's not a lot of song left for you to make, right?

Right, right. What can you do that's original at this point? That is the overarching concern, I think, of every musician who's paying attention to these cases is that a lot of these decisions are being made over fundamental building blocks. And so can a melody, which is just sort of a me reto melody, or a chord progression that uses the foremost common chords in pop music as the Olivier Rodrigo, Paramore songs both do, can we start to say that these are original creations?

That's the great concern because, hey, we know that copyright is set up to protect the development of the arts and sciences. And if we start copyrighting the building blocks, can we keep developing new material? Right. And the question for me, when you say, you know, incentivize development of the arts and sciences, it's you make something. You should get to own it and sell it, however you can sell it and make money from it. And that creates an...

So it's worth your time. Right. It's like, that creates an incentive to make more things. That all make sense to me. But now we're kind of narrowing the definition of what you can own. And so if you can own the building blocks, it is very hard to, come up with a new building blocks. That's exactly what the Blurred Lines case does, is that it suggests that maybe a vibe

where the building blocks can be copyrightable material, but that starts to change or be questioned in the following years. We're going to take a quick break, but when we come back, we're going to look at what happens to the industry in a post-blurred Lines world. Attention, Spotify. Has arrived on the new Google Jasmine Absolute of Carolina Herrera, a fragrance intense with character Gourman and addicive. Imagine a jasmine envolventy emvolvent.

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So after blurred lines, there's a string of cases. People are like, we can chase songs that have similar vibes to my songs. We can try to get money from other hit songs. There's two cases in the following years that importantly step back that blurred lines consequence.

One is with Katie Perry and one is with Led Zeppelin. The Led Zeppelin case was filed first, but it only got resolved in 2020. Katie Perry is a little simpler, so we'll start there. It's Katie Perry versus a Christian rock band called Flame, which is a great name for a band, honestly. I'll just give it to them. But here's Dark Horse by Katie Perry. And here is Joyful Noise by Flame. Now, Katie Perry is somewhat famously Christian.

I don't know what her relationship to her faith is anymore, but there was a time when she held herself out as being Christian. So here's a Christian rock band. That song, A Joyful Noise, had 300 plays on SoundCloud when the suit was filed. Afterwards, it went up to like a quarter million. Okay, so it worked for them. I get how you can say they sound the same, but does it matter that Katie Perry probably had never heard that song before?

Yes, courts do consider whether or not someone has had access to the prior work or whether or not these were independent co-creations of the same idea, that is a factor actually less and less now in how courts decide cases, but it is a piece of it. The bigger issue here is do they share an original piece of musical material, which is objectively creative and protectable? And in this case, you might say, well, subjectively they sound alike, but the objective decision here is that,

The core little synth melody that sounds alike is not a unique enough creative expression to be protected by copyright law. And I think this is a very wise decision because you basically have a me re-do sort of melody descending over a very common rhythm. And plenty of great analysis has been done about this. I especially point to the YouTuber Adam Neely who shows that Bach has used this exact same melody. Countless people have used melodies just like it. And that, in fact, the idea of writing songs over a simple, common little riff like this called an ostinado, has precedent going all the way back to the Renaissance where composers would intentionally take other people's baselines and write new original material over. them. And so basically, court says these eight notes, they don't get protection. And the way in which

they're used, really just they're not substantially similar. These are not the same songs. Katie Perry initially loses, but wins an appeal. So on the one hand, you've got blurred lines saying you don't use any of the same notes or chord progressions, but the vibe is enough. Yeah. A little bit later, you've got a court saying to Katie Perry. Actually, even though it is the same notes and the same progression in this well-known style, that's not enough. You're free and clear, Katie. Yeah, and especially because they were used differently, that, for example, this riff is used all the way through the joyful noise song, but Katie Perry only uses it in the verse, so it's not the core part of the song, it's the chorus. They suggest that both because of the usage and the actual amount

of material use and the kind of material, these are just not, these are not the same song. And so it's that's up this case where we have to think about, can a simple eight-note musical phrase be something open to copyright? So then here's the other case that walks back blurred lines. We're doing it. We're having this moment on Decoder. We're going to play Stairway. Here is Stairway to Heaven by Led Zeppelin.

Can't kick that of a guitar center right now. So that is Stairway to Heaven by Led Zeppelin. Maybe one of the most famous rock songs this all time. It came out in 1970. In 2014, a band called Spirit sues Led Zeppelin. This is Taurus by Spirit. A lot of spooky guitar tones in the 70s. Yeah, very spooky.

So that riff kind of has a similarity, but it ends very differently. Yeah. What's your gut check on this one? There's only so many ways to make guitar tinkles. Yeah, and that's exactly what is basically decided here. is that this descending four-note chromatic line over an A minor chord, yeah, they're the same. The melody on top, not the same.

The piece that might make you think, hey, they sound alike, is, again, not protectable by copyright because it's so fundamental. This is back to the question of building blocks. And just for the sake of it, like, Oh, my God, Charlie whipped out of guitar. here we go. Like A minor is one of those first chords that a guitarist learns and you're going to do like a

or like a you know you're going to like there's only so many ways around that. You're so close to playing stairway on decoder by yourself. Exactly. And I think this is a I think this is a case for musicians where they're like, thank goodness because like that idea

of going down those four notes is so common that nobody should be able to own that. So here's the back and forth. You've got the blurred line case, an explosion of litigation and attempts to settle for credits. You've got Led Zeppelin. They won in 2016. There was an appeal. Zeppelin only came to a close in this case in 2020.

It took a long time. That is an extraordinarily long time to discuss some very basic guitar progressions. But they did it and they won in 2020. You've got Dark Horse, Katie Perry won. still at the same time, we're right back to, man, Olivia Rodrigo had a hit. And the internet decided that Paramour needed a credit and she handed off the credit. It seems like maybe she could have taken this to court in one, right? Well, okay, this is an interesting case because I think the main concern here is about whether or not people want to deal with what can happen in court.

There's a number of things. Court is expensive. court can destroy someone's public perception. Better to get in front of things and just give the credit up front, give a small percentage, say, hey, I was inspired by this thing and just deal with it that way, then all the potential blowback, including setting up new precedent that could hurt future cases. So when you ask, would she win this one in court? I don't know. Not just because a jury is likely to be musically uneducated and say, hey, these things. kind of sounded like, sure, let's award it to Paramour.

But because there is one other very important case that brings all of this into question, and it brings us to Michael Bolton. Wait, Michael Bolton. Yeah, like the dramatic ballad singer from the 90s, Michael Bolton. The song is, love is a wonderful thing. Let's play the two songs. Here is love is a wonderful thing by Michael Bolton. Okay, and who did Michael Bolton fight with?

The Isley Brothers. They had a song called Love is a Wonderful Thing from many decades prior. All right. Here's Love is a Wonderful Thing by the Isley Brothers. I can see that. What happened there? What happens here is that you have a case of what we might call thin copyright. This is not a concept in the copyright code, but it's something that judges talk about a lot.

It's the idea that all of the elements of a song that you're trying to claim may individually be not protectable by copyright, which is to say like a 12-bar blues progression, a idea like love is a wonderful thing, pretty common statement. But the confluence of all of those elements together, how they are structurally placed, and the combination ends up creating

a unique copyrightable, protectable work, and it's given a thin copyright. And the thin copyright test says that if someone's to borrow from the Issy Brothers, like Michael Bolton supposedly does, that they would need to be substantively similar. Like they were having to use many of those same elements, which is to say like maybe love is a wonderful thing as a title, other people could use. But if you also are using a 12 bar blues thing. And if you also fade your song out in the same way, then all of those things together would say, well, court decides Michael Bolton, you might not have even meant to. but, hey, you have infringed on the thin copyright of the Aisly Brothers. So you might be thinking, like, what does this have to do with Olivia Rodriguez?

Yes, but we have to take another break. When we come back, we'll connect Michael Bolton to Olivia Rodrigo. Immigration may be Donald Trump's signature issue. President Trump is now targeting predominantly democratic cities for ice raids and deportations. Dozens of protesters clashing with immigration and customs enforcement agents in Minneapolis Tuesday. We will begin the process. of returning millions and millions of criminal aliens back to the places from which they came. But what we want to do in this space is talk about America and politics beyond the current president.

So what do most Americans think about deportation and border security, period? I think that Americans are definitely against the kind of violent displays that we've seen in the street from ICE. When it comes to the question of deportation, the answer is more complicated. My sense is that people want order at the border. They don't like the idea of having no idea who's coming into the United States at any given time. The view on immigration from the bottom up instead of the top down. That's this week on America Actually. Every Saturday in your audio and video feeds.

We're back. Just before the break, we were talking about Michael Bolton in Thin Copyright, how an artist might use a bunch of non-copyrightable building blocks to create a song. and then a court might decide they've pieced together those blocks in a way that puts them in violation of something called thin copyright. So Charlie, you tease that we were going to bring this back to Olivia Rodrigo, make the connection. If we go back to the case of Good for You and Paramore's Misery Business, there is more similarities. They share more or less the same song structure. They're both about issues of heartbreak.

they have similar melodic contours. They're in somewhat similar-ish or adjacent genres, if you will. The chord progressions change in really similar ways. Like the verse chord progression is the same in both songs. The chorus chord progression is the same in both songs. The choruses both start on the same melodic note. They both use a lot of rhythmic syncopation. So if you were to argue this in court, you'd probably say,

well, all of these things combined, the structuring of all of these disparate elements, which are probably themselves not protectable, together, the curation of them is protectable. And under that world of copyright, a jury could very well say, yeah, well, this was infringed and you might have to hand over all of the song rather than just give an interpolation credit. I think that is the fear. It's the fear of Michael Bolton. I apologize. It's the fear of the case that Michael Boland versus the Isley Brothers sets up. Is this sort of idea of thin copyright and the idea that you might be copywriting the sort of the curation of all of these different elements together.

And I think there's also just litigation risk. You might lose. Litigation risk always. You might lose. But as I said, like, the worst thing is you might lose and you might get a new precedent that might fundamentally alter the music business. So if you're a publisher and you own pieces of these songs, you might not want to expose yourself to. not just this risk, but all of the future risk that this case might create. So this is playing out now in the music industry in a variety of ways.

Let's start with Taylor Swift again. When the reputation album came out, her first single was called Look What You Made Me Do. Proactively, she was like, I interpolated, I'm too sexy by Wright Said Fred. I want you to explain it. But let's listen to it first. Here's Look What You Made Me Do by Taylor Swift. what you made me do look what you made me do

look what you just made me do look what you just made me oh and here here is I'm too sexy by right side Fred my god so what's actually very funny by this

is Drake's new album is out now and actually samples this he directly samples on Too Sexy which is an unsampleable song even for Drake I don't think it worked for him that to me is they ended up on this riff. They realized it was, I'm too sexy.

They called right said Fred. They said, do you want to make some money? It'd be relevant again. Right. Right. I was like, hell yeah. Right. That's not a sample.

Going back to building blocks, that's a pretty basic little building block of a riff there. You know, generally I think so. I think rhythms are hard to copyright. It's why something like the megos flow, that da-da-da-da-da-da-da-da-da-da. Like, you can't copyright that because every drummer does that same thing. And da, da, da, da, da, da, da, da, da, da, da, da. I'm sure other people have used that exact rhythm. And so we are getting into situations of building blocks. However, one of the things that is always going to be looked at is how is that piece of material used. And the fact that it's the main hook in both songs is going to definitely raise the heckles of any music publisher and say, you know, we really want to get ahead of this one because, again, we don't know how a jury is going to decide this.

Let's just hand over a credit immediately. Let's get ahead of the press cycle and make sure that right side Fred puts out a really lovely press statement about how excited they are to participate with Taylor Swift. I would be too if I was going to get a meaningful portion of this song. Like, they handled this one expertly to just avoid any potential conflict. Here's a similar case to that. It's Siza and Dojicat and Olivia Newton-John. So here's Kiss Me More by Siza and Dojahat. All right.

And here is, let's get physical by Olivia Newton-John. All right. I mean, that she's got a credit. They gave her the credit. That is way over the line to me. They gave her the interpolation credit. Yeah, we're talking about five notes here, right? But dumb, bum, bum, bum, bum, like, I definitely, talking about like, can you confuse these? I did not at all hear it until I played them back to back. And I was like, oh, yeah, that's not kind of the same melody. I get it. And I think here again, it's just like, let's get ahead of it because the usage is it occurs in the exact same. rhythmic placement going exactly into the same place of both choruses and could be argued as sort of the main hook or most memorable moment.

Now, does that make people equal songwriters? No. Do I think that you should probably be able to interpolate these things because they're basic building blocks and pretty hard to distinguish? I mean, this is getting, it's getting pretty gnarly, pretty gray area here, but

you know, because it could be confused, I'm sure that there was a decision to, let's sure the credit is given, or maybe we got a phone call, entirely speculating about how it happened. I don't know how it happened. It hasn't been reported. But yeah, Olivia Newton-John has a credit on this song for something, which is some courts might argue de minimis, such a small usage of a thing which is not actually protectable under copyright.

It's just something you don't want to have to litigate. And so that's probably why they're making this decision. And you don't want to be in a fight with Olivia Newton-John. Who wants to fight Olivia Newton-John? Hell no. She's very fit, or so I'm told by the song. Is this a case where there's only a handful of publishers and record labels, and they're just managing the cash flow through their businesses in a way that reduces their risk?

I wish that I had deeper reporting to answer that very specific question. But, yeah, there are three major labels. The three major labels are also the three biggest music publishers. And so I'm sure they're constantly getting on phone calls with each other all the time. But it's important to note also, Neelai, that these publishers are also often intentionally interpolating old hits to try to create new ones. And so you could look at a song like Anne-Marie's 2002. This is a song we've talked about on our show a bunch, but if you go to the chorus, it's literally, oops, I got 99 problems singing bye, bye, bye, hold up if you want to go and take a ride with me, better hit me, baby, one more time. It's like boom, boom, boom,

90s reference, 90s reference, 90s reference, or I guess 2002's reference, if you will. And this is clearly a situation where you're like, let's interpolate on that lyrical idea in order to use that former intellectual property to get people excited, nostalgic, etc. Okay, here's Anna Marie 2002. 2002 is not a good personal year for me,

So all of that just makes me feel bad, but I'm sure a lot of people get really excited when they hear all those references. I mean, look, nostalgia sells. So you're saying this song is constructed to what? To pay out to those artists, to pay out that publishing, to spur sales of those songs? I don't know exactly how this song was constructed, but Rolling Stone has actually just recently reported that publishers are putting together songwriting camps where they're saying, hey, a bunch of songwriters, here are some songs we own, go create interpolations off of those and see if we can create new hit. So that is definitely an active strategy that publishers are taking right now. I don't know exactly how the Anne-Marie song was written. So here's the situation in the music industry where having a hit song is very complicated.

You don't know who might come at you for writing credits. You don't know who might come at you for a vibe. You might not even really know how you're going to make money, right? Like you don't know if streaming is going to pay you out. You're hoping you get a radio hit. What is the state of play for artists and songs? songwriters right now. How are they even approaching this? Because it seems remarkably unstable. What I hear from my reporting is that songwriters are more nervous than ever. Songwriters and artists are

speaking a lot less candidly about who their influences are because of a fear of a Olivia Rodriguez type situation. Talk about your influences. You're going to have to pay them. And I think that we are seeing songwriters deeply anxious about whether or not they are unintentionally borrowing and are going to lose the potential fortunes that they could make off of US radio hits. What does this mean for creativity? I think that any time that we are starting to litigate the building blocks of an art form, we start to inhibit the way in which people express themselves, which to me goes directly counter to the purpose of setting up copyright protection,

which is there to incentivize the creation of new modes of expression, not to tamp down on free speech. When you look at where the industry is, it's obviously deeply consolidated. It's heavily reliant on a handful of streaming services, which are themselves giant tech companies. Is there any meaningful back and forth that's happening around this conversation,

or is it this is how it is, we're just going to wait for the next lawsuit to restructure some of this? I can't speak to the discourse back and forth between tech and music, but what I can say is that we are seeing the financialization of the music industry. In its consolidation, there has been a lot of new capital moving around, people realizing that these digital assets might have a long life

because every single time someone does a dance on TikTok to a song, you might capture a stream. So you see publishers selling their publishing catalogs to huge private equity firms, where investors are getting basically like derivatives of ownership of parts of songs. You and I can literally go to a website right now called Royalty Exchange and start to purchase tiny portions of publishers catalogs and participate in the streaming payouts of those songs and other publishing rights. If I had to summarize, musical creativity is dealing with the most difficult forces of finance and capitalism. And they're at kind of a standstill. We're in a moment still deciding. We're going to look for future court cases that are going to decide what can you artistically express without having to pay somebody.

That's what I'm looking out for. Do you think the blockchain will fix it? I got to ask. It's at the end of a tech show. Can the blockchain fix this? It can fix all known problems, Neelai. I had to throw it out there. To be clear, I do not think it can fix this.

I think what you own and how you can make money from it when it comes to fundamentally what are now digital goods is just always going to be up for debate. And what we're really talking about here is a very synthetic, right? These are just people deciding what the boundaries of ownership and music are over and over and over again. And no technology can solve that problem. No, because we're talking about these are contractual obligations set up by humans deciding who's getting paid out. And so often the music industry acts like it's a zero-sum game where the best way to innovate is to get more of your rights and get as much of the pie as I possibly can out of fear that you could end up in a situation like 1999 again where NAPS or destroys the entire music industry and all revenues disappear. And so if humans are acting like that and they're creating contracts that are constantly trying to weasel songwriters out of payments,

then what you're going to have is weird situations where people are getting sued left and right to try to claim intellectual property placements in places where money is flowing. It's incredibly distorted. And I don't think, yeah, technology is not going to fix this problem. All right. You just did an episode that's related to this on Switch on Pop. Tell people about that and then we'll let you get out here. I did a piece recently on the worst kept secret in pop music, which is that artists who don't participate in songwriting are often asking or, requiring that songwriters give over their publishing credit. It's a really fun conversation with

one of today's biggest songwriters, Emily Warren, and you'll learn all about how this is actually changing the structure and the sound of music in addition to the business structures. All right. Well, Charlie, this has been an amazing conversation. A long time coming. We'll have to have you back soon. Thank you so much for being on Decoder. Neil, thank you so much. This has been really so much fun. My thanks again to Charlie Harding from Switch Dun Pop for joining the show today. I feel like we probably could have done another hour and listened to another dozen songs. That was great. Thank you for tuning in. I know this episode is a little different. We would love your feedback on it.

You can email us at Decoder at theverge.com. You can hit me up directly. I'm at Reckless on Twitter. If you like Decoder, please share it with your friends, subscribe wherever you get your podcasts. And if you really like it, give us a five-star rating on Apple Podcasts. Just a heads up, we're closing in on the Verge's 10th anniversary in October. We're throwing a party in New York City to celebrate. We're selling tickets. Right now, you can find out more information by following the link in the show notes. I would love to see you there. Decoder is a production of The Verge and part of the Vox Media Podcast Network. Today's episode is produced by Creighton, D. Simone, Alexander Charles Adams, and Andrew Marito.

We are edited by Callie Wright. Our music is by Breakmaster Sunderer. We'll see you next time.