"You Can’t Do That": The Beatles and Infringement Issues
by Dave Davis
Part II of a post about the nexus of The Beatles and Intellectual Property, primarily copyright. This post focuses on questions of alleged infringement of musical works, and how those questions were resolved. It touches upon fair use, alleged (or subconscious) plagiarism, and parody.
In my first essay for the Informed Librarian Online, I highlighted several of the times the Beatles (and later, their creation Apple Corps ) were innovators in the domain of intellectual property (IP). For this round, I thought I would focus on a whole ‘nother aspect of copyright (as illustrated by vignettes concerning The Beatles), this time focusing on questions of infringement.
Copyright infringement occurs when someone —or some corporate entity—misuses a copyrighted work (and that copyrighted work is still being managed by its creator or another rightsholder, such as the work’s publisher). Many small infringements go without notice or are not followed up on; but the copyright holder has the right to complain and, if they choose, to take the matter to court. As with any court proceeding, the desired result is not guaranteed to either side in the dispute — facts have to be substantiated, arguments made and the case proved, and the court needs to come to a decision. Multiple defenses against a charge of copyright infringement are possible, including "It didn’t happen," "It wasn’t me" and (in the US) "What I did should be excused due to the fair use doctrine." "Fair use" is, basically, a legal defense framed by the four-factor test as expressed in Section 107 of Title 17 of the U.S. Code (the U.S. Copyright Act) and the body of court decisions that have been built around it.*
*Note: This is a painfully compressed allusion to the wide-ranging operation of fair use, but I am not going to try and go through the doctrine in any detail here. For a reasonably descriptive —but still very introductory — overview (for non-lawyers), see "The Fair Use Rule," a blog post by Richard Stim posted at NoLo.com.
However, before talking about some infringement issues that came up for the Beatles (and the post-Beatles), I begin by mentioning the uses they made of "other people’s music" which were not infringements: cover versions. In music, a "cover" is a licensed re-recording of a track which has already been recorded and released by someone else – usually the original artist, who may also be the writer of the music and lyrics. Early in their career, the Beatles performed and recorded a couple of dozen covers, sometimes very memorably ("Twist and Shout" is the best known among these) and sometimes not so much ("Besame Mucho" or perhaps "Red Sails in the Sunset") . The industry practice of covering songs is a licensed activity – basically, the label pays a license for each cover it releases.
Money (That’s What I Want) : Five instances of Beatle-related copyright/IP issues:
· "Ob-La-Di, Ob-La-Da" This is one of the tracks included on the ‘White Album’ (1968), and it is a bouncy little number. The title and refrain were used by Paul McCartney, the principal composer of the song, from a coined as a catchphrase by a Jimmy Scott, a London-based Nigerian musician of McCartney’s acquaintance. While rumors of a threatened court action by Scott against the Beatles, demanding a lyrical credit, have been circulated for many years, there is no firm documentation that indicates that any such action happened. Under copyright law, the title and/or a single short phrase would not be subject to protection. (Perhaps trademark could apply, under some circumstances, but not copyright.)
· "Come Together" A few months after September 1969, Chuck Berry’s music publisher, Morris Levy, brought a copyright infringement action against The Beatles/Apple, claiming that their 1969 track ‘Come Together’ had lifted music and lyrics from Berry’s 1956 track, ‘You Can’t Catch Me’. Morris’s case was complicated by other issues between his firm and John Lennon, who gave a deposition in the case. Lennon reciprocated on the complaint front and countersued Levy. If we were to listen carefully and compare the two tracks, I think most hearers would quickly pick up on the substantial (musical, more than lyrical) similarities between the two recordings; and, obviously, the four words "Here comes old flattop" do appear in both compositions. In the end, both sides of this cluster of disputes won at least a part of their respective cases; Lennon and EMI Music took home slightly more in dollar amounts. Perhaps the most direct copyright lesson to be gleaned from this kerfuffle is: in re-using underlying material – which I am confident Lennon did here, despite his denying it in interviews — you should be careful when engaging in what the art critics call homageand (even better) clear your use with the owners of your source material somehow.
"March of the Meanies" : Another point from the "Come Together" dispute figures in the next case I’ll look at as well: Under US law at least, one can’t bring suits simply against "musical plagiarism" — roughly, the passing off of someone else’s compositional work as one’s own. Copyright infringement is the closest available legal claim, and so cases of alleged plagiarism (especially in a commercial context, where significant sums may be at play) are generally brought to court as copyright disputes.
· "He’s So Fine" vs. "My Sweet Lord" (aka ‘The Mother of all Rock Era Musical Infringement Suits’*) Basically – and I’m leaving out a lot of fascinating non-essentials —Bright Tunes Music sued George Harrison’s Harrisongs company (1971 – i.e., in the post-Beatles period). Bright Tunes alleged that Harrison’s composition, as produced by Billy Preston and released as a bestselling single and album track, infringed on an earlier composition by Ronny Mack, which was recorded and released by The Chiffons. Harrison, who seems to have been morally offended at the charge, fought the action for more than a decade but was adjudged an infringer by the trial court (although the judge seemed to say that the infringement was unintentional and more in the nature of plagiarism). The damages phase of the case went on and on as well, the judge’s preliminary assessment of damages was quite high and, as a result of some complications involving other parties, the judge ultimately awarded Harrison the rights to "He’s So Fine" in exchange for a payment less than the preliminary damages assessment. In all, the case ran for more than 20 years. Due to the huge popularity of Harrison’s song (and of its ex-Beatle songwriter) and to the carefully spelled-out musical reasoning of the judge, I think it is accurate to refer to this as a leading case for this sort of infringement-that-is-really-plagiarism action. The case is certainly still cited and applied in court proceedings: We only have to look to the infringement actions brought against Pharrell & Robin Thicke, Ed Sheeran, and indeed Led Zeppelin to observe the legacy of the Bright Tunes case. Interestingly, the court in the "Stairway to Heaven" case specifically called attention to the Copyright Office’s "deposit copy" of the printed sheet music as a criterion for comparing the two works. In an alternative world in which a review of the sheet music was a requirement in 1971, I think Bright Tunes’ allegations would have been immediately dismissed.
*Note: I fully admit to my bias concerning this case. Harrison was robbed, in my view. But readers/listeners should come to their own conclusions; I’ve been wrong before.
And now for something completely different . . .
· "The Rutles" (soundtrack album for the 1978 telemovie, ‘All You Need Is Cash’) In a less-well-remembered brouhaha, The Beatles and their music were parodied in a 1978 TV movie helmed (and starred-in) by Eric Idle of Monty Python fame and Neil Innes, a musician and composer. Innes’ parodies of Beatles tracks were considered uncomfortably close (‘knockoffs’ in the jargon) for the Beatles’ music publishers, and they considered filing a suit but came to a settlement instead. While "What I committed is parody!" is often a sufficient defense against such charges — because parody is generally recognized as a prime example of legitimate fair use.
Would-be parodists might also, however, consider the wisdom (and experience) of Master parodist Al Yankovic on this point:
"[Q] Does Al get permission to do his parodies?"
"[A] Al does get permission from the original writers of the songs that he parodies. While the law supports his ability to parody without permission, he feels it’s important to maintain the relationships that he’s built with artists and writers over the years. Plus, Al wants to make sure that he gets his songwriter credit (as writer of new lyrics) as well as his rightful share of the royalties."
"Mailman, Bring Me No More Blues": Earlier, I wrote about copyright as a species of "intellectual property," a term which implies ownership and control. Allegations (and court actions) of copyright infringement are where the rubber hits the road, legally speaking — the party complaining of infringement seeks to enforce its right in its work. A defense of fair use essentially argues that the use made of the work, while not specifically authorized, ought to be excused for reasons that a court is authorized to accept within the legal confines of the defense. In the examples I drew on above, The Rutles’ parody use of underlying Beatles works would be the clearest situation calling forth an invocation of fair use — if it had ever come to trial. The Beatles and ex-Beatles themselves made different claims when the question of "borrowing" musical expression came up. Lennon asserted (implausibly in my view) that ‘Come Together’ was unrelated to "You Can’t Catch Me." George Harrison said that the similarity of his track to that of the Chiffons was entirely coincidental.
On the other hand, in my final example, McCartney’s subconscious* borrowing (if the older song were admitted as an influence) sounds like, perhaps, there was not enough "diligence" in his informal due diligence.
· "Yesterday" (1965) I’ve left this for last for two main reasons: First, McCartney’s composition (credited on the record to Lennon-McCartney, of course) is one of the best-known and admired pieces of popular music of any era ; and second, no allegations of its potential status as an infringing work came up at the time.
Famously in Beatles lore, the tune and chords for "Yesterday" (original working title: "Scrambled Eggs") came to Paul McCartney in a dream: "I was living in a little flat at the top of a house and I had a piano by my bed. I woke up one morning with a tune in my head and I thought, ‘Hey, I don’t know this tune – or do I?’ … I went to the piano and found the chords to it, made sure I remembered it and then hawked it round to all my friends, asking what it was: ‘Do you know this? It’s a good little tune, but I couldn’t have written it because I dreamt it." Specifically, McCartney asked EMI producer George Martin (who was the Beatles’ designated "grown up" and a person with an extensive knowledge of jazz and classical music if it was an old, well-known composition. Martin answered in the negative. Decades later (2003) a group of musicologists argued that they had identified a potential underlying work: "Answer Me, My Love," especially the arrangement and recording of it released by Nat "King" Cole in 1954. This influence may have been a case of what the judge in the Harrisongs case memorably termed "subconscious appropriation": [ "George Harrison’s ] subconscious knew it already had worked in a song his conscious mind did not remember. ... This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished."*
*Note: Perhaps it would be better if judges strived to avoid attempts at mind-reading in such circumstances; I don’t know what was in Harrison’s mind, nor in McCartney’s while they were composing and arranging their pieces. Absent direct evidence, I remain skeptical that any judge could either. Speculatively, I wonder if Paul McCartney ever asked his father, a club musician who played jazz trumpet, if the senior McCartney recognized the tune?
If there are any copyright lessons to be gleaned through these vignettes, I would guess that the primary ones are: music is a tough business, be careful out there, always be prepared to defend yourself if your music sounds in any way like someone else’s — and, always respect copyrights.
Copyright 2021 by Dave Davis.
About the author:
Dave Davis joined Copyright Clearance Center (copyright.com) in 1994 where he currently serves as a research analyst and writer, at https://www.copyright.com/blog/ . He previously held directorships in both public libraries and corporate libraries and earned joint master's degrees in library and information sciences and medieval European history from The Catholic University of America. Davis is fascinated by copyright issues, content licensing, and data. (Also, rock 'n' roll music, as well as LARPing.) Dave may be contacted via LinkedIn: https://www.linkedin.com/in/daviddanieldavis/