There are, contrary to popular belief, only a limited number of musical possibilities out there. Nearly all pop music is in 4/4 time, and relies upon a number of common 'progressions' -- chord sequences -- I/V/vi/IV, I/V/vi/iii (the "Pachebel's Canon/Lighter Shade of Pale progression), vi/V/IV/V, and so on. There are a few less common ones, and of course jazz and other genres use a wider variety of them than popular music (though, it's been argued, all jazz essentially derives from the basic blues pattern). Within these, there' a restricted number of possible melodies -- many, but far from infinite -- and, like some robot throwing vast amounts of spaghetti against the fridge to see if it sticks, songwriters and composers have tried out them all. Some, it seems, are stickier than others -- and stickiness is what listeners want, after all -- so they are turned to repeatedly.
So of course we've been here before. And before. And before. Perhaps the most egregious example until now was the case of George Harrison's "My Sweet Lord" vs. the Chiffons "He's So Fine" -- or, as it's officially known, "Bright Tunes Music vs. Harrisongs Music" -- details at USC's fabulous Music Copyright Infringement Resource). In that case, it came down to a few of what were called 'grace notes'(actually appoggiatura), which suggested the possibility of what the judge called 'unconscious borrowing.' The damages awarded for this were spectacular: 1.6 million dollars -- 6.5 million in today's currency, nearly as much as the Gaye case.
Such an award is justified by its champions as discouraging 'illegal' infringements, but in fact it does no such thing. If they had lawyers enough, there are tens of thousands of songs whose authorship could be litigated in this way -- and almost any new pop song you can imagine would be a fresh candidate. Instead, it will stifle creativity -- Harrison himself admitted he was 'too paranoid' to write any new material for years after the lawsuit --by preventing the natural and inexorable process of fusing the old and the new that's what Joni Mitchell called 'the star-maker machinery behind the popular song.'
Part of the problem is the way music copyright is handled. The songwriter rights, also known as publishing rights, date back to the era when sheet music sales were a key source of revenue. That's not true today, but these underlying rights still apply, since any recording of them -- including the 'original' one -- relies on a license to to 'use' them. It's why, when "My Sweet Lord" was in dispute, the parties weren't Harrison himself or the Chiffons, but Harrisongs and Bright Tunes, the music's publishers. And, when boiled down to sheet music, songs look a lot more similar than they in fact are -- since part of what makes a song a hit is the arrangement and performance of a particular version. Ins some cases, a cover version does better than the original -- Richie Havens's "Here Comes the Sun," for instance, was a bigger hit on the charts than Harrison's own version -- but in that case, the 'publisher' portion of the royalties went to Harrison anyway -- as would be the case with any covers.
But the problem is, almost all music is a 'cover' of something. Boiled down to sheet music, the similarities are greater than the differences -- but in this modern era, when sheet music isn't even printed in most cases, this hardly seems the point.
What we need, I'd argue, is the throw out the entire existing copyright system for music. Get rid of the 'sandwich' -- publishing rights/performance rights/broadcast rights/non-earthbound communication rights -- and replace it with a system in which 10% of all royalties for all new songs are placed in a fund available to those who can make a case for similarity to older ones; damages should be capped. Then, pay a fixed portion for any performance or rebroadcast, accounting for the (divided) writing royalties. This may sound complex, but in fact, it's been tacitly done within the industry for decades -- which is why cases such as the Gaye/Williams/Thicke one are rare. Let's 'fess up, folks -- when it comes to pop music, there really isn't anything new under the sun.
