Good Artists Borrow.  Great Artists Steal.  Others Just Litigate.

by Jason T. Shannon


Shakespeare used scenes and plot lines that were taken directly from other plays. Picasso based paintings on specific African sculptures and called them his own. If you compare the opening theme to Beethoven’s Symphony No. 3 “Eroica”, you will hear frightening similarities to the overture from Mozart’s “Bastien and Bastienne”. It is in creativity’s very nature to take existing ideas and re-shape them into something of our own. That is freedom of expression. That is art.

In the Baroque and Classical eras, it was generally considered an honor paid to quote the music of another composer. Folk music around the world is happily passed from generation to generation where it is allowed to evolve and flourish, made into something new, and passed again on to the next generation. Music is based on the wonderful tradition of becoming inspired by the great works that came before, immersing yourself in the extant collections of chords and melodies and rhythmic figures that inspire, and reinventing them with a new voice. This freedom of expression is the thing that is transcendent about music. Or at least, it used to be. Now you have to be really careful what inspires you, because you might get charged with copyright infringement or stealing intellectual property.  

This week the social media universe has been ablaze with articles about Tom Petty and his settlement with musician Sam Smith. Petty and Producer Jeff Lynne claim “similarities” between the Smith title “Stay With Me” and Petty’s 1989 hit “I Won’t Back Down”. Smith voluntarily agreed to award Lynne and Petty songwriting credits and royalties for a song that the elder statesmen had no participation in. Most of the published stories reference Petty’s colloquial “everyman” response to the settlement dealings in which he declared he had no “hard feelings” towards Smith and that “the word lawsuit was never even said.” Avoiding the legal-ese was a good move on Petty’s part, because it camouflages him from the nasty business that it actually is, which is laying claim to intellectual property rights on commonly used musical forms.

I find even the intimation of a copyright infringement absurd in this case, for the reasons that there is no real musical or lyrical structure that can be linked between the two songs, and any similarities that do exist between the songs should be considered common musical devices. 

Let’s look closely at the differences:

First, let’s look at the key signature. These are not in the same key signature. Stay With Me is in C Major. I Won’t Back Down is in G Major.

Next, let’s look at the chord progression. I’ve read a lot of analysis online which says the chord progressions are the same. Sorry, folks - they are not. They are much different, and for the purposes of this analysis, I’ll compare only the relevant sections of each.  Here is how they each breakdown: Stay With Me has a basic figure of Am, F, C occasionally hitting a Ab dim chord as an approach to the Am chord on the turnaround. This is a m6-4-1 chord progression. The relevant figure in I Won’t Back Down is different. The basic figure here is Em, D, G. This is a m6-5-1 progression. Are these similar? Sure they are. But “similar” is not “the same.” Chord progressions are not unique in popular music, and they are not and never should be considered intellectual property nor be subject to the purview of the legal system. They are the most fundamental forms of songwriting, and the means by which Petty himself borrowed from Bob Dylan, George Harrison, Roy Orbison, Johnny Cash, Elvis Presley, and scores of other influences that came before him – none of whom lay intellectual property claim to what was old hat when Johann Sebastian Bach was using them 300 years ago.

Next, let’s examine the time signature and rhythmic feel. Both tunes are in 4/4, but the rhythmic figures of each are vastly different. Stay With Me has a slower ¼ note feel and the chord movement happens on 1, 3 and the “and” of 4 which gives it more of an anticipated rhythmic pulse. I Won’t Back Down is a more straight ahead 16th note feel with chord movement happening on the downbeat, with a much more straightforward pulse. These yield completely different musical results which represent the backbone of their respective songs.

The tempo of the two songs is very different.  Stay with me is 86 BPM (beats per minute) while I Won’t Back Down has a tempo of approximately 118 BPM.

Of each of the musical components analyzed, I find the melody in both of these tunes the most closely related, but again, they are not the same. If we strip out the flourishes and phrasing (which are entirely different), the basic framework of the melody in Stay With Me is root (over m6 chord) to 9 (over 4 chord) to major 3rd (over root chord). I Won’t Back Down is root (over m6 chord) to root (over 5 chord) to major 3rd (over root chord). Generally, the melody has a similar movement but is working against different chords with a different rhythmic pulse. Yes, there are similarities, but I would absolutely not say they were the same, and different enough where it would be hard to even conclude that one is derivative from the other.

Lyrically there is no comparison between the two songs.

Finally, I have to point out the vast differences in the overall feel and atmosphere of these songs. Stay With Me has a more somber feel with a clear gospel influence. The prevalent instrumentation is piano and vocals with a strong choral section. I Won’t Back Down is more upbeat, with strong electric/slide guitars and traditional pop/rock harmonies, guitar solos, etc.

The popularity of Petty’s song is what allows for this discussion to even happen; if a little-known songwriter made the same claim, even with much better evidence, it’s unlikely that writing credit would have been given because Smith’s claim that he never heard the song is much more believable to the general public. Does this result in a too- subjective legal standard that disproportionately rewards the already well-rewarded?

So, with all of these differences in musical structure and even musical intent, why is it that Tom Petty and Jeff Lynne should receive royalties and songwriting credit for something they had nothing to do with? I really have no idea. But if the legal system is allowed to become a tool by which popular artists lay intellectual property claim to common musical devices, the next generations of songwriters won’t have much to work with.