There are two songs that you probably know well. Both made the radio, and deservedly so. In 1963, the Chiffons released their hit song He's So Fine. "He's so fine, (Do-lang do-lang do-lang), Wish he were mine, (Do-lang do-lang do-lang)." Seven years later George Harrison released My Sweet Lord, just after the breakup of the Beatles. "My sweet Lord, (hallelujah), Hm my Lord, (hallelujah)." This was the biggest selling single of 1971, and the first #1 hit by an ex-Beatle. Sadly, the two songs collided in a clash of copyright controversy that festered for 27 years.
Before we get started, let's listen to a few measures of both songs. I think I can post small snippets of songs under the Fair Use doctrine, and avoid falling into a copyright battle myself, though I'm not entirely sure. I am encouraging sales of both songs, not discouraging or circumventing same, so get off my back! Sometimes record labels and their high priced lawyers make me sick. In any case, here we go. Listen to He's So Fine, and My Sweet Lord, and note the unmistakable similarity in melody, and even in the chord progressions. In some ways this similarity persists throughout the duration of both songs, but in some ways they are quite different. Obviously I can't post the songs in their entirety, so please purchase them yourself, if you haven't already done so, and listen to them in sequence.
When a friend told me about the court battle I was quite surprised. I've held both songs in my head for decades and never noticed the overlap. To my mind they have a very different look and feel. My Sweet Lord runs much slower, has a different subject matter (a universal spiritual message rather than a simple love song), and does indeed diverge from He's so fine by using relative minor chords and Harrison's distinctly original slide-guitar motif. So my first reaction was, "Oh come on, you gotta be kidding." But yes indeed, there is considerable overlap between the two songs. Bright Tunes jumped on this overlap, and insisted on a slice of Harrison's very lucrative pie. In fact they wanted the whole pie - all the royalties to My Sweet Lord, and anything else they could get their greedy hands on. Before I render my unsolicited opinion of Bright Tunes Inc. and the music industry in general, let's step back and see if there really was any copyright infringement.
In September 1976, Judge Richard Owen concluded:
"Did Harrison deliberately use the music of He's So Fine? I do not believe he did so deliberately. Nevertheless, it is clear that My Sweet Lord is the very same song as He's So Fine with different words, and Harrison had access to He's So Fine. This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished."
Is that possible? I believe it is, and not because Danny Partridge copied Keith's music subconsciously as he slept, in This Is My Song, an early episode of the Partridge Family. That's just a fictional story, and rather contrived at that. No - I was convinced by Billy Joel, a stellar and endlessly creative song writer. He said something like this in one of his HBO specials. I'm using quotation marks, but please understand this is not a direct quote, I am paraphrasing something I heard several years ago.
"The lead-off song on my Stranger album is Movin' Out. The first version sounded something like this." He played it on the piano and it sounded different from the album, yet hauntingly familiar. "Anthony works in the grocery store, saving his pennies for someday." Joel sang at a somewhat slower tempo. He paused to let the audience recognize the tune, then he continued. "I took this too my manager and he turned to me and said `You schmuck! Neil Sedaka, Laughter in the Rain.' I had copied the melody and the chords without realizing it. I went back and hammered out a new melody." He banged out the familiar song on the piano, recalling the frustration he felt at the time.
If such can happen to Billy Joel, it can happen to anyone. So perhaps Harrison subconsciously borrowed some ideas from He's So fine. I'll grant that, but I still maintain he made it his own. If I had to put a number on it, I'd say his song was ¼ borrowed and ¾ original. Harrison probably agrees with this assessment, because he made several generous offers to Bright Tunes, trying to settle out of court. He was willing to go as high as 40%. These were summarily rebuffed. The judge awarded Bright Tunes 75% of the North American royalties from the song, as well as a cut of the album All Things Must Pass. Many observers consider this award "harsh and unrealistic", and I quite agree. The battle continued, since the song would no doubt be released under various compilations. A subsequent ruling determined that business manager Allen Klein behaved in an irresponsible and unethical manner, leaking insider information to Bright Tunes regarding Harrisons sales and revenues, and thus both songs, My Sweet Lord and He's So Fine, eventually became the property of George Harrison. Justice was done, but only after years of litigation and damage to Harrison's reputation. He admitted he was to "paranoid" to write any new songs for quite some time. How can we treat our most talented artists this way?
Cases of plagiarism continue to percolate through the courts, and they always will, but they are now handled with some celerity. We have come to realize that a long drawn-out court battle can be more costly than the judgment itself. Let's hope there are no more multi-decade battles over copyrights.
During the grueling litigation, Harrison appeared on Eric Idle's BBC2 comedy show dressed as a pirate, satirizing the charges leveled against him. He is not the only artist to rail against the music industry. Consider Billy Joel's The Entertainer.
… I know the game, you'll forget my name And I won't be here in another year If I don't stay on the charts … I've learned to dance with a hand in my pants I let 'em rub my neck and I write 'em a check And they go their merry way … You've heard my latest record It's been on the radio Ah, it took me years to write it They were the best years of my life It was a beautiful song But it ran too long If you're gonna have a hit You gotta make it fit So they cut it down to 3:05 … If I go cold I won't get sold I'll get put in the back in the discount rack Like another can of beans … I know the game, you'll forget my name I won't be here in another year If I don't stay on the charts …
In their album Wish You Were Here, Pink Floyd refers to the music industry as "The Machine".
… Welcome my son, welcome to the machine. What did you dream? It's alright we told you what to dream. … Come in here, dear boy, have a cigar. You're gonna go far, you're gonna fly high, You're never gonna die, you're gonna make it if you try; … The band is just fantastic, that is really what I think. Oh by the way, which one's Pink? … You gotta get an album out, You owe it to the people. We're so happy we can hardly count.