OPED: Creative reality versus copyright law
A fellow writer recently told me that when he began his career, he was always hunting for a scoop, a story no one else had. Now, with a couple decades experience, he does the opposite. "I look for a story that's already been done 10 times," he said, "with the aim of making the 11th the one everyone would rather read."
Lurking behind that notion is an important fact about popular art: It relies on the familiar. Successful pop artists aren't necessarily the most daring or sophisticated, but the best have the skill to take what they've heard and make it fresh. As the plagiarism case against one of rock's most successful songs, Led Zeppelin's "Stairway to Heaven," came before a Los Angeles jury this week, we should acknowledge a dictum the public teaches aspiring stars: Steal big or stay home.
This is not to suggest that the case doesn't deserve to be brought — just that copyright law sees the creative process differently. It venerates ownership as a goad to creativity, and grants ownership to whomever was "first." Because originality is a rather difficult thing to establish, court decisions can seem subjective, claims opportunistic.
In 1971, George Harrison was sued by Bright Tunes, the publisher of the Chiffons' hit "He's So Fine," alleging the ex-Beatle copied it with his much bigger hit, "My Sweet Lord." A judge heard enough similarity in their melodies to rule in favor of Bright Tunes. But at least one person who worked with Harrison has suggested that the gospel song "Oh, Happy Day" might have had a stronger claim. And while John Lennon didn't venture an opinion, he did recall the Beatles' first publisher, Dick James, schooling them in how to write a song based on an existing work without exposing themselves to legal action.
The reality is that all creative work draws from existing art and stories, while acquiring copyrights and defending them in court is a completely different business — and a lucrative one in its own right. No one knew this better than Allen Klein, who was Harrison's manager when the "My Sweet Lord" suit began.
Threatening Klein with court was like trying to scare a Kardashian with a camera. He relished litigation and was the plaintiff or defendant in more than 70 suits. Klein, who died in 2009, also was a music publisher; he owned or administered the rights to many hits, including "Baby, It's You" and "A Change Is Gonna Come."
As Harrison's manager, Klein belittled the suit and vowed to oppose it. But it took the case several years to come to court, by which time Klein and Harrison had fallen out. When Harrison was adjudged to have copied "He's So Fine," he was shocked to discover that Klein had paid $587,000 to acquire the publishing rights of "He's So Fine." Harrison would therefore have to give Klein a share in the copyright to "My Sweet Lord" and pay a judgment on back royalties initially estimated at more than $2 million.
Eventually the court agreed with Harrison that Klein's fiduciary duty as his manager continued even after the relationship ended and that he couldn't now benefit. It ordered Harrison to pay Klein the cost of acquiring Bright Tunes, but not the back royalties, with Klein instructed to administer "My Sweet Lord" on Harrison's behalf.
The "My Sweet Lord" case wasn't even Klein's most ruthless legal play. In 1997, Klein used his rights as music publisher for the Rolling Stones to seize control of the song "Bittersweet Symphony" by the Verve.
To create that song, the Verve licensed the rights from Decca Records to sample an instrumental recording by the Andrew Loog Oldham Orchestra of the Rolling Stones' "The Last Time." What they failed to do was get permission from the song's publisher: Klein's Abkco Music. Without Abkco's permission, they'd be liable for copyright infringement and therefore couldn't release the song. When they asked Klein for permission, he refused. After giving the band a few days to imagine the millions they might lose, Klein "gave in" — in return for Verve singer and lyricist Richard Ashcroft's selling his songwriter's share for just $1,000.
To this day, "Bittersweet Symphony" is one of the bigger earners in the Abkco catalog, licensed frequently for ads. But neither Ashcroft nor any other member of the band receives publishing royalties. That money is shared by Abkco with the other copyright holders of "The Last Time": Mick Jagger, Keith Richards and Oldham.
That's not the last twist. In fact, the melody sampled from the instrumental version of "The Last Time" sounds nothing like the Rolling Stones' song. That riff was written by David Whitaker, who was paid a flat fee to arrange the song for the Oldham orchestra and is not listed as a composer. Moreover, Jagger and Richards' song almost certainly owes its inspiration to a gospel song, "This May Be the Last Time," recorded by the Staple Singers in 1955. Fortunately for the Stones, the Staple Singers weren't managed by Klein.
The reality is that borrowings and elaborations constitute the provenance and history of popular songs — and copyright cases don't necessarily reflect that.
Fred Goodman's most recent book is "Allen Klein: The Man Who Bailed Out the Beatles, Made the Stones and Transformed Rock & Roll."