(Robert Palmer, New York Times, April 6, 1983)

Posted by VallyVal

"I feel like I've somehow stepped into 'The Twilight Zone,'" Barry Gibb of the Bee Gees said recently. "It's been a nightmare."

Mr. Gibb, who founded the Bee Gees with his brothers Robin and Maurice, was talking about the last several months of their lives, and particularly about being found guilty in a copyright infringement suit by a Chicago jury on Feb 23. The jury ruled in favor of Ronald Selle, a Chicago antiques dealer and band leader who claimed that the Gibb brothers' composition "How Deep Is Your Love," which was a hit single in 1977 and appeared on their best-selling soundtrack album from the film "Saturday Night Fever," was pirated from his own composition "Let It End."

The Bee Gees have filed a motion to overturn the decision; a judge is scheduled to rule on that motion on April 22. "If that fails, of course we'll appeal," Mr. Gibb said. "We intend to fight this to the end."

Mr. Selle's attorney, Allan c. Engerman, said earlier this week that his client was also prepared to "appeal or go for a new trial" should the judge rule against him.

Within the music business, the decision against the Bee Gees has been seen as peculiar. Mr. Selle's song was registered with the copyright office in 1975, but it has never been published. Mr. Selle testified that although he submitted the song to some 14 publishing and recording companies, all of which rejected it, none of these companies was directly connected to the Bee Gees or to companies that record or publish their work.

The Bee Gees maintained that as a matter of policy they never listen to or look at unsolicited songs. They have never recorded music they did not write except for some songs the recorded as child singers in the 1950's and some Beatles tunes they worked for the film "Sgt. Pepper's Lonely Hearts Club Band."

In copyright-infringement cases of this sort, the burden of proof is on the plaintiff. In this case, one strategy of the plaintiff would have been to demonstrate that the three Gibb brothers, as authors of "How Deep Is Your Love," had access to his song, and that the two songs or substantial portions of them show a "striking similarity," in order to prove his point. But Mr. Selle's attorneys never indicated how the Bee Gees might have gained access to his unpublished song, according to a court transcript from the trial. Instead, they cited earlier cases that were decided almost wholly on the basis of musical similarity. And the jury agreed with their contention that the first eight bars and four last bars of the two songs were strikingly similar. And according to Mr. Selle's attorney, "once you establish such striking similarity, you have also established what the law recognizes as inferred access."

Deficiencies seen in copyright laws

The bee Gees plagiarism case, however it is eventually decided, points to serious deficiencies in present copyright law with respect to today's popular music. "How Deep Is Your Love" was originally a cassette recording, made by Barry Gibb, of a melody with no words. The words and the song's rhythmic structure were added later, and the song in its final form was put together in the recording studio, with the three writers and various members of their band making contributions. Only after the song had been finished on tape was it transcribed into musical notation as a "lead sheer." But in court, the comparison between "How Deep Is Your Love" and "let It End" was made strictly on the basis of two lead sheets.

Anyone looking at the melodies of the two songs as written can see some correspondences in the first eight and last four bars. But when one listens to the songs on tape, significant differences in phrasing, rhythmic idiom and overall style emerge. One can find melodic similarities between the written versions of any number of pop songs. After all, there are only 12 notes in the scale, and sequences of these notes can only be harmonized in a limited number of ways, given the accepted harmonic usages in present-day pop music. Even Barry Gibb freely conceded that "there are some similarities in those portions of the two melodies as written. What hasn't been established s that that means that we stole the song."

If plagiarims cases are going to be decided simply on the basis of similarities in melodies as written, then anyone who has copyrighted a blues song, using the standard 12-bar blues form and one of the handful of traditional blues melody patterns, should be able to successfully sue the writers of literally hundreds of other blues tunes. The time when a popular song was basically a lyric set to a written melody passed with the coming of rock'n'roll in the 1950's. Since then, rhythmic scale, bass lines, harmonization and phrasing, and other aspects of what used to be regarded as a song's arrangement, and thus as window dressing, have become equally important as distinguishing characteristics.

Some of the most important musical innovators of the rock-and-roll era were unable to fight back when derivative artists plundered their ideas because copyright laws failed to reflect the changing realities of the pop scene. Bo Diddley would be a millionaire many times over had he been able to copyright the "Bo Diddley beat" that he introduced into popular music in the mid-1950's. Within a few years of Mr. Diddley's first recordings, hit records like Johnny Otis's "Willie and the Hand Jive" and Buddy Holly's "Not Fade Away" used his distinctive rhythmic pattern without altering it in any way, but he was told, "You can't copyright a rhythm."

Similarly, Chuck Berry invented a characteristic guitar figure, involving a specific melodic and chordal sequence in a specific rhythmic arrangement, that has been plundered by almost every rock-and-roll guitarist ever since. The guitar figure was a basic musical component of Mr. Berry's hit songs, but he had no legal recourse when other rock-and-roll tunesmiths "borrowed" it and built their own songs around it.

It is probably unrealistic to expect a thorough revision of copyright law requiring that decisions in plagiarism cases take into account all the musical characteristics of a popular song as recorded. The country's copyright laws were revised a short time ago, and arrangers and other musical craftsmen were granted additional protection. But until the law, or at least its customary usage, begins to take into account the realities of how recorded popular music is actually created, the law will continue to be fundamentally unfair.

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