Notable Music Copyright Infringement Cases

If you are interested in music copyright law, here's a website you should check: Music Copyright Infringement Resource, sponsored by Columbia Law School and the USC Gould School of Law. It details over 160 cases from 1844 to the present, including often-amusing introductory comments on each case, and the texts of the decisions.

There's far more reading here than I have time for, and the legalese is often dense, but I can recommend a look at these cases, at least:

Saint James Infirmary (1932 - issues of title ownership)

My Sweet Lord (1976 - George Harrison was found to have "subconsciously" infringed on the Chiffons' "He's So Fine," plaintiffs were awarded damages)

When Sunny Gets Blue (1986 - parody "When Sunny Sniffs Glue" was held to be "fair use")

Satin Doll (1993, Estate of Duke Ellington vs. Estate of Billy Strayhorn - the judgment states that chord progressions may be an element of copyright!)

Girl From Ipanema (2001 - Astrud Gilberto vs. Frito-Lay)

Feel Like I'm Fixin' to Die Rag (2003, Babette Ory vs. Country Joe McDonald - case was dismissed on the grounds of time elapsed since the alleged offense)

Copyright infringement issues that did not result in litigation, or were settled out of court, did not make it onto this data base, e.g. Chuck Berry/Beach Boys ("Sweet Little Sixteen"/"Surfin' USA"), and Jorge Ben Jor/Rod Stewart ("Taj Mahal"/"Do Ya Think I'm Sexy"). Berry settled for a co-writing credit, and Stewart agreed to donate proceeds to UNICEF.

There's another recent music plagiarism case in the news, alleging that Led Zeppelin's "Stairway to Heaven" was cribbed from Spirit's "Taurus." I listened to the songs in question, and IMHO, the suit is utterly without merit. But what do I know? I thought the recent "Blurred Lines" case brought against Robin Thicke and Pharrell Williams by the heirs of Marvin Gaye was also utterly without merit, but the jury awarded Gaye's family $4 million.

Matt Dennis' "Angel Eyes," "St. James Infirmary," and "DYKWIMTMNO"

One of the bluesiest jazz ballads is Matt Dennis' "Angel Eyes," lyrics by Earl Brent. It's been recorded by Frank Sinatra, Ella Fitzgerald, and many others. Here's Chet Baker, in a rather dark version:

You'll find differing versions of the chords, depending on what source you consult. Looking just at the "A" section, here is the original sheet music (it's in Dm, while most current fakebook versions are in Cm). Click to enlarge:

As is common with sheet music versions, the piano part probably represents the composer's intentions fairly well, while the chord symbols attempt, not always successfully, to provide a sort of vertical cross-section that will work for a guitarist trying to play along. In any case, this tune has been re-harmonized by several generations of musicians, in varying ways.

One spot subject to reharmonization is the first bar, beats 3 and 4: What is the best way to harmonize the b5 blues lick in the melody? The sheet music, above, does it with two diminished chords. Bearing in mind that the following versions put the tune into the key of Cm, here are a few other ways to play it:

• The old bootleg Real Book uses two beats of a bVIdom chord (Ab7, in the key of C).
• The Hal Leonard "6th Edition" Real Book uses one beat each of Dm7b5 and G7#5 (this doesn't work well, IMO).
• The Sher Music "New Real Book" uses one beat each of D7 and G7, but also shows the diminished chord harmonization as an alternative, as well as another take on the first bar: | Cm/C Eb/C D/C Db/C | , one beat each.

Check the nice descending bass line in the sheet music, going lower, as fits the mood of the song.

I don't want to get too caught up in the harmonization issues here, but if you compare the sheet music above to just about any fake book version (bearing in mind that the sheet music is in D minor), you'll see some other differences. You can decide for yourself what works best. I'd go with Sher.

Regarding the bridge:

The bridge to "Angel Eyes" goes like this in the sheet music (shown here in the now-current overall key of C minor):

|| Bbm7  Eb7b9 | Abmaj7  Adim7 | Bbm7  Eb7b9 |   Abmaj7      |

|    Am7    D7   |  Gmaj7             |   F#7#5   F#7   |   G7   G7#5   ||

The last two bars here are generally revised to |  C#m7  F#7   |   Dm7  G7   ||, in keeping with modern players' predilection for II V sequences.

The bridge sections of "Do You Know What It Means to Miss New Orleans," "Everything Happens to Me," and "This Masquerade" all follow the same pattern as "Angel Eyes" - that is, II V I twice, then II V I down a half step, followed by a 2-bar sequence to set up the return to the last "A" section.

The similarities between the bridges of these tunes made me wonder which one was written first. Here's the chronology:

1941 - "Everything Happens to Me" (music by Matt Dennis)
1946 - "Do You Know What It Means to Miss New Orleans" (Louis Alter)
1946 - "Angel Eyes" (Matt Dennis)
 ("This Masquerade," written in 1972 by Leon Russell, is an outlier)

The melodies of the bridges to "Angel Eyes" and "Do You Know What It Means to Miss New Orleans" (henceforth referred to as "DYKWIMTMNO") are also very, very similar, in both melodic rhythm and in melodic contour. Here's Billie Holiday:

It's as though one composer had copied the other on the bridge, but that's impossible to really know. Both tunes were composed in 1946, and both were released to the public in 1947 - "DYKWIMTMNO" as a song in the movie musical "New Orleans" (the clip above), "Angel Eyes" in a recording by Herb Jeffries. It's hard to know which one came first, and it seems unlikely that either Dennis or Alter could have heard the other one's song before it was publicly released. However, Alter had certainly heard Dennis' "Everything Happens to Me" previously, since that tune dates from 1941, with a popular recording by Frank Sinatra and Tommy Dorsey.

Alter's "DYKWIMTMNO" starts in C, with the bridge moving to the key of Ab, then G. "Angel Eyes" moves similarly. That is, in both cases the bridge starts in the key of the b6. "Everything Happens to Me" moves differently, starting in Bb, with the bridge in Eb, then D (bridge starts in the key of the 4).

Perhaps Alter liked the chord pattern in "Everything," and used it in "DYKWIMTMNO," whereupon Dennis wrote it again into "Angel Eyes," swiping the melodic contours of Alter's bridge and the key relationship to the "A" section as well. Probably not, though, right?

Both composers were excellent musicians. Matt Dennis was a jazz pianist and singer as well as a songwriter (he also wrote "Let's Get Away From it All," "The Night We Called it a Day," and "Violets for Your Furs"). Louis Alter was a pianist who began writing for films in 1929, and later appeared as a pianist with the Los Angeles Philharmonic (Alter too wrote a number of hits, including "You Turned the Tables On Me").

You can hear Matt Dennis singing and playing "Angel Eyes" in the 1953 movie "Jennifer," in the video below, at 55:22.

Here's Matt Dennis singing and playing "Everything Happens to Me," including some additional amusing lyrics:

Regarding the "A" section of "Angel Eyes":

I hear a definite similarity to "St. James Infirmary" in melodic contour, in underlying harmony, and in its minor-key b5 blues licks (discussed in this earlier post). And in mood too, for that matter. Here's the Louis Armstrong recording from 1928:

I don't have any final answers here on the relationship between any of these tunes or their possible derivation, I'm afraid - just observations.

In a tangential matter, perhaps you have noticed that the melody of "House of the Rising Sun" is very close to "St. James Infirmary." I did a little internet research on this. It turns out that "House of the Rising Sun" has two completely different melodies. There is an earlier, major-key version of the song, recorded by a number of folk performers beginning in the 1930s - check Youtube for versions by Leadbelly, Georgia Turner, Ashley & Foster, and Roy Acuff. The minor-key version (e.g., as recorded by Eric Burdon and the Animals in 1964) was first recorded by Josh White in 1950. White seems to have combined the "House" lyrics with the "St. James" melody.

The melody to "St. James Infirmary" was first recorded in 1924, as part of an instrumental called "Charleston Cabin," by Whitey Kaufman's Pennsylvania Serenaders. In 1927, the lyrics were recorded by Fess Williams and His Royal Flush Orchestra under the title "Gambler's Blues" (note: Fess Williams was Charles Mingus' uncle...but I digress). The first recording of melody and lyrics under the title "St. James Infirmary" seems to have been Armstrong's, in 1928.

Finally, here is a great 1933 Cab Calloway version of "St. James." It was just too good not to include. Cab sings at 4:21:

For more on "St. James Infirmary," check out this interesting essay by Rob Walker.

For more on Matt Dennis, here's a great article by Gene Lees.

"I'm Afraid the Masquerade is Over" and "El Dia Que Me Quieras"

"I'm Afraid the Masquerade is Over" (1938) is one of the great "Golden Age" ballads. The music is by Allie Wrubel, and lyrics by Herbert Magidson. Here's a perfect performance by Sarah Vaughan:

I heard this next tune a few days ago on a PBS channel - "El Dia Que Me Quieras," a classic tango written by Carlos Gardel for the 1935 movie of the same name. The version I heard was a live performance, played by Astor Piazzola on bandoneon. I couldn't find that clip on YouTube, but this one is nearly as good:

Kind of similar?  The movie opened in New York in 1935. I suppose it's possible that Wrubel heard Gardel's tune and used the melody as a basis for "Masquerade," knowingly or unknowingly.

Even if you think this is a stretch, these are some pretty great songs!

"Influência do Jazz," "Moonlight in Vermont," and More

Carlos Lyra's "Influência do Jazz" is a 1962 bossa nova classic. Lyra's lyrics complain about the corrupting influence of jazz on samba. It's a bit tongue in cheek, though, as "Influência do Jazz" itself shows the influence of jazz. In fact, bossa nova couldn't have existed without the influence of jazz.

It's hard to miss the melodic similarity of "Influência" with "Moonlight in Vermont" (Karl Suessdorf, 1944):

An English translation of the lyrics and some background on "Influência" are on Victoria Broadus' very interesting website, lyricalbrazil.com.

While I hear "Moonlight in Vermont" as a likely starting point for Lyra's melody, Broadus suggests parallels with "You Were Meant for Me" (Nacio Herb Brown, 1929, but best known from its use in "Singin' in the Rain," 1952) and "Indian Love Call" (Rudolf Friml, 1924, but redone over the years by many artists).

Here's another - Franz Lehar's "Meine Lippen, sie küssen so heiss," from his operetta "Giuditta" (1934). I heard this one on the PBS "Classic Arts Showcase" the other night. The melody in question is at 1:08.

Chronologically, the order is Friml - Brown - Lehar - Suessdorf - Lyra. There definitely are some similarities, some closer and some a bit of a stretch.

The similarities don't really prove anything. Good melodies can be independently arrived at; if there is borrowing it can be unconscious. Some of these similarities are certainly just coincidence. Correlation does not imply causation. I still think Lyra was referencing "Moonlight," though.

An Incredible Jazz Concert, 50 Years Later

One of my formative early musical experiences was a concert I attended in 1966, my last year of high school. I was a dedicated jazz fan, and a fairly decent high school musician. I played tenor in the school jazz band, but my musical education was more on classical clarinet at that point.

In the 1965-66 academic year, Stanford University (a few miles from my house) booked a series of "Jazz Year" concerts - an amazing lineup that included Louis Armstrong, Duke Ellington, Miles Davis, and other major jazz figures. I persuaded my parents to buy us tickets to two of the concerts. The first one, on January 23, 1966, was a double bill with Thelonious Monk's quartet and John Coltrane's ensemble.

Here is how I remember it, almost exactly 50 years later:

The concert was in Stanford's Memorial Auditorium. MemAud seated about 1600, and was sold out. Monk came on stage 30 minutes late with his quartet (Charlie Rouse, tenor; Ben Riley, drums; Larry Gales, bass). The band sounded great, and it was a thrill to hear all the tunes played live that I had only heard on record. At one point during an extended Charlie Rouse solo, Monk got up from the piano bench to "stroll," i.e. walk around a bit and stretch his legs, while Rouse's solo continued with just bass and drums accompanying. Monk seemed to be having some trouble walking straight. It actually looked to me as though the stage was slanted, sloping down toward the audience. After doing a little recent internet research, I think that this may very well have been the case - Memorial Auditorium has a "proscenium stage," which could have included a "raked stage" feature. Monk played a set and two encores.

After an intermission, John Coltrane took the stage with his group: Elvin Jones and Rashied Ali, drums; Juno Lewis, percussion; Pharoah Sanders, tenor; Alice Coltrane, piano; Jimmy Garrison, bass; and Donald Garrett, bass and bass clarinet.

This was early 1966, after "A Love Supreme" had been released (I'd worn out the grooves playing that record), but before the release of "Ascension" or "Meditations." I was unprepared for what was coming.

Coltrane's group played an incredibly intense set, lasting an hour and 20 minutes. There was just one pause in the music; I guess that means there were two songs, maybe. It wasn't clear what the tunes were; there was no announcement, and I heard just a few recognizable pieces of melody. I could say that much of it was in triple meter, but with those three drummers, there were often different meters going simultaneously. Lewis Porter's The John Coltrane Reference quotes Phil Elwood's review in the San Francisco Examiner, listing the pieces as "Peace on Earth" and "Afro Blue." Ralph Gleason, in his San Francisco Chronicle review, listed "My Favorite Things" and "Crescent." For what it's worth, I remember hearing a fragment of "Afro Blue."

It was music at a high spiritual level and a high energy level, transcendent like "A Love Supreme," but perhaps more spontaneously organized. It was not as chaotic as the "Ascension" recording that was released shortly afterward. I recall extended solos from Alice Coltrane, Juno Lewis, and Jimmy Garrison. Coltrane gave his players more solo space than he took himself.

I had no idea that music could be this powerful. Gleason's review described "ensemble climaxes of stupendous intensity." Gleason called the concert "one of the most intense and exhilarating musical experiences I have ever had." It hit me the same way. I walked out of there a changed person. My parents were at the concert with me; I can only imagine what their reaction might have been. I don't think we discussed it.

This was one of the last times that Elvin Jones performed with the group. Some more details on this concert, and Coltrane's gigs immediately after, can be found in these pages of Porter's book.

While doing some internet searching for this post, I ran across this article in the Stanford Alumni Magazine by one of the organizers of the "Jazz Year." The author describes the audience as "underwhelmed" and "tepid." I don't recall, I was too blown away to notice. There was no encore; no encore was necessary.

I wonder if somewhere there is a recording of that concert.

The "Jazz Year" series also included concerts by Louis Armstrong, Duke Ellington with Ella Fitzgerald, the MJQ, Dizzy, Muddy Waters, Ray Charles, and Miles Davis. The Miles event (with Herbie Hancock, Ron Carter, Tony Williams, and Wayne Shorter) was the only other one I made it to. It was a privilege to have been at that event too, but Miles was pretty subdued and straight-ahead, in comparison.

The "Back Door" Chord Progression

The use of IVm and/or bVII dominant chords in an otherwise-major progression is a common harmonic device in "Great American Songbook" tunes and jazz standards. When I was first learning theory, this device was described as "borrowing chords from the parallel minor" or "modal interchange" (i.e., switching briefly from major to minor). Some friends who had gone to Berklee in the early 1970s also used the term "subdominant minor" to describe these chords.

In maybe the last 15 years or so, I've been hearing the term "back door progression" to describe this device, and "back door II V" to describe the combination IVm bVIIdom (leading to the I chord). I've been trying to get some clarity on this term. The first instance of the term in print that I could find is in Jerry Coker's book, Elements of the Jazz Language (1991). Coker briefly describes IVm bVIIdom as a substitute for V7, calling it the "back door progression." A later Coker book, Hearin' the Changes (1997) - a terrific book, by the way - gives a more complete description of the device.

As described in "Hearin' the Changes," the "back door progression" is "a cell made up of IV-7 and bVII7 chords, leading to I." He never actually uses the term "backdoor II V," preferring to call it a "progression."

The book goes into more detail (below, with my comments):

• Historically, this progression began as a simple bVIIdom, substituting for V. "At least as early as the bebop era, the IV-7 was added...providing a quasi II function..." 

Comment: I'm not so sure about this. Certainly bVIIdom was used occasionally in standards as a substitute for V (e.g., "Speak Low," "Georgia"), but IVm or IVm6 was used earlier and more often, not necessarily as a V substitute but rather as a way of importing minor-key color, with jazz players later sometimes adding the bVIIdom to form a quasi II V shape. At least, that's how I see it.

• "The back door progression operates in one of three ways: (1) as a substitute for the II V progression (or just the V); (2) as a means of returning to the original key center after a brief modulation to IV major; and (3) as a free-standing cell, usually sandwiched between two I chords."

Comment: I agree. This is a nice breakdown of the harmonic situations where IVm and/or bVIIdom appear. My only reservation about this explanation is that it disregards the "minorizing" function of these chords, which I think is the basic reason that they are there.

In many, many tunes (e.g., Thad Jones' "A Child is Born," any number of tunes by Cole Porter, etc.), the IVm is obviously there to add minor color. bVIIdom can be used as a substitute for IVm; or the two chords can be used together as IVm bVIIdom. Sometimes IIm7b5 V7b9 can be used in these same spots. All of these variations include the "minorizing" b6 note of the key.

For a good example of early use, check out the original sheet music of "After You've Gone" (1918), bar 2 of the chorus (after the "verse" introduction). It's a IVm chord (not bVIIdom) in the key of C, following a IV. It fits Coker's category (2) above. The lyrics in this bar are "...and left me crying." The composer was clearly supporting the lyrics with evocative minor color. At the same time, the sequence incorporates some voice-leading from the A in the F chord, to Ab in the Fm chord, to the G in the C chord.

It's this sort of use that I think originally was (and still is) the main function of "parallel minor" chords, although it's true that bVIIdom has occasionally been used as a substitute for V.

But beyond the "descriptive" side; there's also the "prescriptive" consideration. That is, how can improvisers work with these harmonic areas?

Coker, who knows his stuff, suggests using IVm and/or bVIIdom as a substitute for V alt (I assume he is talking about both soloing and arranging). I'd add that the reverse can work too - playing V alt over the IVm bVIIdom - as seems to be the case in Clifford Brown's solo in "Joy Spring" (see this post).

As mentioned in that post, another possibility is to simply treat IVm bVIIdom as a II V. That is, if Fm7 Bb7 occurs in a tune in the key of C major, you could play as though it is a II V in Eb major. (Note, though, that I was looking at solos in two jazz tunes, "Lady Bird" and "Joy Spring," where the composer's melody itself was written as a II V lick in those spots.)

I still think that the way I was taught is the approach that is most to-the-point: Treat IVm and/or bVIIdom as borrowing notes from the parallel minor, and use the color brought by the b6 note of the key.

The b6 (Ab, in the key of C) is the important note. The chord progression is not necessarily a complete flip into the parallel minor. E natural, although it is not a note in the key of C minor, can work just fine over Fm6 or Bb7, depending how it is used.

Although it's a convenient shorthand, I'm not sure that "back door progression" is the best term for describing this device. "Chords borrowed from the parallel minor" describes its function a little better, as I see it. I should also mention that the term "back door" has also been used to describe a sequence like F#m7b5 B7 Cmaj7, a rather different concept.

Quibbles aside, I'm a fan of Jerry Coker's educational publications. The book mentioned here, Hearin' the Changes, is a well-written survey of the formulas that comprise most of the harmony in jazz standards. The book is aimed at giving players a means of more easily hearing and memorizing changes. It should be interesting to any fairly experienced jazz player, who enjoys digging into this kind of harmonic thinking.