Song Writing

In a 1980 Musician magazine interview, Steely Dan co-founders Donald Fagen and Walter Becker got themselves into a bit of hot water with a sarcastic answer to a question about the title track to their new LP, Gaucho. Confronted with the overwhelming musical similarities between their song and a half-decade old tune called "Long As You Know You're Living Yours" by jazz pianist Keith Jarrett, the ironic songwriters quipped, dismissively: "We're the robber-barons of rock and roll." Fans of Steely Dan might have been charmed by Fagen and Becker's usual flair for the wisecrack, but Jarrett wasn't amused. He sued the songwriters for creative theft, and successfully earned himself a writing credit for "Gaucho."

Interestingly, this wasn't even the first time Steely Dan had self-consciously alluded to a jazz recording on one of their tracks. Listen to the opening riff of their 1974 hit, "Rikki Don't Lose That Number" back-to-back with the intro to Horace Silver's 1965 number, "Song for My Father," and you'd be hard-pressed to tell the difference between the two. But Silver didn't sue the Dan — perhaps recognizing the jazz ethos to which they claim in interview after interview. While a borrowing in rock and roll may be cause for litigation, jazz musicians frequently reference other works of music in moments of improvisation. Quoting is all part of the jazz musician's bag, and if, say, the estate of Jerome Kern sued every time a saxophone player snuck in a melodic snippet from "All the Things You Are," there'd be an endless series of copyright infringement suits showing up on dockets.

Ironically, by the end of the 1980s and the turn to the 1990s, Steely Dan's catalogue of funky jazz-inflected pop music was emerging as fertile ground for hip-hop's sample-heavy aesthetics. The Fagen-Becker hit "Peg" featured prominently, for instance, in the early De La Soul cut, "Eye Know" from 1989's Three Feet High and Rising; 3rd Bass borrowed significantly from the Dan's "FM (No Static At All)" on their 1991 tune, "No Static at All." A myriad of Dan-samples have turned up in hip-hop in the years since. Fagen himself made light of this in the 1999 Classic Albums series documentary on the making of Aja, rapping from Lord Tariq and Peter Gunz's "Déjà Vu," for its memorable sampling of the Dan's "Black Cow." Fagen could joke, perhaps, because after 1992's landmark legal case, Grand Upright Music vs. Warner Bros. Records, in which songwriter Gilbert O'Sullivan successfully sued rapper Biz Markie for sampling the tune, "Alone Again," samplers have had to be more dutiful in giving samplees due credit. Hip-hop's early manic cut-and-mix aesthetics haven't been the same since. It was particularly interesting for artists with songs on the charts at the time of the ruling, since they were suddenly on the hook for the samples in their hit songs. With the power to name his price, Prince collected $100,000 from Arrested Development for the word "Tennessee," which was lifted from his song "Alphabet Street." Their frontman Speech told us: "As the song moved up the chart the album got to #3 on the pop charts. And once it went down, the very week it went to #4, we got a call from Prince's representation. They waited for that song to sell as many possible copies as they could wait for."

It's surprising, perhaps, that it took till the early 1990s for sampling to find its way into the courtroom, since the history of American popular music is such a litigious one. While jazz musicians may be permissive in allowing for allusion and quotation, pop songwriters have been assertive in trying to build fences around their creative property. One of the earliest examples is a case surrounding the 1956 novelty record, "The Flying Saucer," by Bill Buchanan and Dickie Goodman. Framed as a parody radio broadcast a la Orson Welles' famous War of the Worlds, Buchanan and Goodman "broke-in" (as they called it) to the narrative with musical snippets from various earlier hit records, ranging from The Platters' "The Great Pretender" to Elvis Presley's "Heartbreak Hotel" to Chuck Berry's "Maybellene." While the odd single was a hit, moving up to #3 on the Billboard charts, it also earned the duo time in court when various music publishers came after them for "breaking in" without permission. While Chuck Berry was one of the borrowed artists to whom Buchanan and Goodman turned, the legendary guitarist also ended up as co-writer on The Beach Boys' "Surfin' U.S.A." not because he chummed around with the Brothers Wilson, but because a court found the track much too similar to Berry's earlier hit, "Sweet Little Sixteen." (Incidentally, both Berry and the Beach Boys appeared on the legendary 1964 music documentary, The T.A.M.I. Show, but sadly not together, thereby missing the chance to do a mash-up of Berry's number and its plagiarized half-sibling.)

British songwriters of the 1960s have been particularly visible in plagiarism litigation — unsurprising, maybe, for a generation of boys who never made any secret of black American musicians' influence on their sounds. That gushing admiration hasn't stopped black songwriters and artists from successfully getting their financial due and credit over the years for notable borrowings by Brit rockers. The most famous of these is likely George Harrison's ponying up royalties after a court decided "My Sweet Lord" was a little too much like The Chiffons' "He's So Fine." But Harrison's Beatles-compadre John Lennon also saw litigation — from none other than Chuck Berry! — for taking the opening lyrics to "Come Together" from another tune without permission. In the 1970s, Led Zeppelin saw a flurry of legal activity over their penchant for taking significantly from the earlier American blues artists that inspired them as lads. Chess Records, it turns out, didn't like seeing Zeppelin profit so easily from quotations and borrowings from artists in the Chess stable, like Willie Dixon and Sonny Boy Williamson.

The oddest case of litigation in pop music history, though, might be John Fogerty's being sued, effectively, for plagiarizing himself. That is, when Fogerty left Fantasy Records for Warner Brothers Records, he relinquished control over his earlier Creedence Clearwater Revival material to Fantasy, in exchange for contractual release. This came back to haunt him later, when Saul Zaentz of Fantasy sued Fogerty, claiming that the artist's 1985 solo number, "The Old Man Down The Road," was a self-plagiarism of the earlier CCR cut, "Run Through The Jungle." Bringing his guitar to the witness stand when the issue went to court, Fogerty was able to suggest the tunes were separate entities, and convinced a judge to dismiss the suit, thus precluding what might have been one of the most ironic creative-property decisions in pop music history.
~Michael Borshuk