Many of you probably heard that Sam Smith recently settled a copyright dispute with Tom Petty. Apparently, Tom Petty thought that his song “I Won’t Back Down,” (co-written with Jeff Lynne) sounded a little too much like Sam Smith’s song “Stay With Me.” If you’re like me, you’re probably thinking, “What a complete and utter BS.” Maybe that’s what Sam Smith thought too, but regardless of what he actually thought, Tom Petty and Jeff Lynne were credited for co-writing “Stay With Me.”
A while ago, the publishers for the song “I Won’t Back Down” contacted the publishers for “Stay With Me” about the similarities. Specifically, the similarities were directed to the melodies of the choruses of the two songs. I don’t know the details of the exchange, but the publishers for “Stay With Me” ended up agreeing that the melodies were coincidentally similar (well, of course it was a coincidence… otherwise you’d be willfully infringing). By the way, am I the only one who finds it ironic that Tom Petty and Jeff Lynne’s song is titled “I Won’t Back Down”? Like… “I won’t back down” from my copyright infringement claim? Have your little laugh.
For the sake of this article, let’s say that the publishers for “Stay With Me” weren’t amicable. What would the publishers for “I Won’t Back Down” need to show to bring a copyright infringement claim?
Copyright infringement requires: 1) copying that results in a work that is; 2) substantially similar to the original. This seems to make sense. You need to copy to have a copyright infringement claim, and the work needs to be similar enough to the original. The work need not be identical to the original, because that would be too much burden for plaintiff to establish.
Let’s take a closer look on what you need to show “copying” in the first element. To show “copying,” you need to have “access” and “similarity.” Access means exactly that you had access to the copyrighted work. If you had access, it is more likely that you copied. Take songs that you can hear on the radio for example, or anything that is available to the public for that matter.
Similarity means that the work is similar to the original from the perspective from an ordinary observer. See Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960). and the similarity has to be more than de minimis. See Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997). This means that a single element like two fairy tale books having a princess as the main character doesn’t constitute sufficient similarity. Typically, the more you can meet the burden of establishing “access,” the less you need to show “similarity.”
It’s interesting to me that this didn’t bubble up to a huge dispute. I guess the parties wanted to be amicable and didn’t want this issue to be publicized in a negative light. I mean, come on. Sam Smith just had a huge year and he could do no wrong, so the last thing you want to do is to draw attention to him over a copyright dispute. Or maybe Sam Smith decided to take the high road because he is that classy.
Now that Tom Petty and Jeff Lynne are credited with writing “Stay With Me,” what does it mean? Well, each deal is negotiated on a case-by-case basis so I don’t know. They could be retroactively compensated and/or receive future earnings from the song. BUT what I did find out was that they are not eligible for a Grammy, should “Stay With Me” win, because they didn’t do any new writing for the song.