The ABA Journal finally provided a brief, clear, fascinating account of exactly how it was that George Harrison was found to have “unintentionally” plagiarized the Chiffons’ “He’s So Fine” when he wrote his biggest hit single as a solo artist, “My Sweet Lord.”
It also clarifies what I always suspected: when courts have to decide the question of when a song is too much “like” another, anything can happen.
George Harrison’s first solo album “All Things Must Pass” was released in 1970, the same year the Beatles officially broke up, with “My Sweet Lord” the triple album’ s signature hit. I remember the first time I heard the song, and thinking, “Wow, that reminds me a lot of ‘He’s So Fine’!” Others thought so as well, including Bright Tunes Music Corp., which held the copyright on the Chiffons’ 1963 classic. It sued Harrison’s publishing company, Harrisongs Music Ltd., for copyright infringement.
As litigation proceeded, Harrison admitted in court filings that he was familiar with “He’s So Fine”—how could he not be?—but denied that he had used it to create “My Sweet Lord.” At trial, Harrison brought his guitar to the witness stand to demonstrate how he had composed “My Sweet Lord.” This, onlookers agreed, was sufficiently convincing to persuade the judge that George was not guilty of intentional infringement.
Still, the court awarded $1.6 million to Bright Tunes for unintentional infringement, a lesser penalty but hardly insignificant. Then occurred an outrageous ethical breach that should have set off everyone’s ethics alarms, especially the perpetrator’s, who apparently had none.
. Harrison’s former manager, Allen Klein, bought the rights to “He’s So Fine” before George could pay the damages, and continued the lawsuit. The slimy stunt backfired: the court reduced the damages down to $587,000, citing Klein’s unethical breach of fiduciary duty against a former employer and his blatant conflict of interest. Various legal maneuvers related to the damages kept the controversy alive until 1998, just three years before Harrison died.
The subconscious plagiarism concept that snared George Harrison opened a legal and ethical can of worms that have been squirming ever since. “My Sweet Lord” established an inviting precedent to allow musicians and publishers to take a shot at grabbing the profits of any popular song that contains elements reminiscent of theirs. Even when the claims have no merit, the specter of George’s public embarrassment and his 27 year legal ordeal often induces artists to preemptively settle by giving the complaining copyright holders co-writing credit or a share of the royalties.
It is officially a mess. The ABA Journal quotes copyright lawyer Howard King, partner at the firm King, Holmes, Paterno & Soriano which has handled several such lawsuits, as saying, “There’s no guidance available. There’s no definitive way to determine whether or not a song will later be found to have copied another one.”
UPDATE: My friend and indefatigable Beatles historian David Elias adds this: “George eventually purchased Bright Tunes when it went on the block… so ended up paying royalties to himself!”
Now here are The Chiffons. I must confess that I’ve always thought their song was the better of the two. It was written by Ronnie Mack, his only hit, mostly because he died of Hodgkin’s Disease the same year the Chiffons recorded “He’s So Fine.” He was only 23. “Jimmy Mack, when are you comin’ back?” was written as an homage to Mack, and became a major hit for Martha and the Vandellas in in 1967.
Ethics Alarms 
This is interesting. I’ve been listening to podcasts about the copyright-law mess that is musical influence and sampling yesterday and this morning during my commute, and the same topic shows up here!
It was unconscious plagiarism, I swear!
I believe the Aussie band Genesis was sued (and lost) under the premise that their first hit, ‘Down Under,’ stole a flute riff from a very popular Australian children’s song, ‘Kookaburra.’
The riff does sound substantially the same. How can we know the artist did not subconsciously channel something from his childhood during the creative process?
Copyright laws are messed up when this is allowed to happen.
Uhg, not enough caffeine… the band was Men at Work with Colin Hay, not the later Phil Collins band.
As an aside, Collins is an honorary Texan by Congressional proclamation: he spent a lifetime collecting Alamo artifacts, then donated them to the San Antonio site via the State of Texas.
I’d read that somewhere. So nice to know there are still people who appreciate history to that extent.
That’s enough to make me start listening to Phil Collins songs.
Well, just to be unnecessarily pedantic (because that’s just how I am, alas), Genesis was active long before Men At Work, who formed in the late 1970’s. Genesis had their first US top ten hit, “Follow You, Follow Me” in the late ’70’s about the time MAW was forming. I think Genesis formed in the late 60’s sometime.
Collins started a solo career I believe sometime in the early 1980’s very near to MAW’s “Down Under.” The first song I remember hearing from Collins solo was “In the Air Tonight,” which was famously in the Tom Cruise movie “Risky Business.” Of course, there have been many since, both with and without Genesis. Several members of the band, including Collins, Mike Rutherford and Peter Gabriel had successful solo careers. That was a talented bunch.
But I did not know MAW lost a plagiarism suit. Interesting.
You had me scratching my noggin for a moment, Slick. I didn’t there was an Aussie band by the name of Genesis, but I do love me some English Genesis. “Supper’s Ready” is the quintessential prog-rock masterpiece.
jvb
PS: “Kookaburra” is a great song.
RE: Kookaburra
Shades of the purple dinosaur! Yeah, my kids learned that song listening to Barney in the late 1990s.
Catchy tune (and I thought it sounded a bit like MaW ‘Down Under’ so there you go…)
I know a couple of moderately successful country music songwriters, and they refuse to listen to much contemporary country music radio lest they subconsciously remember a melody, a phrase or a lyric that might find its way into their own work. Similarly, I have been asked to review their demo recordings to listen for similarities to older country songs with which I am familiar. No one wants to be “that guy” or “that girl” who gets dinged for even accidentally plagiarizing the work of another songwriter. Sometimes only a minor change in melody within an existing chord structure is all that is needed to remove the “that sounds familiar” aspect from a song. After all, there are only so many notes on the scale!
Perhaps this topic has not been sufficiently addressed by The National Council Of Teachers Of Music?
It’s interesting that country music, as a genre, has been notably less litigious than pop music. You hear about pop musicians being sued all the time, but C&W, not so much.
That’s because country music stars are nicer.
Heh. I guess.
It is because nobody wants to admit that all modern country music is the same!
jvb
Read my mind.
Jim, you are a bad, BAD man.
On the other post (about math teachers), I wondered why the organization wasn’t called “The National Council of Mathematics Teachers”?
jvb
The songs do sound very similar, and I think I can excuse a judge or jury for figuring that there must’ve been unconscious plagiarism in the Harrison song.
I have heard the Chiffon’s song many times, but it didn’t jump into my memory like Harrison’s song. Probably because I still listen to 1970’s music a lot, and all the Beetle’s solo stuff gets quite a bit of play.
What got George is that both the A melodies and the B melodies were so similar.
Yep. That’s exactly what it is.
Back around 2005 or so I wrote a song for a specific sub-genre of modern pop that I was playing and everything in my gut told be that the song I wrote was good and original. I did my due diligence and began to listen to songs to make sure I wasn’t unknowingly plagiarizing a tune, I was 100% positive that the words I wrote were completely original. Since it’s really hard to write something that is “original” with so much recorded music out there influencing the creative side of the brain I really spent a whole lot of time on this one because it really was quite good but there was just something about it that felt a little familiar to me.
I took out old albums of mine and listened to portions of every song on every one of my old albums. After that daunting task I was becoming more comfortable with what I had written was original but I trudged on. I started listening to all my wife’s old albums, we had very little musical crossover of bands, she and I listened to bands on different ends of the rock musical spectrum. After a while it seemed pointless to continue with this task because I had never heard most of the songs on her albums and listening to all that wasn’t very pleasing to my ear, but I pressed on. One day I came across one of her pop rock albums from a band that I remembered was a favorite of one of my high School buddies, I wasn’t very fond of pop rock I was more a fan of bands like Uriah Heep but I put it on and started trudging through the songs and then I placed the turntable needle on one of the songs that was instantly interesting to my ear, I honestly don’t remember ever hearing it before. I restarted it at the beginning, listened, it captured my attention and as it got closer to the end I realized that what I was hearing was similar to what I had written. The melody of this song was “similar” and parts of the song felt similar and other parts of the song were vastly different. In the end I concluded that at some place in time I must have heard the song and my mind tucked it away so I scrapped the tune to the song, saved the words, and I’ve never been able to put a different tune to it since.
The moral of the story is that in today’s world with the availability of vast libraries of recorded music, it is likely becoming next to impossible to craft a tune that is 100% original without some kind of unintended artistic crossover. Is this plagiarism, I don’t think it is unless it’s pretty obvious that it was intentional. Artists need to accept the fact that absolutely everything they listen to will directly or indirectly affect their creative efforts and sometimes they won’t even know that they are infringing on someone else’s song, they just need to accept the fat that it’s going to happen, let the lawyers do their job in a way that doesn’t piss off their fan base and fellow artists and share the proceeds when it’s reasonable.
Then, on the flip-side (as they say in the industry), there is the story of Prince, who preemptively contacted Journey because he thought Purple Rain might have unintentionally copied a portion of Faithfully:
https://www.iheart.com/content/2018-05-10-prince-asked-journey-if-he-plagiarized-the-end-of-purple-rain/
-Jut
This “He’s So Fine” vs “My Sweet Lord” should really never made it into court. This would have been a perfect time for Harrison to have used the Golden Rule and openly said, “well crap that song was an unintentional artistic crossover, let’s make this right for everyone involved”.
Pompous ass artists do seem to shove their swollen heads straight up their…, well you get the idea, when it comes to their art, it’s as if they think can do no wrong even if it’s unintentional.
If people would just implement the Golden Rule and not act as if it’s a old fashioned and seemingly pointless platitude so many things in so many lives would be a whole lot better.
I recommend this short story by Spider Robinson as an explanation of why the notion of accidental plagiarism should be killed off. I didn’t realize until skimming it again that it references this specific case.
I thought of that short story as well when I read this post. I remembered reading it in a SF magazine when it was first published and was going to refer to it in a comment, but you beat me to it. Thanks for finding it on the web – I would have just referenced it.
I had forgotten that story until I got partway in. This was a huge influence on my opinions of the copyright extensions and innate silliess of a bodyless/immortal corporation reaping copyright. These extensions, don’t really benefit the artist’s starving orphans that were the justification for copyright, now the grandchildren are seniors.
I would like to reach the point where I benefit from copyright, but its become a straightjacket, especially for music. A riff or variant of a good melody is better than bad originals.
Did you actually watch that Harrison video? I think you find a better one to use.
There are about ten of them, and I didn’t have time to review them all. I’ll take your word for it, and just use the audio.
Led Zeppelin was sued over “Stairway to Heaven” on the same theory but I believe they won at trial and the case is on appeal.
My beloved Rush (at whose mention all knees must bend) got themselves into a bit of a spat with “La Villa Strangiato” because Raymond Scott, who wrote the instrumental “Powerhouse” in 1937, accused them of sampling the song. Rush prevailed because of statute of limitations and other defenses but they settled with Scott’s estate because they believed that musicians should be compensated for their compositions. it’s also because they are Canadian and . . .
Queen settled a copyright dispute with Vanilla Ice over Ice’s sampling of Queen’s “Under Pressure”. Where there may be a similarity between Harrison’s “Lord” and the Chiffons’ “Fine”, any casual listening to Ice’s “Ice, Ice, Baby” would have concluded that the bass line was identical. Ice responded that he added an extra beat, thereby exploiting a defense that the extra created a new composition. They settled out of court and the members of Queen receive royalties and co-writing credits.
jvb
I see the essential issue is the issue of transformative inspiration is so hard to quantify in music more than other art forms. There’s literary analysis programs that can analyze a public early draft of a book series and say its 85% the same as another series. With series and movie money it can get just as nasty as these music suits.
If there is significant shift or rebirth especially from a less successful original, the second artist can be cleverer or do a more definitive version than the original. (This instant I’m thinking of the Jackson LOTR movies over the Rankin Bass, or Raymond Burr’s Petty Mason has all but obliterated cultural memory of the earlier) The later artist doesn’t really owe much if anything if they did it better. (and quantify better, how?) But the original artist or artist made the second possible, the second lacked the ability to make their own unique song/story/movie, you cannot can’t remake without the original, ref the obnoxious wave of remakes and covers that either have no discernable change of a money grab, or fail to understand the source’s virtues. I think Aladdin and Trek show this. The coming Picard series is supposed to be x% different from a beloved original to fit some usage and legal restriction. But it still owes to the originals, even if those are not as PC anymore.
I can see both sides of this, especially in music, as there are fewer chords and melodic sequences that fit within the sphere of appealing to western culture. But the money part of an inspiration is the motivation, especially when one or both is struggling, I doubt credit alone would be as much an issue, Handling transformative art is such a mess. (and giving it away for free to avoid profits isn’t exactly fair to the one inspired either)
Even better, a three-way::
The Hollies’ The Air That I Breathe vs Radiohead’s Creep vs Lana del Rey’s Get Free
https://www.digitalmusicnews.com/2018/01/08/radiohead-creep-stolen-hollies/
It never ends:
Muse’s Uprising…Hear any Dr. Who theme & Blondie’s Call Me ?
The Bangle’s Dover Beach echoed in the theme for the TV show “Charles in Charge”
(Weird how I found that one…”The Five” used the CinC theme as a bumper today, & although never having heard Dover Beach, I thought “I wonder if that was sung by the Bangles?”)
The Black Keys seem to be happily ripping off The Rolling Stones, ZZ Top, and Norman Greenbaum in Lo/Hi
Anyone else hear The Everly Brothers’ Cathy’s Clown in Marshall Crenshaw’s Soldier of Love?
Etc., etc…..
…And , of course, Led Zeppelin started out just appropriating old blues songs without even crediting their origins.
Both He’s So Fine and My Sweet Lord are clearly derived from Oh Happy Day, a gospel standard, which Harrison learned when the Edwin Hawkins Singers had a hit single with it in 1969. Harrison pointed this out during the trial, and the judge did admit the similarity, though it didn’t save George from the verdict.