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Image: Joe Satriani
Guillermo Legaria  /  EPA
Joe Satriani believes that Coldplay ripped off his song, "If I Could Fly" to create "Viva La Vida." But can he prove it?
By
msnbc.com contributor
updated 12/30/2008 9:54:17 AM ET 2008-12-30T14:54:17

If Joe Satriani wants to ponder what might occupy his time in the next several years besides producing blazing guitar riffs and offering tips to young players, he could consider the case of Corey Glover.

Glover, the lead singer of the Grammy-winning rock band Living Colour, was asked in 1998 to write a couple of songs for the pop group TLC. The first one he wrote was rejected. But after he submitted the second, he didn’t hear a word.

In 1999, TLC released a song called “Unpretty,” which to Glover sounded eerily like the second song — “Make Up Your Mind” — that he and his writing partner wrote for the group.

“I was upset, of course,” Glover said when he first heard “Unpretty.”

“But at the time I also felt like it was a good song. In a way, I was almost flattered — until I heard nothing from them. It made me think basically, ‘Is this the way they’re going to treat me?’”

That was then. In August of this year, Glover and his writing partner, Michael Cirincione, finally got the go-ahead from an appeals court to proceed to trial with their case in a lawsuit that was first filed in 2002 against songwriters Dallas Austin and Tionne Watkins and the corporate entities behind TLC.

When asked why he hung in there so long, Glover replied: “This isn’t fair. This isn’t about trying to make a quick buck, obviously. This is our livelihood.”

Glover’s case isn’t typical, but then, it’s difficult to define what constitutes a typical case of music plagiarism. In short, sometimes it’s a matter of stealing. Sometimes, an artist or artists can unconsciously take a song from another source. And sometimes it’s pure coincidence, a matter of great minds thinking alike.

The music annals are rife with such cases. Some of the most notable: In 1971, George Harrison was sued because his 1970 hit, “My Sweet Lord” was said to be borrowed, albeit unintentionally, from the 1963 single, “He’s So Fine” (Harrison lost); an amateur songwriter named Ronald Selle sued the Bee Gees in the early 1980s because he claimed his song, “Let It End,” was used by the group to create “How Deep Is Your Love” (the Bee Gees ultimately prevailed); and in one of the more unusual cases, John Fogerty, formerly of Creedence Clearwater Revival, was sued by Fantasy Records for plagiarizing himself, that is, the plaintiffs asserted that his solo song, “The Old Man Down The Road,” was taken from the Creedence hit “Run Through The Jungle,” for which they owned the copyright (Fogerty won).

Satriani vs. Coldplay
Satriani claims in his suit that Coldplay’s “Viva La Vida” is a rip-off of the melody of his 2004 instrumental, “If I Could Fly.” Speaking with the Web site musicradar.com, Satriani said of the case: “Almost immediately, from the minute their song came out, my e-mail box was flooded with people going, ‘Have you heard this song by Coldplay? They ripped you off, man.’”

Coldplay issued a statement shortly after the lawsuit was filed that said in part: “If there are any similarities between our two pieces of music, they are entirely coincidental, and just as surprising to us as to him.”

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Slideshow: Celebrity Sightings YouTube has a veritable cornucopia of comparisons of the two songs. Clearly, there are enough similarities to raise questions. But plagiarism? What are the criteria to prove Satriani’s assertions, or anyone’s for that matter?

“The important point is whether there was access,” said Oren J. Warshavsky, an attorney who handled the appeal for Glover and his writing partner case against TLC. “It’s very unlikely for a person to have the same inspiration as another person.”

The defendants in Glover’s case against TLC, represented by Orin Snyder — yes, that’s right, two attorneys with similar first names arguing a plagiarism case — assert that the defendants started work on their song weeks before Glover and Cirincione began work on their song, and that the plaintiffs have not established the essential element of their case: that the defendants had access to the original song.

These key points will be just as central in Satriani’s case against Coldplay.

“What the second author, Coldplay, has to show is that they had not heard the Joe Satriani song,” Warshavsky said. “An outrageous example would be to say that for the last five years you were living in the middle of the Pacific with no TV and no CDs. Unfortunately, living in modern society with the Internet it’s very difficult for a defendant, the second author, to say he or she had not seen a published work.”

The key is access
Music plagiarism is a topic that intrigued Charles Cronin so much that he helped create a web site dedicated to it. Currently he is a visiting fellow at Yale Law School, but he oversees UCLA’s Music Copyright Infringement Project, which is a resource for law students and other interested observers. In the beginning, it included only published opinions, but has expanded to also include current cases. Although it may not contain every single case of music plagiarism recorded by man, it contains quite a few of the major ones.

Cronin concurred that the key element in any such case is access.

“Once you’ve gotten the court’s attention and the case moves forward,” he said, “you actually need to demonstrate infringement, you need to establish first of all that there was copying. That sounds obvious, but actually there’s a little more involved. Copying means the defendant actually took a materially significant portion of the complainant’s work that is original to him or her.

“In think in most cases it’s almost impossible to prove there is infringement. There would have to be direct evidence of, say, the defendant at the photocopying machine pushing a button.

“So you have to prove the defendant had reasonable access to the work, in this case Joe Satriani. His recordings are readily available. Whether Coldplay’s personnel is actually intimately familiar with his work is not the question. You can buy Satriani’s recordings in stores. Access shouldn’t be a problem at all. Once you establish access, you have to demonstrate that there are substantial musical similarities between the two works. That’s when it becomes almost impossible to prove.”

That last point is what kept Peter Case out of court.

‘All he had to do was change a few notes’
Case is a guitarist and singer-songwriter who fronted the Plimsouls in the 1980s and now tours as a solo artist. He’s also a musicologist and teaches songwriting at the famed McCabe’s Guitar Shop in Santa Monica, Ca. Many years ago, he believed a band that he would not name stole one of his songs, so he went to see his music publisher.

“I sat in on a meeting and the lawyer said, ‘Obviously, they took it on purpose, but they know how to do this,’” Case recalled. “They knew how to ‘flip’ it to make it different enough so that they’d win the suit.”

Case then remembered a comment he said John Lennon once made about Harrison’s “My Sweet Lord” lawsuit. “John said, ‘I don’t know how George got caught on ‘My Sweet Lord.’ All he had to do was change a few notes,’” Case said.

The process of songwriting, like any creative endeavor, is often mysterious and murky. What seems like a brilliant burst of musical inspiration can simply be the release of a deeply embedded memory.

“For people who are a lot less experienced, it’s easy,” Case said, “especially for a songwriter who is young working without any input from anyone.

“I had an experience when I was starting out. I was up at midnight, feverish inspiration. The next morning I realized I recomposed one of the Beatles’ songs.”

For some, plagiarism is just business
And as a teacher, he said, he occasionally notices the same phenomenon occurring with his students. “I had people bring in songs (to class) and played them and I said, ‘That’s really good. That’s ‘Breakdown’ by Tom Petty.”

But Case admitted that sometimes in the music world it’s more insidious than simply one artist unintentionally pilfering from another. “There are a lot of people in popular music who are not great songwriters. They have no ideas,” he said. “They’re just these businesses. I believe some of these groups say, ‘Hey man, we need another single. Let’s just take this.’ It’s that cold sometimes.”

Obviously, Satriani either believes that, or he believes that his song was stolen even though Coldplay might not have realized it, or else he would never have embarked on the often lengthy and serpentine legal path involved in a music plagiarism suit — the same path that Corey Glover has traveled, and of which he still hasn’t reached the end.

“It’s a lawyer’s trick to drown you in paperwork, or a lack of paperwork, and hope you’ll go away,” Glover said. “The people we’re suing have had deeper pockets and corporate partners to help them out.

“You can go through something like this forever. Unless you’re determined, you can be discouraged very easily.”

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