Ariana Grande has been dropping banger after banger but her latest "7 Rings" has come under scrutiny after rapper Princess Nokia called her out for stealing the flow of her song "Mine." I'm not really interested in celebrity squabbles but I love music, and potential infringement cases are always fun to weigh in on since everyone has a different idea of what sounds "the same." What your ears may hear and what a federal judge has to say about it are two very different things. Let me break it down for you.
From a cursory listen, for me it's pretty easy to hear certain similarities between the two tracks. But are they similar enough for Princess Nokia to win a battle against Grande? (Note: There is no confirmation that Princess Nokia is actually suing Grande, this is just a fun pop culture fueled brain exercise.)
From what I can tell, most infringement cases get settled out of court - meaning the artist with the infringing song pays off the artist whose song has been infringed upon, either via a set amount of cash or by splitting the royalties, among other things. That means that a judge and jury never get to weigh in on the similarities and differences between the contested songs, which is no fun for me, a scholar in hot pursuit of some juicy court opinions. Never fear, though, because Rolling Stone naturally swooped in to save the day with their article Songs on Trial: 12 Landmark Music Copyright Cases. Two cases in particular gave me enough background info to piece together a general understanding of what courts look at when analyzing copyright infringement cases.
The Chiffons v. George Harrison
The year is 1976. The Beatles parted ways six years ago but the magical mystery dust surrounding the band's meteoric fame has yet to settle and you're sitting in a court room in New York City with George Harrison. He's defending himself from an infringement claim against his 1970 song "My Sweet Lord" brought by The Chiffons, a girl group from the Bronx whose first (and only) #1 single, "He's So Fine," released in 1960, sounds suspiciously similar to the Harrison tune. The Judge is asking Harrison to describe the exact circumstances surrounding the conception of the grace note in the fourth repetition of what the Court has called "Phrase B." If anyone can kill the magic and mysticism of musical creation, it's a district court judge and The Law. Good ol' George of course can't recall the exact moment when that note came to be and who even came up with it to begin with. But why does it even matter, anyway? It's one single note!! A quick look at how courts examine a copyright infringement case will tell us why.
To prove copyright infringement, a plaintiff (the person bringing the case to the court) has to show (1) that they own a legit copyright to the song and (2) that the person they're suing copied the original elements of the song. It seems like showing that you own a legit copyright is pretty straightforward so most cases get hung up on that second prong. Usually you're not going to have cold hard evidence that someone copied you (like a video of them saying "I am going to write a song that copies your song!"). So, of course, courts have come up with a test for determining when something can be considered "copied." That test is also two-pronged (judges love prongs). First the plaintiff has to show that the person who copied them had "access" to the plaintiff's song before writing their infringing song, and, second, the plaintiff must show that the two works are "substantially similar." Usually when words are in quotes in legal analysis it means that the definition of the word or phrase is up for debate. It usually means there are more tests with more prongs. That is the case here.
To show that an infringer had access to the plaintiff's song, a court can look at how popular the song was - meaning the infringer probably had heard it at some point - also the court can look at any direct evidence of the infringer saying that they had access to the song.
To determine whether two works are "substantially similar," there is, you guessed it, a two-prong test. First the court has to determine if the songs are objectively similar, meaning the literal notes or beats or tempos are the same. This requires using expert witnesses like musicologists to break down each song into its constituent parts, notes, rhythms, instruments, and tell the court where they're similar and where they're different. Second, the court has to determine whether the songs are subjectively similar, that is "whether the ordinary, reasonable person would find the total concept and feel of the works to be substantially similar." {3}
If you're thinking that both the test for "access" and the test for "substantially similar" seem weird and wishy washy, it's because they are!! The law is a boring old coot that tries to essentialize things that cannot be essentialized like art, music, and life. It's a constant struggle that this boring old coot finds fascinating.
Anyway, in this case the court focused mostly on the "access" prong, saying that it is "perfectly obvious to the listener" that the songs are substantially similar. Because "He's So Fine" topped the charts in both the US and the UK, Harrison had access to the song and was thus guilty of copyright infringement. In a goofy twist, the court noted that even though Harrison hadn't consciously copied "He's So Fine" when writing "My Sweet Lord," he had still copied it "subconsciously." The court said that the reason that these notes had popped into Harrison's mind and sounded right is just because his subconscious had heard them before, questioning totally the divine providence with which many people view the composition process of our most prolific and beloved songwriters.
Marvin Gaye v. Robin Thicke & Pharrell Williams
Remember the year 2013 when we as a society had the collective energy to be incensed over the sexist paternalism in a three minute pop song? Ah, to be young again! I'm exhausted! Well it turns out being really creeped out isn't the only reason people were mad about "Blurred Lines." Apparently it sounded a hell of a lot like Marvin Gaye's "Got to Give It Up" from 1977.
Idk about you but the similarity between these two songs seems a bit more tenuous than the past two examples, which is why the court in this case spent a lot of time on various expert witnesses, all of whom closely scrutinized the two songs and came up with their own lists of similarities and differences for the court to unpack. This was all in an effort to analyze the "substantially similar" prong of the two-prong test discussed above. The first prong, access, was less of an issue in this case. That's because there was substantial evidence of Robin Thicke openly expressing wanting to write a song inspired by Got To Give It Up. Moral of the story: if you are a songwriter, maybe don't publicly talk about writing a song that sounds like another song!
In order to establish "substantial similarity" a number of expert witnesses wrote pages and pages of reports breaking down both songs into every single separate note and beat and comparing the two. Ultimately, the court took that two-prong access/substantially similar test and added a sliding scale. They said that the more proof of access that exists, the lower the bar in showing substantial similarity. Because it was REALLY obvious that Thicke had heard the song before, there was less proof needed that the songs were substantially similar. Here, the court said what was presented was good enough and found Thicke & Williams guilty of copyright infringement and required that they pay Gaye various damages totaling over $7 million.
The Rolling Stone article declares that the court ruled that "Blurred Lines" "aped the vibe" of Gaye's song, which could have dramatic ramifications because a song's "vibe" had never been subject to copyright before. Now I don't know what "aped the vibe" means but I think Rolling Stone misses the boat on this analysis. The only reason why the aping of said vibe happened in this case was because of how obvious Thicke's access to the Marvin Gaye song was, which lowered the bar for showing substantial similarity. MOREOVER this case was decided in the 9th Circuit (which includes California and other western states) and that fancy sliding scale modification to the two-prong test seems to be unique to that circuit. This means that while maybe in California they'll lower the bar on substantial similarity if you prove access, in some place like New York, for example, the bar for showing substantial similarity will be at least somewhat higher. So everyone calm down.
What this means for Ariana
So does Princess Nokia have a case? Let's analyze! First, Princess Nokia would have to show that she has a legit copyright to the song "Mine," likely an easy feat if the album was registered with the US Copyright office. I assume most labels or artists do that automatically because that seems like a pretty obvious thing to do to protect your work. Maybe I'm wrong. Next, she'll need to prove that Grande copied the song. Unless she's able to unearth a video showing Grande in the recording studio listening to "Mine" and then recording "7 Rings" to sound just like it, she'll need to prove the two prongs of that access/substantial similarity test.
To prove that Ariana had access to "Mine" Princess Nokia can see if there's any evidence of Grande listening to "Mine" or talking about having listened to "Mine." Otherwise, a court may look to the popularity of the song. According to the Wikipedia page for Princess Nokia's album 1992 Deluxe which featured the track, "Mine" was never released as a single. The album did, however, receive a number of positive reviews, was listed as one of the best albums of 2017 by NME, a popular music industry magazine, and hit number 25 on Billboard's Heatseekers Albums chart. Whether this is enough to constitute a finding of access will be up to the court to decide.
Next, Princess Nokia will need to show substantial similarity between the two songs. Again, remember this two prong test within the two prong test: she'd have to prove they are both objectively and subjectively similar. She'd need to hire musicologists to look at each song and break it down into their different parts to determine whether those parts are "substantially similar." She'd also have to prove that to a reasonable person the total concept and feel of two songs is substantially similar. Of course when you listen to the specific repetitions of the words "I bought it" in the song "Mine," you can't help but understand where Princess Nokia herself would think that "7 Rings" is similar sounding. So maybe the subjective test would pass muster. But I'm no musicologist so I can't predict with any certainty whether each separate part of the songs can be said to be substantially similar.
The verdict? It depends on whether Princess Nokia can show that Ariana had access to "Mine" and can hire some pretty excellent musicologists to back up her claim. I think it would be a hard battle to win, but I don't think it's unfounded. The uncertainty of this case is a good example of why artists are more likely to settle than to leave it up to a court to decide.
Think I'm wrong? Feel free to drag me in the comments below. Or, better yet, write a rebuttal article and if it's any good I'll publish it. Email proselawblog@gmail.com.
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