At the Grammys a few weeks ago, Sam Smith was the big winner. He took home the top awards winning Best New Artist, Best Record, and Best Song. The Best Record and Best Song awards were for his insanely popular song, “Stay With Me.” It is Smith’s most successful song to date. It topped the charts in the U.K, Canada and New Zealand. It hit number 2 on the U.S. Billboard Hot 100.
Soon after the awards show, the hubbub about the similarities between “Stay With Me” and Tom Petty’s 1989 hit “Won’t Back Down” reached fever pitch. After the similarities came to light, it was apparent that everyone in Smith’s camp and every person involved in the production of “Stay With Me” had never heard of Tom Petty’s hit (which is highly unlikely since in 1989 the song reached number 12 on the charts and topped the Album Rock Tracks chart for five weeks).
Essentially, Petty was alleging copyright infringement. Copyright infringement is the act of violating the exclusive rights under the federal Copyright Act of a copyright owner. In order to have a valid copyright claim, one must 1) actually have a valid copyright, 2) the alleged infringer must have had access to the copyrighted work, and 3) the duplication must not fall into one of the exceptions. Exceptions include fair use, face-to-face instruction, and virtual instruction. After actual copying is established, then the person claiming infringement must prove that the alleged infringer “took from plaintiff’s works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such…music is composed, that defendant wrongfully appropriated something which belongs to the [original owner].” Repp v. Webber, 132 F.3d 882, 889 (2d. Cir. 1997).
In other words, the main question is, is the work substantially similar? Apparently, the answer to that question in this case is, yes. Smith recognized the similarities between the two songs and agreed to give Petty songwriting credit as well as royalties. If you are curious and want to listen to a good “mash-up” of the two songs, check out this YouTube video.
But Smith should not feel alone. He is in a long line of recent and highly publicized copyright legal battles. Some of the more recent disputes involve Robin Thicke and Marvin Gaye (this case is still pending), Whiz Khalifa and Maxamillion, Lady Gaga and Chicago musician Rebecca Francescatti (Gaga’s motion for summary judgment was granted as the judge declared that the two songs did not share enough unique features), and Coldplay and Peter Allen (Coldplay credited Allen’s songwriters on their hit “Every Teardrop Is a Waterfall.”
There is an artist, however, who is using other’s music but is not getting sued. “Girl Talk,” also known as Gregg Gilis, has become famous for making “mash-ups” containing samples of famous songs. His album “All Day” sampled 350 copyrighted songs. Gillis claims his use of the songs are considered “fair use.” Fair use is an exception to copyright infringement and allows a person limited use of copyrighted material without having to get permission. So far, Gillis’ position has worked—he has not been sued.