Cold Plagiarism, or Your Grammie's Calling

The parrot was looking around for an opening to reclaim his spot in the cultural jungle, when what does he espy from his new lamppost in Bay Ridge but a New Yorker blog regarding the alleged filching of a certain guitar intro to the usual top contender for Greatest Rock and Roll Song of All Time. That would be... think carefully... Aerosmith's "Love in an Elevator"? Warm... Blue Oyster Cult's "Stairway to the Stars"? Warmer... Traffic, "Heaven is in Your Mind"? It seems to be on the tip of your tongue. Give up? Okay, think of Led Zeppelin's 10 best songs and you will probably, towards the bottom of the list, recall a tune called "Stairway to Heaven".

Now, think of Zep's 10 most plagiarized songs, and you will probably, towards the bottom of the list... (you can finish that one).

So I read this piece by Alex Ross and I can't help feeling that he misses the whole point. What he wants to do is give us a $2 music lesson on why the guitar intro of STH is not actually plagiarized from Spirit's "Taurus", and a list of other songs and classical sources that use the same chromatically descending bass line. Whereas my take on this and every other musical plagiarism case is basically, if it sounds like one is a substitute for the other with a few musically insignificant changes, and there is a history that demonstrates the later composer had access to the earlier composition, then it is plagiarized, and if either of those are not true, then it's not. The second condition is certainly met, in the STH case; the first is certainly not. You would not notice more than the vaguest similarity between the two intros if someone had not filed a suit hoping to win something slightly better than the lottery.

This is clearly a case of bandwagon litigation: Zep's generous borrowings are legendary by now, and they have in some cases been forced to give credit where credit is definitely due. The only thing due to Spirit or Michael Skidmore is a historical glance over the shoulder for being among the numerous users of a common bit of counterpoint. Compare Page's "Black Mountain Side" with Bert Jansch's considerably earlier performance of "Black Waterside" and you can hear what sounds like note for note copying of the arrangement for extended passages. (I heard Jansch play it in Brooklyn a few years before he died and it was cleaner than he was on this YouTube video, which brought out the similarity even more.) Page said somewhere that the tune was "going around the clubs" at the time. Regardless, he copied Jansch's arrangement without giving credit. Jansch never sued, though. Skidmore's attempt to spirit away part of the fortune Page & Plant made on Stairway is just crass golddigging.

Now, I could stop there, but I won't, and here's why. As I was thinking about contributing a few words to this glittering debate I went through my earlier posts to see if I had written anything on plagiarism in rock before - mainly to make sure I didn't grossly contradict myself (though parrots tend to be forgiven for such things). But all I found was this unpublished draft, which I found so funny at points that I figured let me just go ahead and publish it.Timely it's not - seems to have been written in 2009 or not long after - but then again, in light of the present plagiarism shindig, it almost is. Ross also mentions the similar spat between the Marvin Gaye family and Robin Thicke-Pharrell Williams' over "Blurred Lines". I don't get much out of that comparison either. Not like Bobby McFerrin's "Don't Worry, Be Happy", which a YouTube poster called out as sharing a melody with 4 Non Blondes' "What's Going On?" No lawsuit there yet, as far as I know. There seems to be a pattern here.

Well, if you like this sort of f stuff, read on. Here, more or less unexpurgated except for a few comments [in brackets] is what I wrote on this general subject a few years ago.

[Begin earlier draft] 
Let me start with a trivia question: In what year did Bruce Springsteen, Pete Seeger, Chick Corea, Gary Burton, Metallica, Robert Plant, B.B. King, George Strait, Randy Brecker, The Eagles, Bela Fleck, Al Green, Mickey Hart, They Might Be Giants, Peter Gabriel, John Williams, BeauSoleil, Burning Spear, George Carlin, Bernard Haitink and Peter Bogdanovitch all win Grammy awards? 1979 you say? A little too early for Metallica. 1989? Come on, be brave. Try 2009. Um, deep catalogue, anyone? Or, as the judicious Ben Sisario put it for the Times, "the awards followed a familiar Grammy pattern, in which soft, reverent material beats out more aggressive and youthful music". [Metallica?] Read: the music your Grandma listens to beats the music you listen to. Isn't that why they call them the "Grammies"? [I guess this formula would not apply so well to Kendrick Lamar!]

So what could be more soft and reverent than Chris Martin and his band of Christmas carollers? Or is that snow angels? Well, as it turns out, the sandman is softer than the snowman. So Raising Sand, the odd, willowy, unclassifiable collection of soporific songs by the former Zep frontman and the country music's femme fiddle Alison Krauss got a whole lotta love from the Recording Academy, at the expense of Coldplay's Viva la Vida, which had to settle for Best Rock Album (which it certainly isn't), Song of the Year (which it probably is) and Best Pop Performance by a Duo or Group (which is so impossible to define that it could have gone to any n-some under the sun, where n > 1). At least Coldplay, though they've been around for a decade, is only on their 4th album, and at least it is probably their best, though you may infer that I don't think that says very much. Radiohead, who allegedly played their first gig in 1986, and recorded their one solid album (The Bends) in 1995 [yes, I know Kid A has its fans - I'm not one of them], walked off with the Alternative award, their third nomination and second award in that category. If there are any Academy members listening, please note for future reference that this category is supposed to identify tasteful alternative music, not music that is an alternative to taste. Perhaps selling out Madison Square Garden is now a quid pro quo for acceptable "alternative" offerings. OK, The Mars Volta got some yellow metallic object for Hard Rock Performance, as did the Kings of Leon (a safer bet) for Rock Performance by a Duo or Group. At least it wasn't the Killers, whose trite little pop number about humans and "dancer" has "we wants a Grammy" written all over it (you're welcome for the missing "s").

Okay, Grammie is stuck in a ditch, and where does that leave Coldplay? Helping to dig her out? But they have some digging of their own to do. With shovel number one they will have to try to convince the judge that they did not swipe the tune from "Viva la Vida" from Joe Satriani's wordless guitar piece "If I Could Fly". Shovel number two may be just a playground scoop, enough to bury the claim by the Brooklyn band Creaky Boards that Coldplay's hit tune borrowed some ideas from their song "The Songs I Didn't Write"(!). Shovel number three is a mere teaspoon, all they'll need to deal with my suggestion that their song "Clocks" bears more than a passing resemblance to Dylan's well-known "You Ain't Going Nowhere" (on his Greatest Hits Vol.2, at least one Dylan tribute album, The Byrds' Sweetheart of the Rodeo, and also on The Basement Tapes, though that version is more chanted than sung). Of course there is the obvious nod in U2's direction with some of Coldplay's recent rhythm tracks, and the fact that they frequently sound like a poor man's Moody Blues. Influence, you know...

What is very striking here is that while the RIAA is out filing suits against 12-year-olds for copyright violation, their friends in the Recording Academy are perfectly happy to hand out awards for material whose originality has been challenged - very publicly in the case of the Satriani tune.

Is there a smoking gun here? Is there anything to worry about here? You can state the case for a negative answer very simply. If every case of obvious similarity in popular music resulted in a plagiarism charge and maybe a copyright infringement lawsuit, there wouldn't be many artists left standing. Not every ripoff is as famous as George Harrison's rather blatant adaptation of "She's So Fine" for the Indian mysticism market, or Zep's numerous assaults on the blues and folk repertory, or Dylan's liberal use of standards from below the Mason Dixon line, or Johnny Cash's hommage to Dylan's "Don't Think Twice..." in "Understand Your Man"... There was, for example, 10CC's pretty shameless copying of Jacques Brel's "Sons of..." in "The Film of My Love", an obscure tune at the end of The Original Soundtrack. There's a ton of this stuff going on. And you can extend that to literature, going all the way back to St. Augustine, apparently, or Anthony Trollope if you prefer. This is a way of writing off plagiarism as a moral issue in general, and in pop music in particular. You just look at the volume of it, and say it's common practice, and that's that. Kind of the way, when I was teaching, some students from old Soviet-bloc countries used to tell me about plagiarizing their papers: it's normal, everybody does it, why do you have a problem with it?

The other way of looking at it is this: there's a hell of a lot of room left for creativity in popular music, even if it sometimes doesn't seem that way due to the endlessly repetitive nature of major label releases and the volume of imitations ("Is that the All American Rejects on the radio or is that some new release from Green Day?" "Did he say this song is by the Stone Temple Pilots? Gee, it sounds just like Pearl Jam!" etc.) There is really no good reason even for copying riffs and tunes in a way that doesn't meet the cutoff for copyright infringement; it may not be illegal, but it's unethical and embarrassing. No author has to copy existing texts to say something, and allusion is of questionable value to the masses who don't get it, so why not stick with originality all the way through?

Well, there you have the two poles, what to do, what to do? To me, the first and most important step is simple, honest and more or less painless: credit your sources. "So I was listening to this Satriani album right after I dropped in on a gig by the Creaky Boards and suddenly I started putting together in my head what I heard and it came out as this song. Thanks to Joe and Creaky." Second, if there is any doubt whatsoever about how close you are to what came before, pay the mechanical rights. It costs very little to pay the rights to a couple of songs on an album; it's good for the artist you (may have) borrowed from, and it keeps you honest. Third, make sure you are really adding value to the material you started with, otherwise just call it a cover, or get your own music.

The first two of these are simple. It's the third that creates all the ruckus. When an artist thinks he has added enough value to some existing material, the tendency is to call it his own, reduce the appropriated source to "influence", and forget the niceties. But when is that the case? It can be a very tough judgment to make. For example, I don't think Billy Bragg adds much to Dylan's "Chimes of Freedom" in his song "Ideology"; it's a ripoff, to my ears, same tune with lyrics that repeat the idea if not the exact content of Dylan's song. So, should Bragg have credited Dylan? Probably, but... then there is the possibility (actually just presented as fact in the Wikipedia entry on "Chimes of Freedom") that Dylan got the basis of the song from Dave Van Ronk... who got it from his Mom... who got it from who knows where... To my knowledge, Dylan has never sued anyone for copyright infringement.
[End original post]

And to that I only have to add: how many artists have ripped off Led Zeppelin and not given them credit? That list goes on and on. My point, finally, is that these petty, vague, ultimately very subjective claims of copyright infringement are morally and aesthetically contemptible. I once knew a photographer who sued an artist who had taken one of his photographs, painted the scene, and sold that painting. That is pretty obnoxious, but even photographs of other photographs have been upheld as original works of art. You've got to do better than that to demonstrate mere copying. I am not convinced that most cases of alleged musical plagiarism amount to much.

Playgiarism, or Pulling a Rabbit Out of a Hatto

Remember Ervin Nyiregyhazi? Of course you do, even if you can't pronounce his name. He's the child prodigy pianist of the early 20th c. who suddenly disappeared from the scene in the 1920's, and re-emerged 50 years later to be recorded and acclaimed as one of the greatest pianists of all time. Here's a typical accolade: "Nyiregyhazi possessed a bigger tone than either Hoffman or Horowitz", says Gregor Benko in his notes to Nyiregyhazi's 1977 release of Liszt performances. Big tone or not, if you listen to these recordings with more than half an ear it's hard not to notice that a five decade sabbatical takes its toll on one's technique, or at least one's memory. There are enough wrong notes to make Artur Rubinstein look like a perfectionist, and plenty of tempos, dynamics and other features that have at best a rather insecure relationship to the score. Nor is the quality of the recordings quite up to showing off the alleged tone. (I haven't heard the CD transfers; possibly they were able to recapture some of what was lost on vinyl.) But the heck with all that; the emotional power of these performances does, in the end, emerge, and one is left with the impression of having been dragged through the dirt for one's own good. For all their flaws, we are happy to have these unexpurgated recordings of the septagenarian Nyiregyhazi - even if we are thereby occasionally forced to try pronouncing his name.

"Joyce Hatto" is name that even the phonetically challenged should not have much difficulty pronouncing, and a name that will always live in quotes - scare quotes, that is. Hatto was a concert pianist who became ill with ovarian cancer in 1976, at the age of 47. The good news is that she lived another 30 years, and passed away only last year. The bad news is that she was in pain much of the time, a fact that apparently marred all her later recording efforts with grunts and groans. Marred? I can't say that Toscanini's recording of the Verdi Requiem is exactly enhanced by his shouting instructions to the orchestra at various points, but this is not going to keep it from being one of the greatest recordings of all time. Were a few grunts and groans so bad? We'll never know. For it seems that her husband and recording engineer, William Barrington-Coupe, took it upon himself to deliver to us the expurgated Hatto, and replaced first the moans and groans, then the less perfect takes, and finally entire pieces with digitized, highly edited passages from other recordings. In the no-holds-barred (or is it no-bars-held-back?) world of disco and hip-hop this is called "sampling"; in classical music it is referred to by the classical name, plagiarism.

The deception, as is so often the case with plagiarism, was originally not without some twisted justification. Mr. B-C was concerned that his wife's virtues as a pianist had not received their due, and his desire to record her in her best light was frustrated by her unfortunate health issues. His determination to slog on in the face of reality caused him to slide down the slippery slope from applying musical bandaids to lifting entire recordings without credit. Thus is the road to moral turpitude spliced with Bach inventions.

It is one of the great mysteries of nature and music that so many wonderful musicians, and particularly pianists, live on and continue to make great music well into their 70's, sometimes 80's, occasionally 90's; and then there is Mieczyslaw Horszowski, who played his last recital at 99. So when B-C offered the world a series of technically brilliant recordings of a vast portion of the piano repertoire supposedly made by Hatto in her 70's, it was not exactly like the world turned upside down. I heard Guiomar Novaes perform in her 70's, and if memory serves me correctly she played, in addition to the usual helping of Chopin and such, some incredibly difficult set of variations on the Brazilian national anthem by Louis Moreau Gottschalk. The putative Hatto recordings were stunning, but B-C must have known that the classical world would not find their authenticity suspect on that basis alone.

No, what happened was that a Gramophone reviewer stuck one of the recordings on his PC, and was surprised to find that it automatically downloaded playback info for another recording of the same piece. Apparently Mr. B-C had the technical chops to edit the timing and tonality of some of the lifted material to match Hatto's original tracks, but insufficient acumen to deal with the world of Media Player or iTunes! Just as students who plagiarize papers by downloading text from the Internet are often easily caught by teachers who have learned to use the same search engines they used, this technologically knowledgeable plagiarist was caught up short by the latest media technology. Technical tests by recording engineer Andrew Rose confirmed the aural impression that the recordings were indeed plagiarized.

There have been previous instances where classical recordings were long attributed to the wrong person, the most famous being a recording of Chopin's first Piano Concerto by Halina Czerny-Stefanska, another perhaps under-recognized female pianist that was mis-attributed to Dinu Lipatti. This was apparently an error, though. At this point, the entire set of Hatto recordings is suspect, and may constitute the most extensive case of plagiarism and consumer deception in the history of classical recording.

Although B-C states that he has "closed the operation down", "had the stock completely destroyed" and that he is "not producing more" (NY Times 2/27/07 p.E3) his claims for Hatto's recorded legacy can at this moment still be found on the web site of his tiny record label Concert Artist/Fidelio Recordings. This should remind us that he stood to profit from his misadventures, and could still do so if curiosity and speculative collecting are enough to generate a few sales. To my mind this casts some doubt on the bit about helping his wife win a well-deserved place in piano history; at the very least, one would normally recognize an additional motivation in generating profits. Who knows how much stock he really had, or has; only a few days earlier he had publicly denied the plagiarism allegation, and then he has suddenly obliterated every remnant of his work of many years? We have a right to be skeptical. And while he may deserve some sympathy for his predicament, and claims he is "tired" and "not very well", my feeling is that it is a bit too soon to let this go. "Now I just want a little bit of peace", says Mr. Barrington-Coupe. "Now..."? Having endured a whole week of criticism after years of plagiarism and piracy (he was actually engaging in both at once, a relatively rare situation) he just wants a little peace?

It is not a question of legal action, which one affected party (Robert von Bahr of BIS Records) has already declined to take. There is perhaps so little in the way of profit from these recordings (or should we call them "reissues"?) that suing for compensation may be a moot point. But this just emphasizes the difference between plagiarism and piracy. The issue with piracy, as with copyright violation, is denial of just compensation to artists, publishers, and others. No one objects to the fact that digital pirates distribute works more widely than would have been the case without them; they object to not making a profit from the distribution. The issue with plagiarism, which is not in itself a punishable crime, is strictly moral: credit was taken where it was no due, credit failed to be given where it was due, some number of public or private individuals were decieved, and the deception was carried out consciously and intentionally. If we let people like this off the hook so lightly, what do we do with the undergraduate who merely downloads a few passages off the Internet and submits them unattributed in an assignment? Smile and wag a finger, tut-tut-tut? Congratulate him on a heroic effort to hide his sources? Praise his integration of texts from three different web sites? No, we can't let the sob story about Joyce Hatto and her health issues cloud our judgment about long-term, systematic, commercial plagiarism. It is just not fair to the next student who gets an F for plagiarism in a college course if we let this infinitely worse case go with a shrug and a wince about Joyce Hatto's difficulties.

The Concert Artists web site sports bios of several other little-known artists, and we should now seriously consider whether there might be plagiarism issues in any other recordings presented by Concert Artist. The site is incredibly vague about exactly which artists it claims to have original recordings by, and which it merely distributes; I could not find a page with a catalogue other than works by "Hatto". But consider the Ozan Marsh page. This is a pianist who recorded, performed and taught widely, though he has little name recognition. According the web site, "Concert Artist was indeed delighted that this considerable pianist agreed to make several recordings for the label. His unexpected death [at age 71 - H.A.M.] robbed us all of a fulfillment of these fascinating plans. However, Ozan Marsh did complete some sessions and we are preparing these for eventual release on Compact Disc." I'm sure the classical world is all ears, waiting for the release of these "sessions" by a student of Rachnmaninoff, Horowitz and Emil Sauer who was considered a notable exponent of Liszt. What treasures might lie within? (Pyrite? Squawck!)) Hey, here's a thought. I have a 1975 release on ABC Westminster Gold by a pianist named David Bean. I know of nothing else by him and can barely even find a Google reference to him. But the recording, which includes Liszt's Mephisto Waltz and Fantasy and Fugue on the Theme B-A-C-H, is in what I consider the unbelievable class; technically, at least, it blows away most other performances I've heard of these extremely difficult pieces. (And let me tell you, he has a Big Tone.) Now, it is highly unlikely that B-C has a copy of this disk. But for a small fee and a percentage of future "royalties", I just might be moved to part with it. It could be easily digitized using one of those new turntables that automatically commits your records to digital format. I'd just like to meet the person who is going to listen to these "sessions" and say, "Hey, that's not Ozan Marsh, it's David Bean!" Right... A pair of parrots will play the Liszt B Minor Sonata by hopping up and down on a Steinway before that happens. Damn, if I just knew a recording engineer with a proper British name (has to have a dash in it) maybe I could actually get some money for my vinyl collection (hopefully before I have to move again).

But seriously folks, what is there to learn from an aging recording engineer who lost his sense of propriety and passed off other people's work as his wife's? I return to Nyiregihazi and Toscanini. And Rubinstein, and anyone else who has proudly issued a classical recording that falls short of sonic perfection but offers a memorable performance. Had B-C really believed in Hatto, had he trusted her musical gift and spirit and believed she had to offer what he claimed she did, he would not have felt compelled to take that first step and patch over imperfections and groans. You can EQ groans to the level of a minor nuisance, and the listener cannot always distinguish between a background groan and a moment of musical ecstasy anyway. The music, if it belongs in the annals of piano history, would have found its way there. It is now impossible to know what Hatto's virtues really were, at least without going to the original masters (if they exist). And that is a disservice to an artist who was probably at least worth listening to.

This suggests another point about our values: we have come to have so much faith in the technology behind modern recordings, as well as films and other media, that it is not at all shocking to find an example of someone who thought the road to great music was using technical means to perfect the end product. Art is about the intermediate product, the human performance, and technology never was or will be more than a way to make it shine.
This applies to other musical forms, including rock, folk and country music. No one with any taste would prefer to hear the latest technically perfect junk from Nashville to a scratchy old Hank Williams or Buck Owens recording. Rock guitarists and engineers can now control every harmonic and timbre emerging from a guitar, and singers are expected to be almost mechanically perfect in intonation and ensemble. But this kind of stuff will never mean as much as an old Stones record where the voices are neither in perfect tune nor perfect time, and the guitar distortion is controlled mainly by the idiosyncrasies of the pickups and the amps. Get back to the core values of creativity, expression and meaning, and we will not be tempted to head down the path of Hattoizing recordings.