Whenever Coldplay releases an album these days it starts a small wave of copyright litigation. Last year’s Viva La Vida or Death and All His Friends was no exception. Last week, however, that docket got a little bit lighter, as the most prominent infringement case settled. Joe Satriani, famed rock guitarist and founder of the G3 tours, claimed in a lawsuit back in December that the title track off of Viva La Vida infringed Satriani’s copyright in his 2004 track if “If I Could Fly.” In essence, Satriani argues “Viva La Vida” copied his song without permission. Here are both for comparison:
Joe Satriani – If I Could Fly
Coldplay – Viva La Vida
For a really ill-informed discussion of this case, check out the comments on the Satriani YouTube post. For a more music-theory based discussion of their similarity, check out this excellent YouTube video from a guitar instructor in Canada.
On the music side of this (and largely care of the above posted video) here’s the rundown: Coldplay’s song is in a slightly swung rhythm at about 138 BPM, in the key of F minor doing a VI–VII–III–i (Dbmaj–Ebmaj–Abmaj–Fminor) progression. Satriani’s song is also at about 138 BPM, roughly the same rhythm, and the chorus goes through a iv–VII-III-i progression in B minor (Em7–Amaj-Dmaj7–Bm). At this most fundamental level, the only variants between the two are the key and the first chord of the progression – and the two different chords are actually quite similar. The VI chord in the Coldplay is the relative major of the iv chord in the Satriani (which is to say if they were in the same key they’d share 2 out of the three notes in the chord). In other words, the meter is the same, the chords are virtually identical, and where the chords vary they still are quite similar harmonically. Now, this progression is just a progression, and as an old song from my band notes there’s a lot of songs that share the same three or four chords. Nevertheless, it is a fairly unique progression, a fact which wouldn’t bode well for Coldplay. There are many other elements to consider, but it does certainly lay a musical foundation for substantial similarity.
As for the legal analysis, it’s important to remember that the substantial similarity between these two would have to be either admitted by Coldplay or found at trial (Coldplay demanded a jury trial in their answer, so it would have gone to a jury to decide unless the evidence was so overwhelming as to lead a judge to direct a verdict on that point). Absent such a finding or stipulation, I can’t say for sure whether the harmonic structure, meter, and rhythm alone would be legally sufficient. Satriani would also have to prove that Coldplay had access to the work, but given how broadly Satriani is distributed and how broad Coldplay’s musical arms reach I don’t imagine this would be difficult. Coldplay seems to have challenged this exact point in their Answer, however, arguing as an affirmative defense that these two songs were independent creations. In other words, Coldplay did their song without ever hearing the Satriani song. This was one of nine affirmative defenses in their Answer that Satriani would have had to get around, although some of the defenses look a little dubious. (Including “lack of originality” in the Satriani work, which either suggests that Satriani’s work does not have the requisite creativity, which is preposterous, or that Satriani forfeited copyright through 17 U.S.C. § 103(a) by using other copyrighted material without permission, which is highly unlikely.)
Whatever we think of Satriani, Coldplay, or the case in question, the answers to all these legal problems have left the realm of the courts. The parties asked to settle the case in front of an arbiter in July, and last Wednesday the parties filed a joint stipulation for dismissal of the lawsuit. Either Satriani was scared off or (more likely) the parties came to some form of settlement. The question of whether Satriani would have won at trial is now left to speculation by the copyright nerds of the world.
If you’re still interested in the details of the case and up for some legal digging, this case is captioned Satriani v. Martin et al, and all of the filings are up on Justia. In May, Cat Stevens (now Yusuf Islam) also claimed “Viva La Vida” infringed his original “Foreigner Suite” and threatened action, but about a month later he dropped the suit.
Update – 15 Sept, 8AM: Justia posted two more filings on the Satriani v. Martin docket yesterday, including an official order to dismiss the case with prejudice (meaning that Satriani may not file the case again). Not too much to see here; I suspect someone will have to get in touch with the parties to hear the details of the settlement.
I also want to take a second to say hello to the folks over at Techdirt for mentioning my blog yesterday while covering this story. Many thanks!
Update 2 – 23 Sept, 10AM: I realize in the comments I was playing it a little fast and loose with the degree to which expert testimony would be admissible with respect to the infringement, so I want to clarify:
Independent origin is a total defense to copyright infringement. If I were a monk in Nepal and I came up with a song identical to “Viva La Vida” without ever hearing Coldplay’s song to begin with, I could not be found to infringe Coldplay’s song. However, proving this degree of “copying” can be very difficult absent party or witness admission (“Yes, I saw Chris Martin at a Joe Satriani concert where he played ‘If I Could Fly.’ Chris had his tape recorder out.”). Accordingly, courts allow expert testimony to show how unique elements may be used as circumstantial evidence of direct copying (“Given these unique factors, it’s highly unlikely that Chris Martin would have come up with this on his own were it not for hearing Satriani’s song.” combined with “‘If I Could Fly’ was a #1 on Top of the Pops for two weeks and it’s extremely likely that Chris heard it.”). This is sometimes called the “access/striking similarity” inference of copying.
Proving “copying” is only half of the battle, however. Satriani would also have to prove that he copied the elements in such a way as to be unlawful appropriation. Not all copying is copyright infringement, after all, and his copying would have to go to the protectable elements of the expression, and not just the abstract ideas. The courts have employed variety of techniques in finding this, but at the heart they all recognize this as being the province of the jury, and not the experts. In other words, we play both and ask the jury to determine whether the copying done in the secondary work is “too much” of the original. The term most often tossed around here is “substantial similarity,” which helps to illustrate to a degree.
An example might help illustrate: I really love the guitar work of Marc Ribot in Tom Waits’ Rain Dogs. Were I to try and create that same over-driven Telecaster flamenco-infused soloing in my own song, I am “copying” Ribot but my copying is not so substantial as to be infringement (I think.). However, as I start to appropriate more – say the notes of the solo or the lyrics of the song or even the chord changes and tempo – this might start to feel more like infringement.
Were Ribot to sue me, he would first either have to prove that I copied his work (I think this blog post might be a good piece of evidence to start with) or prove through circumstantial evidence that I had access and through expert witnesses that the songs are so strikingly similar that I could not have come up with it without copying, and then persuade the jury that my copying was so substantial that it interferes with his monopoly conferred by copyright. Market harm or other data may be introduced as evidence here to help draw inferences, but ultimately it is for the jury, and not experts, to decide.
So, to artificially draw up some parameters here as a court might, the evidence above about chord structure and melody would go to the “access/striking similarity” inference of copying, and is best paired with some other evidence as to the popularity of “If I Could Fly.” (SoundScan has Is There Love in Space?, the album containing this song, as selling around 90,000 copies worldwide, for what it’s worth.) All of this goes to the question of “copying.” To take this copying into the realm of infringement, however, requires a juror (say, you) to listen to both and determine whether the copying is so substantial as to constitute infringement. Naturally, this is subject to dispute.