U2’s lawsuit: are Bono and co. even better than the real thing?

As one of the biggest rock bands in the world is being sued for copyright infringement, Gary Ibbotson explores the murky waters of music plagiarism.

U2 are preparing for their 30th anniversary Joshua Tree tour where they will perform their seminal album in full to sold-out stadiums across North America and Europe.

However, a piece of work that marked a watershed moment for the group and contributed to their worldwide success is now up for contention.

British songwriter and guitarist Paul Rose is suing the band for copyright infringement. Rose claims that the guitar riff on ‘The Fly’, lead single off the 1991 album Achtung Baby, was plagiarized from his 1989 instrumental track, ‘Nae Slappin’.

In a story first reported by the New York PostRose’s lawyer claimed in the lawsuit that “an ordinary lay observer would reasonably find that the songs are substantially similar and that an infringement has occurred.”

Rose is seeking $5 million in damages and a songwriting credit for ‘The Fly’. He submitted the suit to a New York City court on 27 February.

Rose maintains that an ex-employee of Island Records (U2’s label at the time), recently told him his demo tape was often played at the office while the band were writing and recording Achtung Baby. He claims that The Edge’s “elaborate and distinctive guitar solo” on ‘The Fly’ is plagiarised from his work.

“Although perhaps the most popular rock band in the world in the 1980s, by that decade’s end the band felt in need of reinvigoration,” said Rose’s lawyer, Thomas Mullaney.

Deciding factors

Speaking to The Irish Times, however, Keiran Kelly, a solicitor who is an expert in music copyright law, said that “in order to establish a copyright breach you have to do comparisons on all the chords and notes in each song.”

Jonathan Hodgers, musicologist and lecturer in popular music at Trinity College Dublin, agrees with Kelly. Hodgers told The City that “the judge will try to assert whether U2 intended to copy Rose’s song, and whether ‘The Fly’ is substantially similar to ‘Nae Slappin’.”

“If this is the case, then the next question is what parts of Rose’s song that appear in the U2 composition are protected because they are original,” he said.

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U2’s Achtung Baby is widely regarded as one of their finest works, image by MelicansMatkin

Hodgers says that the court will try to differentiate between the original ideas and generic musical conventions present in each song.

“A judge will weigh up the song’s unprotected elements versus its protected (original) elements.”

 

“If Rose is basing his claim on similar chords, U2’s defence will probably argue that they can be found in umpteen other compositions.”

 

In similar copyright suits, Hodgers says that the melody of the track is often regarded as the deciding factor in the ruling.

“While it often betrays an ignorance of the interdependence between musical elements, melody usually gets the lion’s share of attention in copyright cases,” he said.

“The chords may well be viewed as public domain. If Rose is basing his claim on similar chords, U2’s defence will probably argue that they can be found in umpteen other compositions. Rhythm’s significance is usually (unfairly) ignored.”

Robert-Plant

Led Zeppelin’s ‘Stairway to Heaven’ was never released as a single, image by Dina Regine

A similar case involving Led Zeppelin, which came to court in California in 2016, saw US band Spirit claim damages for ‘Stairway to Heaven’. The plaintiffs maintained the guitar introduction to the track was lifted from their 1968 song, ‘Taurus’.

Zeppelin’s lawyer during the trial, Peter Anderson, said that the intro on ‘Stairway to Heaven’ was based on “descending chromatic lines”, and the material that the plaintiff claimed Zeppelin copied “were musical traditions that date back at least to the 1600s and appeared in songs like the Beatles’ ‘Michelle.’” Led Zeppelin successfully defended the case.

 

Production

In regards to the production on ‘The Fly’, Hodgers says that it “is an interesting factor, since similarities to a sound or a ‘feel’ are not grounds for copyright infringement, yet they appeared to be a factor in the case of ‘Blurred Lines.’”

In 2015, Marvin Gaye’s estate successfully sued Pharrell Williams, Robin Thicke and their music label, Universal, for copyright infringement on their hit-single, ‘Blurred Lines’, which was deemed to have used crucial elements of Gaye’s ‘Got to Give it Up’. 

Gaye’s estate won over $5 million in the lawsuit but unusually, the case was decided on the production values of the tracks, not the musical composition.

Speaking to Business Insider, music manager and lawyer, Josh Kaplan, said that “I think that saying that Pharrell and Thicke were inspired by a genre or a feeling that they gleaned somehow from Marvin Gaye is definitely new territory in copyright infringement.”

Hodgers says, however, that even though the style of production can now be the target of a copyright lawsuit, he doesn’t see Rose’s case rely on such hazy parallels.

“With ‘The Fly,’ the guitar sound is comparable, but U2’s production is altogether different than that of ‘Nae Slappin’, which has more in common with Joe Satriani.”

At the time of writing, both parties’ representation refused to make a comment to The City.

 

Possible outcomes

One aspect of the case that Hodgers sees could potentially work in favour of Rose is U2’s supposed knowledge of his song while recording Achtung Baby.Access is an issue in claims like these. The witness who will attest that U2 listened to Rose’s tape during the making of Achtung Baby might complicate issues.”

Ultimately however, Hodgers hears too many differences between the two tracks for Rose’s claim to succeed. “‘The Fly’ has lyrics, vocal lines, studio effects and additional musical material, and as such will likely be considered a transformative (rather than derivative) work, even if similarities with Rose’s composition are found.”

However the case is settled, we may see a new precedent for similar lawsuits in the future. If Rose succeeds, a flurry of lesser-known artists may go scrambling through their discography trying to identify a riff or melody potentially copied by a global mega-star.

If not – still expect the status-quo to stay achtung, baby.

 

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Featured image by Helge Øverås via Wikimedia Commons

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