Smell test key in music copyright cases

Recently, it was reported that Tom Petty and Jeff Lynne would be given songwriting credits for Sam Smith’s hit song “Stay With Me.” But the really interesting part was that this only happened after Petty’s team noticed a likeness between Smith’s song and Petty’s 1989 hit “I Won’t Back Down.”

Astonishingly, this means Smith, and somehow every single person at every stage of the production process of “Stay With Me,” were all — to a person — apparently not familiar with the 1989 Petty/Lynne tune.

It makes this old-timer think: Wait, how did anyone release that song and not think it sounded like Petty’s “Won’t Back Down”? I assumed it was a collaboration! The only plausible explanation is that every executive, every studio employee and every human involved in that decision was under 30 and had never heard of Tom Petty. Or MTV. Or iTunes. Or the music industry.

“Won’t Back Down” doesn’t get a lot of play time now, but in 1989, you could not have avoided this song. MTV played videos pretty much nonstop back then, and this one accounted for about 20% of the content on MTV — or at least it felt that way. To this author, and amateur music infringement sleuth, the songs are almost identical.

Of course, for me, the key lesson in all this is that knowing Petty’s music now seems to mean that I am officially old. Which means it’s time to retire my acid-wash jean jacket with the Whitesnake patch. Even worse, though — if potential litigants such as Smith and Petty are going to start resolving disputes without hiring us lawyers, then I might have to retire my law license along with the denim jackets.

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