A closer look at the “Girl on Fire” copyright lawsuit

Last week Earl Shuman, a songwriter behind several hits in the 50s and 60s, sued Alicia Keys for copyright infringement in her recent single “Girl on Fire.” He alleges that the song infringes a tune he wrote in 1962, which was recorded as “Hey There Lonely Girl” by Eddie Holman and which peaked at #2 on the Billboard top 100 in the week of February 21, 1970.1

Shuman’s allegations are incorrect. There’s some similarity between the two songs, as I’ll show below, but it does not approach the level of copyright infringement. It should not result in Keys having to license Shuman’s composition or settle with him to use the song.

The complaint is a bit unusual in that it doesn’t really present evidence of copying. It quotes heavily from a blog post about the Keys song, which first noted the similarity. In a later post, the same blogger (Roger Friedman) describes a subsequent interaction with Shuman, by that point lawyered up and looking for some remuneration.

Hearing the similarities

At issue, apparently, is one line in the Alicia Keys song, which she sings about halfway through, and doesn’t repeat. For comparison’s sake, I’ve taken it out of context and placed it next to the similar line from the Holman song:

You can hear the melodic similarity. In technical terms, both songs feature the phrase “lonely girl” sung in a arpeggiated descending minor triad, followed by a second descending major triad (the top three notes of a minor seven chord). But if Keys knows Holman’s song, which seems likely, it’s hard to think of her reference as anything other than a quote.

Quotes, not samples

In Friedman’s blog post, he refers to that as an uncredited “sample.” He does it in kind of a snippy way, too: “Do they teach this sampling stuff at Juilliard?”

Friedman is incorrect to apply the term sample here. Unless he’s suggesting that Keys has incorporated Holman’s recording into her recording, there’s isn’t any sampling. What Keys has done is quoting, a term used in music in much the same way it’s used in writing. When MC Hammer raps over a looped section of “Superfreak,” that’s a sample. When Eric Clapton plays the first few notes of “Blue Moon” in the guitar solo on “Sunshine of Your Love,” that’s a quote.

Some people think samples are inherently uncreative or unoriginal, and I think those people need to lighten up and listen to some music. But you’d have to be pretty far off the deep end to think that musical quotes are also unacceptable, or that each one requires a license agreement.

Mixing up samples and quotes is especially hazardous in this case. For one thing, sampling of short segments of a song would require getting permission from the owner of the copyright in the sound recording, not the owner of the composition. Shuman’s the songwriter, so he controls the composition, but not Holman’s recording.2

For another thing, samples are subject to a very strict interpretation of the law. Some people read the landmark Bridgeport v. Dimension case to say that no sampling is allowed at all without a license, no matter how short or insubstantial the sample is. But that’s not the case with musical quotes. In that case you get to do a full fair use analysis of the use, and these allegations wouldn’t stand up against that.

Girls and boys

So we’re talking about one line in a composition that was quoted, not sampled. How much of the original composition did Keys quote, then? Well, it may be useful to go back, here, to the original recording of the song. Before Holman’s smash hit 1970 version, Ruby & the Romantics recorded it in 1963. But the first recording (and the composition) was called “Lonely Boy.” Here’s the relevant section:

This is the original composition, and it’s about a boy not a girl. The song sheet attached to the complaint, too, is for a song titled “Lonely Boy.” That means we’re down to the word “lonely.” (Also, to my ear, the timing is a bit different in this version, with less swing than in either Holman’s or Keys’, but really that’s splitting hairs.) Even assuming that Keys was intentionally and explicitly making an overt reference to Holman’s recording when she sang the “lonely girl” line, it requires an extraordinary stretch to say that reference constitutes an infringement on the original recording.

Alicia Keys quoting even as many as six notes and a word or two from a popular song in a teeny tiny section of her new single just isn’t copyright infringement. I feel for Shuman as a songwriter, but he (and his lawyer) are wrong on this one.

  1. It just couldn’t quite beat “Thank You Falettinme Be Mice Elf Agin.” []
  2. The owner of the sound recording is almost certainly Holman’s record label, ABC Records, which folded into MCA Records, which folded into Geffen. Can you imagine why clearing such a sample might be difficult? []

2 Comments

  1. Derek
    Posted 20 December, 2012 at 10:42 | Permalink

    Why do you “feel for Shuman”? He’s completely wrong. People can quote things, and he’s completely wrong to be butthurt about this and try to litigate money away from Keys over it. I don’t feel for him at all. He should stop being an idiot.

    What’s next, the remaining Beatles suing David Bowie for (mis)quoting A Day In The Life on Young Americans? That’s a much more “egregious” example–he “steals” an entire phrase!

    • Parker Higgins
      Posted 20 December, 2012 at 11:01 | Permalink

      Oh, I just meant it’s hard to make a living as a songwriter. No doubt that he’s wrong, should lose, should not pass go, should not collect $200, etc, but in the scheme of things (and given how crazy copyright law is today) I don’t really blame him for a misunderstanding that his lawyer should have corrected.

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