The biggest tour of our career kicks off in a few months with Sebastian Bach!!
The most important member of our team is your manager, and the most important agreement you as a musician will sign is an Artist Management Agreement. Managers have never played a more important role in the music industry than they do today, and your manager will likely have a greater impact on your career than any other person on your team (besides Kurt Dahl).
Why? Because they are involved in every single aspect of your career, from touring to releasing records to publishing. Your manager is the person who coordinates things between your record label, publicist, booking agent, publisher, and promoters. They are the quarterback of your music career, and if you are ready to take the next step in your music career, you probably need one.
Here are 5 things to look for in an Artist Management Agreement:
1) How Long is the Term?
The shorter, the better for you as an artist. Almost all Artist Management Agreements come with an initial term, followed by one or more option periods. The shorter the term, the better for you as artist. If things are going great, you can always sign another agreement to extend things. But if your manager isn’t living up to your expectations, you’ll be able to cut ties sooner and find a better fit. The late, great David Bowie spent years in litigation (and millions in legal fees) because he fired his first two managers before the term was expired.
2) If You’re Not Making Money, Neither Should They
The Artist Management Agreement should allow your Manager to only make a commission on revenues actually earned by you. If you don’t earn any revenues in a given period, neither should they. If your potential manager is asking for a weekly/monthly/yearly fee, that is a definite red flag, for me.
3) How Much is Being Commissioned?
Managers commissions are typically between 15 to 20% of an artist’s gross income. Whether it’s 15% or 20% really depends on the level of the band and the bargaining power of each party. I’ve seen some net deals, but they are extremely rare. That being said, I always push for a net commission on merchandise. In other words, you get to deduct the costs of manufacturing, shipping and artwork before the manager takes a commission on merch revenues.
4) What is Being Commissioned?
As important as how much is being commissioned, is what is being commissioned. Certain funds you receive should be excluded from your manager’s commission, such as money received from your label to make music videos or record an album, money received as tour support, etc. If you get FACTOR or Starmaker funding, does the manager get a cut? What about gifts or money from investors? The Artist Management Agreement should be clear on what can and cannot be commissioned.
5) Is there a Sunset Clause?
Related to the length of the term is the length of the post-term, known as the “sunset period”. This is a crucial aspect of any Artist Management Agreement. This is the period following the term where commissions are still payable to the manager, from contracts that he/she negotiated during the term. As with the term, the shorter the better, and the sunset commissions should be declining over time, hence the term “sunset”. I’ve seen deals where the sunset period never ends, and that’s a serious red flag. The sun should always set.
A bonus point: don’t take legal advice from the manager’s lawyer. Ever. This might seem obvious but it happens more often than you’d think, and would be totally unacceptable anywhere else besides the music industry. If your manager doesn’t want you to obtain legal advice on the contract, that is a major red flag. This could be the most important contract you sign in your career; get proper legal advice.
Final thought: the most important thing to consider before working with a manager is, what does your gut instinct say about the person? That’s as significant as any legal clause, and is where you should begin. All the negotiating in the world won’t leave you with someone you enjoy working with on a daily basis. Once that box has been checked, take the contract to an experienced entertainment lawyer, and create a deal that opens rather than closes doors for you.
Whether you’re a seasoned touring musician or about to embark on your first tour, there are many things to take into consideration before hitting the highway. Here are the 16 questions a touring musician should ask before loading up the van:
1) Are Your Gigs Confirmed & Contracts Signed?
This might seem like an obvious starting point, but I know numerous touring musician friends and clients that have shown up at a venue to play, only to find that the promoter has double booked another band or event (or has completely forgotten that the show was booked in the first place). As you can imagine, things don’t go well from here. Make sure all your shows are confirmed and all contracts are signed. Verbal acceptance over the phone or written acceptance via email will not suffice. Unless you receive a signed contract from the promoter, you will not have any remedies if things go south. An experienced touring musician knows the important of a signed contract.
2) Have You Received Deposits for Your Shows?
One way to help avoid being double booked or cancelled last minute is to receive a deposit in advance. Fifty percent of the guarantee is an industry standard deposit. Once the promoter has spent their own money, they are less likely to forget about the show or cancel it last minute. If you’re working with a major booking agent, they will likely demand half the guarantee well in advance of the show. If you’re self-booking, I would still ask for half the guarantee in advance, but this will likely require that some sort of contract be in place.
3) How Are Gig Cancellations Dealt With?
Shows are cancelled all the time. Whether you’re AC/DC or a regional touring musician, you need to know how what will happen if the show is cancelled. Reasons for cancellation might include sickness, injury, force majeure (legal jargon for “act of God”, i.e. tornado, hurricane, flood, etc.), a change in availability, a breakup of the band, or a better opportunity arising (for either the artist or the venue). Whatever the case, the contract signed with the promoter should clearly state how the cancellation will be dealt with. I always suggest inserting language indicating that if the promoter cancels less than thirty days in advance of the show, the entire guarantee must be paid to the artist. If the promoter gives more than thirty days’ notice of their cancellation, then only the deposit is forfeited. If the artist if forced to cancel, typically the deposit is simply refunded to the promoter.
4) How Will You Get Paid?
The currency in which you’ll be paid might seem obvious, but I assure you it’s not. Whether you are being paid in cash, cheque, e-transfer or beer, the discussion needs to be had ahead of time. I’ve had promoter’s cheques bounce when I tried to cash them two days later. I’ve had e-transfers denied because the promoter’s bank didn’t work with the artist’s bank. I’ve had dozens of promoters attempt to avoid paying tax on the guarantee (innocently or not). Remember: touring musicians must pay the tax on their guarantee to the government anyway, so if you fail to collect it, you are actually reducing your guarantee accordingly. Tax is applied to the entire guarantee, not just the half of the guarantee that you collect at the show. More times than not, promoters will think the tax applies only to the remaining half. Depending on the size of your guarantee, this can cost you hundreds or thousands of dollars.
5) Will You Receive Per Diems?
A savvy booking agency will negotiate per diems in to your guarantee, so that each member gets a little extra cash to cover food and expenses. But you don’t need a booking agent to ask for per diems. Don’t ask for the moon if you’re a start up band, but proposing a per diem of $20 per touring musician would be in line with industry standards, and might actually come across as more professional. Again, it depends on your draw and the level of your band, so be reasonable.
6) Who Will Be Paying You?
Having a signed contract and knowing the amount that you are to be paid is great, but tracking down the person that will be paying you is a different story. I always recommend that touring musicians advance this information with the promoter ahead of time, and asking for a cell number and email address for your day-of contact. Many times, the person who books your band is not the same person that will be paying you at 2am. Reach out to this person via text or email the day of the show, and establish that line of communication. And then plan to meet shortly after your set at a certain location (venue office, back bar, etc.) to settle up. Bigger artists will sometimes demand payment before they go on stage. Unless you’re playing arenas, this is not likely going to be the case.
7) Will the Venue Take a Cut of Merch Sales?
This is a big one, especially in recent years. As a touring musician, I’ve seen this really expand in recent years, and not in our favour. More venues are taking a higher percentage of your merch sales than ever before. Whether this a shameless money grab or a reflection of the current economic realities of live music venues is a debate (and an article) in and of itself. Not all venues take a piece of merch. However, what I’ve seen in the last few years is that most venues will take 10 to 25% of your gross merch proceeds. As an artist myself, I always fight this as much as I can, and try to push this number as low as possible when negotiating the show. For me, merch is what puts food in your belly and gas in the tank, and venues should leave it alone. Venue owners argue that without their venue, you wouldn’t sell merch. I would argue that, without your music, they wouldn’t sell any liquor that night. So by their logic, you should get a piece of their liquor sales. Not surprisingly, I’ve yet to be successful with this argument, but feel free to use it when negotiating the merch issue. Tell them LawyerDrummer sent you 🙂
Another thing to bear in mind is that the venue will charge you an additional fee if they are providing someone to sell your merch. Depending on the size of your band and the size of the venue, this vendor fee can range from $50 to $100 per vendor. If you’re travelling with someone who can sell merch for you, then you of course save this fee. However, there are obviously other costs associated with adding to your touring entourage. From my experience, you can often get a reduced vendor fee if you agree to give the person slinging your merch a signed t-shirt.
8) Have You Confirmed Travel Route & Accommodations?
This is simply a logistic consideration. When you’re planning your travel route, make sure you’re avoiding any closed highways, heavy construction, natural disasters, etc. Many touring musician friends have missed gigs because they’re stuck on a highway waiting for a highway to reopen. Also, if you’re driving through the night, make sure you choose a route that will have open gas stations along the way. My band once embarked on a 55-hour straight drive from Toronto to Vancouver, through the Northern United States, and we had to plan our nighttime gas stops accordingly. In case you’re wondering, I don’t recommend driving that long without a hotel stop J
When it comes to accommodations, I strongly suggest against leaving the hotel booking until the day of the show. Hotels book up and/or rates shoot up unexpectedly, so book ahead. If you need to request a late check-out or early check-in, most hotels are accommodating and it can make all the difference on a long tour.
9) Do You Have the Right Documentation for Border Crossings?
Once you know your routing, make sure you have all documentation necessary to cross international borders as needed. There are countless stories of touring musicians both big and small that have been turned away at the border (or fully detained), causing them to cancel shows or an entire tour. The modern reality: border crossing is a serious thing and not to be taken lightly. Have all documentation ready, including updated passports, a work VISA if needed, a gear manifest and merch manifest, and a complete list of tour dates and routing when crossing international borders.
10) Do You Have Insurance on Your Gear?
Sadly, the number of times I’ve heard of touring musicians having entire vans or trailers full of gear stolen while on tour is quite high. And they never seem to have gear insurance. My band has a lot of expensive, top of the line gear, and we pay around $800 a year to insure it. Prices vary from state to state and country to country, but the principle remains: if you take your career seriously and plan to do any real touring, you need gear insurance or you’re playing with fire. Insurance will protect your gear from more than just theft; it will also protect it against damage from fire, flooding, etc. It’s worth making a phone call to get a quote, in advance of your next tour.
11) Do You Have the Right Phone Package?
This might seem simple but it’s something that every touring musician should consider: what additional costs will be incurred based on your tour routing? If you’re travelling outside of the country, this becomes more important. But perhaps your data plan is small and in order to properly promote this tour you need to increase it. If you are touring Europe, for example, perhaps you cut roaming costs by having one phone that all band members can use. The bottom line: you don’t want to come home with several hundred dollars in extra phone charges.
12) Do You Have Enough Backup Supplies?
This can mean extra drum skins, sticks, even an extra cymbal or two. There have been a few times on tour when I’ve broken my kick pedal and had to rely on the opening act’s drummer to rescue me. A backup pedal isn’t the worst idea. I’ve also broke through the beater skin on my kick drum a few times, and finding a replacement 26-inch skin at the venue wasn’t going to happen. So pack extras of everything and throw them in the van or trailer, and be prepared when this happens.
13) Have You Sent Out Your Tech Rider and Hospitality Rider?
Giving your sound tech an idea of what gear you’ll be using, what your stage setup looks like, and what special requirements you might have goes a long way for any touring musician. The tech will likely appreciate it, and it will help avoid any last minute technical issues. Perhaps you are using in-ear monitors and don’t need him to spend time working on wedge monitors. Perhaps you have an pre-recorded intro that you play as you walk on stage. Perhaps your singer has a wireless mic that won’t get good reception in the basement bar. Perhaps the venue cannot accommodate 8 vocal mics. All of these points should be dealt with ahead of time by advancing your tech rider to the promoter.
The same applies to your hospitality rider. Don’t expect to get pulp-free, non GMO coconut water and gluten free, artisan bologna sandwiches unless you advance this with the promoter and have them sign off on it. If your expectations are too high in terms of hospitality, the promoter will let you know.
14) How Long Are You Playing Each Night?
This should be confirmed in the contract and reiterated at sound check, so every band knows how long and what time they are playing. A smart promoter or venue rep will print out set times and tape them to the stage and dressing room. Going beyond your allotted time as an opening act, even if you start late, is a major faux pas. It doesn’t matter that the band before you went over. Let them be unprofessional. Finish before your cut-off time, not after. When my band toured arenas with Def Leppard, their stage manager told us stories of bands that had been kicked off arena tours for going two minutes over their set time. An experienced touring musicians will finish two minutes early instead, and tear their gear off stage immediately. The headliner (or more likely, their people) will appreciate it and it will go a long way. As a headliner, my band has had opening bands play 15 minutes longer than they should, and we never had them open for us again. It’s just unprofessional, and will undoubtedly close doors for you.
15) Who is Providing Sound Equipment and Backline?
This might seem obvious but trust me: I’ve seen many touring musicians show up at venues expecting that a sound system has been provided, and the dumbfounded look from the venue owner confirms otherwise. The resultant dash to the local music store to rent a full sound system (if you’re lucky enough to find one) is never cheap, and never a good thing. Advance these details with the promoter, and get an idea of what sort of gear you’ll be playing through. They might not have enough microphones for your 18 piece Neil Peart inspired setup.
The issue of backline becomes more of a consideration at festival shows, where headliners are flying in and drums/amps/etc. are provided for each act. But I’ve seen it apply to club shows as well, where all drummers are expected to share the same kit. It can be awkward when four sets of drums are lugged up a stairwell and the shared kit news is shared with everyone. A smart touring musician will advance this information with the promoter, and if you need certain instruments to be provided, be crystal clear in what those instruments are.
16) Can Your Performance Be Recorded and Exploited By the Promoter?
One final consideration to ponder is whether your performance can be recorded and released by the promoter. In the content-obsessed era that we live in, this is something that I’ve seen come up more and more as of late. Many festivals, for example, require that the performer’s set be filmed and used by the festival as they see fit. Perhaps you don’t want this, or you want to be the first to release this live recording to the public. If the festival or venue has the ability to sell the live performance in any form, that’s a red flag. Obviously, a great deal depends on the bargaining power of the promoter and the touring musician, but for now, it’s something that you should at least be aware of.
There are other things to think about before touring (what happens if your van breaks down), but this is a good start. As always, feel free to email me with any questions and best of luck on the road!!
I get many emails every week from musicians around the world asking me questions about the music business. One of the most common questions is: what rights do I have in a recording that I performed on? Whether it’s a song you played on decades ago that was just re-released by your former bandmates, or a song recorded last week that has yet to be released, the same principles apply. And whether you’re a drummer, guitar player, oboe soloist, or David Lee Roth, the law is the same.
Your Rights: Two Main Copy Rights In A Recording
A starting point is understanding the two main copyrights in a recording: one in the written composition (the songwriting copyright) and one in the recording of that composition (the sound recording copyright).
The revenue streams generated from the songwriting copyright include performance royalties (from radio play, public performance of the song, etc.), mechanical license royalties (a fee paid per-song for every copy of the song that is made), synchronization fees (if the composition is used in film or television), and more.
The revenue streams generated from the sound recording copyright include record sales (both digital and physical), streaming royalties, master use license fees (to use the actual recording of the song in film and television), and more.
If you are a co-writer of the composition that was recorded, you are entitled to a percentage of revenues generated from the songwriting copyright. Some drummers are considered songwriters, some aren’t. Some guitar players are considered songwriters, some aren’t. It really depends on the agreement you have with your bandmates, and the extent of your contribution to the song in question. If you are indeed a co-writer, the other writers cannot exploit the recording containing the composition without your written consent.
For example, if David Lee Roth co-wrote Hot For Teacher, he could stop the other members of Van Halen from using that composition once he left the band. However, this principle does not apply if a publishing agreement was signed, as these rights would be assigned to a publisher (which they were in this instance). But if your indie band has not signed a pub deal, the principle applies: one writer can stop the other writers from using a co-written song, unless something is put down in writing between them.
If you are not considered a co-writer of the composition, you still have certain rights in your performance on the recording. Absent an agreement to the contrary, you own your performance on the master recording, and it cannot be exploited without your consent. In other words, even if David Lee Roth didn’t co-write Hot For Teacher, he could still stop his ex-bandmates from exploiting the recording of that song. However, this principle does not apply if a record deal was signed that gives these rights to a record label (again, one was in this instance).
But for indie bands without a record label, the principle applies: without something in writing between the members (a Band Agreement), any single member can stop the others from exploiting recordings that contain their performances.
This comes as a surprise to many of my clients, and is why the Band Agreement is so important. If you record your masterpiece and three months later your bass player quits, he or she could stop you from releasing your masterpiece. As we all know from reading rock and roll bios, bands don’t always stay happy and together (just ask Hagar…or anyone else that sang for Van Halen).
The Modern Musicians Rights
So what does this mean for you, the modern musician? Well, without a Band Agreement that outlines the various rights and responsibilities of each member vis-a-vis the compositions and sound recordings, any one member can stop the others from exploiting the songs.
My advice: sign a Band Agreement that deals with these issues and clarifies the rights of each member. If no Band Agreement exists and you’re having a dispute with a current or former member, you have the choice of discussing it with them or discussing it through lawyers. One option costs a lot more.
YouTube is full of cover songs. From indie artists to toddlers to superstars, some of the most viewed videos on the Internet happen to be of cover songs. In the past week, I’ve been listening to and watching a ton of cover songs of the man himself, Leonard Cohen.
[Fun fact: both Cohen’s and Jeff Buckley’s recordings of ‘Hallelujah’ were flops upon their release. In fact, Cohen’s record label didn’t initially release the song in North America. The composition did not gain widespread attention until after Buckley’s death in 1997. Over the course of several decades, a prolonged snowball effect has made the song one of the most loved, most covered, most misunderstood songs of the modern era. What a story.]
Cover Songs Launching Careers?
It just so happens that some of the biggest artists of the modern era got their start with YouTube covers (instead of touring the cold ass Canadian prairies for ten years, ha!). Justin Bieber and Walk off the Earth, for example, might not have a career without the exposure received from their cover songs. The former was discovered by manager Scooter Braun after his covers of Usher and Justin Timberlake went viral when he was only twelve years old. The latter’s five-people-one-guitar cover of Gotye’s “Somebody That I Used to Know” went viral before the original did and arguably sparked further interest in the original, accumulating nearly 50 million views in its first month of release. As of the writing of this article, the cover has 175 million views, the original 825 million views. The band then parlayed their sudden success into a major label deal with Columbia Records.
The irony is that most of these cover songs are posted without the permission of the song’s copyright holder. In other words, they’re posted illegally.
YouTube Cracking Down
In recent months, cover songs on YouTube have become a heated topic in the music business. Record labels and publishing companies have started to aggressively enforce their copyrights. This has led to an increase in video take-downs and in some cases, lawsuits.
So: how do you post cover songs to YouTube legally?
To find the answer, we must understand the two main copyrights in a song: one in the composition (lyrics and music), and one in the sound recording. Read more on the topic here.
Obtaining a Mechanical License
When someone records and releases a song, you are free to do your own cover version of that song by obtaining a mechanical license. Contact CMRRA in Canada and the Harry Fox Agency in the USA for more info. Then every time your cover song is sold or reproduced, you (or your record label) must pay the statutory royalty fee for that song. That rate is currently 9.1¢ per copy in the US and 8.3¢ per copy in Canada.
But a mechanical license is not enough.
The original artist holds certain rights in the song under copyright law, including the exclusive right to reproduce, to prepare derivative works, to distribute copies, to publicly perform, and to publicly display the work. The mechanical license covers reproduction and distribution. It does not cover public performance and display.
Obtaining a Synch License
Therefore, you need a synch license as well as a mechanical license to legally publish cover songs on YouTube (unless the song has fallen into public domain).
How do you obtain a synch license? It’s not always easy. One option is contacting the copyright owner (often the artist’s publishing company) and negotiating a reasonable rate for the synch license.
Another option, which is likely easier: YouTube has deals with many record and publishing companies through its Content ID Program. Under this program, at the copyright owner’s sole discretion, YouTube may monetize your video with advertisements rather than take it down. The copyright owner then gets a share of the profits. When a video of yours is found to be in copyright violation, the copyright owner can decide whether the video should be monetized or removed. You would then receive notification of their decision.
Consequences of Non-Compliance
If you fail to obtain permission, will you be sued? Not likely. These types of disputes only go to court in extreme cases. Most times, the worst case scenario is that your video will be pulled by YouTube. You might receive a copyright notice from the owner or publisher.
My suggestion: do your research. If you want to avoid getting permanently banned from YouTube, look into what songs are covered in YouTube’s 2012 agreement with the National Music Publishers Association (NMPA) and the Harry Fox Agency (HFA). Try to reach out to the song’s owner. And just like in baseball, when you’ve got two strikes, make your next decision wisely.
Oh, and if you’re doing a cover, try to make it as good as Buckley’s.
The Led Zeppelin plagiarism verdict is in. I’ve been watching with baited breath. Not because the Zeppelin tattoos on my arm might have to be covered with long sleeves the rest of my life if they had lost, but because of the deeper impact the decision would have on the music industry and creativity as a whole.
In my article here, I examined the legal requirements of a successful plagiarism suit, and predicted that Zeppelin would be found not guilty. This prediction turned out to be accurate as the Los Angeles federal jury charged with the task came back with a unanimous verdict: Led Zeppelin did not plagiarize the song “Taurus” by American band Spirit in the composition of their classic “Stairway to Heaven.”
Reactions to the Verdict
The jury’s decision comes after a highly publicized trial which saw heated debate on both sides of the issue, as experts in the music industry and legal profession pontificated on whether copyright law should protect certain elements of song.
“We are grateful for the jury’s conscientious service and pleased that it has ruled in our favor, putting to rest questions about the origins of ‘Stairway to Heaven’ and confirming what we have known for 45 years,” Robert Plant and Jimmy Page said in a statement. “We appreciate our fans’ support, and look forward to putting this legal matter behind us.”
Plaintiff Michael Skidmore, a trustee of the estate of Spirit guitarist Randy Wolfe (aka Randy California), had a different reaction: “It was all skewed in Led Zeppelin’s favor. All I can say is money talks louder than common sense. We did the right thing. We tried to carry on Randy’s legacy.”
“Communication Breakdown” – Plagiarism Lawsuits On the Rise
The decision comes amid a serious upturn in plagiarism lawsuits in the music industry in recent years, particularly following last year’s verdict in the Robin Thicke “Blurred Lines” trial. In that groundbreaking decision, a Los Angeles jury determined that “Blurred Lines” infringed Marvin Gaye’s 1977 single “Got to Give It Up” and awarded the Gaye estate $7.4 million (later reduced to $5.3 million and currently on appeal).
In the last year, plagiarism suits have been brought against Kanye West, Jay-Z, Beyonce, Justin Bieber and Ed Sheeran among others. In short, there has been a major increase in ambulance chasers in the music business since the Thicke verdict. The outcome of the “Stairway” trial shows that these cases aren’t easy to win, and might in fact slow down the increase in plagiarism suits.
“Celebration Day” – Why Did Zeppelin Win?
As I outlined here, a successful plagiarism claim must prove two things: access and substantial similarity.
On the matter of access, both Plant and Page testified that they did not remember meeting the members of Spirit or hearing “Taurus”, despite the fact that the Spirit album was found in Page’s (admittedly vast) record collection and the two bands played together on the same bill multiple times.
There was also an amusing anecdote from a Spirit member involving rounds of drinking and snooker with Plant after a Spirit gig in 1970, but Plant testified that he only remembered his car crash on the way home, not hearing or meeting Spirit that night. While the car crash story would seriously undermine the credibility of a witness in most trials, I think it actually endeared Plant to the jury in this one. As such, the issue of access wasn’t as clear cut as I thought it might be.
(Author’s note: singers get away with everything!).
2) Substantial Similarity
On the matter of substantial similarity, the jury ruled that the elements of “Taurus” that were original and therefore copyrightable were not substantially similar to “Stairway,” and the parts that were similar were not unique or original.
And therein lies the rub. The elements of “Taurus” that were used in “Stairway” were not unique and original. To quote legendary guitarist Joe Walsh: “The Stairway claim was based on the four chord descending progression at the beginning of the song…Randy California came across [it] and used [it] for the Spirit piece – he didn’t write it. He used it. The Grandfather of these progressions is: C, Am, F, and G. Starting in the early 1950’s, there are probably 500 of these songs, all with those four chords – but each with different melodies and words. THAT should be the criteria for claims…”.
To paraphrase Joe Walsh: you can’t copyright a chord progression, but when original lyrics and vocal melodies are added, something changes.
Why Did Zeppelin Win?
Now, are the two songs similar? Without a doubt. But similarity does not equal plagiarism; “sounding alike” doesn’t violate a copyright. There must be many similar elements that combine to create an egregious copying of one song by another.
The major similarity between “Taurus” and “Stairway” is a descending chord progression. Musicologist Alex Ross devoted a chapter of his book Listen to This to the history of what is often called the basso lament – a bass line that descends chromatically (i.e. a half-step at a time) from the tonic note to the dominant.
The basso lament arose in operatic music of the early 17th century, and is incredibly common in Baroque music. The progression became less common in the Romantic period, but returned to fashion in pop music of the twentieth century, particularly in 1960s and 1970s folk and rock. The pattern can be found in everything from Bob Dylan’s “Ballad of a Thin Man” to the Eagles’ “Hotel California” to “Chim Chim Cher-ee,” from “Mary Poppins.
Jimmy Page actually acknowledged the influence of “Chim Chim Cher-ee,” on “Stairway” during the trial, noting that “I liked the idea of music going at counterpoint and I used that and similar ideas in my music. ‘Stairway to Heaven’ has a descending chromatic line over which there is also an ascending line, so that the music is going in two different directions.”
(Author’s note: I guess my next tattoo will be of Mary Poppins. I’m planning a back piece.)
This so-called basso lament can be found in thousands of songs around the world, many of which share the same chords as “Taurus” and “Stairway.” Zeppelin’s lawyer was keen to point this out, and successfully so. For me, this was the argument that won the day – that you can’t copyright a chord progression, and a chord progression is what this case really boils down to.
“Good Times, Bad Times” – How This Verdict Affects You and I
The jury came back with the right verdict. As much as my personal biases lead me to root for David in a David vs. Goliath battle (and Page and Plant were surely Goliath in this case), this was the right decision for a number of reasons.
First, it will slow down the ambulance chasing that has been happening in the music industry these last few years. A verdict against Zeppelin in this case could have truly opened the floodgates on these claims. A music industry overrun by lawyers and sharks is not my kind of music industry. Don’t get me wrong, some plagiarism suits are valid and indeed necessary in order to protect creativity. But copyright law is a shield not a sword. When lawyers and litigants smell blood in the water, minor similarities in songs will trigger multi-million dollar lawsuits and the whole industry will be overtaken by men in suits. (I don’t wear a suit, if you’re wondering.)
The second reason that this verdict is the right one is far deeper, and more important in my opinion. The verdict is a good thing for creativity and art. Artists of all kinds, especially songwriters, need to be allowed some measure of borrowing. It’s asking an awful lot of musicians to clear their heads of everything that they’ve heard before when writing a song; to come at it with a clean slate. The tradition in rock, blues, jazz and many other genres is one of borrowing bits and pieces here and there from the giants that have come before you.
The modern-day insistence on clear-cut originality reflects a misunderstanding about the nature of creativity. T. S. Eliot famously noted that “immature poets imitate; mature poets steal” – but it’s the second part of the quote that I love and is often overlooked: “a good poet welds his theft into a whole of feeling which is unique.” In other words, all inspiration is borrowed from what has come before, but can be turned into something entirely novel. That is the alchemy of art and of songwriting: taking the common metal around us and turning it into gold.
This is the alchemy performed by Bach and Mozart, Shakespeare and Tarantino, the Beatles and the Rolling Stones.
This verdict reaffirms the creative rights of songwriters to be songwriters. Demanding that our geniuses create art in a vacuum is not only unrealistic, it would in fact kill the creativity that copyright aims to protect. We have little to gain from songwriters writing with apprehension and fear.