Lucky for Petty, He Won’t Have to Back Down

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February 20, 2015
Kaylea Weiler
SmithAmundsen Intellectual Property Alert

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Recently, details emerged of an October 2014 settlement agreement whereby breakthrough British artist Sam Smith politely acknowledged that the chorus of his smash hit “Stay With Me” coincidentally sounds a lot like Tom Petty’s 1989 hit “I Won’t Back Down.” The settlement terms included Smith and his “Stay With Me” collaborators granting a songwriting credit to Petty and his “I Won’t Back Down” co-writer Jeff Lynne. Smith stated that he was not familiar with Petty’s song, and in a statement released by Petty on January 29, he acknowledged that the whole thing was just a “musical accident.”

Ironically, the leading case1 on the issue was a lengthy and dramatic legal battle involving George Harrison, who was a close personal friend of Petty’s. The two were bandmates in The Traveling Wilburys, and Harrison even played guitar and backup vocals for Petty on the recording of “I Won’t Back Down.”

Harrison was on the other end of the copyright fight, however, when the owners of the copyright in the composition for “He’s So Fine” claimed that Harrison’s 1970 hit “My Sweet Lord” infringed the doo-wop chart-topper recorded by the Chiffons. Harrison claimed he did not deliberately use or even refer to the music from “He’s So Fine” when he wrote “My Sweet Lord.” The court agreed that it was “apparent…that neither Harrison nor [his collaborator] were conscious of the fact that they were utilizing the ‘He’s So Fine’ theme.” However, given the widespread success of “He’s So Fine,” the court ultimately concluded that Harrison must have been aware of it, and that “his subconscious knew [the theme] had already worked in a song his conscious mind did not remember.”

It made absolutely no difference to the court that the infringement was “innocent” or unintentional. Infringement need not be pre-meditated or even apparent to the author of the infringing work. A copyright plaintiff only needs to show 1) that the alleged infringer had access to her work and 2) the two works are substantially similar.

Despite continued success of “My Sweet Lord,” Harrison was extremely distraught by the court’s ruling, and refused to listen to the radio for years for fear of another instance of “subconscious infringement.”

According to Petty, he never intended to file a lawsuit against Smith and Smith acted quickly to resolve the dispute quietly and amicably. Smith and Petty would have been in for a long haul had Smith instead chosen to stand his ground. Smith, who has been praised for the way he handled the situation, may have proven that “in a world that keeps on pushing you around,” sometimes the best course of action is to take the high road by offering to compromise rather than refusing to back down.

Petty, on the other hand, has been the subject of vast criticism. One “former” fan in Colorado even went so far as to say that Petty has “COPPED OUT TO CORPORATE GREED.” But perhaps the most pointed response: “What would George say about this?”

1See Bright Tunes Music Corp. v. Harrisongs Music, Ltd. 420 F. Supp. 177 (S.D.N.Y. 1976); order affirmed in ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F. 2d 988.