Wednesday, June 10, 2020

Bob Dylan, Billy Emerson, and the Problem of Credit

              On May 8, 2020, Bob Dylan released a third new song for 2020 and announced that a new album was forthcoming. The song, “False Prophet” sounded quite different from the first two and a lot more like the kind of music we are used to from late career Dylan. This one, I feel, both in sound and lyric would easily fit onto his last original album Tempest whereas “I Contain Multitudes” and “Murder Most Foul” would have sounded a bit out of place there.

              Almost immediately intrepid Dylan fans discovered the inspiration for the music on this one: the song “If Lovin’ is Believing“ by Billy “the Kid” Emerson. (NPR put up a story about it with links to both songs: https://www.npr.org/2020/05/12/853992774/trickster-treat-bob-dylans-new-song-sounds-awfully-old-and-familiar.)

              There seems little doubt that Dylan based the music of “False Prophet” on Emerson’s 1954 song. I have no idea of the legal logistics. I am an attorney but intellectual property is not my area of expertise and the copyright of song recordings and song composition is a notoriously complex matter for songs written and recorded earlier than the mid-to-late 20th Century when the problems of omission of protection for some of these forms was addressed with legislation.

I wouldn’t hazard a guess about whether there is any legal copyright liability here. For all I know Dylan’s team might have reached out to Emerson and given a lump sum payment for the use of the music. Or not. Maybe Emerson based his music on some earlier song that no one has found yet. Or not.

But there is another issue here, and that is the ethical question. If he isn’t violating any copyright rule here, should he still have acknowledged Emerson in some way from a moral standpoint?

The NPR article notes that “[b]oth songs are built on blues form – a standard chord sequence that has been used by gazillions of artists for more than a hundred years. Using this framework as the basis for a composition is generally not regarded as stealing or copyright infringement; the singer and songwriter Pete Seeger once described such appropriation as ‘the folk process.’” The author goes on to note that there are differences between the music in the songs: “Dylan's "False Prophet" sits in the same tempo, and key, as Emerson's song. It faithfully replicates the rhythm guitar phrase and leans on the same lead guitar line for punctuation. But there are a couple of crucial tweaks or modifications: Dylan truncates the form to 10 measures instead of 12, and shortens one measure from four beats to two. The effect of this editing is something more than a clever, technical flim-flam: It transforms something standard, a form we've heard forever, into something ear-catchingly new.”

I don’t have an argument with any of that, and again I am not a specialist in intellectual property, but I am a bit skeptical that these differences would, alone, shield a copyright infringement claim. Hell, after the “Blurred Lines”case where a jury found that Robin Thicke and Pharrell Williams had essentially stolen the “groove” or the “feel” of an earlier Marvin Gaye song I don’t know how anyone can be sure about close-call infringement cases.

That all being said, this is nothing new for Dylan or music composers as a whole. On Dylan’s first album, “Song for Woody Guthrie” uses a Woody Guthrie melody set to new lyrics. Or does it? Woody himself adapted folk tunes for his own songs. As noted in an article in Acoustic Guitar magazine: If an existing song had the simple, natural quality that Guthrie loved, he was apt just to use it directly, and write new words to an old melody, for instance. Many of his most famous songs were based in part on other songs. Even “This Land Is Your Land” uses the melody from the hymn “When the World’s On Fire” as performed by the Carter Family. Another example of this folk-process adaptation from Guthrie’s songbook is “Pastures of Plenty,” based on the one-chord traditional tune “Pretty Polly.”’ Guthrie was a famously huge influence on Dylan’s performance and writing styles.

And, of course, it wasn’t just Guthrie that did this sort of thing. I heard my 16 year old son recently singing the song “Istanbul (Not Constantinople)” around the house. I asked him (since he seemed to like it) whether he had heard the song it was clearly based on, “Puttin’ on the Ritz.” He was completely unaware of the latter song. For the fun of it I looked them up and sure enough, “Istanbul” has Nat Simon listed as the music writer with nary a mention of Irving Berlin’s 1920s composition “Puttin’ on the Ritz.” I will let you judge for yourself the connection from the videos below, but I think, despite some differences, it is clear that “Istanbul” is based on “Puttin’”.

Ella Fitzgerald, "Puttin' on the Ritz":


The Four Lads: "Istanbul (Not Constantinople)"


When artists do this in the modern era they get sued. Famously George Harrison (perhaps unintentionally) set the melody of a song called “He’s So Fine” to new lyrics to come up with “My Sweet Lord.” He was sued by the copyright owner, lost the case, and was very embittered by the process. (I can’t imagine that he never spoke to his friend, Bob Dylan, about this case and I wonder how it affected Dylan’s attitude about the subject.)

This borrowing has nothing, I believe, to do with the quality of the art. “My Sweet Lord” is a classic of a song, and I enjoy and admire the songs Dylan has done like this in the last 20 years or so (such as the afore-mentioned “False Prophet,” and “Floater (TooMuch to Ask)” etc.). Doing this sort of thing is fine, but the question is, should they ethically acknowledge it?

I am a huge Dylan fan and admirer, and I love the work he is and has been doing, but I must admit I do wish he was more straightforward about some of these sources. I’m not talking about the phrases or lines he borrows here and there (for instance in “False Prophet” he borrows a couple of lines from a particular English translation of the Egyptian Book of the Dead) but when the music to one of his songs is really a reworking of the melody of someone else’s song. If Emerson’s song is out of copyright and fair game (and again I have no opinion on that not knowing enough about the law in that area or the facts) wouldn’t it be nice for Dylan to just note that?

An example of doing something like that comes from another singer-songwriter I admire, Lucinda Williams. On her new [excellent] album (2020’s Good Souls Better Angels) the lead off song is called “You Can’t Rule Me.” It is based in part on an old Memphis Minnie song also called “You Can’t Rule Me.” There are a lot of differences in parts of the melody, lyrics, and general sound but there is an obvious relationship (for example the chorus is clearly based on Minnie’s song). So Williams, in the songwriting credits, lists “You Can’t Rule Me” as “adapted from the original composition by Memphis Minnie.” I heard an interview with Williams in which she said they couldn’t find anyone to pay or share royalties with, but that if someone popped up they would essentially take care of it.

In Dylan’s case, “False Prophet” could easily be listed as Lyrics by Bob Dylan, Music by Bob Dylan adapted from the original musical composition “If Lovin’ is Believing” by Billy “the Kid” Emerson. Or maybe “inspired by…” I can’t say for sure that Dylan won’t do something like that in the credits since the album hasn’t been released yet, but based on the past similar episodes I doubt we will see that. I can’t imagine it would affect Dylan monetarily at all. Most song recordings don’t generate much revenue at all anymore anyway in the age of Spotify and YouTube.

To the best of my knowledge Billy “the Kid” Emerson is still living, and wouldn’t it be a great treat at the age of 94 to be acknowledged by a Nobel Prize willing artist as having inspired one of his work? To steal from (paraphrase) an old country music song, it may be too much to expect, but it is not too much to ask.

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