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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