12 Jul '09 14:12>
Originally posted by scacchipazzoI think you may be a little hard on George here.Read this:
I'd love to see you do closing arguments in court. But Your Honor, he only plagiarized once. Therefore, he is not really a plagiarist. After all, no more lawsuits, Your Honor. You're very forgiving. I, on the other hand, lost all respect for the man. If he could not write a simplistic song like My Sweet Lord, what makes you think he really wrote the mor ...[text shortened]... At least lennon and mccartney appear to have written their post Beatles' schlock themselves.
In an interview published in the November 27, 1992 issue of Goldmine magazine, George Harrison stated that the events that occurred during the litigation of a claim that he had plagiarized the melody for his worldwide smash hit, "My Sweet Lord" from a hit single from 1963 called "He's So Fine" would fill a book. Maybe so, but this article is designed to boil down what happened in the court proceedings to a concise and understandable account of several years of litigation.
As with my prior article on the Lennon-Levy suit, I have gone to what I consider the primary source for my information: the written opinions published by the courts that passed judgment on the facts presented to it. (footnote 1) The court had to decide if Harrison had infringed the copyright of "He's So Fine" (or HSF) in composing "My Sweet Lord" (or MSL) and if so, then a determination as to the damages due to the holder of the copyright would have to be made.
HISTORICAL BACKGROUND OF THE CASE
The story starts in 1962, when "He's So Fine" was recorded. It was composed by Ronald Mack, recorded by the Chiffons, and was owned by Bright Tunes Music Corp. in 1971 (the opinion does not say if the song was originally published by Bright; however, as Paul McCartney can tell you, ownership of song copyrights can be transferred from one publishing company to another). It was a big hit in the United States, hitting the top of the Billboard charts for five weeks. (footnote 2) It was moderately successful in England, reaching Number 12 on one chart on June 1, 1963, a week that saw "From Me To You" topping the charts. Harrison acknowledged that he was familiar with "He's So Fine".
During the next seven years, "He's So Fine" was little more than a song that was played on the "golden oldies" request lines. Harrison had gone on with the Beatles to become wildly successful, and in 1970 was embarking on a solo career.
In December, 1969, George was playing in Copenhagen, Denmark, with Delaney and Bonnie and Friends. Billy Preston was part of that group. Harrison told the court that the song that became "My Sweet Lord" was conceived when he slipped away from a press conference and began "vamping" some guitar chords, fitting the chords to the words "Hallelujah" and "Hare Krishna." Later, members of the band joined in and lyrics were developed.
Harrison took the idea further during the following week. Upon returning to London, Preston went into the studio to make an album, and while George was not playing on the record, he was supervising the work. The unfinished "My Sweet Lord" was brought up, and was worked into a finished version. Part of this completed song included a second section that differed significantly from the first section (more on this below). Although the song apparently had many mid-wives, Harrison is solely credited with the birth of "My Sweet Lord". (footnote 3) The Preston recording was issued by Apple Records, and a "lead sheet" containing the melody, words and harmony was submitted for the United States copyright application.
However, it was not the version recorded and released by Billy Preston that led to two decades of litigation. George Harrison recorded a version of "My Sweet Lord" for his album, "All Things Must Pass," and released MSL as the first single from that album. It was released on November 28, 1970 in the United States and was a number one hit shortly thereafter.
On February 10, 1971, before it even completed its fourteen-week run on the chart, Bright Tunes filed suit against George, his English and American companies, (Harrisongs Music, Ltd. and Harrisongs Music, Inc., respectively), Apple Records, BMI, and Hansen Publications. For sake of ease of reading, a reference to Harrison is meant to refer to all defendants in the suit unless otherwise stated.
Very soon after the suit against Harrison was filed, Allen Klein, who was then acting as manager for Harrison, met with Seymour Barash, the president and major stockholder of Bright Tunes to try to resolve the dispute. (footnote 4)
Klein suggested that Harrison would be willing to purchase the entire Bright catalog; Barash had countered with a proposal that the copyright to MSL be surrendered to Bright, and Harrison would receive half of the proceeds derived from MSL.
No further progress was made toward a settlement, and preparations were made to defend the case. Klein assisted Harrison in finding musicologist Harold Barlow to give an opinion as to the lack of merit of the lawsuit and it was Klein that engaged the attorneys that defended Harrison.
The case was delayed on the court's docket when Bright Tunes was placed in receivership. During the interim, Harrison's contract with Klein was terminated in what proved to be a bitter parting of the ways (and another lawsuit involving the Beatles). After Bright's affairs were put in order so as to enable it to continue the case, settlement negotiations between Bright and Harrison resumed.
After much discussion, Harrison's best offer of $148,000 was made in January 1976, a few week's prior to the trial on the issue of whether or not MSL was too similar to HSF. That sum represented 40% of the writer and publisher's royalties earned in the United States by MSL, and further provided that Harrison would retain the copyright for MSL. The attorney for Bright viewed the offer as "a good one", but did not accept the offer, but rather raised its demand from 50% of the U.S. royalties to 75% of the worldwide receipts, and surrender of the MSL copyright.
Why did Bright turn down what was viewed as a good offer and make a counter that was so harsh to Harrison? What Harrison didn't know was that Klein had again entered into discussions with Bright Tunes to purchase all of Bright's stock, except at this time, he was not attempting to buy the stock for Harrison, but rather for ABKCO.
Seymour Barash, then the ex-president of Bright, wrote a letter to Howard Sheldon, the man overseeing the receivership of Bright, in which Barash noted that Klein's interest in purchasing Bright indicated that Klein, as a former insider, had little doubt as the outcome of the pending litigation. Klein's offer was a bit different than Harrison's, as he was to purchase the entire company that held the copyright, thus putting himself in Bright's position in the lawsuit.
Klein's offer prior to the determination of liability was a bit complicated. He offered to pay $100,000 for the right to purchase the company after the judge's ruling for an additional $160,000. (This procedure is termed "buying a call" on the stock. If Harrison won the suit, there would no incentive for Klein to finish the deal, or in trading parlance, "exercise his option".)
As part of his offer, Klein furnished Bright with information regarding the domestic royalties generated by MSL, and his own estimate on the overseas earnings as well as his estimate on the present and future value of the copyright.
Needless to say, Barash and the other stockholders weighed this offer carefully in deciding how to respond to the two offers they received. Barash remarked in a letter to Sheldon that since Klein was "in a position to know the true earnings of MSL, R offer should give all of us an indication of the true value of this copyright and litigation". Barash viewed the Klein offer as a starting point in negotiations, and armed with the additional financial information Klein provided, demanded that Harrison update his total sales figures before continuing settlement negotiations with Harrison. (footnote 5) As it turned out, neither Harrison nor Klein could reach a settlement with Bright before trial.
THE QUESTION OF LIABILITY FOR INFRINGEMENT
The suit was conducted in two phases, which makes perfectly good sense in litigation of this type. (footnote 6) It would be a waste of time for Harrison to prepare and deliver the financial information necessary to determine the amount due to Bright unless the judge found that Harrison had plagiarized, at least in part, HSF. The trial on the issue of liability was conducted on February 23-25, 1976. At that trial, the judge was called upon to make an analysis of the music of both HSF and MSL. (footnote 7) Both sides called expert witnesses to support their contentions, and Harrison himself testified about the process that occurred in writing MSL. After hearing the testimony and considering the evidence, the judge found MSL did indeed infringe upon HSF's copyright.
The Court noted that HSF incorporated two basic musical phrases, which were called "motif A" and "motif B". Motif A consisted of four repetitions of the notes "G-E-D" or "sol-mi- re"; B was "G-A-C-A-C" or "sol-la-do-la-do", and in the second use of motif B, a grace note was inserted after the second A, making the phrase "sol-la-do-la-re-do". The experts for each party agreed that this was a highly unusual pattern.
Harrison's own expert testified that although the individual motifs were common enough to be in the public domain, the combination here was so unique that he had never come across another piece of music that used this particular sequence, and certainly not one that inserted a grace note as described above.
Harrison's composition used the same motif A four times, which was then followed by motif B, but only three times, not four. Instead of a fourth repetition of motif B, there was a transitional phrase of the same approximate length. The original composition as performed by Billy Preston also contained the grace note after the second repetition of the line in motif B, but Harrison's version did not have this grace note.
Harrison's experts could not contest the basic findings of the Court, but did attempt to point out differences in the two songs. However, the judge found that while there may have been ...