The most bizarre particular of the plagiarism case brought by Rebecca Francescatti against Lady Gaga for alleged theft of her song “Juda” by the Artpop diva for her similarly-titled mega-hit “Judas” was that the matter was decided by an octogenarian judge. Marvin Aspen has been ensconced in the District Court of North Illinois since 1979, a year marked by hits such as The Knack’s My Sharona, Rod Stewart’s Da Ya Think I’m Sexy and Gloria Gaynor’s I Will Survive. Aspen has certainly survived: he’s still on the federal bench some thirty-five years after Jimmy Carter appointed him at the age of forty-five.
Four months after “Judas” was released on Ms. Gaga’s second studio album, Born This Way in April of 2011, the Chicago-based performer/songwriter, Rebecca Francescatti—like Gaga she’s a sometime blonde bombshell, gender commentator/confuser, and cultural critic in sound—filed suit in District Court for copyright infringement. Since Ms. Gaga’s real name is Stefani Germanotta, the case’s title had a wonderfully Italianate ring to it: Francescatti v. Germanotta et al. It was a match-up that, aside from the menace of musical vendetta to be heard in its cadence, conjured thoughts of imaginary judicial challenges of yore: Vivaldi v. Scarlatti; Galuppi v. Geminiani; Verdi v. Puccini.
Nearly three years after Francescatti launched her claim, Aspen this week threw it out. It was always clear that Gaga would survive the ordeal, but not so the aged Aspen. One feared that the combination of Gaga’s high potency sonic Viagra washed down with Francescatti’s effervescent elixir might just finish Aspen, not only overtaxing his juridical mind but also his body as the jurist grooved around his chambers in nothing but his robes, trying to discern the musical differences between the two numbers. To take full measure of the musico-legal arguments Aspen would also have had to add more than a few hits to the nearly 200 million YouTube views of the “Judas” video, watching the spectacle many times while considering carefully its provocative mélange of biker gang doom, phallic pistol lipstick play, orientalist harem techno dancing, and Crusader/Infidel/Bride-of-Christ threesomes. Had he expired while contemplating the fine fleshy points of the case, Aspen would certainly have had a smile on his face.
Asking a senior judge to discern the sledgehammer subtleties of two full-throttle pop songs is about as ridiculous as it gets: while not all old men are rigidly set in their ways, there are nonetheless few things more reliable in this world than the inability of disparate generations to understand each other’s music.
One assumes that Aspen has some age-appropriate clerks as back-up singers who know how to grind to Gaga and Francescatti. They then could have advised the venerable judge about who did or did not steal what from whom. The difficulty of the task of disentangling these two songstresses from one another can be judged by the excerpts comparing the two tracks on the website of Rolling Stone magazine.
Three years after Francescatti’s filing, Aspen’s dismissal came with gruff finality, and it was not clear whether sharply tuned critical ears or gut feeling had led to his ruling that the two songs “Do not sound at all alike musically.” Aspen did not seem to care—or notice—that the incessant melodic and rhythmic treatment of the title word of each number (“Juda” and “Judas”) was quite similar. Ignoring these parallels, he opined that “the (two songs) are so utterly dissimilar that reasonable minds could not differ as to a lack of substantial similarity between them.”
The judge turned a blind eye and ear to the flaming paradox inherent in so much pop: even while a song’s hook needs a special something that pulls listeners in (preferably by the millions), the musical qualities as a whole are virtually indistinguishable. Like the song’s titles—the same but for a single letter—the two pieces sound alike but are clearly different, as comparable as Chris and Christ.
Aside from being denied a portion of a few of the Gaga millions derived from “Judas” (and it’s a lot more than the thirty silver coins Mr. Iscariot got two thousand years ago), Ms. Francescatti had to swallow an old man’s decision that made it abundantly clear that she had created nothing worth stealing from.
Even while this plagiarism case was resolved, another remained in the music news: last month Businessweek reported that members of the rock band Spirit and the family of its late guitarist Randy California plan to file suit against Led Zeppelin for stealing from their song “Taurus” and using it as the celebrated intro to “Stairway to Heaven.”
A judge of any age can hear that the quotation of these guitar musings is direct and undeniable, Led Zeppelin not even bothering to smuggle the material out of its original key. Then there’s the nagging fact that the band does have a history of waiting too long to recognize the creative contributions of others, as in their tardy of acknowledgement Willie Dixon’s lyrics for “Whole Lotta Love.”
Spirit and Led Zeppelin toured together in 1968 and 1969. During that stretch Led Zeppelin had plenty of opportunity to hear—and eventually pirate—a couple of bars from Spirit’s “Taurus” for the opening of their most famous anthem. Led Zeppelin reissued the first three of their studio albums earlier this month; “Stairway to Heaven” anchors the fourth album, known as Led Zeppelin IV, and before that hits the market Spirit wants recognition for its contribution. The lawyer for Spirit, Francis Malofiy, claims the impulse behind this belated suit is to give California the composing credit that is his due. But as always in the music business, money trumps morals: back in 2008 Conde Nast Portfolio calculated that the song had earned $562 million. Getting credit for a few measures of that sum could add up to eight figures.
It will not be lost on music history buffs that the descending chromatic bass-line of the contested measures is one of the oldest and most-plundered in the Western tradition going back across more than four centuries to Bach, Purcell, Monteverdi and before. Besides these towering musical minds hundreds of lesser ones have also treated this very same material, if in more workaday fashion that did not grant their efforts immortality in the canon of musical works. Copyrighting this bass line is rather like fitness magnate Bikram Choudhury’s failed attempt to copyright yoga. That Spirit cannot claim the bass figure erases outright half of their possible monetary settlement.
Improvising above this bass line was long a skill expected of virtually all performers. Led Zeppelin guitarist Jimmy Page may have appropriated intact California’s particular working-out of the well-worn ostinato; however awkward California’s take on this pattern was, its crystalline quality became a cherished moment of reverie and reflection instantly recognizable to millions thanks to the popularity of “Stairway to Heaven.”
The master instrumentalists of the pre-copyright age would have laughed—bitterly, no doubt—at the fact that such simplistic, borderline ungrammatical doodlings could become so valuable and could be fought over more than forty years after the alleged musical robbery. If the dead could be raised, one would expect respectful recognition of Bach for Brahms (and vice-versa), for Brahms’ lifting of a bass line from Bach’s youthful cantata Nach dir, Herr, verlanget mich as the basis for the visionary variations of the finale of his fourth and last symphony. Even the litigious Bach would have desisted from slapping a lawsuit on his bearded, nineteenth-century epigone. Countless are the instances of ingenious appropriation and transformation in the history of great music, and not just in the classical tradition. Indeed, such reuses and refigurings are the very stuff of lasting art. The notion of creating music out of the void is, as every one knows, pure nonsense.
While Led Zeppelin’s four-decade old appropriation hardly rises to the level of Brahms borrowing from Bach, it is clear that Page did help himself to the late, lamented California’s poignant pluckings. Yet it is the epic expanse of “Stairway to Heaven” that supplies the purported model, “Taurus,” with its true musical and monetary value. Listen to “Taurus” and be dumbfounded at staggering superficiality of the shift from the chromatic A-minor music to A major and a series of simple-minded scale figures: down the octave, then up part way, and down again—Yippee! The banality of this egregious goo bleeds back on the supposedly plagiarized passage showing that it too is hardly original and worth arguing over.
The change in attitude toward such musical clichés has as much to do with the amount of money at stake as it does with the notion that musicians are artists striving constantly for complete originality that should be rewarded accordingly. The current judicial battles over these melodic and harmonic commonplaces, whose utility and universal availability are crucial to the practice of music, show just how deluded many self-styled geniuses are, believing it their right to get rich for reinventing the wheel.
DAVID YEARSLEY is a long-time contributor to CounterPunch and the Anderson Valley Advertiser. His latest book is Bach’s Feet. He can be reached at firstname.lastname@example.org