Oh Dear Lord: George Harrison and “Subconscious” Copyright Infringement
This past week I watched the new Martin Scorsese directed documentary on the late George Harrison, the former Beatle. Entitled “George Harrison: Living in a Material World”, the film followed Harrison through his youth all the way through to his untimely death from cancer.
A key focus of the film was on Harrison’s spirituality, and much attention was paid to one of the first hits of his solo career, “My Sweet Lord.”
When I hear “My Sweet Lord,” however, I hearken back to my law school days, as the song was the subject of a much publicized lawsuit alleging copyright infringement, entitled Bright Tunes Music v. Harrisongs Music.
At issue was whether Harrison plagiarized a 1962 song performed by The Chiffons, “He’s So Fine”. The litigation focused on the fact that (a) George Harrison was aware of “He’s So Fine” and (b) both songs employed two similar musical phrases – referred to in the decision as “Motif A” and “Motif B”, and the inclusion of a peculiar “grace note”.
Here is He’s So Fine:
and here is My Sweet Lord:
Joseph Self wrote an excellent piece in a 1993 issue of The 910 magazine and he describes the central thrust of the plaintiff’s argument as follows:
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
In finding for the plaintiff and determining that Harrison did in fact plagiarize “He’s So Fine”, the Court ruled that Harrison had “subsconsciously” infringed “He’s So Fine”:
What happened? I conclude that the composer, in seeking musical materials to clothe his thoughts, was working with various possibilities. As he tried this possibility and that, there came to the surface of his mind a particular combination that pleased him as being one he felt would be appealing to a prospective listener; in other words, that this combination of sounds would work. Why? Because his subconscious knew it already had worked in a song his conscious mind did not remember. Having arrived at this pleasing combination of sounds, the recording was made, the lead sheet prepared for copyright and the song became an enormous success. Did Harrison deliberately use the music of He’s So Fine? I do not believe he did so deliberately. Nevertheless, it is clear that My Sweet Lord is the very same song as He’s So Fine with different words, and Harrison had access to He’s So Fine. This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.
In the end, the case – which was initially filed in 1971 – ultimately settled in 1993. The infringement issue was resolved in 1976, and the parties continued to fight over the amount of damages until the time of settlement. Adding to the drama was the fact that Harrison’s former manager had purchased the rights to He’s So Fine during the pendency of the case and the remainder of the case dealt with what he was to be paid in light of the rights he purchased, how much he paid, and so forth and so on.
In the grand scheme of things, Bright Tunes Music v. Harrisongs is but a footnote on a legendary career and remarkable life. Perhaps it would not have received such wide attention had a former Beatle not been involved – or if it had not stayed in the court system for twelve years. Nonetheless, because of the issue of “subconscious infringement” – a notion which, by the way, many intellectual property attorneys have doubts about – this case continues to have relevance today.
One final note: Harrison once stated in an interview that he believed the reason he was found to have plagiarized He’s So Fine was because the judge liked the earlier song better than “My Sweet Lord” and said it was “catchy”. If that was the case, I would take issue with the decision; I think Harrison’s is the better song.