The case of the “Bitter Sweet Symphony” by The Verve is one of the biggest failures of copyright law in recent history.

The distinctive string sample comes from an orchestral arrangement of “The Last Time” by The Rolling Stones.

Doesn’t sound much like the Verve, does it? Here’s the Andrew Oldham Orchestra‘s version, the sample will jump right out at you twenty-five seconds in.

Although “Bitter Sweet Melody” was written by Verve frontman Richard Ashcroft, its publishing rights are held by Keith Richards and Mick Jagger. This bit of legal absurdity is due to the Rolling Stones’ manager Allen Klein, who also holds many of the band’s earlier copyrights. Klein successfully sued The Verve for plagiarizing “Bitter Sweet Symphony” from “The Last Time.”

The Verve had legally licensed the Andrew Oldham Orchestra sample, but once their song became a hit, Klein challenged the terms of the license in court. His legal argument was that the Verve had used too much of the sample to be able to claim any authorship over “Bitter Sweet Symphony” at all. The Verve didn’t think they’d win the case and didn’t have the resources to pursue it. They agreed to a court settlement that gave the song’s publishing rights to Allen Klein’s company and songwriting credits to Jagger and Richards.

This case was tried in the UK, not America. Still, if the Biz Markie lawsuit and others like it are any indication, our courts would have probably produced a similar outcome. This is not good. The US Constitution says that the point of copyright is “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” If you think, like I do, that sample-based music is a useful Art, then copyright law as it’s presently interpreted is not doing its job. Allen Klein didn’t contribute creatively to the Stones’ original song, the orchestral arrangement or the Verve song. He has nevertheless managed to collect a lot of the money all three recordings have made over the years. The Stones and The Verve get performance royalties for their songs, respectively, but when their songs get used in movies or video games or commercials, they get bupkes.

US copyright law says that works based or derived from another copyrighted work is the exclusive province of the owner of the original work. The problem with this statement is that all new works are derivative. All creative thinking consists of adapting existing ideas, especially in music. Nevertheless, the law says that if you write or record a song based on an existing copyrighted song, you need the copyright owner’s permission. Same if you write a story or shoot a movie using settings or characters from an existing copyrighted story or movie. Justice Sandra Day O’Connor said in Feist Publications Inc v Rural Telephone Service Company that “copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work… It is the means by which copyright advances the progress of science and art.” O’Connor thinks that “the sine qua non of copyright is originality”, but as Wikipedia observes, the standard for creativity is not completely based on a work’s novelty. A work needs only a “spark” or “minimal degree” of originality. I’d say that The Verve’s song has more than enough of that spark to meet the standard of an original work.

The fragment of orchestral melody the Verve used for their song is totally unrecognizable as having any connection to the Rolling Stones, unless you know its history. There is a connection, a family lineage, but the Verve can’t reasonably be accused of having stolen anything. The sample is from a melody written by Andrew Oldham that sets up the Rolling Stones’ melody, but is distinct from it. If the Verve had had the foresight to hire a bunch of violinists and percussionists to play an identical snatch of music, the Stones would have no claim whatsoever.

Another irony is that the “original” Stones song is hardly original. Keith Richards freely admits that he borrowed the idea for “The Last Time” from a 1955 Staple Singers record.

This is nothing against the Stones. The Staple Singers were adapting a traditional song that has been widely replicated throughout the gospel world. Plenty of other musicians have derived new original works from the Last Time meme, the idea of a vocalist running out of patience for someone over a rhythm and blues setting. For example, James Brown recorded a song in 1964 called “Maybe The Last Time.”

To compound the ironies, Klein’s claim of 100% of the publishing of “Bitter Sweet Symphony” crowds other would-be stakeholders. The beat sampled in the song comes from “Doggone By Love” by George Suranovich, but he has no share in the song; evidently, he doesn’t have good lawyers like Klein does.

The Verve’s song is arguably a lot more original than the Stones’, but because of the peculiarities of modern copyright, they’ve been screwed out of a lot of the money. Richard Ashcroft’s lyrics take on a dark irony given how the life of his song played out: “You’re a slave to money, then you die.” Klein licensed “Bitter Sweet Symphony” to Nike, Opel and Vauxhall for TV commercials against The Verve’s wishes, and Richard Ashcroft didn’t get a dime. Same thing when the song is used in video games, movies and TV shows.

Musicians mostly continue to disregard the law when it impedes their creativity. “Bitter Sweet Melody” has been covered, sampled and repurposed endlessly. Michael Jackson fans make tribute videos set to it. Kanye West and Wale rap over it, and it’s been sampled and interpolated for tons of techno and dance tracks, for example this one by David May.

Hear a mashup of most of the tracks referenced above.

Update: this post was used in a Williams College English course called Borrowing and Stealing: Originality in Literature and Culture. It followed a discussion of Andy Warhol’s a, A Novel and Pope’s An Essay On Criticism. Thanks, Professor McWeeny!

Further update: this video tells the story well.

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