Plagiarizing a song that itself “plagiarizes” a classical composition

Last Eurovision song festival [an event I normally pay no attention to] was won by Israel, with a tune called “Toy” by a very Rubenesque DJ and singer named Neta Barzilay.

Some people at the time noted the striking similarity between a phrase in the composition (such as it is) and the main riff of The White Stripes’s 2003 chart-topper “Seven Nation Army”. [Apparently, the title is how TWS frontman Jack White misheard “Salvation Army” as a child.] I didn’t think much of it — as I thought that riff pretty clichéd to begin with — But Universal Music Group subsequently sued Neta Barzilay on “behalf” of Jack White.

Now Mrs. Arbel forwarded me an article from Haaretz English Edition [archive link] according to which a settlement has been reached. The financial terms are undisclosed, but Jack White will receive a co-writing credit.

However, the Haaretz article [*] also points out that a very similar phrase appears in Bruckner’s 5th symphony. Listen to the YouTube below at 21:30 (the video embed should start playing 1 second before that if clicked):

Yup, substantially the same phrase, in Bb minor instead of E. Does this make it “plagiarism of plagiarism”? In the eyes of a random observer, perhaps yes. In the eyes of the law, no — because Bruckner’s composition passed into the public domain long ago, and hence Jack White [**] quoting it does not amount to a rights violation. (I would not want to feed all the rock and pop composers who have recycled bits of Bach, Mozart, Beethoven, Borodin,… as main melodies or riffs without as much as a hat tip. I am not talking about brief “salute” or “tribute” quotes in passing.)

So this adds a very interesting wrinkle to the case. I would have assumed that a song element that is itself lifted from a public domain source would not be copyrightable as such — the whole (which would be a derivative or [presumably in this case] a transformative work) would be, or any original material in the song. Perhaps that is the argument the defendants should have made—I am not a lawyer, but it would seem that this case would be winnable in court. (It is quite possible, however, that the defendants feared being bankrupted by a protracted legal battle against a plaintiff with very deep pockets and a “seven-nation army of copyright lawyers” on retainer.)

I cannot help being reminded of an anecdote from my HS years. A punk rocker was caught shoplifting from a record store. When the beat cop caught and arrested him, his defense was: “That record is mine! I stole it fair and square!” [Dutch original: “Die plaat is van mij! Ik heb ze eerlijk gestolen!”]

Some will rightly point out that composers like J. S. Bach had a much breezier attitude about quoting material than today’s music industry. However, here is the catch: when Bach recycled a popular song as a fugue theme, the material recycled was maybe 1% of the composition, and the contrapuntal edifice he built upon it the other 99%. Tchaikovsky’s “1812 Overture” makes broader use of borrowed material (a Russian Orthodox hymn as the theme for the Russian defenders, and the Marseillaise as the theme for Napoleon’s invasion troops) — but again, there was a ton more music to it.

Bands like Dream Theater quote/steal bits of thematic material like magpies, but again use them as jumpoff points for more elaborate compositions and virtuoso improvisations.

But when your whole composition (such as it is) consists of a simplistic song built up from repeating one or two riffs and/snatches of melody —and then you are then discovered to have “borrowed” them — then I think the true problem is the simplistic, formulaic, and inspiration-less character of the “products” of today’s music industry, not plagiarism.

[*] credit where credit is due — regardless of my disgust with Haaretz’s editorial stance and general oikophobia, this was a good catch.
[**] According to Jack White’s wiki bio, he was a classical music aficionado before turning to rock. It is thus quite probable that he was familiar with the Bruckner original. (1970s German progressive rock band Novalis recorded this tribute to Bruckner’s 5th.) And again, I wouldn’t want to feed all the classically-raised musician turned rockers who mined classical compositions for riffs and hooks. I often quip that J. S. Bach was the greatest jazz cat in history, Mozart the greatest pop composer, and Beethoven the greatest hard rocker 🙂