We love a good song-theft legal battle here at CMU, even if many of the lawsuits that accuse one song of infringing the copyright in another seem at best ambitious and at worst misguided, and mainly designed to provide yet more work for lawyers and musicologists.
Nevertheless, fellow fans of messy song-theft litigation (yes, all three of you) might have been hoping for a festive treat this year when Olivia Rodrigo released her new track ‘Take Me Home (4 Christmas)’ last week.
Because, pretty much as soon as it landed, various keyboard warriors and other online commentators rushed to call out the similarities between it and not one but two existing pop songs: 1981’s ‘Christmas Wrapping’ by new wave band The Waitresses and Robbie Williams’ 2012 hit ‘Candy’.
Somewhat disappointingly for all us grinches out there hoping for a nice juicy song-theft set-to to spoil Christmas, the artists behind both those existing songs have been quick to clarify that they do not consider ‘Take Me Home (4 Christmas)’ a copyright-infringing rip-off of their earlier work.
And not only that, they both have some all-round lovely things to say about Rodrigo and her songwriting. Which is very nice, and just goes to show that the spirit of Christmas is still alive and kicking at least somewhere out there in the cut-throat business of pop-land.
Williams has also used the opportunity to hit out at the increasing number of song-theft lawsuits in recent years, most of which are “complete bollocks”, he insists. And, adds our Robbie, while artists “deserve to be protected”, there’s “a difference between protecting your work and treating every vaguely familiar sequence of notes as a winning lottery ticket”.
“There are only so many notes”, he goes on, “only so many chords, only so many ways of putting them together before you inevitably find yourself somewhere somebody else has been”. Music, he reminds us, “has been around for a very long time”, so “we’re all going to bump into each other eventually”. And a lot of the song-theft lawsuits of recent years, he reckons, have just been “ambulance chasing” litigation.
‘Take Me Home (4 Christmas)’ - Rodrigo’s first Christmas record - was released last week, co-written by Rodrigo with songwriter Amy Allen and producer Dan Nigro.
It seems Rodrigo was aware of the similarities between her new song and ‘Christmas Wrapping’, because the earlier song’s writer, Christopher Butler - founder member of The Waitresses - quickly posted a nice little story on Facebook about his correspondence with Rodrigo prior to the new record’s release.
Admitting that he didn’t know who Rodrigo was when an email arrived from the pop star - and adding he was uncertain that the email was genuine even after he’d reviewed her career to date - he says the email was “filled with Waitresses gush” and also invited him to listen to a then unreleased ‘Take Me Home (4 Christmas)’.
After gushing in return about Rodrigo’s career and musical output, Butler says of the new record “it’s great - it’s going to be a smash”, before suggesting it might even win “that elusive Christmas number one contest they have every year in the UK”. Yeah, maybe. Wham fans might have something to say about that, though.
Subsequently joining a conversation on YouTube about the similarities between ‘Take Me Home (4 Christmas)’ and ‘Christmas Wrapping’, Butler wrote, “the vibe is there, but no plagiarism - and this is from the guy who wrote “CW’”.
He then agreed with another commentator that ‘Take Me Home (4 Christmas)’ was a ‘homage’ to his earlier song, rather than a rip-off or infringement. A ‘homage’, of course, gives the writer of the earlier song a healthy helping of pride and maybe a little ego-boost.
Which you can’t bank in the same way as a licensing fee or some statutory damages, or a long steady stream of Christmas-hit royalties for years to come. But at least you know you’re respecting your fellow creators and stopping the lawyers from getting their grubby little claws into even more songwriter money this year.
In his post, Williams also gushes about Rodrigo, before turning to the similarities between her new Christmas record and ‘Candy’. “It sounds to me as though she may have accidentally stumbled across a musical echo of mine in one of her new songs”, he says, before confirming, “I couldn't care less”.
“I don’t know whether there’s technically a publishing issue, a copyright issue, or no issue whatsoever”, he continues, before adding, “I don’t want to know - I’m not going after her - because I think at some point, some fucking sanity has to prevail”.
Which is true. Hurrah for sanity. Hurrah for Christmas. Hurrah for Christopher Butler. And hurrah for Robbie Williams. Though none of this is much fun for those of us who make our living writing about messy music industry legal battles.
On the occasions that song-theft disputes do get to court, more often than not the lawsuits fail, and the only winners are the lawyers.
If the earlier song isn’t well known, it can be hard to prove that the writers of the new song had even heard it when they began writing their newer work. And those writers - like Williams - will stress that, when writing pop music, eventually you will “inevitably find yourself somewhere someone else has been”.
And even if the earlier song is famous, the similarities are often common musical segments and chord progressions which, in isolation, are not usually protected by copyright.
Lawyers for those filing the song-theft claim will argue that the way those common musical segments and chord progressions have been combined is distinct, that that creates work protected by copyright, and that is the copyright that has been infringed. But those arguments - despite the best attempts of lawyers and their pet musicologists - rarely succeed.
Nevertheless, the music industry has become more cautious about possible song-theft claims in recent years, with the very high profile and quite controversial ‘Blurred Lines’ song theft legal drama in the US doubtless contributing to that caution.
In that particular case it was ruled that Robin Thicke and Pharrell Williams had infringed the copyright in Marvin Gaye’s ‘Got To Give It Up’ when writing their hit.
As a result, it’s tempting for artists accused of song-theft to quickly settle, and offer the writers of the earlier work an upfront payment, songwriting credits on the new work, and some kind of share in the new copyright. And some in the pop industry will seek to pre-empt any song-theft claim before it even happens.
Where an artist, label or publisher spots a notable similarity between a new song and an existing song, they may offer the writers of the earlier work a credit and copyright share before the new song is even released, in doing so basically licensing an ‘interpolation’ of elements of the old song into the new song.
This isn’t the first time Rodrigo has been accused of borrowing elements from - or, if you like, ‘paying homage’ to - earlier songs in her songwriting.
And in at least two cases, back in 2021, writers of earlier songs were ultimately given co-writer credits on her records - Taylor Swift, Jack Antonoff and St Vincent on ‘Deja Vu’ which was deemed similar to Swift’s ‘Cruel Summer’, and Paramore’s Hayley Williams on ‘Good 4 U’ which had similarities with Paramore’s ‘Misery Business’.
Though when fans started talking about the similarities between another Rodrigo song from 2021 - ‘Brutal’ - and Elvis Costello’s 1978 hit ‘Pump It Up’, he took the same approach as Butler and Williams and declared on social media that the similarities are “fine by me”, adding “It’s how rock and roll works. You take the broken pieces of another thrill and make a brand new toy. That’s what I did”.
In a subsequent interview with Vanity Fair, he said, “I did not find any reason to go after her legally for that, because I think it would be ludicrous, it’s a shared language of music”.
So let’s add a hurrah for Elvis Costello too. There are so many rational and sensible people in the music industry all of a sudden.
Though, with just 44 days until Christmas, here’s hoping not everyone is planning to be rational and sensible this holiday season, and maybe Santa can slip a nice juicy song-theft legal battle under the tree for all those poor lawyers who need to get their billable hours up before the end of 2026 - and for those of us who would love a festive song-theft drama to follow.
