White Hinterland (née Casey Dienel)’s recently filed lawsuit against Justin Bieber has all the makings of a classic cautionary tale from the music industry: respected indie-pop singer-songwriter has her work stolen by an international superstar and has to resort to legal action when her attempts at peacefully resolving the issue go ignored. Unfortunately, even if it is true that the intro to White Hinterland’s song “Ring the Bell” was the original inspiration for the vocal hook in Bieber’s “Sorry,” Dienel’s case doesn’t have very much musical ground to stand on.
Hinterland’s contention with Bieber—as well as producers Skrillex and Bloodpop (fka Blood Diamonds), and songwriters Julia Michaels and Justin Tranter, all of whom are named as defendants in the case—is that to create “Sorry,” they copied “original, protectable elements of the musical composition of ‘Ring the Bell’ and unlawfully sampled plaintiff’s protectable sound recording of ‘Ring the Bell.’” The latter statement has already been proven false. In a video posted to Twitter, Skrillex demonstrates how he pitch-shifted the demo vocal recorded by Michaels and then looped a section from her chorus in order to create the vocal hook that opens the song. Off the bat, Dienel’s case has already been dealt a blow; elsewhere in the court filing are claims that the “defendants manipulated and/or altered” her recording “by adding additional effects,” which isn’t true.
SORRY but we didnt steal this 🙏🏻 @justinbieber@bloodpoppic.twitter.com/9897j9sfY7
— SKRILLEX (@Skrillex) May 27, 2016
That isn’t to say that Dienel has already lost the suit. “It’s possible that she may lose the sound recording claim but win on the infringement of the composition,” says entertainment lawyer Peter Rosenthal. “They need to be treated separately, on their own merits.”
As a result, the lawsuit at hand effectively hinges upon whether or not Dienel’s vocal hook in the beginning of “Ring the Bell” contains enough elements in common with the intro of “Sorry” that can be considered both “original” and “protectable.” There is little doubt that the two sound alike, but are there musical grounds for copyright? Consider three things: the melodic compositions, the timbre of the vocals, and the placement of the vocal hook within the context of the song.
While the two songs are in the same key of E-flat major and feature the same four notes, those details are not enough to claim a copyright infringement. “The opening phrase is similar, but Justin Bieber’s ends on a different note every time,” says Jeff Peretz, professor of music theory at NYU’s Clive Davis Institute of Recorded Music. “They are not the same melody. They are very similar, they have similar notes and a similar arc, but they are fundamentally not the exact same melody.”
Dienel’s lawsuit also states that “voices are original and difficult to imitate” and that “both ‘Ring the Bell’ and the infringing ‘Sorry’ feature breath-like sounds to complement the vocal riff.” Dienel’s voice does sound similar to Julia Michaels’ (albeit pitched up by eight semitones), but that doesn’t change the fact that timbre is impossible to copyright. “It’s akin to a painter claiming the copyright to the color pink. It’s a sonic texture, not a copyrightable element,” Peretz says. “If timbre is copyrightable, then whoever played the first distorted guitar sound would own that sound”—and rising G.O.O.D. Music signee Desiigner would definitely be getting sued by a certain Atlanta rapper.
Finally, there is the argument from Dienel’s camp that the similar-sounding vocal hooks serve identical purposes within their respective songs. “Both songs begin by using the vocal riff, without accompanying drum rhythms, in an introductory manner before the rhythm takes over, and both songs return identically, over and over again, to the opening riff like a refrain in a poem, unifying the entire song,” the lawsuit reads. But innumerous songs begin with a melodic hook, without drums, and return to that hook throughout. Isn’t that just pop songwriting? “It goes all the way back to the concept of the blues,” Peretz says. “If someone were able to copyright the twelve-bar blues chord progression, and someone could own that arc, it would have stopped the artform dead in its tracks.”
On all bases, Dienel’s musical claims to the copyright look a little thin. But the truth is that despite this, the “Ring the Bell” singer just might win the lawsuit if the case ends up going in front of a jury—which means that Bieber is likely to settle instead. “Knowing nothing about the specific merits, that’s just usually what happens,” Rosenthal says. Artists have oftentimes settled copyright lawsuits out of court in order to keep ugly legal battles in the public eye to a minimum, and in the wake of the “Blurred Lines” verdict last March, the entire music industry is on edge when it comes to copyright infringement. It’s particularly telling that Beyoncé’s latest album credits are incredibly detailed, with bands like Animal Collective and Yeah Yeah Yeahs receiving due credit on Lemonadesongs that quote a line from their biggest hits.
From a pragmatic standpoint, Bieber probably should have quietly given Dienel a writing credit when she originally approached them about the matter in December (post-release additions to credits: it happens!). Diplo recently compared it to the way Beyoncé had to give Outkast a credit on “All Night” once it was made apparent that the horn part was similar to the one in “SpottieOttieDopaliscious.” “I’m sure they’ll work out a deal with her,” Diplo added. “They don’t want to go to court with it.” The smarter thing for Bieber to do is to settle. But on a musical level, Bieber and his co-writers and producers—as much as it goes against the “indie artist ripped off by pop star” story that it’s hard not to want to side with—just might be the ones getting the raw end of the deal.