THE "MY SWEET LORD"/"HE'S SO FINE" PLAGIARISM SUIT

[ This article was first published in The 910 magazine in 1993. It is being reprinted here with the permission of Doug Sulpy, editor of The 910, and with the author's permission. It has not been updated, except to move the "footnotes" in the original article to "endnotes." These are designated by "(footnotes #)". This article is copyrighted by Joseph C. Self, 1993 and The 910, 1993. All rights reserved. In the words of the author, reproduction without the express written consent of major league baseball . . . wait, I think I goofed up on this part! ]

As with my prior article on the Lennon-Levy suit, I have gone to what I consider the primary source for my information: the written opinions published by the courts that passed judgment on the facts presented to it. (footnote 1) The court had to decide if Harrison had infringed the copyright of "He's So Fine" (or HSF) in composing "My Sweet Lord" (or MSL) and if so, then a determination as to the damages due to the holder of the copyright would have to be made.

HISTORICAL BACKGROUND OF THE CASE

During the next seven years, "He's So Fine" was little more than a song that was played on the "golden oldies" request lines. Harrison had gone on with the Beatles to become wildly successful, and in 1970 was embarking on a solo career.

In December, 1969, George was playing in Copenhagen, Denmark, with Delaney and Bonnie and Friends. Billy Preston was part of that group. Harrison told the court that the song that became "My Sweet Lord" was conceived when he slipped away from a press conference and began "vamping" some guitar chords, fitting the chords to the words "Hallelujah" and "Hare Krishna." Later, members of the band joined in and lyrics were developed.

Harrison took the idea further during the following week. Upon returning to London, Preston went into the studio to make an album, and while George was not playing on the record, he was supervising the work. The unfinished "My Sweet Lord" was brought up, and was worked into a finished version. Part of this completed song included a second section that differed significantly from the first section (more on this below). Although the song apparently had many mid-wives, Harrison is solely credited with the birth of "My Sweet Lord". (footnote 3) The Preston recording was issued by Apple Records, and a "lead sheet" containing the melody, words and harmony was submitted for the United States copyright application.

However, it was not the version recorded and released by Billy Preston that led to two decades of litigation. George Harrison recorded a version of "My Sweet Lord" for his album, "All Things Must Pass," and released MSL as the first single from that album. It was released on November 28, 1970 in the United States and was a number one hit shortly thereafter.

On February 10, 1971, before it even completed its fourteen-week run on the chart, Bright Tunes filed suit against George, his English and American companies, (Harrisongs Music, Ltd. and Harrisongs Music, Inc., respectively), Apple Records, BMI, and Hansen Publications. For sake of ease of reading, a reference to Harrison is meant to refer to all defendants in the suit unless otherwise stated.

Very soon after the suit against Harrison was filed, Allen Klein, who was then acting as manager for Harrison, met with Seymour Barash, the president and major stockholder of Bright Tunes to try to resolve the dispute. (footnote 4)

Klein suggested that Harrison would be willing to purchase the entire Bright catalog; Barash had countered with a proposal that the copyright to MSL be surrendered to Bright, and Harrison would receive half of the proceeds derived from MSL.

No further progress was made toward a settlement, and preparations were made to defend the case. Klein assisted Harrison in finding musicologist Harold Barlow to give an opinion as to the lack of merit of the lawsuit and it was Klein that engaged the attorneys that defended Harrison.

The case was delayed on the court's docket when Bright Tunes was placed in receivership. During the interim, Harrison's contract with Klein was terminated in what proved to be a bitter parting of the ways (and another lawsuit involving the Beatles). After Bright's affairs were put in order so as to enable it to continue the case, settlement negotiations between Bright and Harrison resumed.

After much discussion, Harrison's best offer of $148,000 was made in January 1976, a few week's prior to the trial on the issue of whether or not MSL was too similar to HSF. That sum represented 40% of the writer and publisher's royalties earned in the United States by MSL, and further provided that Harrison would retain the copyright for MSL. The attorney for Bright viewed the offer as "a good one", but did not accept the offer, but rather raised its demand from 50% of the U.S. royalties to 75% of the worldwide receipts, and surrender of the MSL copyright.

Why did Bright turn down what was viewed as a good offer and make a counter that was so harsh to Harrison? What Harrison didn't know was that Klein had again entered into discussions with Bright Tunes to purchase all of Bright's stock, except at this time, he was not attempting to buy the stock for Harrison, but rather for ABKCO.

Seymour Barash, then the ex-president of Bright, wrote a letter to Howard Sheldon, the man overseeing the receivership of Bright, in which Barash noted that Klein's interest in purchasing Bright indicated that Klein, as a former insider, had little doubt as the outcome of the pending litigation. Klein's offer was a bit different than Harrison's, as he was to purchase the entire company that held the copyright, thus putting himself in Bright's position in the lawsuit.

Klein's offer prior to the determination of liability was a bit complicated. He offered to pay $100,000 for the right to purchase the company after the judge's ruling for an additional $160,000. (This procedure is termed "buying a call" on the stock. If Harrison won the suit, there would no incentive for Klein to finish the deal, or in trading parlance, "exercise his option".)

As part of his offer, Klein furnished Bright with information regarding the domestic royalties generated by MSL, and his own estimate on the overseas earnings as well as his estimate on the present and future value of the copyright.

Needless to say, Barash and the other stockholders weighed this offer carefully in deciding how to respond to the two offers they received. Barash remarked in a letter to Sheldon that since Klein was "in a position to know the true earnings of MSL, R offer should give all of us an indication of the true value of this copyright and litigation". Barash viewed the Klein offer as a starting point in negotiations, and armed with the additional financial information Klein provided, demanded that Harrison update his total sales figures before continuing settlement negotiations with Harrison. (footnote 5) As it turned out, neither Harrison nor Klein could reach a settlement with Bright before trial.

THE QUESTION OF LIABILITY FOR INFRINGEMENT

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.

Harrison's own expert testified that although the individual motifs were common enough to be in the public domain, the combination here was so unique that he had never come across another piece of music that used this particular sequence, and certainly not one that inserted a grace note as described above.

Harrison's composition used the same motif A four times, which was then followed by motif B, but only three times, not four. Instead of a fourth repetition of motif B, there was a transitional phrase of the same approximate length. The original composition as performed by Billy Preston also contained the grace note after the second repetition of the line in motif B, but Harrison's version did not have this grace note.

Harrison's experts could not contest the basic findings of the Court, but did attempt to point out differences in the two songs. However, the judge found that while there may have been modest alterations to accommodate different words with a different number of syllables, the essential musical piece was not changed significantly. The experts also pointed out that Harrison's version of MSL omitted the grace note, but the judge ruled that this minor change did not change the genesis of the song as that which previously occurred in HSF.

With all the evidence pointing out the similarities between the two songs, the judge said it was "perfectly obvious . . . the two songs are virtually identical". The judge was convinced that neither Harrison nor Preston consciously set out to appropriate the melody of HSF for their own use, but such was not a defense.

Harrison conceded that he had heard HSF prior to writing MSL, and therefore, his subconscious knew the combination of sounds he put to the words of MSL would work, because they had already done so. Terming what occurred as subconscious plagiarism, the judge found that the case should be re-set for a trial on the issue of damages.

This ruling as to the copyright infringement was upheld on appeal with little comment. The appellate court noted that an infringement can be established when the holder of the copyright demonstrates that the second work is substantially similar to the protected work and the second composer had "access" to the first work. Harrison conceded that he had indeed heard HSF when it was popular, thus establishing the second point.

Harrison's main argument on appeal was that it was unsound policy to allow a finding of plagiarism based on subconscious copying, as there was no evidence that he purposely appropriated the melody of HSF for use in a composition he claimed as his own. This position was rejected by the appellate court, which pointed out that the Copyright Act did not require a showing of "intent to infringe" to support a finding of infringement.

THE DAMAGES PORTION OF THE CASE

To determine the earnings for MSL, the court looked at four principal sources of revenue for compositions: Mechanical royalties (footnote 8), performance royalties (footnote 9), sale of sheet music and folios, and the profits of Apple Records, Inc. Two of these were easy to calculate, as the judge needed only look at the accounting numbers for the performance royalty provided by BMI to learn that MSL earned $359,794 in such royalties, and another $67,675 in sheet music sales. The remaining two factors, however, proved to be a bit more of a problem to determine.

In deciding what figure to use for the mechanical royalties generated by MSL, the judge first noted that the amount attributable solely to that song was $260,103. This figure used the royalty earned solely by MSL as a single, and as an album track on both "All Things Must Pass" and "The Best Of George Harrison," totalled $260,103.

However, Bright also contended that the enormous success of MSL generated revenue for Harrison's other compositions on "All Things Must Pass" beyond that which they would have otherwise earned. The judge noted that on the single 45 RPM record, MSL was backed by "Isn't It A Pity" (footnote 10) which was not a hit single in its own right (footnote 11), and on the album, MSL was one of twenty-two Harrison songs, and only one of the other songs ("What Is Life") achieved any significant degree of popularity.

Even though the earnings for MSL due to sales of All Things Must Pass was only 1/22 of the total mechanical royalties paid for the songs on that album, the judge agreed that the inclusion of MSL on the album did in fact boost the revenues of the "less-than-memorable" songs, and set out to devise a formula by which he could determine just how much revenue Harrison earned from his plagiarized song.

To make this determination, the court relied heavily, but not solely, on the amount of American airplay received by each song from "All Things Must Pass." Of the 22 songs on that album, only nine received enough airplay to be assigned a percentage of the total. "Wah-Wah", "Beware of Darkness", "Apple Scruffs", "Awaiting On You All", "All Things Must Pass", and "I Dig Love" were each found to have received one (1%) percent of the total airplay; "Isn't It A Pity" had four (4%) percent and "What Is Life" received twenty (20%) percent. Therefore, whenever a song from "All Things Must Pass" was played by a radio station, seventy (70%) percent of the time, the song was "My Sweet Lord". The judge thus ruled that seventy (70%) of the total mechanical royalties from the single, and fifty (50%) of the mechanical royalties earned by the album "All Things Must Pass" were attributable to MSL.

However, as far as "The Best of George Harrison" was concerned, the trial judge was unpersuaded that the earnings of that album were greatly enhanced by the inclusion of MSL, and since that album contained other songs which were relatively popular, the judge did not attribute any more than the actual mechanical royalties of MSL to the earnings of "The Best of George Harrison." Thus, using the formula as set forth for each release, the judge found that the gross earnings for the single attributable to MSL was $54,526; from "All Things Must Pass", $588,188; and from "The Best of George Harrison", $6,887, for a total of $646,601. (footnote 12)

The final piece of this financial puzzle was provided by examining the profits of Apple Records from MSL. Apple Records had a "spread" on the manufacturing of records. Boiled down to its simplest terms, the "spread" worked like this: Capitol Records had the facilities for making records. Apple Records paid Capitol Records a certain price to press its records, and then turned around and sold the finished product, which Capitol had just "delivered" to Apple, to Capitol Records Distributing Corp., for a higher price. The difference between what Apple paid Capitol for the production of its records and what Capitol paid Apple for the right to distribute the Apple product was the "spread". The judge applied his same formula to Apple's earnings from the "spread" and found those earnings attributable to MSL were: from the single, $130,629; from "All Things Must Pass", $925,731; from "The Best of George Harrison", $21,598, for a total of $1,077,958.

For those that don't have a calculator handy, the judge's figures for the total gross earnings of MSL were $2,152,028. This sum was reduced to $2,133,316 by the court allowing an offset for some agent's fees which Harrison had paid. However, before ordering that the entire earnings from MSL was due to Bright Tunes, the judge pointed out that there were some other factors present in this case. Harrison was an internationally known artist and he did provide a new lyric for the song. Had he been guilty of intentional plagiarism, even of the melody alone, the entire $2,133,316 would have been awarded to Bright.

After considering all the factors in the case, and conceding that this was not an area where precise measurement could be made, the judge found that three-fourth's of the success of MSL was due to the plagiarized tune, and one-fourth of that success was due to Harrison's name and the new words to the tune. The judge found that the introductory musical passage (the "hook") was a minimal factor in the popularity of this song, and pointed out that this unique melody had already demonstrated its appeal when it carried an otherwise unexceptional love song to the top of the charts in 1963. Therefore, the trial judge concluded that $1,599,987 of the earnings of MSL were reasonably attributable to the music of "He's So Fine".

THE EFFECT OF KLEIN'S ENTRY INTO THE CASE

The ruling by the district judge, and upheld in large part by the appeals court, was that Klein was not entitled to profit from his purchase of Bright Tunes' rights in HSF. The judge ruled that Harrison need only prove that his former manager's intrusion into the settlement of the lawsuit prior to the trial on the issue of liability were to his "probable detriment"; Harrison was not required to show that a settlement would have been reached. The court cited that Klein's proposals to Bright were viewed as highly credible, due to Klein's unique position to know the value of the MSL copyright. The court also found that Klein acted improperly in giving financial information about MSL to Bright prior to the decision on the question of liability. The court held that it would not reward Klein for his breach of the fiduciary duty owed to Harrison, a duty that continued even after the principal-agent relationship ended.

However, rather than just have Klein hand over his ill-gotten gains, the judge ordered that Klein hold the rights to HSF in trust for Harrison, and those interests would be transferred to Harrison upon payment of $587,000, plus interest, thus allowing Klein to "break even" on his purchase. This decision was upheld on appeal.

THE CURRENT STATUS OF THIS CASE

A check with the judge's clerk in July, 1993, revealed that in April, 1993, an agreed order (meaning that all parties consented to the entry of the order) was entered at the trial court level, allowing certain funds to be dispersed to Harrison without having to be first placed in the registry of the court.

At the risk of sounding overly optimistic, all indications are that this case will finally be resolved before the end of the 20th century!

AUTHOR'S OBSERVATIONS

I do take issue with a few things that Judge Owen did find in the area of damages. Before making these remarks, though, I should emphasize that Judge Owen and the judges who heard the appeals had the benefit of the briefs from the lawyers, and legal research into these areas that I have not done. If what follows sounds like second guessing, it is not so intended.

First, regarding the finding that 75% of the earnings of MSL could be attributed to the melody of HSF, Judge Owen admitted that making such an apportionment was an inexact science. Even so, giving only 25% credit to the success of MSL to the new lyrics and the fact that it was performed by one of the most popular musicians on the face of the earth in the early '70's seems to be unjustifiably low. The internal evidence of this is the lack of success of Billy Preston's version of the song. If the melody was such an integral part of the success of the song, then anyone that heard Preston's version should have been just as overwhelmed as they were by Harrison's. The fact that Harrison, not the relatively unknown (at that time) Preston, had the "hit" with MSL indicates that it was a lot more than a catchy melody that drove this song to the top of the charts.

Second, the decision that one-half of the mechanical royalties of the album "All Things Must Pass" were due to the plagiarized song is hard to understand. In my opinion, the fact that this was GEORGE HARRISON's first solo effort after the break-up of the Beatles was not given enough weight, nor was the fact that the critics who wrote for the rock press almost uniformly gave this record high marks. Whether or not MSL was included on this album, "All Things Must Pass" was going to sell very well. And there exists an argument that the "hit single" didn't propel this particular album to the heights that hit singles sometime do, because this was a triple record set, priced at twice the normal rate for a single album.

Third, while there was a lot of speculation on the percentages to be applied to Harrison's sales attributed to the plagiarized melody, there was an area of the damages that could have been resolved more fairly, and with less speculation. Klein was allowed to "break even" on the deal he made to buy the rights to HSF, and I'm not sure why. Judge Owen set out in great detail the series of events that transpired after Klein entered the picture acting on his own behalf, and based on these improper activities, Klein was not going to be allowed to profit from his wrongdoing.

But, in refusing to order that Klein forfeit the cost of the acquisition, the judge said "Had it been shown that Bright Tunes and Harrison were realistically close to a specific figure in their settlement negotiations, I could have utilized that figure for the resolution of the issue here". It was overlooked at this point in the opinion that the primary reason that Harrison and Bright Tunes weren't closer together was the fact that Klein was outbidding Harrison, and Harrison didn't know he was in a bidding war. It was only when Klein offered almost twice that which Harrison had put on the table that Bright Tunes concluded that the level of negotiation with Harrison was too low. As long as the judge was willing to speculate that the earnings of the song MSL were 75% due to the melody of HSF, and was further willing to guess that one-half of the earnings of "All Things Must Pass" were due to the inclusion of MSL on that album, I am at a loss as to why he was unable to apportion how much of the increase in the ultimate purchase price was due to Klein, guaranteeing that the case would not be settled prior to a ruling in Bright's favor on the issue of liability and thus driving up the purchase price. I would have thought that given the statement from Bright's attorney that Harrison's $148,000 offer to settle, prior to trial and prior to Klein's involvement, was "a good one" would have been ample evidence to reach a figure that would have been substantially lower than the $587,000 price Klein paid for Bright Tunes. Finding a lower figure to be appropriate would have left Klein in a situation where he lost money on his dealings, a conclusion that would have certainly been justified (and quite humorous as well).

Still, I find it funny that in after purchasing the rights to HSF, Klein offered to sell some of the rights to the song to his former client for $700,000. It is not clear that all rights Klein obtained would have been part of this deal, but Klein did Harrison a big favor, otherwise Harrison would have found himself facing payment of a judgment in the amount of $1.6 million dollars, and would not own the rights to HSF. While the legal expenses in this case are undoubtedly astronomical, Harrison should be able to take some comfort in the fact that Klein has had to pay his own fees, and has nothing to show for it, except a part in, without question, one of the longest running legal battles ever to be litigated in this country.

And there was one other benefit for Harrison; a second hit single entitled "This Song" which chronicled some of the travails of this litigation with lines like "This song has nothing Bright about it", and "as far as I know, don't infringe on anyone's copyright, so . . ." "This Song" wasn't as big a hit as MSL, but the revenue from it should have helped offset the costs of the litigation of the HSF suit.

My thanks to Allan Kozinn, for his help with some of the research and his input after reading the rough draft, and Professor Howard Brill of the University of Arkansas Law School, for exposing me to this case "all those years ago".

ENDNOTES

1. The various cases are: Bright Tunes Music Corp. v. Harrisongs Music, Ltd. et al, 420 F. Supp 177 (1976); ABKCO Music, Inc. v. Harrisongs Music, et al, 508 F. Supp. 798 (1981); same case on appeal, 722 F.2d. 988 (1983); again after remand, 841 F.2d. 494, and yet again 944 F.2d 971 (1991). I'll explain more about the changes in the party bringing this case later in the body of this article.

2. All chart references herein will be to Billboard, except as otherwise noted.

3. The reader will note that Harrison "gave" this extremely successful song to Preston, which might tell us that Harrison didn't recognize it as a hit single. If that's true, that would have been the second time he tossed a monster hit to a lesser artist. In his book I, Me, Mine, Harrison revealed that he "gave" the song "Something" to Joe Cocker before it was recorded for Abbey Road. It is also possible that Harrison, while taking sole credit for the song, recognized Preston's contributions by letting Preston record it first. The Court noted as much: "I treat Harrison as the composer, although it appears that Billy Preston may have been the composer as to part".

4. It is beyond the scope of this article to try to explain the intricacies of Klein's relationship to Harrison and the other Beatles. There are numerous books that account, at least in part, how the relationship began, functioned, and ended. My choice as the best book as to the genesis of this relationship is the 1972 paperback, Apple To The Core by Peter McCabe and Robert D. Schonfeld, which is regrettably out of print (and in dire need of an update). Philip Norman's Shout! is more readily available and does a pretty good job in setting forth the connection Klein had with the Beatles during their last months together.

5. As will be pointed out below, it is unlikely that Harrison had turned over detailed financial information to Bright, since there had not been a finding that Harrison was liable to Bright for infringement at this point.

6. This procedure is not uncommon in conducting a trial of this nature. It is usually discretionary with the judge as to whether or not to divide the case in this manner. This method differs from other types of litigation. For example, in automobile accident cases or product liability cases, the plaintiff may put on several days of testimony that go to the damages that the plaintiff maintains he or she suffered, but receive nothing when the jury or judge finds that there is no negligence on which to base liability.

7. While I take issue with part of the judge's ruling on the damages aspect of this case, the litigants could not have found themselves before a more able jurist in determining the question involving the music of the two compositions. Judge Richard Owen, the district court trial judge, has also composed music, and among his compositions is a three-act opera entitled Mary Dyer. He has also conducted orchestras, and his wife, Mary Owen, has appeared with the Metropolitan Opera Company in New York.

8. A mechanical royalty is the amount paid by the record company to the music publisher who licenses the use of the song on the record. The old vinyl singles had two songs which each earned a royalty, and each song on an album earned the same royalty, whether or not it was a memorable song or a throwaway track.

9. The performance royalty is most closely associated with radio play. These are monies payable to the publisher and the writer as a result of the composition being publicly performed or broadcast. BMI was responsible for collecting the royalty from those that owed it, and paying it to Harrison's publishing company.

10. Actually, "My Sweet Lord" and "Isn't It A Pity" may have been intended as equals on the record. The original Apple single used the green label on each side of the record; normally, the B-side had the dissected apple with the white core showing.

11. The judge found that "My Sweet Lord" received sixteen times as much airplay as did its flip side. Unlike many of the Beatles' singles released in the sixties, "Isn't It A Pity" did not have a chart history separate from "My Sweet Lord", at least not on Billboard. Billboard stopped giving separate chart listings for each side of a single on November 29, 1969, during the chart run of another Harrison composition, "Something".

12. These figures were for the U.S. and Canada. Since the lacquer masters, art work, packaging and licenses were all prepared in the United States, the judge included Canadian royalties in his computations.