As it turns out, the melody for the song “Bring Him Home” from the musical Les Misérables is closely based on the melody of the song, “Humming Chorus” from Puccini’s “Madame Butterfly.”

The Songs

The hit musical Les Misérables was hugely influential during my formative years. We used to listen to the soundtrack at home, and at one point I knew most of the words: even to the songs with lots of words. Once in high school I entered a talent show singing “Empty Chairs at Empty Tables,” and to this day I still sing “Castle on a Cloud” to my youngest as a bedtime lullaby.  Furthermore, the story of the priest who gives fugitive convict Jean Valjean a pair of valuable silver candlesticks, still has the power to move me to tears; and I made a somewhat mocking reference to it in my (still unpublished) Robin Hood retelling.

Humming Chorus

My point is, this musical has been a big part of my life; so imagine my surprise the other day when I was listening to the radio and I heard this piece from Puccini’s “Madame Butterfly”:

Bring Him Home

Fans of Les Misérables will recognize the melody line from the “Humming Chorus” of Puccini’s “Madame Butterfly” … because it is essentially the same as the melody line in the song, “Bring Him Home” from Les Mis.

(Hat tip to the program, “Sunday Brunch” on All Classical Portland 89.9 FM for pointing this out!)

Now, obviously it’s not the same song… but this is not merely an indirect inspiration, either.  In this case, the composers of Les Misérables directly borrowed some of the notes from Puccini.

Inspiration versus Derivation

Usually, the distinction is obvious; but there are times when drawing the line between inspiration and derivation can sometimes be a surprisingly tricky question, one that is sure to continue to perplex content creators for many years to come.

Sampling and Mash-Up Culture

Modern technology tools create new dilemmas for professional content creators, as everything from music to visual art and even low-budget cinema utilizes “sampling” and “mash-ups” to create new content based on portions of existing content created by someone else.  Such works are considered “derivative works” for the purpose of copyright law; and the creator of the mash-up, if they are ethical and professional, pays a royalty to the original content creator, and acknowledges the original creator’s contribution to the work.

Inspiration and Incorporation

Regardless of tools and techniques, as this series tries to make clear, all artists take some measure of inspiration from somewhere, be it their own personal experiences or other works of art.  As creators, we create something new because we like creating new things.  As humans, our ideas are based on other ideas.  Even completely abstract art is inspired by an entire movement of abstract art. That’s not an excuse to steal others’ work: that’s an invitation to consider how new ideas are formed; how we put our own personal unique stamp on creations that are based on historical events or derived from existing genres; and how we incorporate familiar ideas intended to appeal to the audience.

The Good

For an example of how to do this well, look no further than another popular (and political!) musical: the Broadway mega-hit, Hamilton.  The album liner notes and the performance playbill directly credit a number of influences.  Hamilton’s producers made no effort to argue that these were brief references to well-known elements of popular culture and therefore subject to a “fair use” exception. Instead, Hamilton’s “lawful good” producers went all-in the other way, and gave a detailed accounting of every cultural reference included in the work, even if it was only a few words long, and gave credit to the original author for each.

The Bad

For an example of how to do this poorly, just shudder to recall the scandal over Vanilla Ice and his one-hit wonder song of self-absorption, “Ice Ice Baby.” Although the rapper denied it at the time, his song very obviously sampled the bass line from the much better song, “Under Pressure” by Queen featuring special guest David Bowie. The copyright lawsuit dominated entertainment news headlines at the time, and Vanilla Ice eventually settled out of court for an undisclosed sum.

 

The Ugly

It seems like there is a major copyright battle of this sort every generation. To our everlasting shame, “Vanilla Ice” (discussed above) was the signature copyright fight of my generation. Here are a couple more examples of inspiration gone wrong.

“My Sweet Lord”

George Harrison’s “My Sweet Lord” completely stole the melody of “He’s So Fine” by the Chiffons. I’m willing to give George the benefit of the doubt and speculate that in his heroin-induced haze, he totally forgot that he had heard the song somewhere else and honestly believed that he had written it; but the fact is, if you listen to the two pieces back to back, it’s clear that George based his song on the other.

“Blurred Lines” versus “Got To Give It Up” by Marvin Gaye

More recently, the heirs of Marvin Gaye’s estate won a copyright lawsuit that I personally have always believed was decided incorrectly.

In that case, the song “Blurred Lines” by Robin Thicke did not borrow any specific aspects of the melody from Marvin Gaye’s famous “Got to Give It Up”; nor did it sample the recording, nor even directly copy the beat of the original piece. Instead, the song that lost the case had borrowed elements of the production technique: such as beginning the song with party sounds in the background; starting with a loose drum beat; and then adding a male singer performing in the falsetto range.

When I took a course on the Study of Jazz in college, my professor (Dave Glenn, great guy, trombone player) devoted one of his lectures to a discussion of copyright law.  According to his explanation, you can only copyright the melody of a song.  (And the lyrics, of course.)  A melody is recognized based on the relationship of the notes to each other; it is understood to be the same melody, even when the key and the tempo are changed.  His point was, you cannot copyright a chord progression, because so many songs share the same chord progression.  At some point, someone invented the 12-bar blues; and at some point, someone else extended that to the 16-bar blues; and over the next several decades, thousands of songs were written based on those two chord progressions.  Those blues songs may all be classified as works within a given genre, but nobody would make the argument that they are all derivative works based on one specific song.  They are all works based on a common chord progression; and for this reason, chord progressions cannot be copyrighted.  (This is fortunate for the heavy metal genre, as well; otherwise all songs based on riffs in E minor would owe royalties to the first one.)

I thought it set a dangerous precedent to award a verdict in favor of the plaintiffs in that case, because there are a lot of songs that incorporate those specific production techniques. Many songs include party sounds in the background, and many songs include a male vocalist singing falsetto. Neither of these is copyrightable. I listened several times to the clips of back-to-back audio intended to support the case, and I have to say, I did not hear a similarity that would justify a $7 million verdict.  As someone who was once a semi-professional musician, they sounded like completely different pieces of music to me. They did not meet the necessary standard of sharing a common melody.  I believe this was a case when a work inspired by another work was incorrectly identified as a derivative work.  However, again as content creators, whatever our beliefs, it is important to remember the court’s finding in this case, and do our best to steer clear of grey areas that could wind up getting us into trouble.

Public Domain

Returning to our original consideration, of the melody to “Bring Him Home” — Fortunately for us, as armchair philosophers, we don’t have to wrestle with the extremely sticky question of whether or not the piece of music in question retains enough of the character of the original to be considered a “derivative work.” (That said, a warning, in case you are considering directly borrowing the work of another artist and incorporating it into your own: if circumstances were different, the composers of Les Misérables would almost certainly owe royalties to Puccini.) In this case it is not a consideration, because Puccini’s music is in the public domain.

Giacomo Puccini died in 1924. At that time, international copyright law was very limited in scope and only offered protection for 14 years after publication.  In the United States, the Copyright Act of 1976 established copyright protection for the lifetime of the creator plus 50 years after their death. Even using this standard, Puccini’s work would still have fallen into the public domain when Les Misérables was first performed in 1980. However, note that the Copyright Term Extension Act of 1998 changed the duration of copyright protection to last for 75 years after the death of the creator.  Under the terms of that latest extension, if this scenario were to somehow repeat itself, the heirs of a modern Puccini would have a valid claim against the producers of a future musical.

Generally, a work that is in the public domain can be adapted, repurposed, reworked, republished, or performed, without paying royalties to the creator of the original work (or their estate, since copyright law now provides protection for decades after death).  Works created by government agencies; works created by someone who has been dead for a certain period of time (provided the copyright was not renewed — a topic beyond the scope of this post); as well as any edition of a Medieval manuscript: are generally considered to fall into the public domain.  It would be an act of fraud to claim that you were the original creator of such a work in its entirety; but other than that, you can do pretty much whatever you want with it: sample it, remix it, paraphrase it, quote it, whatever.

Based on this principle, the composers of the Les Miserables soundtrack were well within their rights to quote Puccini, whose work was in the public domain at that time.  I should add that the composers were not trying to be sneaky; they assumed that everyone would get the reference, and my surprise on learning this after decades is a result of my own ignorance.  In quoting his work as they did, the composers of Les Miserables were paying tribute to an influential composer, someone who they admired greatly.

Inspirations

This series of blog posts seeks to explore the boundaries between ideas: where they come from and how they are developed into new ideas that stand on their own. Check out some of the other posts in the “Inspirations” series, and drop a comment below to let me know your thoughts!