When I first hit play on “Actually Romantic,” the (presumed) Charli XCX diss track from Taylor Swift’s new album, “The Life of a Showgirl,” my jaw nearly fell to the floor. No, not because of her tacky decision to fan the flames of a basically dead feud. Rather, I was startled by the opening guitar strums, which sounded suspiciously similar to a stone-cold classic of the indie-rock canon: “Where Is My Mind” by the Pixies. For elder-millennial and Gen-X music nerds — as well as any “Fight Club” fans — these few seconds were instantly familiar.1
Had this track been released a year or two ago, I would have almost certainly expected some sort of lawsuit over those similarities. Pop music has been operating under fairly broad legal criteria for what counts as plagiarism ever since the blockbuster 2015 infringement case involving “Blurred Lines,” which showed artists could end up facing millions of dollars in liability for more or less stealing another song’s vibe.
Swift herself seemingly took advantage of that fuzzy standard to enforce her own intellectual property claims against rival pop star Olivia Rodrigo. However, a November 2024 court decision may have given the green light for the specific sort of pilfering Ms. Americana appears to have engaged in here.
That’s for the best. Music has always depended on artists creatively reinterpreting existing ideas. America’s copyright regime has veered too far in the direction of protecting old art at the expense of allowing new art to flourish.
I am, admittedly, an extremist on this issue, but were it up to me, artists wouldn’t even have to clear short samples. That would free creatives to create the kaleidoscopic, crate-digging productions that have become rare. At the very least, the law should ensure there’s room for songwriters to play with fun musical references without paying a fat fee to rights holders every time. It may feel cosmically unjust for Swift, of all people, to get away with copycat behavior. But it would be good for musical culture as a whole.
A familiar progression
Cue up “Actually Romantic.” It kicks off with an unaccompanied electric guitar, dressed up in a little chorus pedal, strumming through what sounds like E, C-sharp minor, G-sharp, and A. The song revolves around those four chords during the verse and chorus but seems to throw in a B for the bridge.
Now, turn on “Where Is My Mind.” The song kicks off with an unaccompanied acoustic guitar strumming through E, C-sharp minor, G-sharp, and A. The song revolves around those chords for the verse and most of the chorus, where Black Francis also tosses in a B for good measure.
The two tracks lean on slightly different strumming patterns but keep more or less the same tempo, which helps produce an extremely similar overall effect.
“Actually Romantic” is not a carbon copy of “Where Is My Mind” — the melodies and arrangements are wildly different — it’s more like Swift is singing over a stripped-down version of the Pixies’ rhythm guitar, building her song on a very obvious reference point. But plenty of listeners have noticed the overlap — Pitchfork referred to Swift’s song as the “Kidz Bop version” of the Pixies’. Just to double-check my technical instincts, I asked an old buddy with a music composition degree who also plays in a couple of Brooklyn indie bands for his take. His response:
“Hahahahaha, yes, it is exactly the same. You could put the vocal or any other part of either over the other one.” (I am granting this friend anonymity in part because his band has a new album out and the group would prefer not to be hounded to the ends of the earth by angry Swifties.)
One reason to suspect the similarities may not be coincidental is that “Actually Romantic” was produced by Max Martin, the stalwart pop hitmaker who is somewhat known for this kind of borrowing.
Specifically, fellow producer Lukasz Gottwald, aka Dr. Luke, has said that Martin modeled “Since U Been Gone,” the massive 2004 hit they cooked up together for Kelly Clarkson, on a popular indie-rock song from the time. Most fans suspect the specific harmonic template was “Maps” by the Yeah Yeah Yeahs, which had become an unexpected radio hit just a year before.
Martin and Gottwald telegraphed their alleged source material by aping the extremely distinctive guitar tone from “Maps” in the bridge of Clarkson’s chart-topper, a telling sonic hat tip. The connection was eventually immortalized in a delightful video of indie rocker Ted Leo mashing the two songs together in an acoustic medley.
As a fan, it’s natural to feel a little queasy when a pop star cribs from a lesser-known artist. Yeah Yeah Yeah’s frontwoman Karen O herself compared Martin and Gottwald’s apparent mimicry to “getting bitten by a poisonous varmint.”
But the reality is that great music has always been built on varying degrees of theft.2 Chuck Berry copied from Louis Jordan. The Beatles lifted from Chuck Berry. Oasis nicked from The Beatles and complained that nobody seemed to mind when Radiohead did it, too. Perhaps nobody has put it better recently than Elvis Costello did when music fans began to point out that Olivia Rodrigo’s “Brutal,” the first track from her debut album “Sour,” essentially repurposed one of his own much-beloved riffs.
“This is fine by me,” he tweeted. “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.”
Sadly, Elvis Costello does not control American copyright law. And in our fallen legal world, even imprecise similarities between songs can lead to legal trouble over infringement.
For that, we can in large part thank the precedent set by the Marvin Gaye estate’s successful lawsuit against Pharrell Williams and Robin Thicke over their hit “Blurred Lines,” which it claimed copied Gaye’s “Got to Give It Up.” The pair argued that the two songs only shared an early-70s soul-funk energy that Williams and Thicke had been trying to mine. (In a deposition, Pharrell memorably said it was like comparing “silk and rayon,” two different fabrics that “just feel the same.”)
But the judge concluded that, although they weren’t note-for-note copies, the tracks shared enough “substantial similarity” that the case could go before a jury — which proceeded to hand Gaye’s estate a verdict ultimately worth $5.3 million and a future share of royalties. Many expected the 9th U.S. Circuit Court of Appeals to overturn the case, but it let the thing stand.3
The economics of blurred lines
The “Blurred Lines” decision has cast a shadow over the music industry ever since, forcing songwriters to constantly double-check that their work doesn’t sound a little too much like some old, forgotten hit (or nonhit, for that matter). In general, labels and publishers have reacted by aggressively handing out songwriting credits for interpolations — which is to say, cases where you recreate part of an old song from scratch, as opposed to sampling it — especially if someone raises the specter of a legal challenge.
That trend reached a kind of crescendo after “Sour” came out, thanks in no small part to Swift.
Rodrigo had long been a fan of Swift’s, and early on seemed to be positioned as a sort of pop protege. Before her LP’s release, Rodrigo gave her idol songwriting credit on the track “1 Step Forward, 3 Steps Back,” which had interpolated Swift’s “New Year’s Day.”
But when Rodrigo released her single “Deja Vu,” music fans quickly noted that part of it resembled the bridge in Swift’s “Cruel Summer.” Rodrigo herself acknowledged that was her source of inspiration during a Rolling Stone interview, and a couple months later, her label retroactively credited Swift and her songwriting team as coauthors, entitling them to a share of “Deja Vu’s” royalties. Rodrigo later had to give Hayley Williams of Paramore songwriting credit on another track, “Good 4 U.”
Exactly what transpired between Rodrigo and Swift has never been fully reported, though the younger star has offered hints about a legal clash. “I was so green as to how the music industry worked, the litigious side,” she told The Guardian. “I feel like now I know so much more about the industry and I just feel … better equipped in that regard.”4
The big picture is that Swift ended up getting a payday from a younger artist based on two songs that aren’t actually identical at any point. The whole thing felt very much like a post-“Blurred Lines” cash grab.
This all seemed crass at the time. But it also spoke to a deeper pathology plaguing the entertainment business — which is that, in a lot of ways, old music has become more valuable than new music.
In the era of physical records and CDs, new recordings drove the industry, because they forced people to go out and actually buy albums. But in the streaming age, platforms favor well-known hits that get replayed over and over through the years, rather than newer stuff that might not hit, which is why you’ve seen private-equity firms like Bain Capital getting into the business of buying up old catalogs from proven artists.
Our current copyright regime probably makes this dynamic even worse, since newer music is also just legally riskier to put out. It’s one more force adding to the calcification of culture, and if Congress cared about such things, it could probably do some good by more firmly spelling out what counts as infringement.
Thankfully, the courts themselves may be course-correcting. Late last year, the U.S. Court of Appeals for the 2nd Circuit tossed out another suit by partial owners of Gaye’s catalog, which had taken aim at Ed Sheeran’s acoustic-pop hit “Thinking Out Loud.”
In it, the plaintiffs accused Sheeran of ripping Gaye’s 1970s slow jam “Let’s Get It On,” specifically by borrowing its chords and “harmonic rhythm” (essentially, how and when the chords change). The overlap was strong enough that you could throw Sheeran’s vocals over Gaye’s arrangement somewhat seamlessly, but the three-judge panel still shot down the case without a trial.
The court concluded that copyright holders couldn’t claim infringement on a basic four-chord progression, even if it was paired with a somewhat distinct harmonic rhythm, because it risked granting “a monopoly over a combination of two fundamental musical building blocks.” (The Supreme Court declined to hear an appeal in June.)5
This brings us back to “Actually Romantic” and “Where Is My Mind.” Personally, I think the tracks sound at least as similar as, say, “Deja Vu” and “Cruel Summer.” But we’re ultimately talking about two songs that mostly share some fairly popular chord changes and rhythmic elements, which have also been used in records like Weezer’s “All My Favorite Songs.”
Using the 2nd Circuit’s standard, that’s probably not enough to stake a lawsuit on. And though other courts could see the issue differently, my hunch is the Pixies would have an uphill battle in any kind of attempt to claim damages — which, all things considered, is vastly preferable to a world where groups are all trying to sue over chords.
But if I’m wrong, and there’s some legal trouble? Let’s just say that would feel like karma.
Other fans have noted there’s a strong similarity between part of the album’s title track and an old Jonas Brothers song.
To go deep on a favorite example: “Lust for Life” by Iggy Pop is an all-time great rock song (you might know it from the “Trainspotting” soundtrack or some of the old Royal Caribbean ads). Mr. Pop has said its instantly recognizable rhythm section was inspired by a German radio network call sign he and David Bowie heard while in Berlin. But it’s also pretty directly cribbed from “You Can’t Hurry Love” by The Supremes. Meanwhile, I have a playlist with 11 other songs that deploy the same basic drums and bass template to one extent or another, including classics like “This Charming Man” by The Smiths, “Town Called Malice,” by The Jam, “Last Nite” by The Strokes, and “Wake Up” by Arcade Fire. (Jet also jacked it for “Are You Gonna Be My Girl,” but fuck Jet.)
Someone really needed to tell Pharrell to use less cowbell.
Many also believe that Rodrigo’s song “Vampire” is about Swift’s cash grab, a suggestion Rodrigo hasn’t exactly denied. Sample lyric: “How’s the castle built off people you pretend to care about?”
Just to make things more confusing: In 2023, Sheeran won a separate jury trial over the two songs in a parallel lawsuit brought by Gaye’s estate. But for our purposes, the appellate decision is probably the more important thing.