If you get the feeling there's been a lot of song theft lawsuits lately, you're not alone. But hold onto your umbrellas and take cover for a rather quirky copyright infringement case. This one comes from members of the rock band Blind Melon, best known for their 1993 mega-hit song "No Rain," who in California federal court are now suing Mandy Jiroux and others involved in the creation and publishing of a catchy tune titled "Insane."
According to the complaint, this is "a somewhat unique case where substantial and verbatim copying is not disputed, but Defendants will claim that they had a license to incorporate substantial portions of Blind Melon’s most successful song 'No Rain' into the Infringing Works."
Before moving any further, it's worth listening to the defendants' song to appreciate why it's unlikely that defendants will dispute they copied "No Rain." (Check out at least the first minute, though even the first five seconds will do.) Hearing the work also sets up the next chapter:
Perhaps from this, one can understand why some of the earliest discussions — and confusion — between the parties had to do with whether "Insane" was a cover version of "No Rain." The law permits covers by allowing the songwriters of new works to obtain a compulsory license to a copyrighted composition.
According to the lawsuit, Jiroux's manager Kenneth Komisar got in contact with Blind Melon's manager Keith Isola in May and first reported that his client had created a "No Rain" cover. Komisar still wanted approval. So Isola got in contact with Brad Smith, the guitarist in Blind Melon who owned a controlling interest in the song.
"Smith, having not yet heard the Infringing Works, believed the new work (also then entitled 'No Rain') was simply a cover, and thus responded that Jiroux did not need permission to simply 'cover' the work so long as it was properly registered with the publisher," states the complaint.
But was it really a cover? Section 115(a)(2) of the U.S. Copyright Act only allows for a compulsory license when the "basic melody or fundamental character of the work" isn't changed. As one can hear from "Insane," there's new lyrics, a beat, and of course, a different title. After further analysis, Blind Melon (Smith, Christopher Thorn, Glen Graham and Roger Stevens, but not the late lead vocalist Shannon Hoon) came to the conclusion that "Insane" was a "derivative," not a cover. They chose not to license, not to take co-writer credits, not to collect a split of the publishing money.
The lawsuit alleges that Komisar was informed of this, but that he ignored it, emailing a final master mix a month later and proposing terms of exploitation.
In late June, Komisar, Isola and a royalty administrator for Blind Melon had a conference call to discuss whether Jiroux had permission to use "No Rain," the complaint further alleges. The reps for the band told Komisar that Smith was "not inclined" to license the song at this time. The band was concerned that the value of its '90s hit would be affected by conferring it to a relatively unknown artist.
What followed over the next few weeks was allegedly further efforts by Komisar to act as if his client was getting Blind Melon's "support" only to be repeatedly told otherwise. It culminated with Komisar stating in a letter that he found all this to be "surprising," attaching some of the most early email dialogue between the parties.
Now, "Insane" has been released, and in media interviews, Jiroux has crowed about the alleged permission she got.
For example, check out how Jiroux described the genesis of "Insane" to iHeartRadio.
"I was in the studio with one of my producers, and we were thinking of what we could do that's super cool and different, and single material," she said. "So, he picked up a guitar and just played that classic 'No Rain' guitar riff, and I was like, 'Oh, my gosh, I love that song.' Everyone else in the studio felt the same, and then I just kind of said where I think we should take it, and, hopefully the Blind Melon guys would let us use it. And it turned out that they loved the song so much I'm the only artist that they've ever let use that classic hook. It was super natural, super easy and that's when you know it's right."
Blind Melon obviously is telling a much, much different tale and now suing her for willful infringement. Represented by attorneys Richard Busch and Paul Duvall at King & Ballow, the band is seeking a permanent injunction, defendant's profits and actual damages tied to the alleged injury to the market value of "No Rain."
"This publicity and unauthorized use has done significant damage to 'No Rain' and has severely damaged the copyright, by now essentially eliminating any prospect that a major artist will actually license it for a major release," states the complaint.
The defendants (whose response we'll add if any is provided) may have a different version of events from the last few months to support any contention of actually having a license.
Maybe they'll attempt to argue that no explicit permission was necessary because they added new purpose and meaning (as a copyright fair use). But perhaps they'll return to their original assertion of having covered "No Rain." If so, it would set up an extraordinary dynamic where the plaintiffs in a copyright lawsuit would be highlighting the differences between the two songs while the defendants stress the similarities. For now, it appears as though the litigation is going to delve into covers, derivatives and those in the songwriting business talking past each other. Watch the puddles gather rain.