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Blind Melon song-theft case could test parameters of the cover version

By Chris Cooke | Published on Thursday 1 September 2016

Getting a bit bored of the old “when does inspiration become infringement?” debate following that recent run of high profile song-theft lawsuits? Well, how about the good old “when is a cover version not a cover version?” debate? That sounds like fun doesn’t it?

American rock band Blind Melon are suing singer and Miley-Cyrus-friend-and-YouTube-collaborator Mandy Jiroux over her recent track ‘Insane’, which they say is a rework of ‘No Rain’, what is probably their best known song from way back in 1993.

Actually, no one is denying that ‘Insane’ is a rework of ‘No Rain’, and that’s exactly how Jiroux has been talking about her record. The dispute is over whether or not the singer and her team had permission to rework the rock band’s song.

Now, in some countries there is a compulsory licence for straight cover versions, and even when that’s not the case covers can usually be licensed through the collective licensing system. Which means you don’t need specific permission from the writers or owners of the song you are covering providing you do the required paperwork.

But the compulsory or collecting society licences usually only provide permission to record and distribute a version of an existing published song, not to adapt that song. Adaptations require a direct deal with the original rights owners, not least so a discussion can occur on who, exactly, owns the derived work that results from the adaptation, in which there will be a new copyright.

Of course, whenever artists record a version of someone else’s song they are going to rework it to an extent so that it is appropriate for their own personal ‘sound’. The question is, how much reworking do you need to do before what you’ve done is an adaptation.

There is a compulsory licence for covers in the US, and it says that that licence “includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work”.

Simple, right? Though, as many a judge has mused to him or herself over the years, “what the fuck does that mean?” And depending on how Team Jiroux decide to defend themselves in this particular legal dispute, that’s the question another judge may well have to ask.

According to The Hollywood Reporter, in their legal filing reps for Blind Melon outline a string of conversations that took place between their management and that of Jiroux. The latter’s manager Kenneth Komisar first got in contact with the band’s manager Keith Isola in May, and he subsequently approached Blind Melon guitarist Brad Smith, who has a controlling interest in the ‘No Rain’ song copyright.

Smith, who knows a thing or two about music rights, informed Komisar via Isola that if Jiroux was just going to do a cover version of his song, then his permission wasn’t required, and the manager just needed to make sure that the formalities of the compulsory licence were complied with, as set out in everyone’s favourite: Section 115 of the Copyright Act.

However, conversations continued, during which Blind Melon realised that Jiroux’s record changed both the lyrics and the beat of their song, and was going to be released under another name.

Being more informed about the singer’s intentions, the band’s management told Komisar that they now considered his client’s record not to be a straight cover, therefore a bespoke licence would be required, and they weren’t persuaded to grant such a licence.

Team Melon allege that, even after telling Komisar that they would not grant permission for the adaptation of their song, the manager continued to correspond as if a deal had been done and ‘Insane’ had or would get their approval.

When the band’s reps explicitly stated permission had not been granted one more time, Komisar expressed surprise at this news, referencing earlier emails in which the band seemed to be OK with Jiroux’s record. Though Blind Melon argue that those emails were from very early on in the conversation when the band thought the singer was just going to put out a straight cover version.

And then ‘Insane’ was released. And Jiroux told iHeartRadio of the record: “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. 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”, she went on. “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. It felt really great, and I just felt very honoured, because they were so huge in the 90s, so it was really just a big honour”.

Presumably Jiroux feels less honoured to now be sued by the band for all the profits from her record and actual damages because, says the band’s lawsuit, “this publicity and unauthorised 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”.

Blind Melon, who are represented by Richard Busch, last seen representing the victorious Gaye family in the ‘Blurred Lines’ copyright case, are also seeking a permanent injunction against Jiroux’s record.

It remains to be seen quite how Team Jiroux respond to the lawsuit (although the song has been removed from her YouTube account), and whether they’ll present a different version of the conversations that took place between Komisar and Blind Melon’s management. Though if Jiroux does decide to rely on the compulsory licence in her defence, we’ll have that lovely situation of a song-theft lawsuit where it’s the defendant rather than the plaintiff trying to prove just how similar the two songs are.

See, told you it would be fun.