Jared Hopper
Andrew Lloyd Webber’s new musical, Bad Cinderella, opens on Broadway on March 23rd at the Imperial Theater, and it’s already the most talked about show of the season. The show’s marketing has thus far revolved around the title song, which bears a striking resemblance to a song from a prior musical adaptation of the Cinderella story: “In My Own Little Corner,” written by the great duo, Rodgers & Hammerstein. Amongst the many criticisms of the show circulating on social media is a conversation about Webber’s usage of the Rodgers & Hammerstein refrain—is he stealing it, or is it an homage? One would imagine that using a melody from an earlier Cinderella musical would be so obvious to have to be an homage, but regardless of the intention, the question remains: should Webber, Broadway royalty, pay royalties?
This is not the first time Webber has been called a thief. A quick search on Google of the keywords “Webber” and “theft” leads one to a variety of YouTube videos comparing the musical theatre composer’s catalogue with earlier-recorded songs.[1] Many songs sound similar, however, and without explicit evidence of intent, it is hard to ever say for sure whether one artist has stolen from another. Copyright infringement suits must determine the undeterminable and often require the use of experts to assess whether there is a genuine issue of material fact as to whether one piece of material is “substantially similar” to the original copyrighted work and whether there is evidence that the accused composer had access to that work. However, “if the two works are so strikingly similar as to preclude the possibility of independent creation, copying may be proved without a showing of access.”[2]
In 1990, a relatively “unknown songwriter” called Ray Repp sued Webber for allegedly stealing the refrain to the former’s “Till You” in the title song of the latter’s internationally successful Phantom of the Opera.[3] Webber filed a counterclaim asserting that Repp had actually stolen the melody from his “Close Every Door” from Joseph and the Amazing Technicolor Dreamcoat.[4] The chronology of the songs’ copyright is as follows: “Close Every Door,” “Till You,” and then “Phantom Song.” The district court entered summary judgment in favor of Webber as to the main claim but dismissed his counterclaim, but the Circuit Court reversed the decision and remanded the case for a full factual determination at trial.[5]
It seems that the Second Circuit, in disagreeing with the lower court’s decision, placed particular scrutiny on the burden of the non-moving party, Webber here, to show a total absence of evidence despite the general rule of favoring this party.[6] The judges seemed particularly convinced by the testimony of music professors, one of whom explained that “[b]etween ‘Till You’ and ‘Phantom Song,’ . . . the similarities are so many, in so many areas, over such an extraordinary proportion of the compositions, that I cannot consider them as insignificant or coincidental, and I must conclude that ‘Phantom Song’ is based on ‘Till You.’”[7] The Court allowed this testimony to serve as evidence of access as well, justifying its decision to reverse summary judgment.
Webber ultimately won at trial, but one of Repp’s arguments stands out as particularly compelling: that Webber managed to disguise the stolen melody by putting it “in an aural context that is alien to that of the original setting of it.”[8] Repp’s song was of the folk genre, and Webber’s musical theater. Is Repp right that the generic context of a melody matters? If so, then Webber’s usage of Rodgers and Hammerstein’s “In My Own Little Corner” in the new “Bad Cinderella,” both songs from musicals based on the same Cinderella story, becomes as “substantially similar” as it gets. An homage is theft, but it works not by obscuring its source but by making its source apparent. Unlike his alleged theft of “Till You,” Webber’s lifting of another’s melody here is so blatant that calling it theft and not homage seems foolish. Royalties are certainly due for such obvious borrowing, but so long as credit is given when it is due, what’s the problem?
[1] Namoweb, Andrew Lloyd Weber – Genius of Plagiarist?, YouTube (Apr. 25, 2010), https://www.youtube.com/watch?v=wW5wwi4ahLc [https://perma.cc/BJ8L-6NCS] [https://web.archive.org/save/https://www.youtube.com/watch?v=wW5wwi4ahLc].
[2] Lipton v. Nature Co., 71 F.3d 464, 471 (2d Cir. 1995).
[3] Robert Simonson, Andrew Lloyd Webber Wins Phantom Copyright Suit, Playbill (Dec. 15, 1998), https://playbill.com/article/andrew-lloyd-webber-wins-phantom-copyright-suit-com-79004 [https://perma.cc/5D3M-QF8B] [https://web.archive.org/save/https://playbill.com/article/andrew-lloyd-webber-wins-phantom-copyright-suit-com-79004.].
[4] Repp v. Webber, 947 F. Supp. 105, 107–08 (S.D.N.Y. 1996).
[5] Repp v. Webber, 132 F.3d 882 (2d Cir. 1997).
[6] Id. at 890.
[7] Id. at 886–87.
[8] Comment by Charles Cronin, Repp v. Webber, GW Law Blogs: Music Copyright Infringement Resource, https://blogs.law.gwu.edu/mcir/case/repp-v-webber/ [https://perma.cc/38DL-P5TY] [https://web.archive.org/save/https://blogs.law.gwu.edu/mcir/case/repp-v-webber/].