‘He’s So Fine’: GH v The Chiffons

They then sued me over a song written by a guy who died a while back that I had never even heard of anyway, although I’d heard the song.
George Harrison

Written by Ronald Mack and recorded by The Chiffons, ‘He’s So Fine’ was released as a single in December 1962 and became a US number one hit the following year.

Mack had brought the song to the Bright Tunes Music Corporation. Bright Tunes was a production house run by New York group The Tokens, whose members agreed to produce and perform the music for ‘He’s So Fine’ at the Capitol Recording Studios.

The Tokens – Phil Margo, Mitch Margo, Jay Siegal and Hank Medress – were house producers for Capitol Records, but the label’s president Voyle Gilmore rejected the song as “too trite… too simple”. They took it to 10 different labels before Laurie Records took an interest.

‘He’s So Fine’ was issued in December 1962. In addition to topping the US charts, it also reached number 16 in the United Kingdom.

‘My Sweet Lord’ was originally recorded by Billy Preston in January 1970, and released by Apple Records in 1971. Preston’s recording had gospel backing vocals and a more R&B feel than Harrison’s subsequent recording. Indeed, had Harrison retained Preston’s arrangement he may have escaped the expensive and lengthy litigation that followed.

Harrison’s recording was released as a US single on 23 November 1970, four days before the All Things Must Pass album. On 10 February 1971, while it was still on the singles chart, Bright Tunes filed a lawsuit against Harrison, Harrisongs Music Ltd and Harrisongs Music Inc (his UK and US publishing companies), Apple Records, BMI and Hansen Publications.

Allen Klein, the notoriously hard-nosed manager who at the time was running Apple Records, met Bright Tunes’ president Seymour Barash to attempt to resolve the litigation without a lengthy and expensive court case. Klein suggested to Barash that Harrison would be willing to purchase the entire Bright Tunes’ catalogue by way of settlement.

Barash countered with a proposal that the copyright for ‘My Sweet Lord’ be surrendered to Bright Tunes, with Harrison receiving half of the revenue. The negotiations between the two parties came to nothing and preparations for the court case gathered pace.

Musicologist Harold Barlow was enlisted to provide his expert opinion on the similarities between ‘He’s So Fine’ and ‘My Sweet Lord’. Klein also appointed attorneys to represent Harrison.

The case was delayed when Bright Tunes went into receivership. In the interim Klein’s management contract with Harrison was terminated, a development which would crucially change the outcome of the dispute.

Once Bright Tunes’ business affairs were put in order, negotiations continued between the company and Harrison. In January 1976, just a few weeks before court proceedings were to resume, Harison offered $148,000, representing 40% of the composer and publisher royalties accrued thus far in the US, with Harrison to retain copyright for ‘My Sweet Lord’.

Bright Tunes’ attorney considered Harrison’s offer “a good one”, but subsequently raised its demand from 50% of the US royalties to 75% of worldwide revenue and full copyright ownership.

Harrison was unaware that Allen Klein had been in discussion with Bright Tunes to be bought out by his own company ABKCO. Klein offered $100,000 for the right to buy Bright Tunes, with an additional $160,000 to be paid following the judge’s ruling. This would have allowed Klein to walk away from the deal had Harrison won.

During his negotiations, Klein gave Bright Tunes information on the US royalties accrued by ‘My Sweet Lord’, in addition to his estimate on overseas earnings and future valuation of the copyright. Klein’s unprofessional actions would aid Harrison in the post-trial damages assessment.

Seymour Barash, who had since left Bright Tunes but was still a major shareholder, wrote to Howard Sheldon, who was overseeing the receivership of the company. Barash suggested that Klein’s eagerness to purchase the company indicated that he thought there was a good chance that the court would find in Bright Tunes’ favour.

Barash told Sheldon that Klein’s offer should be used as a starting point in negotiations with Harrison, and demanded that the songwriter provide updated sales figures before settlement negotiations would continue.

The court case

I didn’t really think people were small-minded enough… but whereas in popular music they love to sue each other about things. Now, when I did that song, they [Bright Tunes] were in liquidation, and the liquidators decided they could make some money by suing me. We went to court and the judge said, “I don’t believe you stole it, so make a settlement.” So we were making a settlement… and the rights were bought to ‘He’s So Fine’… to keep on in a lawsuit! And it went on and on, and eventually the judge went, “This is silly,” in the end. That’s what happened.

The only shame about it was if the writer of ‘He’s So Fine’ had been alive in the first place there probably would have never been a lawsuit. Gods knows I never sued anybody about all the songs of mine that got stolen.

George Harrison

Harrison and Bright Tunes returned to court before negotiations could go any further. The case was in two parts: liability of copyright infringement, and the awarding of damages.

Both sides called expert witnesses, and Harrison testified in court about the writing process. However, the judge eventually decreed that ‘My Sweet Lord’ did indeed contain plagiarism of ‘He’s So Fine’.

The court noted that ‘He’s So Fine’ contained two key musical phrases, known as motif A and motif B. Motif A was four repetitions of the notes G-E-D, while motif B was G-A-C-A-C. Harrison’s expert witness caimed that the combinations of notes were common enough to be considered in the public domain, but admitted that grace notes inserted into motif B in both songs did not appear elsewhere.

The judge ruled that while there were some differences between the two songs, the essential musical nature of the songs were substantially similar. He said it was “perfectly obvious” that the songs were “virtually identical”. Although he ruled that neither Harrison nor Preston deliberately intended to plagiarise ‘He’s So Fine’, this was not a valid defence.

Harrison admitted that he was familiar with ‘He’s So Fine’, which had become a fixture on golden oldie radio stations. It would have been far more likely that producer Phil Spector knew the song well, since he was chasing his own share of number one pop hits in 1962.

In September 1976 Judge Richard Owen ruled that Harrison was guilty of subconscious plagiarism, and ordered a further trial to set damages. The plagiarism verdict was upheld on appeal; Harrison argued that subconscious copying was an unsound policy, but the appellate court ruled that the Copyright Act did not require evidence of an intent to infringe, leaving Harrison liable for damages.