Beyoncé may have quietly removed a portion of her song Energy that interpolated Kelis’ Milkshake… but did she do anything wrong in the first place? This drama is the latest in a long line of musical spats that boil down to the question of who owns a song. In the past few years Ed Sheeran and Olivia Rodrigo have had to give writing credits after the fact to artists who claimed that their songs were guilty of plagiarism, despite the songs in question neither sampling nor interpolating the material in question. Here’s our take on the drama, where the line is drawn, and why maybe even if you don’t legally deserve a credit, maybe you still deserve respect.
TRANSCRIPT
Beyoncé did nothing wrong when she interpolated part of Kelis’ song “Milkshake” on her track “Energy” – so why did she end up removing it, and why did this whole scandal strike such a nerve? Actually, the drama is the latest in a long line exposing just how tense and confusing a moment we’re in when it comes to song authorship and royalties.
Kelis: “Publishing was stolen, people were swindled out of rights, it happens all the time.”
In our day and age, the question of who owns a song, and who’s owed credit is murkier than ever. Artists like Ed Sheeran and Olivia Rodrigo have had to retroactively give writing credits on songs that neither sampled nor interpolated the artists who claimed they were plagiarized. These songs basically just happened to sound like something else.
Johnny McDaid: “There are millions and millions and millions of combinations of notes out there. Coincidences happen.”
In the streaming era, Spotify and TikTok algorithms are the new hitmakers, and they work by analyzing things that previously seemed intangible. Spotify wants to suggest songs based on emotional state; the “TikTok Formula” is so defined by now it’s getting backlash; and interpolation is all the rage, even being taught to songwriters. Meanwhile legal precedents have snowballed to a place where artists are told to essentially settle every claim even if they have no merit. So has all of this gone way too far?
On the other hand, though, while Beyoncé may not be wrong, Kelis – who never got a writing credit on “Milkshake” – is also right to raise a different unfairness. There’s a long history of people’s original contributions to music not being properly credited and fairly compensated.
Kelis: “You got Pharell talking about ‘Because I’m happy’ I’d be happy too if I was stealing all kinds of folks publishing and rights to songs and all kinds of stuff.”
Here’s our take on the Beyoncé / Kelis beef, the line between interpretation and plagiarism, and why artists today need to be able to make music freely, without constantly looking over their shoulder.
When is Credit Due? Our Ultra-Litigious Moment
Historically, the laws around sampling, interpolation, and covering songs have been pretty clear. Anyone can cover someone else’s material without having to ask permission – as long as it has a US copyright and they pay standard royalties – under the compulsory music license. It’s something Prince was famously hugely opposed to.
Prince: “When all these people start popping up covering my songs, I’m not the one approving these, I don’t have any say-so over what that is.”
Ironically, though, using smaller sections of other works is more complicated. Samples — taking an existing recording of a song, and mixing that into a new composition — need to be cleared with whoever owns the song. Interpolations — which create a new recording of an existing song’s melody or part of the meloy — don’t require any clearance but still need writing credits to be given to whoever wrote the original song. Interpolation is what Beyoncé did on “Energy,” drawing on the melody of Kelis’s “Milkshake”. And Beyoncé did credit the official writers of that song. But because Kelis doesn’t have a writing credit on “Milkshake,” she also didn’t get one on “Energy.”
Kelis: “Pharell knows better. This is a direct hit at me, he does this all the time, it’s very petty.”
The watershed moment that led to this all getting so messy was the court case surrounding Robin Thicke’s “Blurred Lines.” That song didn’t sample or interpolate Marvin Gaye’s “Gotta Give It Up.” However, it sounded a lot like it – and the writers of “Blurred Lines” lost the case because the song was said to have plagiarized the “feel” and “groove” of the Marvin Gaye song. This created a precedent that’s led to other artists being told to quickly settle when challenged on the content of their own original music.
Ed Sheeran gave TLC a writing credit on “Shape Of You,” because of its rhythmic similarity to “No Scrubs.” Olivia Rodrigo gave Paramore writing credits on “Good For You,” because of its similarity to “Misery Business.” Mark Ronson did the same with The Gap Band because of the similarities between “Uptown Funk” and “Oops! Upside Your Head.” And Sam Smith’s team worked out a royalties deal with Tom Petty after “Stay With Me” was discovered to sound melodically similar to Petty’s “Won’t Back Down.”
But now, artists are fighting back against this litigious landscape. Ed Sheeran and writing partner Johnny McDaid recently won a lawsuit brought by British writer Sami Chakri who also claimed “Shape of You” plagiarized his song “Oh Why.” Sheeran and his co-writers said they’d never heard that song, and the judge ruled Sheeran had “neither deliberately nor subconsciously” copied it.
Johnny McDaid: “There’s millions and millions of songs being put into the world and there are only so many notes.”
Sheeran also said he regrets following legal advice to settle past cases because – while it might have made financial sense – he believes these claims falsely attack his artistic integrity and they’ve opened the door to ever more claims that are simply coincidences.
The History of Borrowing and the Rise of Interpolation
So, why is it that some songwriters get targeted, and others don’t? Noel Gallagher has openly said that the riff on “Cigarettes and Alcohol” is from T-Rex’s song “Get It On,” but the only writer credited is Noel Gallagher.
Noel Gallagher: “And then I got the riff and he’s like whoa, you can’t that’s f—— T-Rex, and I was like ‘I don’t give a shit who it is.’”
Elvis Costello was alerted to the similarity between Olivia Rodrigo’s “Brutal” and his song “Pump It Up,” but responded by saying: “It’s how rock & roll works. You take the broken pieces of another thrill and make a brand new toy. That’s what I did.” Rock and Roll, blues, folk and many musical traditions have always thrived on artists passing down and reinterpreting each other’s classic songs, ideally in a spirit of collaboration, mentorship and conversation.
That’s not to say that this practice has always ended up being totally fair or uncontroversial. There’s a long history of white artists earning fortunes from songs originally performed by black musicians who didn’t profit to anything like the same degree – whether that’s Elvis Presley’s stratospheric fame built on reinterpreting hits from Big Mama Thornton and Big Joe Turner, or The Rolling Stones’s songs borrowing from blues masters like Robert Johnson and Muddy Waters. When Little Richard was deemed too transgressive for the mainstream, the more sanitized Pat Boone was given a lot of his songs and promoted in his place.
Dara Starr Tucker: “These black artists never got the chance to be heard by larger audiences, and earn the kind of money that Elvis and other artists who copied them did.”
But for a while, the status quo allowed space for a certain level of borrowing and reinterpretation that could fuel creative freedom and inspiration. Then, when hip-hop emerged, it changed all the rules around how these musical influences could — and should — be credited. The practice of sampling is the backbone of hip-hop as a musical genre. Arguably it does the same thing that music has always done – transforming older influences into something original and new – but since it uses actual recordings, the tradition was set up that samples have to be backed up through a process of crediting and clearing. Nile Rodgers famously threatened to sue the writers of “Rapper’s Delight” — one of the first hip-hop songs to break into the mainstream — for its use of his song “Good Times.” Instead of this becoming a protracted legal battle, it was quickly and amicably settled.
Nile Rodgers: “Everything wound up being great, our names were added to the copyright, so if you look at a copy of Rapper’s Delight, you know it says right there that I’m the co-writer.”
Now, we’re in the new, murkier era of interpolation – and there are some crucial differences. Interpolation isn’t being developed as a grassroots folk art like hip-hop; it’s coming from the music industry as a savvy tactic for mining multiple hits out of one. Tatiana Cirisano writes that publishing company Primary Wave (which has ownership of catalog hits getting interpolated today like Olivia Newton John’s “Physical”) holds interpolation camps for songwriters, “relying on the idea that a melody which was once a hit is bound to be a hit again.”
On the plus side, this is potentially beneficial for the writers of older songs, who’ll get a new windfall if their hit gets a second life. But at the same time, it’s exposing what a wild west the music industry has long been in terms of who’s gotten credit and who’s gotten paid, versus (sometimes) who’s done the actual work.
Ty Tribbett: “I did the vocal arrangements on there… Cry Me A River was like a huge song, I got two thousand dollars, he got like two billion.”
Inside Llewyn Davis explores the problem of struggling musicians like its protagonist Llewyn being enticed to take a small upfront fee for a track they work on, in lieu of a royalty, because they need money then and there.
And the industry is littered with stories of artists being exploited, getting locked into bad deals, or signing away their rights to a royalty for low amounts of money. Van Morrison doesn’t own the rights to his most famous album, Astral Weeks. The Verve get no money from their hit song “Bittersweet Symphony” because of a dispute with The Rolling Stones over a sample they thought they’d cleared. Artists now get criticized when their songs have a list of credited writers in the double figures, but this practice is probably long overdue.
Which brings us back to Kelis and the central question this dispute really exposes – why doesn’t she have a writing credit on “Milkshake”?
Kelis: “He has writing credits on my records, all my singles coincidentally, and he ain’t ever wrote a song a lyric a day in his life!”
Moreover, since these post-”Blurred Lines” cases are as much about the “feel” and “groove” of a song, many who’ve leapt to Kelis’ defense feel it’s obvious that the feel and groove of that song is driven by her. When people think of “Milkshake,” it’s Kelis they think of, not Pharell or Chad Hugo. So, she definitely is due some credit…but it’s not really Beyoncé who needs to be the one to give it to her. And Beyoncé’s decision to remove the interpolated portion of the song was more about the backlash than any admission of guilt or regret – Beyoncé is conscious that damages her brand if anyone thinks she’s exploited another artist.
Could Beyoncé have done more to pay respect to Kelis? Maybe, yes. As Kelis said, a call out of courtesy would have been appropriate. Still, in the grander scheme of things, Beyoncé not only did everything by the book but is far from the problem here – overall, she’s elevating the history of black music and black culture, paying respect to creators, movements and genres of music whose influences have long been overlooked.
Why We Need to Allow More Creative Freedom
There’s something sad and cynical about a musical environment where every new hit is immediately slapped with threats of lawsuits. Arguably, interpolating is a transformative enough component of music that it shouldn’t be policed at all. While it’s important to give credit and compensation where it’s due, there’s also something to be gained by not standing guard over every small motif or melody. And the current moment is entering an extreme of litigiousness and paranoia that’s hostile to creative freedom. Sampling is an artform that was born out of necessity. Working class black communities turned to sampling records because of the lack of access to real musical instruments
Lord Jamar: “We took the f—— record player, the only thing playing music in our f—— crib, and turned it into an instrument, which it wasn’t supposed to be.”
While it uses existing material, it has always done so in a way that transforms that material. These songs or motifs become colors and textures recontextualised into something new. And in the case of Renaissance, Beyoncé’s use of sampling and interpolation is completely in conversation with this new phase of her career.
Beyoncé is an artist who has always evolved – from girl group member, to actress, to vocal diva, to rapper, to filmmaker, fashion designer, and now this modern day auteur of huge, genre-defining cultural moments.
The title Renaissance, and the fact that this album is one of three, implies the beginning of another period of evolution. A reframing, or redefining herself as an artist, and perhaps a redefining of black music. Because what she’s doing by leaning so heavily on dance and house influences, and giving the appropriate credit, is a lot like what classic folk and blues musicians would do: going through the vaults of songs passed down from one generation, and giving them life for the next.
Beyoncé: “Creating something that will live beyond me… That’s what I want.”
SOURCES
Savage, Mark. “Spotify Wants to Suggest Songs Based on Your Emotions.” BBC News, 28 Jan. 2021 https://www.bbc.co.uk/news/entertainment-arts-55839655
Sung, Morgan. “People Are Getting Tired of the ‘TikTok Music Formula’.” NBC News, 24 May 2022
McDonald, Heather. “What a Compulsory License Is in Music.” The Balance Careers, 2 Feb. 2019 https://www.thebalancecareers.com/what-is-a-compulsory-license-in-music-2460357#:~:text=A%20compulsory%20license%20lets%20a,copyright%20holder%20of%20the%20work.
McPherson, Edwin F. “Crushing Creativity: The Blurred Lines Case and Its Aftermath.” McPherson LLP, Attorneys at Law, Feb. 2019 https://mcpherson-llp.com/articles/crushing-creativity-the-blurred-lines-case-and-its-aftermath/
Savage, Mark. “Elvis Costello Defends Olivia Rodrigo over Brutal Plagiarism Claim.” BBC News, 29 June 2021 https://www.bbc.co.uk/news/entertainment-arts-57650176
Cirisano, Tatiana. “Looking Forward and Back: Why Song Interpolations Reflect a New Music Industry Outlook.” Midia Research, 2 Dec. 2021 https://www.midiaresearch.com/blog/looking-forward-and-back-why-song-interpolations-reflect-a-new-music-industry-outlook.