by Hector Cook
Robin returned to Good Morning Britain after the case was concluded. While the experience had served to make him slightly more cautious with his words, he remained outraged at the treatment he had received.
“It’s been a strange year, on reflection,” he mused. “Obviously, I can’t talk about it, otherwise they’ll probably end up serving me with another writ … They found me in contempt of court for talking about my previous marriage, which in America they find against the freedom of speech act …
“It’s very difficult, really, because I don’t even have to talk about my marriage to be in contempt of court. The law took a very wrong view of it, and they should not have done what they did to me, because there are so many different factors involved in this situation.
“I’m in a very vulnerable position for a start. There are other people, such as journalists … For instance, I could go to a party, and I could be speaking to someone who I don’t know is a journalist, and if they say something, ‘Blah blah blah have you seen such and such?’ and I say, ‘No, blah blah blah,’ that’s a quote. ‘No’ becomes a quote,” he explained
“Getting down to that, the one thing I am against in this situation is that they should not have found for 14 days in prison. Anybody who does what I did, an article talking about my previous marriage in the paper, it should not have gone that far, and I think that the people involved in finding that kind of sentence [were] irresponsible in doing that.
“People like us are in a vulnerable position. You don’t know whether or not the judge on the day is being biased because you are in the business that you’re in, or because you may have a bit more money than he’s got, which is a very wrong view to take. There are so many factors … I do hear that high court judges don’t get paid very much,” Robin added recklessly.
Although Robin and Dwina had now gone public with their relationship, they still managed to keep a few secrets from the public. On January 21, Dwina had given birth to their son, Robin John, in Miami, but the baby’s existence was only known to a few of the couple’s closest friends.
On October 28, the Daily Mail printed a story about Robin’s “secret family” with Dwina, this time identified as Dwina Waterford.
“We wanted little Robin and he’s wonderful,” Robin said, “but neither Molly, my former wife, nor my other two children know about him yet. I will be introducing the children to their little brother, but it’s still too early and the situation is too fragile.”
He claimed that his divorce had affected him badly, adding, “I developed a terrible mistrust of women. It’s taken a while for me to get over it. But having the baby with Dwina has sealed our happiness.”
* * *
When The Bee Gees were first approached by Ronald Selle’s lawyers in 1980, Dick Ashby said that they were advised by their own lawyers to “offer something like $25,000 just to sort of [make him] go away.”
“Everyone was fair game … Rather than spend the millions of dollars [defending it],” explained Tom, “most people would just give them a few thousand to go away.”
But Selle wasn’t going to be bought off so easily. “He said he wanted six figures,” Dick Ashby recalled. “That was when we said, ‘See you in court.’ But, of course, we were pretty new to this whole thing.”
For Selle, an antiques dealer in Illinois with a master’s degree in music education who played keyboards locally with a trio, the story began in 1975. Whilst shaving one morning, he came up with a melody, which he later worked out and recorded a demo tape in a small home studio. After paying six dollars to obtain a copyright, he sent out 14 copies of the tape with lead sheets to record companies, but notably not to The Bee Gees or any company directly connected to the group. Eleven companies returned the tapes to him, whilst three never responded.
On February 20, 1983, the case came to trial in federal court in Chicago, heard before the Honourable George N. Leighton, United States District Judge for the Northern District of Illinois.
The brothers were confident as they approached the opportunity to clear their names. With nearly 20 years as published songwriters, there seemed no reason for anyone to believe that they would suddenly resort to stealing songs from an unknown composer — and indeed, there had been no opportunity for them to have heard the song in the first place. Knowing they were in the right, losing the case didn’t even seem a possibility, especially with Dick Ashby, Blue Weaver and Albhy Galuten along to give testimony about the composing process, and expert witnesses on hand.
“I have no malice towards this man,” Barry said. “I believe that he acted in good intentions on his behalf that certain notes in these songs resemble each other enough for him to believe that we took his song. I only hope that at the end of the day, no matter how this goes down, he just takes into consideration that he could be wrong.”
Plagiarism is a difficult crime to prove, rarely witnessed, so by necessity, any evidence must be circumstantial. Ordinarily, the plaintiff would be expected to prove that the defendant had access to the work in question. Selle’s attorneys never attempted to indicate how The Bee Gees might have gained access to the unpublished song. Instead, Selle obtained an analytical and comparative study of the two songs from an expert witness, Arrand Parsons, a professor of music at Selle’s alma mater, Northwestern University, and a doctor of philosophy in music theory. A music theorist whose work had previously concentrated on classical music, he had never made a comparative analysis of popular songs prior to his involvement in the trial.
Graphs and charts prepared by Parsons compared the two songs bar by bar. He testified that the first eight bars, known as Theme A, of each song had 24 notes — out of 34 notes in ‘Let It End’ and 40 notes in ‘How Deep Is Your Love’ — which were identical in pitch and symmetrical positions. Out of 35 rhythmic impulses in Selle’s tune and 40 in the Gibbs’, 30 were identical. In the last four bars of both songs, Theme B, 14 notes were identical in pitch. Of the 14 rhythmic impulses in Theme B of each song, 11 were identical. Finally, both Theme A and Theme B occur in the same position in each song.
Based on his structural analysis of the two songs, Parsons stated his conclusion, “The two songs have such striking similarities that they could not have been written independently of one another.”
According to Selle’s attorney, “Once you establish such striking similarity, you have also established what the law recognises as inferred access.”
When cross-examined by The Bee Gees’ attorney, Robert Osterberg, Parsons sounded much less certain. Osterberg asked, “Is it your opinion, Mr Parsons, that the only way the B Theme of ‘How Deep Is Your Love’ could come about was as a result of copying?”
Parsons responded, “I don’t believe … put it positively. I believe that The Bee Gees’ song, with these elements which we have described in common with the Selle song, I believe that The Bee Gees’ song could not have come into being with the … I must correct that because that is again dealing with a conjecture. I believe that elements, if I may just wipe that away and start again, because it’s gotten twisted up. I believe that elements which are in common between the songs in question are of such striking similarity that the second song could not have come into being without the first.”
Osterberg countered that similarities alone could not prove copying, and coincidental similarities, attributed to the limited number of notes, provided no legal redress. In cross-examining Selle, Osterberg confronted him with similarities between ‘Let It End’ and The Beatles’ ‘From Me To You’.
One of the most damning testimonies came from Maurice, who was called by the plaintiff as an adverse party witness. In Maurice’s taped deposition before the trial, he was asked to identify a piece of music. He identified it as ‘How Deep Is Your Love’. The same tape was played, and Maurice was asked if he could “identify that example as being from any piece of music that you are familiar with?”
Maurice agreed that he could, and when asked to identify it, he responded, “I believe that’s ‘H
ow Deep Is Your Love’. Yes, I’m sure it’s ‘How Deep Is Your Love’.”
Selle’s lawyer, Allen Engerman, then read a stipulation of the parties that the music which Maurice had identified was, in fact, “the melody of Theme B, the first two phrases of Ronald Selle’s ‘Let It End’.” With that, the plaintiff rested his case. As a final point, it left a powerful impression.
For the defence, Blue Weaver’s working tape of the sessions which resulted in ‘How Deep Is Your Love’ was played, and Barry explained the inception of the song. “The idea was to get [Blue] to play the chords that I could hear in my head and turn that into a song,” he said. Robin and Maurice joined in later that night and the following day, helping with the lyrics, harmonies and “shorter melodies within the song.”
Much was made of the fact that there was a 12-minute blank gap on the tape with implications that the tape had been falsified.
“If you listen to that tape, there’s no way that you could contrive anything like that,” Blue insists. “Really — if you were contriving it, it would sound differently — you would do it so people could understand what was going on … you wouldn’t have the repetition, the trying to hone in …”
The trial took an unusual course when, during a routine scheduling meeting with Judge Leighton, he expressed his impatience with the trial and requested that the attorneys finish up the following day. When Engerman said that he intended to spend four hours cross-examining one witness, Leighton retorted, “Let me say something to you in all candour. There is a lot of time we have taken in this matter which I think could be cut down a great deal … If I were hearing this case without a jury, I could make all the findings of fact and reach conclusions of the law on the evidence already heard. Just remember that.”
The Bee Gees’ attorneys, Robert Osterberg and Robert Bergstrom, had originally planned to call two experts of their own to counter Parsons’ testimony, but interpreting Judge Leighton’s remarks to mean that the case might be dismissed without reaching the jury, Osterberg announced he was resting the case without calling any experts.
“The judge gave us indications at least two times during the trial that we should rest our case,” Barry mused. “It told us that these people do not have a strong enough case. Maybe we were just being overconfident because we were innocent, but why belabour the point? If it was obvious to us that the court didn’t think we were guilty, why not rest our case?
“The judge also did give signals that he was getting very tired of the hours and hours of interrogation.”
On the fourth day of the trial, after five hours deliberation, the jury foreman, Earl Wilke, announced their decision, ruling in favour of Ronald Selle. “There was nothing to contradict the plaintiff’s witness,” Wilke said. “There was no expert for the defence … Dr Parsons talked of the improbability of independent composition, and nobody disputed that.”
“It was a big monopoly of lawyers from New York that had done all this and the judge knew it was scam from the word go,” Maurice said.
Judge Leighton declared, “The longer I stay in this job as a judge, the more appalled I get at what people will seize for litigation.”
Shocked and stunned, The Bee Gees returned to their hotel.
“On the day of the judgement, I stayed at the hotel to pack up,” Tom Kennedy recalled, “and they came back, very downcast. I said, ‘What’s going on?’ and they said, ‘They found for Ronald Selle.’ I said, ‘You’re joking’ — I thought it was a group joke, that they were going to say, ‘Ha ha, we had you!’
“When they questioned the jury, the jury literally said, ‘Well, if we made a mistake, they can afford it,’ and that’s why they found for Selle.”
While Selle called it “a victory for the little guy,” his lawyer, Allen Engerman gloated, “The Gibbs’ lawyer told me, ‘Allen, if you win, there’ll be a pot of gold at the end of the rainbow.’ ”
Robin tersely declared it, “A lie!”
Barry still seemed dazed by the verdict, saying, “I feel like I’ve somehow stepped into The Twilight Zone. It’s been a nightmare.” While he conceded that there were “similarities in those portions of the two melodies as written, what hasn’t been established is that that means we stole the song.
“I can understand a conviction based on one well-known song on another well-known song, but this is a song that we have never heard in our lives,” he insisted. “Look, between the ages of 12 and 18 … when I lived in Australia, I had 65 songs that I wrote that were sung by other artists — this was before I ever left Australia to come to England or America. Now, am I going to steal someone else’s songs? That’s just pure madness,” he added.
There can be no doubt when looking at the transcribed musical lead sheets that there are similarities in the first eight and last four bars of the songs, but when the songs are played back to back, significant variations in rhythm, phrasing and overall style become apparent. On paper, one can find melodic similarities between any number of pop songs. With only 12 notes in the scale and a limited number of ways those notes can be harmonised, this resemblance seems inevitable.
Since the Fifties, rhythmic style, harmonisation, phrasing, bass lines and other aspects of what used to be regarded as strictly part of a song’s arrangement have come to be regarded as integral to the song as distinguishing characteristics. In seeking only the opinion of an expert schooled in classical music, these characteristics were never recognised in the trial.
The Bee Gees immediately filed a motion to overturn the decision. “If that fails,” Barry added, “of course we’ll appeal. We intend to fight this to the end.”
“I guess you have to be accused of something you didn’t do to really feel how we feel. We’re outraged; it’s very difficult to describe,” he added.
Robin described his feelings as “rotten,” adding, “It’s only going to hurt the poor, unknown songwriters who are going to have their tapes turned away by publishing companies. It’s a tragedy for songwriters who genuinely want their music heard but will have it returned to them unopened. That’s what this case has done, and we tried to fight it on those grounds.”
Selle told reporters he was unconcerned about the possibility of the counter action. “I don’t look at it as a problem; it’s a common post-trial motion.” He added that after the verdict, his nephew had sent him a telegraph which read, “Forget the money. Did you get their autographs?”
Steve Massarsky, a former manager of the Allman Brothers who was then the principal lawyer for the Entertainment Center of Jacoby and Meyers, predicted that the jury’s decision could have serious long term consequences. “This case will create a whole batch of litigants who will say, ‘This guy beat The Bee Gees; so-and-so has my song.’ Ninety-nine out of 100 times [the band or record company] will win. But the problem is not so much winning as having to defend it. The cost of lawyers is not inexpensive.”
It was a fact that The Bee Gees well knew. “The legal fees they paid were in the millions,” Tom Kennedy said, but the money was never the issue. What was important to them was their reputation, and whatever the cost, they wanted to clear their names.
On July 8, Judge Leighton nullified the jury’s verdict, granting the defence motion for a judgement notwithstanding the verdict, ruling that the evidence could not support the verdict.
“The jury’s original verdict was that we had done it,” Barry explained on CNN’s Freeman Report. “The judge had to overrule the decision simply based on the fact that, without any proof of any kind of access or copying, you do not have a case at all really. You cannot prove what didn’t happen, and the truth of the matter is the song was never heard by any of us so there really isn’t a case. There has to be at least some sort of proof of access or some reasonable evidence that we would have heard his song and that is simply not the case. So the judge had to, what we like to call, give us our honour back, which was taken away and should not have been.
“In my mind and in my heart, the question is why we would
do this. Why would three people who have been writing all their lives and who have had considerable success with many, many songs, why would they stoop to stealing an unknown writer’s song who lives in Chicago? Why? It’s quite possible that Ronald Selle really believes when he took action against us that he really believes that we took his song. But he was wrong. He was wrong now, and he will always be wrong about that and this forum gives me the chance to say that, wherever he is, he’s most definitely wrong and we’d like to get on with our lives and we’d like him to get on with his.”
As had been predicted, the case seemed to bring other litigants out of the woodwork. “We’re being sued again now for ‘Woman In Love’, just for the title,” Robin said gloomily. “The girl who’s bringing the suit had about 30 lawyers turn her down. Then they finally found one. The record sounds about as much like our ‘Woman In Love’ as ‘Chattanooga Choo-Choo’.”
Even though the decision had been reversed in their favour, Barry admitted that the experience had left its mark. “I guess now we’ll have to live with the feeling that somewhere, somehow, somebody’s going to take action against us again based on another song that we didn’t take,” he said ruefully. “We’ve written a lot of songs and had a lot of successes, so we’re a good target. But hopefully this case and the way it’s gone down is going to stop people from really wanting to hit established songwriters quite so easily.”
He would later explain, “It was just a piece of melody that resembled ours a little bit … But the fact that there were two different people who came up with this idea halfway around the world from each other, a new step was created in the law, and you now have to prove that the other person had to have access to your idea … What was heartbreaking was the six months waiting to be vindicated by the judge … and when we were found innocent, nobody publicised it so that was even more devastating. People have said nice things to us since because we fought. Billy Joel said, ‘I wish I’d fought a case that I was sued for — I was innocent but I settled and I wish I’d fought. And you guys, because you fought, now every time someone gets sued, they don’t settle, they fight.’ And Michael Jackson also said the same thing, because he’d been sued. You fight, you don’t pay off people that do that.”