Fade Into Penguins Avicii

Plagiarised Penguins

The death of any performer is always a sad occasion for their fans, but no more so than when the death is that of someone still in the prime of life. The passing of Tim “Avicii” Bergling last week at the age of just 28 has prompted a re-evaluation of the catalogue of music he produced during the course of his ten years as an EDM producer. Some of his greatest career highlights will quite rightly re-appear in the charts at the end of this week. Only when considering them back to back do you appreciate just how many of the greatest pop records of the decade bore his name.

Only there is one single which was never supposed to bear his name, and indeed if he and his manager and label had had their way would never have appeared at all.

A Tale Of Two Hits

Tyro Avicii was, by his own admission, a producer and not a songwriter. He’d been signed by dance label Ministry Of Sound on the back of the instrumental works he’d been producing for his own amusement since 2006. Everyone who heard them knew they had hit potential, but at the time his library of tracks were nothing more than instrumentals with apparently random coded titles. What was needed to turn them into smash hits was a final bit of magic. To use them as the base of proper pop songs.

One such track was a catchy ditty that Avicii had entitled Penguin, simply because it was based on a simple piano riff sampled from an old Penguin Cafe Orchestra track Perpetuum Mobile. To find a suitable song to sit on top of it the label initiated a beauty contest, inviting publishers and songwriters to pitch demos in the hope of seeing their compositions recorded by one of the most talked-of upcoming dance producers. The idea was that the untouched instrumental could be circulated to select club DJs, the track gain a following, and then a commercial smash hit based on the track that everyone loved would be unveiled.

The song selected from this process was Fade Into Darkness, written by fellow Swedes John Martin and Michel Zitron, a combination which could easily have meant the song could have become a Swedish House Mafia track rather than an Avicii one. With a lead vocal recorded by up and coming Swedish singer Andreas Moe, promos were sent out, the reception was positive and a worldwide release was slated for July 2011.

Only then there was a spanner in the works. Some of the other demos of the Penguin vocal interpretations had by now begun to circulate behind the scenes. A tape of one had made its way to the offices of Syco Records, Simon Cowell’s outfit by that time searching for material which could go on a new Leona Lewis album. Collide had a strong pedigree of its own, the lyrics and melody written by Autumn Rowe and Sandy Wilhelm who had already contributed to hit singles by the likes of Rihanna and Katy Perry.

The new track (Leona’s first brand new single in almost two years) was released to radio in mid-July. At this point, a mighty row blew up.

Twitterstorm

The problem was that Collide sounded almost identical not only to Penguin but also Fade Into Darkness, its production an almost straight retread of the two Avicii tracks. Which led to questions online as to whether the Swedish producer was involved in the Leona single as well. In fact, he wasn’t, and he was none too happy. Especially as the Leona track arrived in the same week as the release of his own record, almost totally overshadowing it.

His manager and collaborator Ash Pournouri was more explicit, responding to press queries about the connection between the two records by stating:  “We were under the impression that they were going to sample the original. They ended up copying our version.”

Yes, this was a none more 2010s kind of row. One which appeared to be playing out in public via barbed tweets from the artists in question. A few days later, stung by the intense criticism which had been flying her way Leona herself weighed in with what she probably hoped was a diplomatic explanation:

Avicii’s immediate reaction? To call it out as bullshit:

This was rapidly turning into a PR nightmare, at least for Syco. Opinion online was very much on Avicii’s side with the popular view that he had been screwed over by an organisation which felt they could act with impunity. Matters were not helped by a Syco spokesperson briefing “Avicii is already credited as a songwriter on Leona’s song. It’s a case of sour grapes from Ministry Of Sound”. In response, Popbitch that week noted: “Ministry of Sound has been astonishingly successful at building up an instrumental track through the clubs and radio before releasing it with a vocal to a high chart position and, if that is what the bloke who actually penned Penguin wanted to do, that’s what should be happening.”

Indeed such was the impasse that both Avicii and Ministry Of Sound felt they had no option but to petition the courts to stop the release, The Guardian reporting a week later:

Guardian Extract

Who Breaks The Wings

Had the case proceeded it would have produced some fascinating legal arguments. Just what was it that Avicii and his team were claiming ownership of? It wasn’t the Penguin Cafe Orchestra sample, as both parties had acknowledged. That was under the control of the estate of Simon Jeffes and who were more than happy to licence the piano riff to whoever. Was it the precise use of the sample in the context of the dance track? Again, a grey area.

It had already been established that an arrangement of a piece of music was not subject to copyright. Back in the 1970s, Jonathan King sat and watched Blue Swede have a massive US Number One hit with their version of Hooked On A Feeling, a recording which used the same “ooga chaka” vocal intro as heard on his own UK hit version a year earlier. But because that was deemed an arrangement of the BJ Thomas original he was not entitled to claim ownership of it.

No, the Collide legal row appeared to be based on the intellectual property. The producers of the Leona Lewis track were accused of copying an idea, and perhaps more to the point in a way that was damaging to the interests of the originators of the concept. By this time the release of Fade Into Darkness had come and gone. Despite Avicii fans making noise about the track online, radio programmers were only interested in the Leona Lewis track and Avicii’s best prospect to date at landing a breakthrough commercial smash hit had fallen by the wayside.

Sadly before we were able to find out what the legal argument was going to be, it was all over.

Daily Mail web clipping

The result of the settlement was that Collide could be released as planned. Significantly, however, Avicii was credited not only as a composer but also as the producer (even though he’d had nothing to do with the physical creation of the Leona track). Not only that but he also received a co-artist credit, Collide eventually listed online and in the charts as “Leona Lewis & Avicii”. The single shot to Number 4 upon release, Leona Lewis’ biggest hit single in three years and notably the first ever Top 40 entry for her initially unwilling collaborator.

Oh, Sometimes I Get This Feeling

In one of those odd coincidences, Avicii’s next single was indeed a global smash hit. But it also did so in two different versions. As if to prove that a vocal track wasn’t necessarily a pre-requisite for turning an EDM club smash into a chart hit. Levels flew up the charts worldwide in its original form, its only lyrics coming thanks to the Etta James sample on which it was based. After going through the proper channels, Levels also ended up forming the basis of Flo Rida’s Good Feeling and which swiftly followed the original into the charts, the rap hit creeping to Number One in Britain in early 2012.

It would be another year before Avicii finally hit paydirt with his own material, but in early 2013 he topped the UK charts for the first time in conjunction with Nicky Romero on I Could Be The One – ironically another track which began life as an instrumental demo NickTim before having a vocal grafted on. Tellingly by the summer, he was on top of the charts worldwide with Wake Me Up, a track which had been worked on as a pop song right from the start. Avicii was still not a songwriter, but by now as a star he had people queuing up to work with him. And nobody ever ripped him off again.

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