On Being Nice: Tom Petty Edition

Over a year ago, I wrote this blog post on the virtues of being nice. I wrote it because I felt guilty; while waiting for a train ride home one day, a young Latino man approached and asked to borrow my cell phone to make a call. I told him no because I didn't trust him. What if he took my phone and just ran? How would that make me look? But it wasn't that I turned him down that embarrassed me, it's how I did it. I shut him down quickly - before he could even finish his sentence -  and with a kind of casual cruelty that shocked me. As I thought about it, the less my concerns held up to any scrutiny. Even if he had proven me right and stolen my phone, that’s not the end of the world; I could’ve afforded a new one. But I was filled with so little compassion for that man that I didn’t care, and the result was an action I regret to this very day. I’m embarrassed at the way I behaved, and I remind myself about that incident as a way to orient myself when I feel unmoored.

But that post wasn’t just about me exercising some demons or looking for absolution from the universe. I see a lot of nastiness in my chosen profession too, and I wanted to address that. The law, by its very nature, is adversarial. And many of its participants assume it means you have to treat your opponent with disrespect. I hate it.

Being in opposition to one another doesn’t mean you can’t be magnanimous too. It’s that old chestnut about catching more flies with honey than with vinegar. Judges, juries, and lawyers are people too, and the more they hate you, the less likely they’ll sympathize with you, even if you’re the victim. And while, in theory, the legal system should operate free of bias, the reality is that the “system” is made up of people. And like it or not, people are susceptible to all kinds of prejudices, even ones we don't realize.

To make matter worse, there’s a fallacy out there that you have to take a hardline position to get your way. But that’s just not true, and any clear-eyed look at the political landscape of this or any other country will tell you plainly that refusing to play ball can do more harm than good.

Case in point: recently, everyone has been talking about how Sam Smith’s Stay With Me sounds an awful lot like Tom Petty’s I Won’t Back Down. So much so that Smith began paying royalties to Petty and crediting him as a co-writer. The rumor mill began swirling about copyright infringement and animosity, forcing Petty to write this on his blog:

About the Sam Smith thing. Let me say I have never had any hard feelings toward Sam.  All my years of songwriting have shown me these things can happen.  Most times you catch it before it gets out the studio door but in this case it got by. Sam’s people were very understanding of our predicament and we easily came to an agreement.  The word lawsuit was never even said and was never my intention.  And no more was to be said about it. How it got out to the press is beyond Sam or myself.  Sam did the right thing and I have thought no more about this.  A musical accident no more no less. In these times we live in this is hardly news. I wish Sam all the best for his ongoing career. Peace and love to all.

I’m not privy to the details. I don’t know who approached whom and under what circumstances. What I do know is that both parties resolved the issue quickly and amicably in a way that avoided a nasty and protracted infringement lawsuit. Maybe Petty didn’t think the case was all that good (having listened to both songs an awful lot, I can’t deny that there are some melodic similarities. But overall, I don’t think it’s close enough to win in an infringement suit. There’s some case law out there that’s instructive on musical accidents, but that’s not really the point of this post). Maybe Petty wanted to come on stronger but decided against it for selfish reasons. Or maybe he recognized that Smith was the new kid on the block and felt an obligation to live up to his role as one of rock’s elder statesmen. Tom Petty is one of the most well-respected and well-liked musicians in the industry; I don’t think that’s an accident.

Whatever Petty's motivations were, it’s proof positive that being nice can get you something while also avoiding years of litigation and bad press for picking on the new guy. It’s a lesson I apply in my law practice and strive to apply in my daily life as well. Even when someone is being a prick to you, it will never backfire being nice right back. 

Greg Kanaan

The [Legal] Artist, Boston, MA, USA