This Zach Bryan vs. Rich O’Toole Thing

Random Notes 63 Comments

It appears that Texas music artist Rich O’Toole has stirred a little controversy on social media once again. And this time it’s not about whether chili should have beans or not.

99% of the time, these accusations of someone stealing someone else’s song boil down to sheer coincidence, and the similarities are not actually that similar when looking at the situation from the type of musicologist perspective that must be brought to bear to actually bother a music publisher about it, let alone a court of law. And even if the pieces of music involved are similar, you then must prove the potential infringers knew about the previous work to willfully infringe upon it, as opposed to it simply being a coincidence.

That’s not to say that it doesn’t happen. In 2020 when Saving Country Music was reviewing the Florida Georgia Line song “I Love My Country,” the opinion was shared that the melody was exactly the same as Kane Brown’s song “Short Skirt Weather.” With the help of mashup artist Sir Mash-a-Lot, a side by side comparison was done, and lo and behold, due to SCMs reporting, Kane Brown and his co-writers were added to the songwriting credits of “I Love My Country.”

On December 18th after Zach Bryan had three of his songs featured on Season 5, Episode 7 of the Paramount series Yellowstone, singer and songwriter Rich O’Toole took to social media to say that Zach’s song “Motorcycle Drive By” had borrowed/stolen the guitar/melody part from his song “Take My Heart” released in 2014.

“I’m a giant fan of Yellowstone, but tonight I heard one of my songs on the program by Zach Bryan. The lead line is identical to mine so I would love some answers. Love Zach but thank you,” O’Toole tweeted out, and the race was on.

Are the two guitar parts/melodies in Zach Bryan’s “Motorcycle Drive By” and Rich O’Toole’s “Take My Heart” similar? Sure they are. Is it a slam dunk rip off similar to “Short Skirt Weather” vs. “I Love My Country”? In my opinion, no. Is it worth it to Rich O’Toole to have people who are experts in these kinds of matters look into it further? Perhaps. Is tweeting out his concern the best way to broach the situation, including looping in Yellowstone as if they are somehow complicit? Probably not. Did Zach Bryan and Yellowstone collude to rip off Rich O’Toole’s song? Of course not. Could Zach have handled the situation a bit better on his end too? Probably.

You can listen to the two songs at the bottom and decide for yourself how similar they are. As many have pointed out over the last couple of days, this particular sequence of notes isn’t uncommon in popular music beyond these two songs. The synth-heavy pop hit “Tell It To My Heart” by Taylor Dayne from 1987 is a good example, and that’s not even a country/roots song.

One of the reasons these issues immediately become very emotional is because if an artist thinks they’ve had one of their songs stolen from them, it feels like they’ve been personally violated. Think about when you’ve had something stolen from you. Songs are like babies to these artists.

Similarly, one of the reasons the reaction to an accusation of a song theft can be equally as emotional for the person being accused is because someone is basically calling you a thief. And if you know you didn’t purposely take the song or element, you take it very personally.

Rich O’Toole knows a thing or two about having his intellectual property taken from him and repurposed without his permission. In January of 2020, Saving Country Music published the findings of an extensive investigation on how 24 fake artist accounts were stealing songs, and republishing them on streaming services as their own through Distrokid. Rich O’Toole was one of the 122 artists who were victims of this scam, with eight of his songs renamed, and redistributed under a fake artist named John Hollister.

We’ve seen other artists get incited when they think someone has stolen their work. In 2012, Jason Isbell claimed that his song “In A Razor Town” was ripped off in Dierks Bentley’s “Home,” saying on Twitter, “‘Dierks’ has officially ripped off my song ‘In A Razor Town.’ Dierks is a douchebag...” Isbell proceeded to go on a tirade in a incident that later was cited as one of the reasons he decided to get sober. No infringement was ever found by Dierks or the song’s co-writer Dan Wilson. Isbell’s reaction pales in comparisons to Rich O’Toole’s.

Nonetheless, it’s fair to wonder if O’Toole wouldn’t have been better off handling the situation privately first, and then perhaps rattling the cage on social media if he hadn’t received any communication from the Zach Bryan team after a week or two instead of an hour or two. Again, if you think someone has stolen your work, it’s understandable how you could be hot under the collar and want to speak out. But ultimately, whether any recompense is owed to O’Toole will be up to lawyers and experts. Nashville’s court system is full of these disputes, and they’re often handled by experts who know how to conclusively settle such matters.

But this may have not been Zach Bryan’s finest moment either. Sure, O’Toole was the instigator, but Zach initially didn’t seem to be aware just how much he was punching down, and how he was basically commanding his massive fan base to go on the offensive. “Wait until you hear the similarities in Let You Down and Should’ve Said No by T Swift or Norwegian Wood and Cover Me Up had no idea you and Bach invented bar chords and melodys ol son,” was Zach’s initial response.

Zach Bryan then followed up with, “ZACH BRYAN EXPOSED !!!” and “yes the song I wrote after telling my girlfriend and best friends I loved them after a near death accident on a motorcycle this year was a rip off of Rich O Toole’s ‘take my heart’.”

Then Bryan posted a photo of him headbanging to Rich OToole’s “Take My Heart.”

Though some have accused Rich O’Toole of being an unknown opportunist here looking for attention, O’Toole’s released seven albums, including multiple ones that have charted on the Billboard Country Albums chart. O’Toole has been playing music professionally for 15 years. Granted, he seems to be one of those perpetually-overlooked artists in music, but he’s been able to put together a quality career. And let’s face it, there is a similarity between the two songs.

Rich O’Toole is no Zach Bryan though, who is the 2nd biggest artist in country music at the moment. And so when Zach Bryan does anything, it moves the needle, and significantly, especially with the loyal and large fan base he commands who took his tweets like marching orders. Soon, where you stood on the Rich O’Toole vs. Zach Bryan situation was all the talk in Texas/Red Dirt music for 48 hours.

As another Texas songwriter Dalton Domino later said, “Man what really sucks is that Flatland was on that show last night. They should be getting a ton of press right now. But the channels are all clogged up over bullshit. I know it doesn’t mean much, but it was rad getting to see a group of dudes I cut teeth with ‘make it’.”

Flatland Cavalry’s “Mountain Song” was also featured on Sunday’s Yellowstone episode, which surprisingly was the first time the band has been featured on the show.

The reason for waiting a few days to address this issue was due to wanting a bit of the emotion from the situation to wind down. Zach Bryan said on Tuesday (12-19), “Guys just poking fun and I mean no -personal- disrespect to @RichOToole even remotely – make twitter funny again!!” and the issue since has (mostly) wound down.

But with over 100,000 new songs being uploaded to Spotify every day, a huge influx of artists coming onto the country/roots scene, especially in the Texas and Americana spaces that are becoming more commercially viable by the day, conflicts like this are bound to arise more and more often.

But it’s really important for everyone to understand that the vast majority of the time, these are innocent coincidences, and even if a determination is made that one song borrowed too much from another, it’s rarely due to malicious intent, and is more likely an accident.

Ultimately, both artists got a boost of attention from the incident, with Rich O’Toole gloating that “Take My Heart” received some 10,000 news spins in the aftermath of the dust up. But it is important for all of us to understand—fans and artists alike—that the common enemy here is not each other, but Music Row, and the powers that be in country music, and like Dalton Domino said, we don’t clog up the works with “bullshit.”

Yellowstone has opened up incredible opportunities for multiple artists that corporate country radio continues to ignore. Regardless of how you feel about him, Zach Bryan has stretched the possibilities of what an artist without the backing of the mainstream country industry can achieve, and through that success, has turned fans on to scores of other artists himself. Just ask Charles Wesley Godwin.

All of these successes have also created growing pains across independent music. It’s now harder to find tickets to some of the bigger acts who have no choice but to perform in bigger and bigger venues. You have established artists feeling like they’re being ignored for the flavors of the day. Due to the greater success of Zach Bryan, greater scrutiny is being brought to bear upon himself and his music.

But we’re winning, finally. The independent side of country music is finally finding fair representation within the mainstream. In some respects, it’s becoming the mainstream. All the more reason to help continue that momentum, to make sure it’s broad based and benefits as many artists as possible, and to not bog down in social media infighting about issue that are probably better handled behind-the-scenes.

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