The strange thing about Monsters’ exaggerations is that, even in its barest facts, the Menendez brothers’ case could hardly have been more operatic. In August 1989, Lyle (then aged 21) and Erik (18) executed their parents José and Kitty in their own living room in Beverly Hills, using shotguns at point-blank range. Everything about the murders — the glamorous location, the extreme wealth of the Menendez family, the initial suggestion that this was a mafia hit — made the boys’ story immediately irresistible.

Sensationally, the two brothers were arrested after Erik confessed to his therapist, who taped their sessions. The killing was assumed to be motivated by the brothers’ expectation of an inheritance, which they set about spending extravagantly and with little sense of a decent interval. Two spoiled little Patrick Batemans, on a bloodstained spree of hotel suites and Rolexes.

And then, even more sensationally: the brothers’ defence was that they themselves had been the victims of their parents. That the perfectionist José had tyrannised his sons, emotionally, physically and sexually; and that the downtrodden Kitty had silently conspired to protect her husband. Erik and Lyle had killed their parents, it was argued, because they believed their parents were planning to kill them in order to protect the family from shameful revelations.

One reason the case held such allure was that it landed on a faultline in public understanding of trauma, and was one of the first high-profile cases in which long-term abuse was advanced to claim the murder had been a form of self-defence. Dr Ann Burgess, a former FBI profiler who acted as an expert witness for the defence, testified that Erik’s brain had been “rewired” by the molestation he suffered; the prosecution accused her of emitting “psycho-babble”. Another reason is that reactions to the brothers split down gender lines, including in the jury room: Erik’s first trial ended in a hung jury, with female members opting for manslaughter while their male counterparts pushed for murder.

Dominick Dunne, who reported the case for Vanity Fair, claimed scathingly that the women on the jury “fell for [the brothers’] pretty faces, their crocodile tears, and their extravagant lies”. He did not believe the defence — although this wasn’t because he was in denial about the prevalence of child abuse, but rather because he knew brutality first-hand from his own father. “I have had welts on my legs and thighs. To this day I remain partially deaf from a blow to the ear when I was in the fifth grade. I was a sissy. I was not good at sports. I embarrassed my father,” wrote Dunne in one article. He might have recognised himself in the account of the family Burgess gave on the stand. He might not have enjoyed the parallel.

His question about the brothers was a bitter one: if he had been able to resist murder, shouldn’t they — if they were equally authentic victims — have been able to do the same? “Perpetrators need only to scream out ‘I was abused’ and there is an expectation of forgiveness,” he concluded, deeply unconvinced by their story. Dunne believed instead that the Menendez brothers had killed purely for their inheritance. He was similarly sceptical about Lorena Bobbit’s claim, made at her own trial around the same time, that she castrated her husband after being serially raped by him.

Dunne did not grow up to be a violent man himself (though he did, as his son Griffin has written in his own memoir, The Friday Afternoon Club, grow up to be desperately secretive about his homosexuality, partly in consequence of his vicious upbringing). But his was a worldview in which extreme cruelty was a commonplace — something that must be punished, but something that victims are obliged to come to terms with. There is an implication in what he writes that the truly abused would choose, as he had, not to repeat what was inflicted on them. (Dunne is portrayed in Monsters, a rather shallow caricature played by Nathan Lane.)

A generation earlier, perhaps nobody would have questioned the financial motive in this crime, not even the defence. But in the Eighties, the Western workforce had undergone a drastic remaking, as women entered the professions. It is significant that Ann Burgess — not only female, but a mother — had been able to rise through the FBI. It is significant, too, that the Menendez brothers had a female attorney, and a very respected one, even if that respect was laced with contempt: Dunne called Leslie Abramson “tiny, mesmerizing, brilliant, overpowering” but also “mean, harsh, crude, and gutter-mouthed”.

Women like Burgess and Abramson were changing the public understanding of violence, from accepting it as an unpleasant inevitability to recognising it as a source of trauma that could echo down generations. Because they sat outside the perspective of masculinity, they were able to unpick some of its prevailing assumptions. Not completely successfully: at the second trial, the evidence about abuse was restricted and both brothers were convicted of double first-degree murder. They were sentenced to life without the possibility of parole.

Dunne was right that women responded differently to the brothers, and wrong to attribute it to girlish susceptibility to a sob story. (It’s worth noting that the female jurors did not seem overburdened with empathy towards Kitty, who was a bad mother but never accused of acts as serious as those alleged against her husband.) Perhaps women were simply informed by a different understanding of what violence and terror can do to a person. The notion that Burgess was not peddling “psycho-babble” but rather offering a major insight into human psychology would begin to be accepted in courtrooms within a decade. It would even be used successfully to defend women who killed men.

In 1996, British woman Sara Thornton was retried for the 1989 killing of her husband. Originally, she had been found guilty of murder for financial motivations, even though her husband was a violent alcoholic. Women’s groups rallied around her case as an example of the unequal treatment of men and women under the law: a woman who killed her abuser would be treated more harshly in court than an abusive man who “snapped” and murdered his wife. At retrial, Thornton’s team successfully argued that she had stabbed him in self-defence, and she was convicted of manslaughter instead.

By 2024, few people seriously doubt that José Menendez abused his sons — and crucially, the surviving Menendez family are among those who believe Lyle and Erik, who are now 56 and 53. In a collective statement condemning Monsters, the family called the series “repulsive” and wrote: “We know these men… We also know what went on in their home and the unimaginably turbulent lives they have endured. Several of us were eyewitnesses to many atrocities one should never have to bear witness to.”

Ryan Murphy, the executive producer of Monsters, has defended the show on the grounds that “We show many, many, many perspectives.” On the incest issue (which, understandably, is especially painful to the brothers), Murphy said: “There are people who say that never happened. There were people who said it did happen.” In other words, his job is to teach the controversy. Which, conveniently, allows for almost anything that has ever been alleged about the case to be put on screen, with the alibi that the drama is simply moving between different viewpoints.

The title has an implicit question mark after Monsters. Are they or aren’t they? It’s the second part in an anthology show, the first of which was a series about serial killer Jeffrey Dahmer: in that case, it was the victims’ families who were outraged about the way the story was told. “It’s retraumatizing over and over again, and for what? How many movies/shows/documentaries do we need?” asked one relative.

In Murphy’s favour, Monster season one also represented the salaciousness of the media; but this could equally be a sign of Murphy’s hypocrisy. “You don’t get credit for lamenting the existence of a circus when you happen to be the ringmaster,” wrote TV critic Jen Chaney. But whatever squeamishness viewers may feel, it doesn’t stop them from watching. Monster is Netflix’s third most viewed English-language show ever. Monsters is on its way to a similar level of success.

Murphy understands what people want to see, and the Monster franchise can be seen as the commercially brilliant coming together of two of his previous megahit properties. First, American Horror Story, which pushed the bounds of TV decency to thrill audiences with its grand guignol sensibility (many of its plots have ripped-the-headlines inspiration). Second, American Crime Story which turned real-life cases into compelling but considered drama: The Assasination of Gianni Versace, The People vs OJ Simpson.

Monster brings together the trash sensibility of Horror Story (watch these hot brothers kiss!) with the truth-telling pretensions of Crime Story (but we’re only showing you the incest to demonstrate what people were saying about the Menendez brothers!). It is, obviously, offensive. Yet the popular attention Murphy has brought to the case has also brought renewed legal attention: Kim Kardashian (in her guise as a justice campaigner) has written an essay in support of the brothers, and last week, the Los Angeles district attorney recommended they be resentenced and made eligible for parole. If this is accepted, Lyle and Erik could be released before the end of the year.

Should that happen, they’ll owe their freedom — at least in part — to their lascivious portrayal in Monsters. Liberty, but at the price of having been effectively fan-fictioned into an incestuous fantasy version of themselves. If you’re wondering who could possibly enjoy watching such a thing, the answer is women, who are the primary audience for both true crime and the kind of “shipping” (as in, invented relationships between characters) erotica of which Monsters is an example.

The appeal of shipping to women is fairly obvious: it allows for the appeal of the forbidden which is so crucial to arousal, within the safety of known characters or narratives. The lure of true crime — a genre that is, on the whole, fixated with terrible things done to women by men (even in Monsters, Kitty suffers a spectacularly gruesome end) — is more complicated. A sympathetic take says that women are fascinated by understanding, and so potentially controlling, the forces that might threaten them. A more cynical one says that it’s about identifying with the enacter of the violence, rather than passively waiting to become the victim. Monsters, in any case, offers both.

In the early Nineties, the arrival of high-powered women in the legal system helped formulate an understanding of violence and trauma that underpinned the brothers’ (unsuccessful, but ultimately widely accepted) defence. Today, the fact of women as primary consumers of media — not passively watching whatever their male partner puts on, but seeking out shows that serve their interests, their gaze — has given the brothers a platform from which to argue their case again. Two victims of sexual abuse, turned into sexualised entertainment: the last and strangest abuse in the guise of care to be heaped onto Lyle and Erik Menendez.

Here we are 175 years later, and those questions are more contested in the courts than ever. This month alone the US Supreme Court finally dismissed a long-running claim that Led Zeppelin plagiarised the introduction of “Stairway to Heaven” (1971) from Spirit’s instrumental “Taurus” (1968) but high-stakes copyright lawsuits against Katy Perry, Ed Sheeran and Taylor Swift continue to move through the legal system. Even in the midst of a pandemic, the vital business of deciding whether some songs sound too much like other songs goes on.

There is something inherently ludicrous at the best of times about judges and juries assessing copyright infringement claims based on the testimony of rival musicologists (“proverbially discordant among themselves,” as Carusi’s attorney put it) and their own inexpert understanding of the creative process, and these are not the best of times. The business of sueing over plagiarism — and it is a business — has been in overdrive since 2015, when a jury found that Robin Thicke’s and Pharrell Williams’ hit “Blurred Lines” (2013) had stolen from Marvin Gaye’s 1977 hit “Got to Give It Up”.

Even though the two basslines used different notes, rhythms, phrasing and scales, the jury decided, to the tune of $7.4m, that having a similar vibe was enough. It was a shocking, chilling verdict, and when Thicke and Williams lost an appeal in 2018, the author of the dissenting opinion stated that the verdict “allows the Gayes to accomplish what no one has before: copyright a musical style”. The judge added that the decision “establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere”.

Musicians and legal experts agree that this lousy decision has created a climate of fear, with artists awarding credits left, right and centre in order to fend off the faintest possibility of a lawsuit. Almost as soon as some listeners noticed that the chorus of Taylor Swift’s “Look What You Made Me Do” (2017) was amusingly similar to that of Right Said Fred’s “I’m Too Sexy” (1991), Swift credited the British band, even though nobody seriously thought that she plundered 90s novelty hits for melodies. If you’ve ever wondered why modern hits seem to have so many songwriters, then this neurotic credit inflation is one reason. Credits are becoming more a legal fiction than an accurate account of a song’s creation because it is easier to settle even a frivolous claim than to risk years of costly litigation.

More from this author

Yesterday, the Beatles and why talent isn't enough

By Dorian Lynskey

The “Blurred Lines” verdict was unusually hostile but it exposed the underlying weaknesses of copyright law as it relates to music. Other artforms have a much more mature relationship with the nature of influence. While a screenwriter or director can’t just plagiarise someone else’s work wholesale, the likes of Quentin Tarantino and Ryan Murphy are free to stuff their work with homages and allusions. Nobody would claim that a Mexican stand-off, or a socially awkward detective, or a pram rolling down steps, or a serial killer who makes costumes from human skin are legally-protected concepts. And every Shakespeare-lover knows that he took raw material from extant sources without being a mere copyist. Art should be a lively conversation between past and present, with the minimum of obstacles.

Not so for music, where litigation has little to do with the reality of creativity. For a start, most instances of “plagiarism” are unintentional. Songwriters are human jukeboxes whose instinct for realising when a new melody resembles an old one can never be infallible. After Sam Smith gave a cut of “Stay with Me” (2014) to Tom Petty for its inadvertent resemblance to “I Won’t Back Down” (1989), Petty was sympathetic: “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… A musical accident, no more no less.”

Unfortunately, the judge who ruled in 1976 that George Harrison had plagiarised the Chiffons on “My Sweet Lord” (1971) set a precedent that did not allow for accidents: “Did Harrison deliberately use the music of ‘He’s So Fine’? I do not believe he did so deliberately. Nevertheless… this is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.”

Some elements of copyright law are hopelessly outdated. The old defence that the defendant did not have “access” to the plaintiff’s song is meaningless in an era of streaming. The song is on Spotify or YouTube? Then you have access, whether or not you know it exists. Nor has the law kept pace with songwriting norms. Most hits are now constructed by several specialists: the beatmaker, the topline melody writer, and so on. Yet when a jury ruled (dubiously) that Katy Perry’s “Dark Horse” (2014) had copied the beat from Flame’s “Joyful Noise” (2008), even the lyricists were ordered to pay damages. The ongoing suit against Taylor Swift is of a different order of stupidity: her song “Shake It Off” (2014) bears no resemblance to 3LW’s “Playas Gon’ Play” (2000) except the common phrases “Players gonna play” and “haters gonna hate.” The writers of Playas Gon’ Play are claiming ownership of figures of speech.

More from this author

The historical amnesia of culture warriors

By Dorian Lynskey

The history of popular music skews towards the free flow of ideas, from the melodic recycling of the folk tradition to the cheerful repurposing of old songs in sample collages and mash-ups. Yet the law keeps getting in the way. The notorious 1991 case Grand Upright Music, Ltd. v. Warner Bros. Records Inc. destroyed the tradition that gave us freewheeling, sample-happy records like the Beastie Boys’ Paul’s Boutique and De La Soul’s 3 Feet High and Rising. Even now, uncleared samples bar De La Soul’s classic work from streaming services. Samples are at least demonstrably someone else’s work but how can you own a generic beat or common chord progression? As Katy Perry’s lawyer Christine Lepera complained in court, the writers of Joyful Noise were “trying to own basic building blocks of music — the alphabet of music that should be available to everyone”.

Who benefits from strangling creativity in this way? Certainly not music fans. The most compelling case for copyright law is protection for the little guy. It feels ethically right that struggling blues musicians won songwriting credits from Led Zeppelin in the 1970s and tragic that the drummer Gregory Coleman died homeless in 2006 even as his performance on the Winstons’ “Amen, Brother” (1969) became the most sampled breakbeat of all time. The idea that songwriters shouldn’t starve while others grow fat off their work has an instinctive moral appeal.

Most plagiarism suits, however, have less uplifting consequences. Bridgeport Music, the second plaintiff in the Blurred Lines case, has made millions of dollars from hundreds of suits over unlicensed samples without any benefit to the original songwriters. The 2005 case Bridgeport Music, Inc. v Dimension Films (2005) overturned the de minimis defence of sampling, making even an unrecognisably altered two-second sample a matter for litigation, yet the composer of the sampled song, George Clinton, didn’t get a cent because, he claimed, Bridgeport “stole” his publishing rights (although the courts ruled it legal).

Copyright acquisition can lead to Kafkaesque scenarios. John Fogerty was sued by his former record label over a resemblance between his song “The Old Man Down the Road” (1985) and one of his hits for Creedence Clearwater Revival 15 years earlier. Because the label owned Creedence’s publishing rights, Fogerty became the only person ever to be sued for plagiarising himself. “It was very cruel,” he reflected.

Suggested reading

The death of the music industry

By Ian Birelll

This year’s economic turbulence has seen a boom in investors scooping up song catalogues. While this is primarily to profit from streaming revenues (“Music and booze are only two industries that flourish when people are both happy and sad,” one wealth manager told Billboard), the potential for a bonanza lawsuit will not be lost on them. One of the plaintiffs sueing Ed Sheeran is a company called Structured Asset Sale. So much for the little guy.

There needs to be some legal deterrence against bad actors flooding Spotify with note-for-note replicas of classic songs, or big stars stealing demos submitted by hopeful young songwriters, but the bar should be extremely high. Currently, the typical case is a cynical waste of time and money which gives the public the false impression that artists are amoral thieves without two original ideas to rub together. A successful song is both an artwork and a commercial asset but the plagiarism-suit racket perverts the art. Old songs become roadblocks to new ones. The natural process of being influenced, consciously or subconsciously, is recast as larceny.

This was never the intention. “The immediate effect of our copyright law is to secure a fair return for an ‘author’’s creative labour,” said Supreme Court Justice Potter Stewart in 1975. “But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” The post-“Blurred Lines” epidemic of litigation and nervous celf-censorship makes a travesty of that aim by suppressing creativity. Enough. Throw all of these cases out, reform copyright legislation, and let art do what it does. And you know what? Carusi’s version of “The Old Arm Chair” was better.