My Rotary Talk & The Confluence of Music, Technology, Business and Law


I’m thrilled to be able to speak to the Birmingham Rotary this morning especially after having spent a great night with many of them last night at Silver Coin Indian Grille in Hoover AL.

Because I was asked to speak at the ROTARY, I assumed the topic of business would be pertinent.  And because I am a musician, I am well aware of how important business is.  And because I am a musician, I know that technology is present in every second of expression, and musical expression.  And because my life has taken me into copyright law, I’ve learned that copyright law is also present at every moment of expression – public expression.

Music – I used to define it as “anything which vibrates for any amount of time which can or cannot be perceived.”  I concocted that definition because all of the “normal ones,” i.e., more traditional definitions of music featured words like, “pleasing,” and “intelligible,” and to me, were too culturally-imposed and culturally-biased.  They were concocted by people who had to make order out of sounds.  And that’s another thing I hated – sounds were usually considered outside of the definition of music.  “Sounds” only became a part of music if they were “pleasing.”  These Cultural-Charged Members of The Defining Class annoyed me.  I had to set up something better.  And on a different note, I was fascinated by the spectrum of vibrating waves – very short ones made for higher pitches, longer ones made lower pitches.  And the range of vibrating particles that  covered music were so small in the BIG PICTURE of waves.

And let’s leave out taste.  I prefer the radicalism, bad taste and shock value of Stravinsky and Xenakis to Cyrus and Thicke (wow – is this ever an August 2013-dated sentiment!).

Technology – I first think of the technology of the human body.  We can improve it – grow taller, gain weight, lose weight, study how to project your voice, how to sing more than one note at a time, how to out scream her/him, how to strike instruments and sing for 12 hours nonstop, etc.  That’s one fine body or technologically adequate body you’ve got there.  That’s some technology.  Other technology – build a bigger and better piano by gathering and making stronger and longer pianos.  Bach had a better keyboard than Gesualdo, Beethoven’s was better than Bach’s, Liszt’s was better than Beethoven’s and so on.

And technology means digital – digital instruments in your mobile handheld device that can sound like an oboe even if it is an iPhone without a double reed or damn expensive beautiful black wood.

And technology means the Internet – communicate with everyone everywhere whether they like it or not.  And the cost of that communication, reproduction, etc. can be free or nearly free.  It certainly feels free.  So, I’ll talk something about technology this morning.

Business – someone is supporting your habit of making music – playing and/or creating music.  Blue collar musicians, those who are “so good with their hands,” can be a valued group in society until one moves in next door, serenades you on a date in a restaurant or tries to date your child.  But business is always involved in the dissemination (and sometimes) creation of music.

Law – law at its best REFLECTS our values (or gets out of the way of our values); at its worse, law REGULATES our values (sits on the face of, pounces on, hammers down on what we want to express and receive).

So, if music is done in public, or done TO another person in public or private (via MP4, MP4+, etc.), we have by necessity the confluence of all four (4) – music, technology, business and law.

And then comes copyright law which sometimes is at the heart of evaluating expression – matching the amount of legal protection particular expression has with its amount of originality.  Of course money/business and technology are looking over the fence peering in and wanting to play alongside Music and Copyright Law.  “Don’t fence us out, dude!”

That’s where I come in.  My name is Friday.  I wear a badge (is that how Dragnet begins?).

It was Wednesday, August 28, 2013 and I was sitting next to the nicest woman who just left.  We were both having breakfast but I was typing more than eating and laughing at how foolish it is to think I should write a blog post here surrounded by so many pretty business women in the hotel breakfast place.  I laugh too much and especially now as I am writing this.

What should I play today?

The USPS “Creepy Clown commercial”



Joe Diffie

The Beatles

Dolly Parton as Tracy Chapman

Bob Dylan

Which One Is Hootie

Jonathan Coulton

T.I. (and not Thicke?), etc.?

And I have to bring Breaking Bad into this.

Walt is about 50, Jesse is about 25.  “50” seems respectable.  “25” is young and gullible.  50 knows more and gives orders.  25 trusts him.  50 is always taking advantage and winning over 25.  25’s immaturity and lack of seriousness leads to so many mistakes, usually for 25 but at other times he causes 50 trouble.  50 and 25 make some great product and money together but you know in the end 25 doesn’t stand a chance.  50 will spit him out and find another 25.

That’s Breaking Bad.  That’s the music industry.

To be continued.  I hope everyone loves and enjoys their Wednesday with or without humps.



Joe Escalante Will Interview Me Today About Robin Thicke v. Marvin Gaye


Joe Escalante Will Interview Me Today

About Robin Thicke v. Marvin Gaye 

This post’s interruptions are now getting interrupted.  The newest interruption led me to write poetic, rhyming verse.  (You can read this rhyme above and instantly realize why I do not write rhyming verse.)  The newest interruption is very cool – Attorney/Talk Show-Podcast-Netcast Host/Vandals Founder Joe Escalante will interview me live on KTLK-AM 1150 this afternoon at 9 PM EDT, 8 PM CDT, 7 PM MDT, 6 PM EDT.  If you are in Melbourne, Australia, the interview will be live tomorrow (way in the future – Monday) at 11 AM.

Do you know Joe?
I know Joe


I was interviewed about Robin Thicke’s Blurred Lines, and three (3) other music copyright infringement matters that are in the news nows, by ABC News on Friday, August 16, 2013.  Because they wanted higher fidelity and more reliable communication (I assume), they asked if they could call me on a landline.  And in 2013, I do not have a landline, printer or cable TV subscription.

So, I drove down to the studio and had a lot of fun being interviewed.  In fact, after I had talked for awhile and answered questions, I was told, “Thank you so much.”  I think I then asked,

“Thank you for what?”

“The interview.”

“That was it?  Wow!  That was fun!”

The interview was about Robin Thicke’s Blurred Lines and whether it had infringed Marvin Gaye’s Got To Give It Up, and whether Blurred Lines had infringed Funkadelic’s Sexy Ways.  _____________________________________________________________________________

Before I get into some of the items that are surrounding Robin Thicke, I’d like to pose a question about the introductions to two different songs –

Funkadelic’s Sexy Ways (released in 1974)


Diana Ross & The Supreme’s Love Child (released in 1968)

Both songs begin with solo electric guitar strumming chords that, to some, sound very similar.  Was the Supremes’ famous song’s famous intro copied by a related artist so audiences would pay attention to the rest of a newer, unfamiliar song?  Is the guitar intro of Sexy Ways copyright  infringement?  A rip off?  A theft?  A foolish idea presented in a blog?


But back to the Buzz of The Month – just how guilty is Robin Thicke?  Has he infringed not only one famous song –  Marvin Gaye’s Got To Give It Up –  but has he also infringed another – Funkadelic’s Sexy Ways ?


I started to write the following re this Marvin Gaye v. Robin Thicke, or Robin Thicke v. Marvin Gaye stuff:

Listen to Marvin Gaye’s classic big hit, Got To Give It Up.  The groove of that song – funky bass, with percussion that might include a struck Coke bottle.

Gaye Q= 123

Thicke Q = 121

Very close in tempo.  So what?

Gaye is in the key of A Major.

Thicke is in the Key of G Major.

Gaye has a distinct chord progression.

Thicke has only two chords – the I chord and the V chord.

The “groove” sounds similar.  (The “groove” is similar.  Is a “groove” felt more than heard?  Felt and heard?)  The songs have a similar “feel.”  This leads to four (and many more) questions –

1.  What is a “groove?”

2.  How legally significant is a “groove?”

3.  What is a “feel?”

4.  How legally significant is a “feel?”

I then paused and went about other projects and work.  I didn’t know when or if I’d come back to it.  But then came the email from and interview by ABC News, which resulted in my August 19, 2013 post in which I answered questions about Robin Thicke v. Marvin Gaye (and Robin Thicke v. Funkadelic), Sara Bareilles v. Katy Perry, The Who v. One Direction, and Madonna v. Lady Gaga.  I was told about the article summarizing my ABC interview – I then posted it and moved on to other items and was going to leave the world of Robin Thicke until a friend told me that an attorney has posted on my site that he “strongly disagree[d]” with my analysis of the Thicke situation.  That lead me to quickly and briefly address his points.


Here is what I wrote to the attorney.  You can read his letter and my response here (August 19, 2013 post)

I agree with you that Marvin Gaye’s “groove” and “bounce” were “quite original.” But are there any music copyright infringement lawsuits in which “groove” and/or “bounce” (aside from sampling/sound recording copyright issues) were held to be copyrightable expression? Is there an agreed upon/standard definition of “groove” or “bounce” in any case law?

Can you cite for me a successful music composition (not sound recording, but music composition) copyright infringement lawsuit in which plaintiffs have prevailed when there was NO copying of MELODY, harmony or rhythm? Objectively, there is NO protectable expression (melody, harmony, etc.) that has been copied by Thicke.

What do you mean by “counterpoint of all the rhythm section instruments?” Has that phrase been used in any case law?

I would argue that Thicke is NOT an arrangement of Gaye because none of Gaye’s melodies, harmonies or harmonic rhythm were recreated. And because both songs have lyrics, it seems that there is no significant similarity of words/lyrics between Gaye and Thicke.

Gaye’s song uses 4 unique chords – the Gaye chord progression is: -I-IV-V-I-V/V-IV-V-I-V/V-I-. Thicke’s song uses 2 unique chords – the Thicke chord “progression is simply -I-V-. There is no copying of copyrightable expression involving harmonies of the two songs.

What is extremely close between the songs is the tempo: Gaye is approximately Q = 123; Thicke is approximately Q = 121. They are very close, not identical, but tempo is not copyrightable.

The accompanying percussion in both songs might both use a struck Coke bottle as well as typical drum set and cymbals. Instrumentation is not copyrightable.

I work extensively in advertising. In advertising, “referencing” is very common. Thicke, in my opinion, references Gaye, but does not infringe the copyright of Gaye.

Again, if there is an example of music copyright infringement WITHOUT the copying of MELODY, please let me know.



Now, for the other possibly problematic musical similarity –

Listen to Funkadelic’s 1974 song, Sexy Ways.  Never mind the little joke from above – is the Funkadelic opening electric guitar solo strumming an infringement of the opening electric guitar solo strumming of The Supremes’ “Love Child.”  

But pay attention to the first vocal melody, -3-5-3-2-1-, sung to the words, “I just want to say” at 0.08-0.10 of the song.  Even though the words, “I just want to say,” occur four (4) more times in SEXY WAYS, the melody -3-5-3-2-1- never occurs again.  This itty bitty less-than-two-second melody (-3-5-3-2-1-) is only heard once in the song.

This same itty bitty less-than-two-second melodic phrase, -3-5-3-2-1-, is heard in Robin Thicke’s Blurred Lines. Uh-oh.  But when -3-5-3-2-1- occurs in Blurred Lines, it is no longer itty bitty.  It is now larger.  (If 3-5-3-2-1- gets one more note, perhaps it becomes “bitty,” and “itty bitty” is rendered inappropriate.)

3-5-3-2-1 of Sexy Ways has now grown to

3-5-3-2-1-6 of Blurred Lines.

Oh no – we’re back on 3-5-3-2-1 which means 3-5-3-2-1-6 is nearby (they are very closely related obviously).  But this leads me back to several posts of mine re Gretchen Wilson and the copyright infringement action brought against her.  Part of that was discussed in my July 28, 2013 Who’s Tripping Down The Streets Of The City post, so I will not repeat it here.


Good News for Robin, Katy & One Direction: Music Copyright Expert Says Nobody’s Ripping Off Anybody

Christmas Decorations With Shallow Depth of Field

Three minutes of Robin Thicke, Marvin Gaye, Funkadelic, Katy Perry, Sara Bareilles, One Direction, The Who, Lady Gaga and Madonna.


I was interviewed about Robin Thicke’s Blurred Lines, and three (3) other music copyright infringement matters that are in the news now, by ABC News on Friday, August 16, 2013.  Because they wanted higher fidelity and more reliable communication (I assume), they asked if they could call me on a landline.  And in 2013, I do not have a landline, printer or cable TV subscription.

Living in Nashville, and relatively close to downtown, I drove down to the studio and had a lot of fun being interviewed.  In fact, after I had talked for awhile and answered questions, I was told, “Thank you so much.”  I think I then asked,

“Thank you for what?”

“The interview.”

“That was it?  Wow!  That was fun!”

Now to the ABC article, reprinted below.  (The title of this post is borrowed from the title of the ABC article below.):


From the ABC News interview with me:

Hey music fans: it’s time to stop accusing artists of ripping off other artists.  Because according to an expert in music copyright law, nobody really has a case.

Exhibit #1: Robin Thicke‘s “Blurred Lines.”  Robin and his co-writers just went to court to to establish that “Blurred Lines” doesn’t rip off two particular songs: Marvin Gaye‘s “Got to Give It Up. Pt.1” and “Sexy Ways,” by the group Funkadelic.   But let’s say Robin was to get sued anyway.  Would he lose? Music copyright law professor Dr. E. Michael Harrington says no.

Dr. Harrington, who’s on the faculty of the Berklee College of Music, has served as an expert witness in hundreds of music copyright matters.  Comparing “Blurred Lines” to “Got to Give It Up,” he says, “I can hear the similarity and you can see where maybe they’re even copying or even imitating…the style of ‘Got to Give It Up.’  And I can hear that right away…but the melody’s not that close at all, so the copyrightable parts of this are really not that significant.”

As for “Sexy Ways,” Harrington says, “The opening melody of it is similar to a section about 1:26 into Robin Thicke’s song…and that’s very close, but that’s very brief, but I don’t think it’s that original.”  That’s the key, according to Harrington: if what you’re copying isn’t that original to begin with, and has been used many times before, it’s fine.

Exhibit #2: Katy Perry‘s “Roar.”  Fans have been up in arms about the fact that the song’s intro sounds remarkably like the intro to “Brave” by Sara Bareilles. In fact, Katy is an admitted fan of Sara’s song.  But could Sara sue Katy for ripping her off?  Again, Harrington says no.

“There are some similarities but nothing significant,” he explains. “They’re both in the key of B flat. And they keep repeating this piano [part]…but so what? That’s called a repeated chord. It’s just, y’know, that’s part of a style. There’s nothing really there. I mean, I could break it down technically, more, but I would say don’t bother filing that lawsuit.”

Exhibit #3: One Direction‘s “Best Song Ever.”  There were rumors that the legendary rock band The Who was going to sue the British boy banders because the intro to that song sounds like their 1971 classic “Baba O’Riley.”  Who guitarist Pete Townshend, who wrote the song, says he has no plans to sue, but could he if he wanted to?  Harrington says sorry, but no.

“I mean I can definitely hear the similarity,” he says, but points out that the notes used in the Who song and the notes in the 1D song are different. “Two of the three notes are the same,” he says, “But you’re talking about just, the basic, kinda…’get into this bass note, to this chord, and this bass note.’ That can’t be an infringement.”

Harrington adds, “It’s kind of what they do in the advertising world. You always hear something that sounds like something else, but they know how to come close to reference it. They call it referencing. So One Direction, I would definitely say they’re definitely referencing The Who.”

Exhibit #4: Lady Gaga‘s “Applause.”  Fans of Madonna and Gaga have been feuding for ages now, and more fuel was added to the fire when Madonna’s fans accused Gaga of ripping off the Queen of Pop’s song “Girl Gone Wild” in the chorus for “Applause.”  Do they have a point?  Harrington says not even close.

“No, and I listened a few times,” he laughs. “The others, I can hear things, but this…I don’t get it.”

Copyright 2013 ABC News Radio




My Favorite 9 Minutes of George Duke – Did A Vehicle Did A Vehicle Did A Vehicle



Did a vehicle did a vehicle did a vehicle

Guacamole queen guacamole queen guacamole queen

Was George Duke a vehicle that came from somewhere out there?



Yesterday, August 6, 2013, I learned that George Duke had died.  George Duke, to me, was a mythical character.  I loved so much of his playing and singing, and I couldn’t figure him out because of his great diversity and depth.  He was a great pianist, keyboardist, singer, band leader, sideman, creator, performer, improvisor, persona and, according to so many who knew him, wonderful and kind man.  By “persona,” I am referring to George Duke as an actor, and by “actor” I mean “live musician on stage with Frank Zappa.”  In addition to being a musician in any of Frank Zappa’s bands over the decades, one had to be able to act.  One had a persona and maybe a changing persona over time.

My favorite George Duke performance is his multiple keyboards, keyboard styles, vocals and vocal styles on Frank Zappa’s Inca Roads, from Zappa’s brilliant 1975 album, One Size Fits All.  (This also happens to be my favorite performance of percussionist Ruth Underwood.)  As a bonus, there is the great claymation interspersed with this public TV performance of Frank Zappa and the Mothers Of Invention.

Inca Roads, more than any other performance, is the finest demonstration of every musical aspect of George Duke.  Duke sings a very challenging melody – rhythmically as well as in terms of intervals, melodic range and tempos.  His keyboard playing covers many areas – from playing “spacecraft landing” sounds and sweeps on an analog synthesizer, to jazz and rock, to extensive solos in several styles, and superb unison and harmony playing with others in the band.

My informal guide to this supremely brilliant performance of Inca Roads:


0.00 – 0.35  intro & spaceship landing

0.36 – 0.59  “Did a vehicle come from somewhere out there…”

1.00 – 1.14  “I ain’t never seen nothing like that…”

1.15 – 1.47  “Did a vehicle did a vehicle did a vehicle…”

1.48 – 2.03  mallets, keyboard & flute unison bridge transition to Zappa guitar solo

2.04 – 4.41   Zappa red Gibson SG guitar (my electric guitar) solo over two repeated chords

4.41 – 5.12  wordless harmony vocals over the same two chords

5.13 – 5.30  repeat of mallets, keyboard & flute unison bridge (from 1.48)

5.31 – 5.44  “did a vehicle come from somewhere out there did a vehicle come…” – very fast vocal

5.45 – 6.37  “did a vehicle” melody, now instrumental & embellished

6:38 – 7.16  great George Duke solo mostly on Fender Rhodes

7.17 – 7.55  George Duke solo continued – now synth reenters

7.56 – 8.08  killer mallet solo

8.09 – 8:13  “Did a booger bear….”

8.14 –  8.21  “Guacamole queen guacamole queen guacamole queen…”

8.22 – 8.24  “Chester’s thing, on Ruth!”

8.25 – 8.48  “Did a booger bear….that’s Ruth!”



Two more George Duke performances:

Here is a great piano solo by George Duke from 1983 in Tokyo.  (Note also his personality and affability in this performance.)

This is George Duke and Billy Cobham live at the Montreux Jazz Festival in 1976.

Here is George Duke’s enormous discography.  This multifaceted special human left us with so much music.  We are fortunate to have had George Duke land here.



Yesterday, Another Day, John Lennon Fires & Ends The War on Paul


My last post (July 30, 2013) was about Paul McCartney’s attack on John Lennon, during the historical time period known as


Paul wrote and recorded Too Many People, and John would soon respond with a song on his Imagine album.  To regurgitate some of the past – with the release of McCartney’s second solo (post-Beatles) album, Ram, the feud between Paul McCartney and John Lennon went public.

On the front cover of Ram, McCartney is holding a ram by the horns.  Lennon responded.  On the back cover of his album, Imagine, John mocked Paul  by holding a pig by the ears.

On the back cover of Ram is a picture of two beetles copulating.

If John only had responded with a photo holding a pig by the ears, this feud likely would not have been significant.  Paul’s attack on John was most conspicuous and unmistakable because of the following lyrics:

That was your first mistake 

You took your lucky break and broke it in two

The only interpretation seemed to be that John was lucky to have been a Beatle and that he destroyed his “lucky break” be breaking up The Beatles.  The rest of the lyrics of Too Many People were far too subtle in comparison – “too many reaching for a pice of cake…” – and were not intended to signal an attack.


To fully grasp all that John Lennon would do in his SONG OF REVENGE (and then some), How Do You Sleep?, it is important to understand a difference between John and Paul – production.  Fully-fledged productions often favored by Paul, as opposed to simpler raw rock songs favored by John.  The Beatles’ Abbey Road album is an excellent example of these two philosophies at work –  John liked Side 1, Paul liked Side 2.

Side 1 is simple – record six songs and be done with it.  Side 2 is complex – record songs, some of which have many parts, and with great time and care, meticulously tie the enormous work together.  Side 1 would be easy to play live;  Side 2 would not.

Side 1 of Abbey Road

On side 1 of Abbey Road, there are six (6) songs written and recorded by The Beatles.  Each of the six songs are stand-alone, unconnected songs.  Every song is separated by a few seconds of silence.  In other words, it is album side of songs that do not convey a special message.  They do not have to flow into each other to create a greater whole or suggest something deeper than the message of the single song.  John preferred an album of stand-alone songs, like those on side 1.

Side 2 of Abbey Road

Side 2 of Abbey Road is a collection of songs that after the first two –  Here Comes The Sun and Because – are connected, i.e. flow together without pause (except for the brief separation before Golden Slumbers) until the end.  The final song heard on the album – Her Majesty – begins at the end of side 2 – The End.  (Her Majesty may have been the first “hidden track,” a favorite trick found on many CD’s.)

You Never Give Me Your Money which begins the suite of songs at the center of Abbey Road Side 2 is itself a microcosm of Side 2 as it is a complex musical work consisting of multiple short well-produced songs that transition into one another.  You Never Give Me Your Money was not the simpler offering that comprised side 1.

0.00 – 1.09  “You never give me your money…”

1.10 – 1.30  “Out of college money spent…”

1.31 – 2.11  “but oh the magic feeling…”

2.12 – 2.27  instrumental transition

2.28 – 2.47  “one sweet dream…”

2.48 – 4.02  “came true today…


AN ORCHESTRA TUNING (becomes a weapon)

The concept of Sgt. Pepper’s Lonely Hearts Club Band had been Paul’s idea – the opening song, Sgt. Pepper’s Lonely Hearts Club Band , was Paul’s composition.  The sound of the orchestra heard at the opening was also Paul’s idea.  The Sgt. Pepper show had a beginning that was large in scope featuring a large ensemble (a classical/art music orchestra) to open the large show.  Orchestras first tune just before the big show opens.  Orchestras are big.  An orchestra tuning must be a big idea.  Just as the Sgt. Pepper show opened with an orchestra tuning, so too would How Do You Sleep? open with an orchestra tuning.  Paul liked Big Ideas.  John ridiculed Paul’s Big Idea penchant even before the first note of John’s message song to Paul had begun.

Beatles – Sgt. Pepper’s Lonely Hearts Club Band  (the opening sounds of strings in an orchestra tuning before the concert or show).

How Do You Sleep? opens with the obvious reference to Sgt. Pepper’s Lonely Hearts Club Band – an orchestra tuning along with an audience member clearing his throat.  ____________________________________________________________________________

Unlike Paul McCartney in Too Many People, John Lennon in How Do You Sleep? is blunt and direct with no room left for subtlety or interpretation.  John brings on the blunt immediately beginning with the word, “so,” as if the conversation had been ongoing – John had been in the room already letting Paul have the benefit of his wisdom.

So, Sgt. Pepper took you by surprise

You better see right through that mother’s eyes

Those freaks was right when they said you was dead

There had been a worldwide rumor that Paul had died some time before the recording of Sgt. Pepper.  John’s reference to the death of Paul is particularly hard hitting.  How is Paul “dead?”  As  a person?  An artist?  A friend?

You live with straights who tell you you was king

Jump when your momma tell you anything

“Straights” were those who were of The Establishment –  the bland, boring, uncreative sheep who had the power and ran the worlds of business and politics, and brought on The Vietnam War.

“Jump” when Linda Eastman McCartney, Paul’s wife, tells Paul to jump – that was John’s one and only direct attack on Paul’s wife (in the song).

The only thing you done was Yesterday

And since you’re gone you’re just Another Day

This was the most direct attack so far in the song.  John gives Paul credit for having written one good song during the Beatles – Yesterday – and one good song post-Beatles – Another Day.

A pretty face may last a year or two

But pretty soon they’ll see what you can do

Paul is good looking – that doesn’t last – but how will he fare without his partnership with John, and the Beatles?

The sound you make is Muzak to my ears

You must have learned something in all those years

John saves the toughest assault for the end – Paul’s songwriting isn’t good and there’s no excuse for it – why didn’t he learn more in his songwriting and performing days with John and The Beatles?

To add more insult to injury, George Harrison plays guitar on How Do You Sleep?.  George had grown weary of Paul’s demanding ways during the last days of the Beatles as can be seen in this tense, to-hell-with-you-Paul excerpt from the Beatles Let It Be film.

And Ringo had already recorded with John post-Beatles, but not with Paul.

The John Paul Wars were the best and most thoughtful of all of the rock music wars.