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Fair Use and Copyright Abuse – My AIMP Talk Is SOLD OUT. Scalpers? Buehler?

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I have the great honor and privilege to speak to the Association of Independent Music Publishers (AIMP) on Wednesday, September 25, 2013 at ASCAP in Nashville.  Here is the announcement and details about my presentation.  Surprisingly (to me) there are two words in CAPS that I never see used in conjunction with me:  SOLD OUT.  Fortunately this refers to the fact that there is no more room for the luncheon at ASCAP where I am speaking and NOT that I have SOLD OUT (my principles).  Or so I am going to assume.

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My work as a consultant in copyright and intellectual property (IP) matters is always fun and original as very crazy things can occur when we creators create.  I get brought into some of the events surrounding potential and actual problems.  I have been and continue to be witness to brilliant decision making, as well average and poor decision making when it comes to music, IP law and money.  People do things that will make them profits and prosperous.  Some do average, ho-0hum expected things, and yet others make bad decisions that will be negative financially for more than 100 years.  (Copyrights might outlive many glaciers at the northern and southern ends of our planet.  When a 30 year-old gives up part or her copyright, it is a decision that could last for 130 years.  Assuming she will live 60 more years, her copyright will last 130 more years:  60 years alive + 70 years after her death.  And I expect that every twenty years, copyright will be extended another twenty years – the 130 year decision might become a 200 year decision.)

We have been and continue to be surrounded by IP – train and car horns blast their metal music made from metal objects, adverts are seen and heard mostly with music or sounds, radio sometimes play music (in those few radio stations when radio is not presenting the sounds of more adverts and humans speaking to and at each other, i.e., “talk radio”), the Internet, music on the Internet, televised and transmitted images (often with sounds) from mobile devices, large devices, billboards, etc.

We absorb and reflect a lot of the sounds, sights, ideas and attitudes we perceive.  We have to copy some of it as it is important that we use UNORIGINAL words in our speech, writings and music, and UNORIGINAL melodies, chords, rhythms, sounds and loudnesses in our music.  (With respect to music, I am referring to UNORIGINAL, individual (or very brief-lasting) musical components.  ORIGINAL expression usually consists of UNORIGINAL elements strung together in ORIGINAL ways.)

Problems that can happen include:

1)  What we create sounds like something else, something already created.

2)  What we create looks like something else, something already created.

3)  What we create sounds and looks like something else, something already created.

And some might say, “So What?”  And in response one might say, “So What?   You stole my song, that’s ‘So What.’  Your success is due to infringing my copyright.  You’re only successful because of my creativity, my ideas, my expression, my copyright.  (My my my….my.)  I’ll see you in court!”  (Oh, but it is never that simple.)

Two more things before I get to fair use.

1.  We STEAL (copy) ACCIDENTALLY.  Let’s be kinder – let’s say it this way.  We inadvertently copy from other sources.  How can we NOT copy from other sources when we are bombarded by external stimuli?

2.  We STEAL (copy) on purpose.  We INTEND to STEAL (copy) and we do.  We copy because we like the sound of some preexisting sound, or the sound and effectiveness of some preexisting chord, chords, phrase of a melody, phrases of text or lyrics, individual words, certain instruments (a Coke bottle has been in the music copyright infringement news lately – that ubiquitous Blurred Lines by Robin Thicke, and its imitation of Marvin Gaye’s Got To Give It Up), combinations of instruments, sounds, combinations of sounds, etc.

There is a part of the Copyright Law that acknowledges and enunciates that we can make use of an original work of authorship – “original work of authorship” that is NOT our work, and WITHOUT permission – if we have a good reason for doing so.  This part of the Copyright Law is Section 107.  It is entitled, “Limitations on exclusive rights:  Fair use:”

“§ 107. “Limitations on exclusive rights:  Fair use.“

Copying someone else’s expression is allowed.  Perhaps it is more accurate to state it this way:  Copying someone else’s expression is possible.  Is permissible.  Can happen.  Can happen without negative consequences.  (Fair use can mean that one has the right to hire expensive attorneys to fight back against a plaintiff’s assertion that you have infringed her copyright.  The “without negative consequences” is initially a theory –  it often takes time, money, attorneys and experts to negate the “negative consequences.”)

As to why and how one can use someone else’s creations – their original work of authorship without their permission – the authors of the Copyright Law might have been careful and diligent in listing SOME of the reasons why it would be permissible to not seek permission:

“…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…”

“The fair use of a copyrighted work…is NOT an infringement of copyright.”  (I capitalized “NOT” in that sentence from Section 107 .)

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I will delve into fair use today as well as the other related subject below.  My flow today will likely go this way:

1.  The definition of “original”

2.  With respect to music and copyright, examples of Bad Lawyering/Bad Lawyers in Bad Practice (there is not a kinder way of expressing this.)

3.   What is fair use?  Examples of fair use – copying music only, words only, words and music.

4.  What is “co-authorsip?”  What is a “joint work?”  The assessment of each writer’s expression in a joint work.

5.  The Worst Music Publishing Mistake Ever Made By Famous, Wealthy Musicians

6.  My most recent work for a plaintiff

7.  “…As the world turns….As copyright becomes irrelevant…”

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I will play and discuss music from these composers/creators/authors/artists.  (As you might guess, many of these will be short excerpts.)

Aerosmith

Atomic Kitten

B. S. G.

Baby Game

Burt Bacharach

Baha Men

Barrio Boyzz

Bela Bartok

Beatles

Bon Jovi

Asha Bhosle & Kishore Kumar

Jimmy Boyd

Garth Brooks

Brooks & Dunn

Circle Of Success

LL Cool J

Jonathan Coulton

Cream

Creedence Clearwater Revival

Crime Boss

Crosby, Stills, Nash & Young

Culture Club

Joe Diffie

Hilary Duff

Dr. Dre

Bob Dylan

Eminem

Fatback Band

Fifty Cent

Flintstones

The Game

George Gershwin

Isaac Hayes

Jimi Hendrix

Faith Hill

Buddy Holly

Hootie & The Blowfish

Mary Hopkin

Marques Houston

Jefferson Airplane

Elton John

George Jones

Montell Jordan

Wiz Khalifa

King Crimson

Krayzie Bone

k.d. lang

Lil Malcolm

Little River Band

Lootenant

M.I.A.

Madrugada

Gustav Mahler

Mary Martin

Mistah F.A.B.

Sir Mix-A-Lot

Mystikal

Nirvana

The Orioles

Outkast

Pearl Jam

Scoob Rock

Snoop Dogg (Snoop Lion)

Sonic Dream Collective

Britney Spears

Naomi Striemer

Supertramp

James Taylor

Wham!

Lil iROCC Williams

Bill Withers

Youngbloods

9 Milli Major

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Happy Autumn!  I hope you enjoy the cover photograph.

Wishing everyone a surprising and happy Wednesday.   

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Buddy Holly stutters. John Lennon stutters. Are their stutters copyrightable expression?

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Stuttering the hits from Buddy Holly to John Lennon.

Can one copyright a stutter?  What is a “stutter?”

A stutter, according to Dictionary.com, is “the act or habit of stuttering.”  As a verb, stutter means, “to speak in such a way that the rhythm is interrupted by repetitions, blocks or spasms…”  “Spasms” might help describe stutter as well (especially in the music below).

I am interested in slightly modifying the Dictionary dot com definition of stutter by changing the verb at the beginning of the definition of stutter from

“to SPEAK in such a way…”

to

“to SING in such a way…”

Is a stutter unmusical?  Could something as unmusical as a stutter be subject to copyright protection?  If a stutter is sung, is it more likely to be musical?  If a stutter is musical, is it more likely copyrightable?  Could “stutter” be simply a stutter, or a well-crafted, complex vocal articulation that is musical, difficult to reproduce and original expression that is subject to copyright protection?

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Buddy Holly wrote and recorded Rave On in 1958.  It opens with Buddy Holly singing the word, “well,” in a stuttered, polysyllabic, prolonged fashion.  Holly’s articulation of “well” seems to take seven (7) syllables and notes rather than the one (1) syllable a listener would likely expect.  By performing/singing “well” in this manner – a stutter/spasm – has Buddy Holly created original expression?  The seven (7) articulations of “well” constitute a seven-note melodic phrase.  Although this melodic phrase is short in duration, is it original expression?  Is it copyrightable?  Is a stutter copyrightable expression?  Could any stutter conceivably be copyrightable expression?

John Lennon also turned a single syllable into a precocious, stuttering (and stunning?) musical moment. John Lennon wrote and recorded Dear Yoko in 1980.  At 0.11 of Dear Yoko, Lennon sings “well” also as a seven (7) syllable seven (7)-note “well.”

“Well, even after all these years I miss you when you’re not here, I wish you were here my dear Yoko…”

But to reiterate, Buddy Holly wrote and recorded Rave On in 1958, twenty-two (22) years before John Lennon’s Dear Yoko.  At 0.00 of Rave On, Holly sings “well” also as a seven (7) syllable seven (7)-note “well.”

“Well, the little things you say and do, make me want to be with you, rave on it’s a crazy feeling and I know it’s got me reeling…”

It is obvious that John Lennon’s 1980 polysyllabic, “well,” is extremely similar to Buddy Holly’s 1958 polysyllabic, “well.”

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Is this similarity a problem?

Is the polysyllabic, “well,” copyrightable expression?

Did John Lennon COPY Buddy Holly or was this independently created?

Does copying the polysyllabic, “well,” constitute copyright infringement?

Is this an example of John Lennon parodying Buddy Holly?

Is this an example of John Lennon satirizing Buddy Holly?

Is this an example of John Lennon honoring Buddy Holly?

Is this an example of John Lennon paying tribute to Buddy Holly?

Would it make a difference, in terms of potential copyright problems, if John Lennon is honoring or criticizing Buddy Holly?

How similar are the songs aside from the polysyllabic “well“?

Does John Lennon’s song, aside from the polysyllabic “well,” infringe the copyright in Buddy Holly’s song?

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These are a few questions (of potentially many more) about these moments in these two songs.
I look forward to your responses.

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Why do musicians borrow (from other musicians)?

Why do musicians borrow? 

This will be a short list only.  I do not want to give examples below of each reason musicians borrow.  That can be done at a different time and place.  For now, I only want to list a few reasons why musicians borrow.

By use of the words, “musicians” and “borrow,” I am asserting that if one is “simply” a musician who plays an instrument (one who performs music), one is also at least one of the following –

composer

creator

author

songwriter.

For many, linking one of these four words to a musician might be an enormous leap of faith, and an assignment of talent, creativity and intelligence that all musicians do not, by default, possess.  I disagree and feel that a performer has to add original expression to every musical performance especially if the music being performed is notated.  This is because notation (in every system from every country I have studied) always requires at the very least a modicum of interpretation, and interpretation requires intentional creating, composing or authoring.  For example, in the most immediate situation, one has to make decisions as to the exact point when a note begins, sustains and ends, the loudness levels of the note during its three-part life – the beginning, sustain and end of the note, and even the exact temporal points of the note’s beginning and end.  And when one multiplies each decision that impacts each begin-sustain-end of a sound by the number of those events, one has done much more composing, creating or authoring than many consciously consider.

These thoughts also, however, can be elaborated at another time and cyber-venue.

One final thought in this short preamble –  I intentionally used the verb, “borrow,” rather than copy, steal, lift, appropriate, misappropriate or other verbs that often are more pejorative.  Whether or not “borrow” is the correct term is not important to me in this post.  I am, instead, pondering the reasons why borrowing occurs.

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Why do musicians borrow? 

They like the sound.

They like all or some of the melody, harmony, rhythms, instrumentation, loudness levels, sounds, etc. isolated or in combination.

The borrower believes that the borrowed material will sound good in the new music.

They borrow/copy accidentally, unconsciously or unintentionally, i.e., they believed their music was original and not borrowed.

To pay tribute to or honor an artist and/or an artist’s music.

To make a cultural or musical reference – to “signify.”

It is a rule/one MUST borrow – if the tradition or culture dictates that some amount of new music has to come from a prior source (“cantus firmus” as a melody line that must be used in a new composition – the new  composer creates additional new melodies to the composition;  “parody” mass of the Middle Ages/Renaissance, etc.)

To answer what the original material may have addressed, i.e., answer song.

To give the borrowed elements new meaning by placing them in a new context.

To comment, criticize or ridicule the borrowed material, i.e., parody.

To use the material to comment, criticize or ridicule something other than the borrowed material, i.e., satire.

To draw attention to one’s own music because the new author believes her/his new music is an improvement on the original source.  The new composer is asserting that if the original had been better, it would have sounded like this.

To draw attention to an “opportunity” to spend money on a product or service.  This is especially common with music used in television commercials as the company wants to draw your attention before your eyes and/or ears leave the “messaging area.”

To draw inspire action that is not commercial in nature but instead a “call to duty,” engagement or involvement.

To draw attention to your own song (especially so if the borrowing occurs at the opening of the new song).

The borrower was capable of original expression but felt that borrowing from a few to many sources could result in original expression, i.e., the borrower aimed to make original expression out of earlier or contemporaneous expression.

It may have worked well the first time – it is good music and will work again (This leads to the worst reasons for borrowing – the next few reasons;)

The borrower has run out of ideas and needs to borrow, copy or steal from elsewhere.

To ride the coattails of a better artist and/or better music.

The borrower was never capable of original expression and chose to copy others’ expression.

I welcome others’ ideas on the subject of borrowing.  I hope your September 11 is a great day.

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Ministry of Sound v. Spotify setlists, and Madness in Parrots

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Ministry of Sound v. Spotify setlists, and Madness in Parrots

Ministry of Sound’s attorneys are bored and need something to do

This is one of the most absurd lawsuits I have ever seen.  Ministry of Sound want only THEIR set list(s) to be the set lists that can be accessed when listeners are on Spotify.  You can’t have your own.  Forbidden.  Verboten.  Our words were etched into tablets received by Charlton Heston.  Don’t mess with them.

Ministry of Sound in their thuggish action against Spotify remind me of a cranky Nigel Tufnel in This Is Spinal Tap when Nigel is getting overly emotional, territorial and protective of his guitars.  Remember this exchange?

Nigel Tufnel:  “This is special too…Look…Don’t touch it…well, don’t POINT even…”

Marty DiBergi:  “Can I look at it?”

Nigel Tufnel:  “No.  No.  You’ve seen enough of that one…”

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Ministry of Sound are cranky too, and their lawyers need something to do, so they fall back on their legal training, crank out some copyright law, extract parts that they’re convinced will ENABLE them to continue their crankiness, and then author (finally, something creative from them) and initiate a lawsuit.  Now, they’ve turned their boredom, frustration and schooling into something that will get them attention and hopefully stop the public from becoming too excited by their own passion for music and instead buy into the Ministry of Sound’s way of listening to songs.  Ministry of Sound:  “It’s our way, or else!”

There is coverage of Ministry of Sound v. Spotify in

The Guardian

Hollywood Reporter, Esq

The Wall Street Journal

And a please-pay-us-some-respect plea from Ministry of Sound:

The Guardian Technology Blog

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Copyright is supposed to protect “original works of authorship.”  Copyright is NOT meant to protect a simple list or a simple list of song titles.  A list of song titles is not an original work of authorship.

Even if Ministry Of Sound claims that “a lot of research” went into compiling the list, what the public sees is only a list of nouns, nouns that Ministry of Sound did not create!

If Ministry of Sound published substantial, creative and original prose to describe all that went into their choice and sequential ordering of each song, only that “original prose” (which does not exist in this case) could potentially be protected by copyright, but not the list of proper nouns in and of themselves.

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A    S H O P P I N G    S E T L I S T

Compiling a list of songs one likes in a specific order deserves as much copyright protection as compiling a list of things one did in Manhattan today:

“Shopped at Bergdorf, then Macy’s, then Bloomingdale’s, then tapas at Rock Center, then shopping at Saks, then Henri Bendel, then Armani and then Tiffany.  Then we shared a frozen hot chocolate at Serendipity III.  Then came Trump Tower…”  [May I never use the word, “then,” that often in proximity again.]

I wonder if the Ministry Of Sound’s legal minds (lawyers employed by Ministry Of Sound) would consider the ITALICIZATION of my list above as a significant artistic addition that would result in an original work of authorship that should be subject to copyright protection.  Let’s try it now:

“Shopped at Bergdorf, then Macy’s, then Bloomingdale’s, then tapas at Rock Center, then shopping at Saks, then Henri Bendel, then Armani and then Tiffany.  Then we shared a frozen hot chocolate at Serendipity III.  Then came Trump Tower…..”

It really does look different.  It is now an uncreative list but one that has been italicized.  Still, not something that can be copyrighted.

What if we turn the same list from a HORIZONTAL presentation into a VERTICAL presentation?  And let’s crank up the creativity even further – we’ll highlight the entire section, italicize and put it in BOLD font!  Will all of this “sweat of brow” labor heighten the case for copyright protection?  If “sweat of brow” won’t do it, perhaps the “creative” and “artistic” additions by means of highlighted, italicized and BOLD font will render this more worthy of copyright protection?  No.  It is still trivial and not subject to copyright protection.  From horizontal to vertical is also NOT a creative and original act that should be afforded copyright protection.

Bergdorf

Macy’s

Bloomingdale’s

Rock Center (tapas)

Saks

Henri Bendel

Armani

Tiffany

Serendipity III (frozen hot chocolate)

Trump Tower

Ministry of Sound, despite their silly and intellectually impoverished wailings, do NOT deserve copyright protection for a song playlist.  The public also will never respect an edict which would attempt to oppress their enthusiasm about music and ability to shout out their taste in music (and branding as individuals).  People also want to experience the related fun from viewing friends’ and strangers’ recommendations and setlists  for music discovery and enjoyment.  We have become a society that is not primarily top-down when it comes to music choice.  User-generated lists and friends’ recommendations mean more than anything a group of ministers wants to dictate from above.

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Although Ministry of Sound prefer their own authoritarian type of setlist model, one in which they dictate to the public along the lines of “we own it, this is how it is, this is your option, deal with it,” music fans and the ministers themselves live in a freer society where users exert their rights to express their artistic taste and preferences.

Ministry of Sound is, however, doing a good job of purchasing some very bad will by suing Spotify.

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B O R E D O M  

The culling of copyright law by MOS attorneys led them to sue Spotify, I believe, because they were bored.  First, because they were bored and before launching a lawsuit, they should have done a simple search of the words, “Boredom can lead to.”  I conducted this exact search and immediately came upon “Tarique,” who in his “Tarique’s Travails,” warns of a dastardly potential problem for parrots or lawyers that are bored.  To comprehend the angst and misery that lie ahead, simply substitute “MOS lawyers” for “parrots” and “birds” and the warning becomes more momentous and worth heeding:

“Boredom can lead to madness in parrots.  When caged by themselves and neglected for long periods of time, these intelligent, sociable birds can easily become mentally ill.  Many inflict wounds upon themselves, develop strange tics, and rip out their feather.”

Without having met them, I can imagine MOS attorneys as intelligent and sociable.  I hope the inflictions can be stopped before they begin.

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Fair Use, the 2-line rule & my heart tells me it’s real

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The 3,398th Day Anniversary of an email

As I was wading through “All Posts” in the space behind/under the hood of my site, I stumbled upon this – an email I posted to an online discussion of Fair Use nine years (3,398 days) ago.  I don’t remember the person to whom it was addressed or the name of the forum so I will expunge three names in my post.

I wanted a 2/3 silly title to this post and I hope I have succeeded.

1.

“Fair Use.”  Fair use is not silly – it’s essential.  Fair use is the use a copyrighted work (or more than one) without the author’s permission.  It’s what we were forced to do in the American education system.  It’s not enough that we spouted our views – we needed to COPY and quote others’ views as well, and it was unthinkable that we’d go to the trouble of writing to a book publisher to ask for permission, for example, to COPY a few sentences/paragraph from an author and insert it into our original work.  This new original work by a student was usually a paper that had to be handed in to a teacher to fulfill an assignment.  Asking for permission would take too long.  Proper attribution (and copyright notice) for an academic assignment is usually considered a good reason to violate/break/pillage the “Copyright Law of the United States and Related Laws…”

2.

The “2-line rule.”  There are so many references to a “2-line rule” that many believe there might really be a 2-line rule.  To annoy certain people and for the humor of it, I have gone to that ultimate DETERMINER of what does and does not exist – Wikipedia.  I entered the term, “2 line rule,” and then “2-line rule” and both times got this in return:

“The page “2 line rule” does not exist. You can ask for it to be created, but consider checking the search results below to see whether the topic is already covered.
For search help, please visit Help:Searching.”

I guess that puts an end to it – there is NO 2 line rule!  But the next item Wikipedia informed me of was “Bright-Line rule,” and still, under Bright-line rule, there is no 2 line/2-line rule, hyphen or not.  Therefore, I still believe, unlike Virginia with Santa Claus, that there is NO 2-line rule.

3.

“My heart tells me it’s real.”  To some, this short phrase is a sweet sentiment but I find the lyric silly, so that is my 2nd and final silly part of a 3-part title (but I will quote these six words again below).

To summarize the analysis of this post’s title:

Part 1 (“Fair use”) – Not Silly.  

Part 2 (“2-line rule”) – Silly.  

Part 3 (“my heart tells me it’s real”) – Silly.

Now to my ranting about fair use from May 2004.  I could revise and re-word this (and perhaps I should) but I won’t.  I’ll let this frozen-in-time rant imperfectly represent my thoughts from that day.

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4.   May 16, 2004

May 16, 2004

Dear X:

Your story (and Y’s paper) well illustrates the out of balance copyright world.  Few people know that the first U. S. copyright law was meant as, and called, “An Act for The Encouragement of Learning.”  The most important reason for copyright in the U. S. was to provide our not well educated 18th century public inexpensive access to educational materials.  The Founding Fathers felt that an educated public was necessary in order to have a well intentioned government.  The second point of copyright, and one that was not as important as the dissemination of knowledge, was to provide the writers and inventors a reasonable financial return on their labors.  This financial reward was to come about through a monopoly for a short time on their works.  But judges throughout our history have made it clear that the authors’ and inventors’ monopoly for limited times was of secondary importance to dissemination of a rich wealth of ideas in a rich public domain.  Today, however, the balance between the welfare of the public and that of the authors is out of whack, as many copyright holders wield far too much power, and the public either is unaware of its importance or unwilling or financially unable to fight back.

I highly encourage U. S. citizens/authors/educators to be well aware of section 107 of Title 17 of the United States Code (The 1976 U. S. Copyright Act).  Section 107 outlines the four Fair Use factors which allow anyone to borrow from a copyrighted work without the permission of the copyright owner, but with consideration of these four factors.

There are no bright line tests to determine whether one has infringed a copyright by borrowing from another work.  The law states that copyright protection subsists in original works of authorship fixed in any tangible medium.  But no law can state what is original and what is not, and at what point does original and protectible expression arise.  There are no specifics in the 1976 Act pertaining to how much can be taken from another work, but a close look at any short “sample” of an original work of authorship reveals that little is original.  In fact, in most works of authorship of popular expression, short segments are unoriginal.  They merge with more unoriginal segments and eventually become original.  This applies to words, pitches, sounds, colors on a canvas, dialog, etc.

One should use other copyrighted works after one has assessed the originality of the material that is being borrowed, the amount to be taken, the nature of the material (facts are rarely protectible; fiction can have much more protection), whether the intent is educational or for profit, and the effect the borrowing will have on the market for the original work.  I know of no “standard formula of seeking permission whenever quoting more than two lines of a song.”  If there is such a “standard formula,” to the best of my knowledge it is not based in the law or common law.  One cannot be found guilty of copying if what is copied is unoriginal.  Copyright infringement only comes when what is copied is “original” (and “fixed in any tangible medium…”).

To illustrate why one could copy more than two lines of a song without permission, I offer the following.  I would feel free to quote the following four lines without asking permission:

Tell me how you feel

I finally know how love feels

Tell me if it’s real

And my heart tells me it’s real

Or the following:

When it’s warm outside

And the look in your eyes

Is longing to show me the way

I don’t want to wait

or the following:

I don’t know how to live without your love

I was born to make you happy

cuz you’re the only one within my heart

Again, I would reiterate the importance of considering the four fair use factors in assessing the “criminality” of the above “thefts.”  In all three, the “purpose and character” of my use is educational.  Even if the use is for profit, that still would not exclude the borrowing from being a fair use.  Secondly, the nature of the copyrighted work is fictional/creative.  Borrowing from creative works is less fair than borrowing from factual works.  So, this factor goes in favor of the original author, and against my borrowing.  The third factor is two pronged:  what is the quantity and quality of what I have taken?  The quantity is relatively small in relation to the work.  The quality is very low in that these words are extremely common, mundane and unoriginal. And copying unoriginal material is not infringing a copyright as unoriginal material, by law, cannot have copy protection, i.e., is uncopyrightable.  Fourth, what effect would my borrowing have on the market for the originals?  Answer:  None.  These excerpts are from three Britney Spears songs.  Assuming Britney Spears fans are reading this email, would this email containing exact short quotes from her songs (or if the email found its way into my forthcoming book) be a substitute for three actual recordings of her singing these songs?  Certainly not.  So, I win on most of the fair use considerations and could borrow without asking permission.

I recommend a less fearful reading, interpretation and implementation of Section 107 of the Copyright Act, and would recommend the model of Oxford University Press.  Check out the two-volume “The Beatles As Musicians,” by Walter Everett.  Where in these two books does it state that lyrics or music has been used with permission?  All of the excerpts were considered to be fair uses.

Before I ramble on too long in this long email, I will close by responding to a point made in Z’s  previous email.   Fair use in sampling is now here.  Get the excellent opinion of Judge Higgins in a recent case in the Middle District of Tennessee – Bridgeport Music et al v. Dimension Films et al (October 11, 2002).  I discussed Higgins’ ruling briefly at my EMP presentation this month.

Sincerely,

E. Michael Harrington

September 4, 2013 postlude:  There really might be more to this talking heart thing (“my heart tells me it’s real”) than I realized.

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Robin Thicke “Blurred Lines” v. Marvin Gaye “Got To Give It Up” – My Interview with the Canadian Broadcasting Corporation – “Day 6”

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Brent Bambury, host of the CBC Radio program “Day 6,” interviewed me while I was in Birmingham, Alabama.  (Wednesday, August 28, 2013)

I was in Birmingham, Alabama last week to speak to three (3) wonderful and diverse groups – the Birmingham Rotary Club, the University of Alabama at Birmingham, and the Indian Cultural Society.

At 12:40 PM, Wednesday, August 28, 2013, I spoke to the Birmingham Rotary Club.  Two hours earlier, I did a pre-blog pre-post while having a very distracted breakfast.

At 3:00 PM, I had the great pleasure of speaking with (in the form of an interview) Brent Bambury for the CBC  Day 6 program.

At 7:00 PM, I spoke to students, faculty and others at the University of Alabama at Birmingham where I had once served as Jemison Professor.  It was an exhausting but perfect day!

The next evening, at the Birmingham Museum of Art, I had the great honor of delivering the 2nd Annual Indian Cultural Society Lecture.  (I created a Pinterest board for my talk which can be seen here.)

I would like to write to more about each of these three (3) lectures in Birmingham,  But for now, I will write about the 4th and extremely unexpected interview with the CBC.

The interview can be heard at the CBC Day 6 website.  I transcribed CBC Day 6 host Brent Bambury’s interview with me below.

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In the transcribed interview below:

“B” stands for CBC Day 6 host, Brent Bambury;

“E” stands for E. Michael Harrington.

B will be in normal font.

E will be in bold and italics.

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B:  This is the summer that Canadian singer Robin Thicke has the biggest hit of his career.  (Song begins to play)  The song is Blurred Lines and it’s been holding down the #1 spot on the Billboard Hot 100 for weeks now.  But it hasn’t been an easy road.  Controversy seems to cling to this song like a flesh-colored latex bikini.  A video clip for the song features topless models cavorting with Thicke and his collaborators, producer Pharrell Williams and rapper T.I. (Blurred Lines is heard).

And that video, along with the song’s lyrics, led many to slam the song as degrading to women.  Some even said Blurred Lines evokes rape. (Blurred Lines is heard – music – “I know you want it, I know you want it, I know you want it’)

More controversy came this week when Robin Thicke and Miley Cyrus turned up in an awkwardly suggestive performance of the hit on the MTV Video Awards.  (Blurred Lines is heard)

And if all that wasn’t enough, a completely separate debate has been bubbling under all summer.  This time the controversy is about the origin of the song itself.  Since its release, critics have been saying that Blurred Lines sounds an awful like Got To Give It Up, a 1977 hit by the late Marvin Gaye.  (Got To Give It Up is heard)

You can hear the similarity but the question is: are the two songs similar enough to be called “plagiarism?”  According to The Hollywood Reporter, the Gaye estate turned down a six-figure settlement deal to keep the case out of court.  And that led to a preemptive lawsuit against Gaye’s estate filed by Robin Thicke, Pharrell Williams and T.I.  That’s right – the songwriters of Blurred Lines are suing Marvin Gaye’s family over a copyright infringement lawsuit that might come down in the future.

To help us understand what it would take to prove that Blurred Lines rips off Got To Give It Up in a court of law, we’re joined by musicologist and law professor Dr. E. Michael Harrington who has served as a consultant and expert witness in copyright cases involving everyone from the Dixie Chicks, Lady Gaga to Woody Guthrie.  He joins us from Birmingham, Alabama.

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B:  Michael, welcome to Day 6.

E:  Thank you, Brent.  I’m very happy to be here.

B:  Nice to have you with us.  Let’s begin by taking a look at some of the similarities between these two songs.  And we’ll start with the rhythm.  This is the intro to the Marvin Gaye song….

And now here’s Blurred Lines…

Now the tempo and the rhythm of those two songs seem very close to me.  What do you make of that?

E:   I think you’re hearing it correctly.  The tempos of both songs are very close.  The tempo of Marvin Gaye, I believe, is 125 beats per minute and I think Robin Thicke is 123.  I think it’s off by 2.

B:  Wow.

E:  So, what it would sound to most of us is identical.  It’s not like one’s very fast and one’s slow.  But the rhythm of those instruments – so far, we’re just talking about the accompaniment we just heard –  it’s not significant enough yet.  It’s like the intro to a book.  We haven’t gotten far into the book yet.

B:  OK.  And they use a pretty standard bass, guitar, drum lineup for instrumentation but there is this unusual percussion accent in both of them.  It sounds a little bit like a cowbell.  What do you think about that?

E:  Ah, that caught my attention right away.  What I think you’re referring to – to me, I thought it was a Coke bottle.  And I believe I read references to that many years ago when the song was new – Marvin Gaye’s song.  So I think they both are using, like a Coke bottle to cut through.  A Coke bottle has a particular timbre and a tonal quality – you know you hear it in the context more clearly.

B:  So that’s unusual and would also seem to be a direct reference, on the part of the makers of Blurred Lines, to the Marvin Gaye song.

E:  I think so.  I can’t name you 5 or 10 other songs with Coke bottles.

B:  But isn’t melody key?  Is there anything in Blurred Lines that reminds you of Marvin Gaye’s melody?

E:   I think… Good luck finding any exact melodies that are in common between the two.  The chord progressions in the two songs are extremely different.

In the Robin Thicke, in Blurred Lines, there are only two (2) chords:  A I (1) chord and a V (5) chord.  I believe it’s G Major and D Major.

In the Marvin Gaye, there are some very interesting chord progressions involving four (4) different chords – a I chord, a IV, a V, and a II (2) chord that’s major.  (The “ii chord” is usually minor.)

In the Robin Thicke, you’re just on this chord or you’re on that chord and that’s it.

B:  Hmm… That’s really interesting, So, you could make the argument that there’s a lot more going on melodically in Marvin Gaye’s song, but could a plaintiff argue that Blurred Lines is a dumbed down version of Got To Give It Up, but still a copy?

E:  That’s an interesting way of putting it – a dumbed down version.  You could say – and people do this – they use a song as an inspiration, it’s an influence surely, but it’s an inspiration and maybe it’s something you imitate.  They’re free to do that because you know, they haven’t copied it.  Maybe they haven’t copied enough of it, or the pertinent aspects.  Because sometimes in these court cases, there are some terms and some parts of music are most important.  Just like in a book you don’t say, “Well, how did you like page 87?  No one thinks, “I really loved 114!”

It [the determination of copyright infringement] has to be approached uniquely, kind of the way you’re going about this right now is the right way – isolating the elements and putting them together.  And then assessing [assigning] some strength and weight to each.

B:  Ok, so we’ve found some influences, maybe some similarities but some key divergences.

The moment of truth – in your expert opinion, would the Marvin Gaye estate have any chance of successfully suing in this case?

E:  I would say they wouldn’t win.  I am impartial in this – I could choose either side.  And I would choose Robin Thicke’s side.  I don’t think he has infringed copyright because of the big big “M word” – MELODY.

B:  Does it break your heart to side against Marvin Gaye?

E:  Ha!  In a way, I mean I love the music of Marvin Gaye but this is a different issue.  There’s stuff that conjures up Motown, and specifically that song.  But once you really look carefully these items you see, well, they’re all different though.

I have to just say a musical, a music theory, and legal analysis – put all that together – and to me it’s not an infringement.

B:  Michael.  Great to talk to you.  Thank you.

E:  Thank you very much.

B:  That was Dr. E. Michael Harrington in Birmingham, Alabama.  Dr. Harrington has worked as a consultant and expert witness in many music copyright trials.

And I want to know what you think.  What do your ears tell you?  Is Blurred Lines a blatant ripoff of Marvin Gaye’s Got To Give It Up?”  Let us know.  Vote in our online poll.  It’s at www.cbc.ca/day6 .

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