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Putting It My Way But Nicely – There Should Be No More Lawsuits…

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Music of Bach, Badfinger, The Beatles, Toby Keith, Sebastian Mikael, Rodgers & Hammerstein, The Rolling Stones,  XTC

The 3-4-5-8 from Sebastian Bach to Sebastian Mikael.

THIS IS IT.

Not the Michael Jackson film, THIS IS IT, but the 5th and final SHOULD Artist X Sue Artist Y over 3-4-5-8 post.

The final post about 3-4-5-8.  This could have gone much longer and it could have been massively expanded if 3-4-5-1, which to many is the same as 3-4-5-8 (“8” and “1” are the same letter – an octave above or below each other – the last letter name of the pitch is identical).  It’s been fun but now we’ll be

putting it my way, but nicely.

To repeat – this will end my discussion of potential lawsuits over four different notes – the nice four-note [-3-4-5-8-] melody with some variation.  (In addition to this being designated by Arabic numbers representing pitches, it could be designated as, “mi fa sol do,” but I chose numbers this time as I learned numbers before I learned solfège syllables, one of a musician’s favorite mnemonic devices.)

I’ve considered the following to be the same – they are roughly the same:

3-4-5-8

3-4-5-5-8-8-8  (as sung by Badfinger)

All of this came about because I heard “Last Night” by Sebastian Mikael for the first time as I was driving home from the airport in Nashville one Sunday night (February 23, 2014) and couldn’t help but notice the 3-4-5-8’s jumping out of the car radio.  That led to an investigation of the 3-4-5-8 melody as well as the music of Sebastian Mikael, Toby Keith, XTC, Badfinger,  The Rolling Stones, The Beatles and more.

The string of posts went in this order, from the most recently released music, back to The Rolling Stones.

Toby Keith – Red Solo Cup (2011)  v.  Sebastian Mikael – Last Night ft. Wale (2013)

XTC –  Then She Appeared (1992)  v.  Toby Keith – Red Solo Cup (2011)

Badfinger – Come And Get It  (1970)  v.  XTC – Then She Appeared  (1992)

The Rolling Stones – Street Fighting Man  (1968)  v.  Badfinger – Come And Get It (1970)

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Today, I’ll add a few more and end my pursuit of the 3-4-5-8  melodic gesture. There are many other 3-4-5-8 melodic gestures in a lot of of music by artists including Creedence Clearwater Revival, Miles Davis, The Mavericks, Sibelius, Mendelssohn, Bach, Beethoven and others.

Beatles – Little Child (1963)

0.09  little child won’t you dance (with me)  –  (“with me” is sung to 6-5)

0.22  little child won’t you dance (with me)

0.44  little child won’t you dance (with me)

1.26  little child won’t you dance (with me)

from “The King & I” – Getting To Know You  (1951) (by Rodgers & Hammerstein)

0.01  getting to know you

0.04  getting to know all (about you)

0.16  getting to know you

0.19  putting it my way (but nicely)

0.31  getting to know you

0.34  getting to feel free (and easy)

1.08  getting to know you

1.11  getting to know all (about you)

1.23  getting to know you

1.26  putting it my way (but nicely)

1.38  getting to know you

1.41  getting to feel free (and easy)

and frequently throughout

Bach – Suite No. 3 in D Major, BWV 1068 – Bourree I  (1730)

3-4-5-8 is played by oboes and violins in unison at the opening of the Bourree from Suite No. 3 for Orchestra .  It is heard at 0.00 and repeated soon at 0.08.  It also changes keys and is heard again later as well.

Bach used 3-4-5-8 as a nice little melodic snippet.  Bach’s version is faster than those sung by Sebastian Mikael, Toby Keith, Toby Keith, Andy Partridge (XTC), Tom Evans (Badfinger), Mick Jagger, John Lennon or Marni Nixon (King & I).

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I’ve been asked for my opinion as to whether any of those infringe.  In my opinion, NONE of those I have posted  infringe on any copyright of which I am aware. 

3-4-5-8 is a snippet that dates back centuries – I have posted a few prominent uses of 3-4-5-8 from 1730 – 2013.  After having studied these recordings and the specific uses of 3-4-5-8, I am convinced that this melody/melodic excerpt is in the public domain.  Lawsuits should rarely if ever stem from the use of 3-4-5-8 although sadly there are copyright infringement lawsuits filed over much less in common than simply four (4) unoriginal pitches.

“Putting it my way but nicely”  –  none of these musical works featuring 3-4-5-8 infringe any of these other works featuring 3-4-5-8 and none should have caused or been the cause of a copyright infringement lawsuit._______________________________________________________________

 

 

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Blind Lemon Jefferson – The Big Bang Of Blues

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This is my 100th post, the actual transition from a 2-digit to 3-digit size collection of my musings onto the Inter-Tubes and towards a 4-digit size collection that will complete this part of my manifest destiny.

In a previous post (February 23, 2014), Albert King’s Searching For A Woman  (1961) was traced to Carl Perkins’ Matchbox  (1956) to Leadbelly’s Packin’ Trunk  (1935) to Blind Lemon Jefferson’s Match Box Blues  (1927).

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Another famous blues song, That’s All Right (sometimes known as “That’s Alright, Mama” or “That’s All Right, Mama”) can also be traced back from its best known version to earlier versions of that song.

In 1954, Elvis Presley recorded Arthur Crudup’s “That’s All Right.”

Elvis Presley – That’s All Right (1954)

Arthur “Big Boy” Crudup – That’s All Right (1946).

Elvis in That’s All Right sings Crudup’s lyric nearly exactly.  From 0.10 – 0.30:

Well that’s all right, mama, that’s all right for you, that’s all right mama, just any way you do that’s all right, that’s all right, that’s all right now mama any way you do…”

Arthur “Big Boy” Crudup –  That’s All Right Mama (1946.)  From 0.16 – 0.37:

“Well now that’s all right mama, that’s all right for you, that’s all right now mama any way you do but that’s all right, that’s all right, that’s all right now mama any way you do..”

Big Bill Broonzy – It’s A Lowdown Dirty Shame (1942).  Big Bill Broonzy sings of his love for a no-good married woman.  From 1.30 – 1.53:

“My baby, baby that’s alright with you, ooh baby that’s alright with you, baby that’s alright baby I mean that what you do…”

Blind Lemon Jefferson – That Black Snake Moan (1926).  From 1.33 – 1.55:

“Mama, that’s all right, mama that’s all right for you, Mama, that’s all right, mama that’s all right for you, Say baby that’s all right, most any old way you do…”

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A variant of the phrase, “that’s all right, mama, that’s all right for you, that’s all right mama, any way you do,” can be traced to Blind Lemon Jefferson.

Was sole authorship of the lyric “that’s all right, mama, that’s all right for you, that’s all right mama, any way you do,” important?

Is the determination of authorship of the lyric important now?

Is this lyric, or a particular version/variant of it, under copyright or in the public domain?

Can anyone use a particular portion/variant of it if the original is in the public domain?

Would use of the short, “that’s all right, mama,” be permissible under any circumstances?

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Blind Lemon Jefferson might be the Big Bang of Blues.

Carl Perkins’ Matchbox (1956) can be traced to Blind Lemon Jefferson’s Match Box Blues  (1927).

Elvis Presley’s That’s All Right (1954) can be traced to Blind Lemon Jefferson – That Black Snake Moan (1926).

There are other songs that can be traced to Blind Lemon Jefferson who in turn learned many songs from his contemporaries and those who came before him.  Authorship, sole authorship and copyright were not relevant to many practitioners of many styles of music.

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Should The Rolling Stones Sue Badfinger?

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The 4th “SHOULD” post.  The 4th “You stole my 3-4-5-8” post.

OK, this is getting long.  How long will this 3-4-5-8 be stretched out?  The answer?  I’ll end this 3-4-5-8 posts with the next installment of the series:  the 5th “SHOULD” post.  But for today –

Today’s songs and potential case:

The Rolling Stones – Street Fighting Man  (1968)

Badfinger – Come And Get It (1970)

My last three posts have featured pairs of songs that feature the same four (4) notes –  3-4-5-8  -prominently in their choruses/hooks.  The songs and potential case from the previous post:

Badfinger – Come And Get It  (1970)  v.  XTC –  Then She Appeared  (1992)

The songs and potential case from the post before that (February 27, 2014):

XTC –  Then She Appeared (1992)  v.  Toby Keith – Red Solo Cup (2011)

The songs and potential case from the post before that (February 24, 2014):

Toby Keith – Red Solo Cup (2011)  v.  Sebastian Mikael – Last Night ft. Wale (2013)

I raised the possibilities and reasons why these songs could be in litigation – all of those songs feature the 3-4-5-8 melody.  I did NOT take a side – my purpose was to be illustrative and solicit responses.  I heard “Last Night” by Sebastian Mikael for the first time as I was driving home from the airport in Nashville Sunday night (February 23, 2014) and couldn’t help but notice the 3-4-5-8’s jumping out of the car radio.  That led to an investigation of the 3-4-5-8 melody as well as the music of Sebastian Mikael, Toby Keith, XTC, Badfinger and now The Rolling Stones.

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Today I ask a related question and what would be a precedent to the Badfinger v. XTC case which was a precedent to the XTC v. Toby Keith case which was a precedent to the Toby Keith v. Sebastian Mikael case  – namely, should The Rolling Stones sue Badfinger for stealing the 3-4-5-8 of The Rolling Stones?  (Again, all of these are, to my knowledge, hypothetical cases.)  A funny twist to this is that it would be The Rolling Stones suing their friend Paul McCartney as McCartney wrote “Come And Get It.”  (Here is Paul McCartney singing and playing every instrument on his song, Come And Get It.  He allowed Badfinger to record it if they stuck to it as faithfully as he demanded.  This recording is from The Beatles Anthology 3, a must have double CD.)

The 3-4-5-8 occurs prominently twelve (12) times in The Rolling Stones’  Street Fighting Man  (1968).

The Rolling Stones – Street Fighting Man  (1968)

0.35  except to sing for (a rock n roll band)

0.39  cause in sleepy

0.40  London town there’s

0.42  just no place for a street fighting (man)

1.20  except to sing for (a rock n roll band)

1.24  cause in sleepy

1.25  London town there’s

1.27  just no place for a street fighting (man)

2.10  except to sing for (a rock n roll band)

2.14   cause in sleepy

2.15  London town there’s

2.17  just no place for a street fighting (man)

Badfinger – Come And Get It (1970)

The 3-4-5-8 occurs frequently and prominently in Badfinger’s Come And Get It although slightly modified with a repeated “5” and “8”  –   3-4-5-5-8-8-8.  (As the song progresses, the  3-4-5-8 that usually features the lyrics “if you want it here it is” and “if you want it anytime” changes from 3-4-5-8 to 8-6-5-5 and other non-3-4-5-8 melodies.)

Badfinger’s Come And Get It (1970, U.S. release)

0.05  if you want it here it is

0.15  if you want it any time

0.38  if you want it here it is

0.51  if you want it here it is

1.02  if you want it any time

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Should The Rolling Stones sue Badfinger over the 3-4-5-8 melody that was so prominent in their Street Fighting Man and so prominent in Badfinger’s Come And Get It?  As I’ve stated before, there are music copyright infringement lawsuits in the courts in 2014 that involve NO melodic similarity.

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Should Badfinger Sue XTC?

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The 3rd “SHOULD” post.  The 3rd “You stole my 3-4-5-8” post.

Two of my last posts have featured pairs of songs that feature the same four (4) notes –  3-4-5-8  -prominently in their choruses/hooks.  The songs from the February 27, 2014 post:

XTC’s Then She Appeared (1992)

Toby Keith – Red Solo Cup (2011)

The songs from the post before that (February 24, 2014):

Toby Keith – Red Solo Cup (2011)

Sebastian Mikael – Last Night ft. Wale (2013)

I raised the possibilities and reasons why these songs could be in litigation. I did NOT advocate that a lawsuit should happen and I did NOT take a side – my purpose was to be illustrative and solicit responses.  I heard “Last Night” by Sebastian Mikael for the first time as I was driving home from the airport in Nashville Sunday night (February 23, 2014) and couldn’t help but notice the 3-4-5-8’s jumping out of the car radio.  That led to an investigation of the 3-4-5-8 melody as well as the music of Sebastian Mikael, Toby Keith, XTC and now Badfinger.

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Today I ask a related question and what would be a precedent to the XTC v. Toby Keith case which was a precedent for the Toby Keith v. Sebastian Mikael possibility  – namely, should Badfinger sue XTC for stealing “Badfinger’s” 3-4-5-8?

Badfinger’s Come And Get It (1970)

XTC’s Then She Appeared (1992)

The 3-4-5-8 occurs frequently and prominently in Badfinger’s Come And Get It although slightly modified with a repeated “5” and “8”  –   3-4-5-5-8-8-8.  (As the song progresses, the  3-4-5-8 that usually features the lyrics “if you want it here it is” and “if you want it anytime” changes from 3-4-5-8 to 8-6-5-5 and other non-3-4-5-8 melodies.)

Badfinger’s Come And Get It (1970, U.S. release)

0.05  if you want it here it is

0.15  if you want it any time

0.38  if you want it here it is

0.51  if you want it here it is

1.02  if you want it any time

XTC’s  Then She Appeared (1992) is a song written and recorded almost twenty (20) years before Toby Keith’s Red Solo Cup (2011) but more than twenty (20) AFTER Badfinger’s Come And Get It (1970).  It also prominently features the 3-4-5-8 melody.  The 3-4-5-8 is the opening vocal and the hook throughout the entire song.

The thirteen (13) examples of 3-4-5-8 in Then She Appeared, complete with associated lyrics, are heard here:

XTC – Then She Appeared  (1992)

0.22  then she appeared

0.31  then she appeared

0.50  cherubim cheered

0.59  then she appeared

1.08  then she appeared

1.26  know it sounds weird

2.02  then she appeared

2.11  then she appeared

2.30  all Edward leared

3.06  then she appeared

3.15  then she appeared

3.24  then she appeared

3.33  then she appeared

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Are four (4) prominent and clearly-heard notes in common between songs reason enough to instigate a copyright infringement lawsuit?  As mentioned before, one answer could be found in comparing this hypothetical (or not) Badfinger v. XTC music copyright infringement case to the actual Marvin Gaye v. Robin Thicke copyright infringement case in which NO notes were in common between the songs.

If one can sue when the similarity is only STYLE and NOT melody, surely one is even more likely to sue when the similarity is MELODY and not STYLE.

(Do any/all the tags in this post have any bearing on the merit of this potential copyright infringement lawsuit?)

As always, I welcome your comments.

Posted on

Too Many Frivolous Music Copyright Infringement Lawsuits

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Saturday, March 1, 2014.

On March 1, 1810, one of my great musical heroes Frédéric Chopin was born.

February passed too fast.  I had too much to finish including two big projects for this weekend.  It still feels like February.  I should be working but I’ll procrastinate with a few thoughts below.

I was interviewed by Substream Magazine awhile ago and the interview appeared in print on February 27, 2014.  Katie McCort, who interviewed me and wrote the article, Copyright Law and the Music Industry: Part I, was very well prepared and knowledgeable and I really like the thrust of her writing.  When I was interviewed I did not know that there was a specific reason for the interview – a specific new case, for example, the seeming nonstop talk about the Marvin Gaye / Robin Thicke matter from summer 2013.  The conversation with Katie seemed to be more focused on copyright – the rationale for its existence and how copyright is actually manifested – the neutral, the good and the bad.  Her research seemed to lead our conversation down particularly engaging paths including some specific copyright matters.  There is a Part II to her series about copyright law and the music industry.  I look forward to it.

I was interviewed about music copyright & Gaye & Thicke several times including one at ABC News Radio in Nashville.  That was a really fun interview as I was sitting at the microphone with the interviewer simply chatting about these cases, thinking this was just a soundcheck.  After a few minutes he thanked me and told me how good the interview had been.  It was later broadcast on many ABC stations.  I never heard it but heard from friends who remarked how well the interviewer (and I) had sounded.  (I suddenly hear Stevie Wonder’s harmonica followed by Dionne Warwick singing, “That’s what friends are for…”)

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As a music copyright expert witness, I am in the position to assist so many to SUE so many.  Potential and actual plaintiffs (and defendants) approach me with music.  It is an extremely important responsibility to have thrust one’s way.  Attorneys usually will heed my advice – when I’ve said something does not rise to the level of copyright infringement, usually a case is not initiated.  If the case does not begin, my employment does not begin!  If I agree with a potential plaintiff or defendant, my employment can last from a day to many years.  (My longest term of employment has been over a span of 9 years, and, in 2014, is not over.)

I see too many experts in too many fields simply agree with every matter/potential employment that comes their way.  The term for such a person is hired gun.  There was once an American Western television show about a hired gun – an actual gun slinger, literally not figuratively with a gun.  Have Gun Will Travel.  (“I’d like you to take a look at this gun…This gun was handcrafted to my specifications and I rarely draw it unless I mean to use it.”)

[Note at 6.58 of that Have Gun Will Travel excerpt – “…until you get to Twin Peaks….”  David Lynch’s Twin Peaks is one of favorite television shows and television series soundtracks.  Coincidentally, David Lynch came up in conversation on Facebook last night as this great photograph of an unlikely trio – The Dixie Chicks, Rick Rubin and David Lynch – was published.]

If a consultant/expert ALWAYS sides with the side that approaches her/him, that consultant/expert is considered by some to be a hired gun.  When a consultant/expert turns down the person/side approaching her/him, the consultant/expert is turning down employment.  Some will credit a person who can say “no” to money as having some virtue.  That person can have virtue but will not have income stemming from virtue or that potential source of income.

What many people seem to think when it comes to copyright infringement in music is….

if two songs sound alike, the new one must have infringed the first one.

But sounding similar or alike is not necessarily copyright infringement.  (This issue is at the center of the Marvin Gaye / Robin Thicke matter.  Those two (2) songs are NOT substantially similar in any other respect.)

The group, “America,” was thought by many to have infringed Neil Young because the singer on America’s Horse With No Name (1972) sounds similar to some recordings featuring Neil Young singing.  Many other musical artists have been accused of copyright infringement based solely on the non-copy protected sound of a musical group or artist.

The sound alike / soundalike issue fascinates me and is one to explore in additional posts.  Unfortunately, sounding alike can, unnecessarily, lead to copyright infringement lawsuits.

Your thoughts?

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[My third of five (5) articles in a series about potential music copyright infringement cases will be posted tomorrow.]

 

 

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Should XTC Sue Toby Keith?

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Another “SHOULD” post.  Another “You stole my 3-4-5-8” post.

My last post was about two (2) songs that both featured the same four (4) notes –  3-4-5-8  – prominently in their choruses/hooks.  The songs were

Toby Keith – Red Solo Cup (2011)

Sebastian Mikael – Last Night ft. Wale (2013)

I raised the possibility and reasons why these songs could be in litigation. I did NOT take a side – my purpose was to be illustrative and solicit responses.  I heard “Last Night” by Sebastian Mikael for the first time as I was driving home from the airport in Nashville Sunday night (February 23, 2014) and couldn’t help but notice the 3-4-5-8’s jumping out of the car radio.

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Today I ask a related question and what would be a precedent to the Toby Keith v. Sebastian Mikael possibility  – namely, should XTC sue Toby Keith for stealing their 3-4-5-8?

XTC  Then She Appeared (1992)

Toby Keith  Red Solo Cup (2011)

XTC’s Then She Appeared (1992) is a song written and recorded almost twenty (20) years before Toby Keith’s Red Solo Cup (2011).  It also prominently features the 3-4-5-8 melody.  The 3-4-5-8 is the opening vocal and hook throughout the entire song.

The thirteen (13) examples of 3-4-5-8 in Then She Appeared, complete with associated lyrics, are heard here:

XTC – Then She Appeared  (1992)

0.22  then she appeared

0.31  then she appeared

0.50  cherubim cheered

0.59  then she appeared

1.08  then she appeared

1.26  know it sounds weird

2.02  then she appeared

2.11  then she appeared

2.30  all Edward Lear-ed

3.06  then she appeared

3.15  then she appeared

3.24  then she appeared

3.33  then she appeared

The sixteen (16) statements of 3-4-5-8 in Toby Keith’s Red Solo Cup (2011):

0.32  red solo cup

0.35  I fill you up

0.44  red solo cup

0.47  I lift you up

1.19  red solo cup

1.22  I fill you up

1.31  red solo cup

1.33  I lift you up

2.21  red solo cup

2.24  I fill you up

2.32  red solo cup

2.35  I lift you up

2.44  red solo cup

2.47  I fill you up

2.56  red solo cup

2.59  I lift you up

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Are four (4) prominent and clearly-heard notes in common between songs reason enough to instigate a copyright infringement lawsuit?  One answer could be found in comparing this hypothetical (or not) XTC v. Toby Keith music copyright infringement case to the actual Marvin Gaye v. Robin Thicke copyright infringement case in which NO notes were in common between the songs.

If one can sue when the similarity is only STYLE and NOT melody, surely one is even more likely to sue when the similarity is MELODY and not STYLE.

(Do any/all the tags in this post have any bearing on the merit of this potential copyright infringement lawsuit?)

As always, I welcome your comments.

Posted on

Should Toby Keith Sue Sebastian Mikael?

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Should Toby Keith sue Sebastian Mikael?  Have you heard Toby Keith’s 2011 song, “Red Solo Cup?”  Have you heard Sebastian Mikael’s 2013 song, “Red Solo Cup?”

Toby Keith – Red Solo Cup (2011)

Sebastian Mikael – Last Night ft. Wale (2013)

Toby Keith’s Red Solo Cup features the lyrics, “red solo cup, I fill you up” and “red solo cup, I lift you up” always sung to the same melody, an ascending four-note pattern that is the hook:  -3-4-5-8.

The 3-4-5-8 melody is heard sixteen (16) times in Red Solo Cup.

Sebastian Mikael’s Last Night features the lyric, “four shots ago,” always sung to the same four-note pattern as heard in Red Solo Cup, used in all four (4) choruses, and in a similar prominent manner as well:  3-4-5-8.

The 3-4-5-8 melody is heard four (4) times in Last Night.

If both songs use the same pitches but one was recorded and released earlier, shouldn’t the publisher(s) of Toby Keith’s Red Solo Cup sue the publisher(s) of Sebastian Mikael’s Last Night ?

The sixteen (16) statements of 3-4-5-8 in Toby Keith’s Red Solo Cup:

0.32  red solo cup

0.35  I fill you up

0.44  red solo cup

0.47  I lift you up

1.19  red solo cup

1.22  I fill you up

1.31  red solo cup

1.33  I lift you up

2.21  red solo cup

2.24  I fill you up

2.32  red solo cup

2.35  I lift you up

2.44  red solo cup

2.47  I fill you up

2.56  red solo cup

2.59  I lift you up

The four (4) statements of 3-4-5-8 in Sebastian Mikael’s Last Night:

0.46  four shots ago

1.54  four shots ago

2.37  four shots ago

3.40  four shots ago 

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To reiterate some of the similarities between Red Solo Cup and Last Night:

Toby Keith sings 3-4-5-8 sixteen (16) times throughout Red Solo Cup.

3-4-5-8 is the hook.

Sebastian Mikael sings 3-4-5-8 four (4) times throughout Last Night.

3-4-5-8 is always an important part of each chorus.

Both songs feature the same four (4) notes –  3-4-5-8.

Toby Keith recorded and released Red Solo Cup well before Sebastian Mikael recored and released Last Night.

Why wouldn’t Toby Keith’s publisher(s) sue Sebastian Mikael?

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Are four (4) prominent and clearly-heard notes in common between songs reason enough to instigate a copyright infringement lawsuit?  One answer could be found in comparing this hypothetical (or not) Toby Keith v. Sebastian Mikael music copyright infringement case to the actual Marvin Gaye v. Robin Thicke copyright infringement case in which NO notes were in common between the songs.

If one can sue when the similarity is only STYLE and not melody, surely one is even more likely to sue when the similarity is MELODY and not style.

(Do any/all the tags in this post have any bearing on the merit of this potential copyright infringement lawsuit?)

As always, I welcome your  comments.

Posted on

Dr. Dre Should Have Hired Me

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The moral of the story below?  Not hiring me can cost money.

Dr. Dre hired a musicologist for an opinion on whether he could use a bass line from another song, one that Dr. Dre had not composed.  That expert told Dr. Dre that the bass line was not original and therefore Dr. Dre was free to use it.

I would have told Dr. Dre that that bass line WAS original and that Dr. Dre should NOT use it. 

But, Dr. Dre did not consult with me.  Dr. Dre took the advice of a different expert witness and it cost him $1.5 million.

The two songs are:

Fatback Band – Backstrokin’  (1980)

Dr. Dre – Let’s Get High (2001)

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Fatback Band’s Backstrokin’  (1980) is a long, fun funk song.  It is just over 6 minutes long and primarily alternates between two sections:  A and B.  Section A is the chorus where one hears the message of the song – “tighten up on your backstroke.”  Section B is the contrasting section, similar to a verse section.  Other than A & B there is an introduction from 0.00 – 0.16 that returns at 4.17  – 4.54.

The overall form is:

intro, A, B, A, B, A, B, intro, A.

The time each section begins is below:

0.00 –  intro

0.17  –  A

1.22  –  B

1.55  –  A

2.44  –  B

3.17  –  A

4.06  –  B

4.17  –  intro

4.55  –  A

Dr. Dre was a musician who liked the bass line of the A section of Backstrokin’ (1980) and wanted to use it in a song he was going to record – Let’s Get High (2001).  Dr. Dre was not going to sample the bass line on his recording – instead he hired a bass player to re-perform that bass line.

Dr. Dre decided to get the opinion of a musicologist as to whether he could legally re-perform that bass line.  The musicologist hired (not me) told him that the bass line was unoriginal, not subject to protection by copyright law and therefore Dr. Dre would be free to recreate the bass line.  (“Recreate” is also known as “interpolate” or “replay.”)

The bass line consists of only a few diatonic, unoriginal pitches from the minor scale.  The pitches are:

1-2-b3-2  which are heard in the first measure, and

1-2-b3-5  which are heard in the second measure.

In total, the bass line is 1-2-b3-2-1-2-b3-5. two (2) brief measures, and is repeated throughout each A section.  This bass line could be considered the hook (or one of the hooks) of the song.

As a single, short two-measure phrase (-1-2-b3-2-  -1-2-b3-5- ), this bass line is NOT original.  But what Dr. Dre intended was NOT one (1) single statement for a few seconds, but to repeat this phrase over and over for the entire two (2) + minutes of the song.  Once this phrase is repeated a few times, it is no longer unoriginal – it becomes ORIGINAL and subject to copyright protection. 

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It is easy to find earlier examples of this basic, common -1-2-b3-2-1-2-b3 melody (with or without the “-5-” at the end) that is featured prominently throughout Backstrokin’.

The first that came to my mind was the principal melody of the 3rd movement of the Symphony No. 1 in D by Gustav Mahler:

Gustav Mahler –  Symphony No. 1 in D, Mvt. III  (1896).  The entire first movement is based on this 1-2-b3-2-1 melody.  This motif/melody is masterfully developed by one of the best art music composers – Gustav Mahler.  (The melody begins at 0.13 played by a solo contrabass.  The next instrument to play the melody is the bassoon at 0.41.  You’ll likely notice that this is a variant of the famous “Frere Jacques” but in a minor key, instead of major key.  Dr. Dre co-opted Fatback Band who co-opted Mahler co-opting and contorting “Frere Jacques.”)

Other music that features 1-2-b3-2-1-2-b3, recorded before Fatback Band and Dr. Dre include:

Pink Floyd – Another Brick In The Wall  (1979)  The 1-2-b3-2-1-2-b3 melody is heard in the words, “We don’t need no education” beginning at 0.09.

Cream – We’re Going Wrong  (1967)  The 1-2-b3-2-1-2-b3 melody is heard in the strummed chords in Eric Clapton’s guitar, and Jack Bruce’s faint bass, beginning at 0.02.

Pete Seeger – Waist Deep In The Big Muddy  (1967)   The 1-2-b3-2-1-2-b3 melody is heard in  the guitar beginning at 0.03.

Music recorded after Fatback Band that features 1-2-b3-2-1-2-b3 include:

Tupac Shakur – Nothing But Love  (1997)  The 1-2-b3-2-1-2-b3 melody is heard in the synth beginning at 0.00.

Michael Jackson – Smooth Criminal  (1987)  The 1-2-b3-2-1-2-b3 melody is heard in the synth beginning at 0.14.

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To repeat – Dr. Dre could have used the simple 1-2-b3-2-1-2-b3-5 melody without a serious copyright problem IF he had used it only once or twice.  But using that melody repeatedly in the same manner as Fatback Band spelled trouble.  Dr. Dre was given bad advice.  I am thrilled that I was not the one to make such a big mistake.

The added bonus of this post – I am encouraging readers to listen to Gustav Mahler, Pete Seeger, Cream, Pink Floyd, Fatback Band, Michael Jackson, Dr. Dre and Tupac Shakur.

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The Beatles – 18 songs for 6 reasons

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From my previous post, I want to continue with the idea that The Beatles arrival in the U. S. would be of great significance.  Perhaps better than “arrival”, I should write that they “landed,” a better term that could imply the landing of a spacecraft from afar and not just the arrival of a Boeing jet from London.  The Beatles landing would change music and culture and probably insert in a wedge between generations that would become larger than that experienced by previous generations and their forebears.  The Beatles did so much to obliterate society’s tastes and standards, and so quickly (as detailed in the last post).  If you were ten (10) years old when they came, you weren’t as engrained and indebted to the present culture (and perhaps it did not speak to you).  So receiving this new music and objects from outside of planet Earth was very welcome and not threatening to American kids.  The Beatles were, however horrifying to other areas of society, especially those who felt “safe” and in command of their culture.  The four English musicians between the ages of 20 – 23 would change music and change and detonate the recording industry.

The Beatles were the antithesis of “safe” – with each album released, they had the “safe” and extremely successful product.  Almost any other artist/s who could attain this much success would certainly do only ONE thing next – repeat the exact steps to try to repeat the exact success.  Almost all artists then and now would not stray from a winning formula.

This is exactly where the Beatles differed completely from everyone else.  The Beatles would always take the adventurous and risky path by throwing away the proven recipe for business success and doing something which ARTISTICALLY pleased them.  Against all odds and “common” sense, they would succeed and then lead society and other musicians down a new road.

They wrote music for all ages and all the ages.  This might sound like a cliche but having lived with The Beatles since February 9, 1964, I have been able to witness people of all ages identifying with The Beatles as THEIR music.  At almost any time since 1964, a 4 year old can educate an adult about this music that s/he is singing, namely a Beatles song.  The music is at the core and passion of the child who wants to tell everyone about what really matters here – that this is wonderful music that this very young person wants to share with the world.

The Beatles, however, would in time – over the next few weeks, months and years –  bring everyone along.  The Beatles won, though no one lost.  Even the cautious and conservative who feared change would get swept up in new music and its accessories.

In the future, I think this will continue as new generations of children will  be mesmerized by “Yellow Submarine,”  “Rocky Raccoon,” and “Ob-La-Di, Ob-La-Da,” aging adults will still want “Hey Jude” “Yesterday,” and “Michelle,” rockers will still push “Yer Blues,” “Helter Skelter” and “Why Don’t We Do It In The Road?,” mystics will ponder “Across The Universe,” “Glass Onion,” and “Because,” the politically motivated will act according to “Revolution,”  “Come Together,” and “Give Peace A Chance,” and you’ll still be able to cry in your beer over “I Don’t Want To Spoil The Party,” “Baby’s In Black,” and “Misery.”

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Here, below, are categories that strike me as arising from Beatle songs (just mentioned above) along with three (3) songs and appropriate links that fit each category.  I’ll expand upon this and provide more links in the next post.

songs for children

“Yellow Submarine“

“Rocky Raccoon“

“Ob-La-Di, Ob-La-Da”

songs for aging adults

“Hey Jude”

“Yesterday”

“Michelle”

songs for rockers

“Yer Blues”

“Helter Skelter”

“Why Don’t We Do It In The Road?”

songs for mystics

“Across The Universe”

“Glass Onion”

“Because”

songs for the politically motivated

“Revolution”

“Come Together”

“Give Peace A Chance”

songs for the cry in your beer crowd

“I Don’t Want To Spoil The Party”

“Baby’s In Black”

“Misery”

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WHAT?  I’m ending this post on the “cry in your beer” songs?  Sure.  There are many more Beatles songs to fulfill more reasons in my next post and we’ll lift any depressed spirits then.

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The Beatles – It Was 50 Years Ago Today

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 T H E     B E A T L E S

 

Any Date From Now Through April 10, 2020 Should Be An Excuse For A Beatles 50th Anniversary Celebration

1. The Beatles are back.  2. The Beatles never went away.  3.  In the future, the Beatles will be back and never go away.  (New Beatles fans will assure that their music is still heard.)

Although they disbanded 44 years ago, the Beatles’ impact is still felt as their shadow is cast over almost every musical style and aspect of the U.S. and international music industry.   With the release of new social media accounts, websites, CD’s, DVD’s, books, collaborations, interactive media, “authorized mashups,” television specials and more, longtime fans are being reminded of their greatness, while new generations of Beatles’ fans are being created.  They still sound great to those who were there in the 1960’s, and because no other comparable artists have come along since, they keep sounding better in hindsight.

The Beatles revolutionized popular music – the intensity and depth of the public’s reaction to them has never never been approached since that they first burst onto the world’s stage.  Elvis had 14 #1 hits before the Beatles, but only 1 after the Beatles.  Only a few Motown acts and the Beach Boys were popular before and after the Beatles.

The Beatles arrived at the perfect moment historically when they began recording in 1963 and invading the U. S. and the rest of the world in 1964.  Between 1959-1963, rock & roll was in its dullest period as the careers of many of its pioneers were in hiatus or had ended.  A plane crash had taken the lives of Buddy Holly, Ritchie Valens and J. P. Richardson, Chuck Berry had been jailed for violation of the Mann Act, Little Richard had left the secular for the religious world, Jerry Lee Lewis had drawn the wrath of the public for marrying his 13 yr. old cousin before legally divorcing his second wife, and Elvis Presley was softening his image by trying to appeal to adults and becoming a movie star.   In addition, the large out-of-touch record labels were trying to hoist bland and safe white cover artists (principally, Pat Boone, Frankie Avalon and Fabian) onto the public.  And on November 22, 1963, three important events occurred, only one of which caught the world’s attention – President John F. Kennedy was assassinated.  (The Beatles released their second album in England – “With The Beatles” – and novelist Aldous Huxley died also on that day.  Who could have known that the best and worst events of 1963 would have occurred on the same day?)   Many of us alive then will remember just how bleak a time it was – our popular young President had been killed, it was a cold winter, and except for a few Motown artists, there was little exciting popular music.

So, on February 9, 1964, when the Beatles made their first appearance on the Ed Sullivan Show, the public was ready for good news and good revolution.  The reaction to this television show and the Beatles cannot be overestimated.  In 1964 alone, The Beatles had 19 Top 40 hits!  In comparison, Michael Jackson’s best year was 1983 with 6 Top 40 hits; Elvis’s was 1956 with 11 Top 40 hits.

The Beatles convincingly fused widely disparate influences throughout their seven-year recording career as they assimilated U.S. rock ‘n’ roll, rockabilly, country, Motown, R & B, soul, Tin Pan Alley, Afro-Cuban, bossanova, classical, and Indian music influences.   They also steadfastly avoided following any fads or attempting to be “cool” or something which they were not.  Each of their albums was a significant musical event complete with the seemingly incongruous achievements of important artistic innovations and great popular appeal.

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The Beatles had many firsts.  They were the

first to have all five of the Top 5 songs in the same week (April 4, 1964)

 

first to have 11 songs in the Top 100 in the same month

 

first to create music videos (16 years before the debut of MTV) –   Paperback Writer

 

first to use feedback and distortion at the opening of a recording  –  I Feel Fine (0.00-0.06)

 

first to use the fade-in  –  Eight Days A Week  (0.00-0.07)

 

first to use the electric 12-string guitar  –  You Can’t Do That  (0.00)

 

first to use the sitar   –  Norwegian Wood  (0.08)

 

first to use an Indian ensemble  –  Within You Without You  (0.00)

 

first to record a song for string quartet and acoustic guitar  –  Yesterday  (0.23)

 

first to record a song using only string octet  –  Eleanor Rigby  (0.00)

 

first band to use the French horn as a solo instrument  –  For No One  (0.49-1.02; 1.27-1.38. 1.53-1.56)

 

first band to use the piccolo trumpet as a solo instrument  –  Penny Lane  (1.09-1.27; 1.56-2.00, 2.21-2.26, 2.38-2.43, 2.47-2.49)

 

first band to use tape speed manipulation  –  In My Life  (1.29-1.47)

 

first band to use backwards tape  –  Rain  (2.35-2.58)

 

to name only a few Beatles’ firsts.

The Beatles were the antithesis of “safe” – with each album released, they had the “safe” and extremely successful product.  Almost any other artist/s who could attain this much success would certainly do only ONE thing next – repeat the exact steps to try to repeat the exact success.  Almost all artists then and now would not stray from a winning formula.

This is exactly where the Beatles differed completely from everyone else.  The Beatles would always take the adventurous and risky path by throwing away the proven recipe for business success and doing something which ARTISTICALLY pleased them.  Against all odds and “common” sense, they would succeed and then lead society and other musicians down new roads.

In the next post, we will explore the universality and themes of many Beatles songs.

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