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My Take on The 2014 Grammys Show

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Last night – Sunday, January 26, 2014 – I watched the 2014 Grammys show.  I rarely watch the Grammys or any awards shows – Emmys, Academy Awards, Peoples’ Choice, the Oscars, the Madisons, the Ungers, etc.  I thought I’d post/drink a 140, an FB and then sign off and watch Dexter Season 4.  For some reason, I kept watching & commenting on the Grammys.  (But I managed to watch Dexter later.)

(Isn’t my “G7” cube cover photograph nice and nicely apropos?  The “G” stands for Grammy and the “7” is associated with the “G.”  Together this chocolate and peanut butter concatenation means, “G7,” aka “G Dominant 7th chord,” a favorite and old hit among us guitarists.)

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My first post was to Facebook:

1(a).  I’m a Grammys member & am supposed to be thrilled & engaged. The opening is perfectly predictable like every Grammy show. But for once I don’t think we’ll get an EDUCATIONAL lecture about the evils of downloading & that downloaders, Pandora and the ANTICHRIST herself aka GOOGLE who have stopped the performance & creation of music. I wish the teleprompter readers the very best of luck tonight. And I am pro-my clients, friends and the old people (Beatles rhythm section guys and any other 60+ ancient folk).  Time for Twitter where there is peace. 

I was about to leave when suddenly I didn’t. I was at my iMac and just kept writing in response to what I was seeing and hearing at the Grammys.

Warning – silliness, sarcasm, exaggeration, commentary, kindness and fodder for lawyers

who will someday interrogate me lie ahead!

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Here are those less-140-character statements:

1.  I’m a Grammys member & am supposed to be thrilled & engaged with this B. A. show. The opening is perfectly predictable like the rest.

2.  “We made this record without a record label.” And then in comes the music. STOP THAT ANTI-RECORD LABEL rant! Right now! #Grammys

3.  I’m so puzzled. Lord or Lorde with that extra “E” is a damn big deal. Her Royal is heart felt & I damn well don’t get it. #Grammys

4.  And let’s remember, “Sponsored by CBS.” Even the commercials show pretty women who have been deprived of body fat. #Grammys

5.  CBS Radio salutes the artists who create the music. And now Hunter Hayes. The Unarrested Justin Bieber. #Grammys

6.  Hunter Hayes can play piano with his right hand & emote FEELINGS with his left hand as he gets soulful. Wow, only in LA! #Grammys

7.  I’m wrong – Hunter Hayes is doing Miley Ray Cyrus. I can’t get this modern stuff straight! #Grammys

8.  Wow! A man & a woman are approaching the center of the stage to read the nominations. This is why I watch! #Grammys

9.  Robin Thicke’s Marvin Gaye cover did not win! But they teased us by having them in the selection pool. #Grammys

Spinal Tap – Tap Into America

10.  Dude – your bicycle helmets are getting me thinking UP and FIRM! And thank you to the Academy. #Grammys

11.  “Dude, I am very funny in England. Remember I’m from England like Ringo and left-handed Paul.” “Miss Katy Perry.” #Grammys

12.  Now we get Spinal Tap’s Druids and Stonehenge done RIGHT! The horns & repeated lyric phrases work “& look at my crotch.” #Grammys

13.  Even the horses are looking up at the sky, even if the horses are dark blue. And a rap is being delivered in a serious way. #Grammys

14.  Up next – “An intimate performance by Taylor Swift…” Dear God, may it be not TOO intimate. I like moderation (& no blue horses) #Grammys

15.  Robin Thicke & his grandparents & some of their assisted living friends, a band from Illinois called “Chicago,” are next! #Grammys

16.  “Reunited a classic group” with “someone who exploded this year…We’re gonna blur the lines a little bit…” Write your own joke #Grammys

17.  The Great Thicke Grandson knows so many of the Elders’ songs! And a rapper does too! #Grammys

18.  I’ve never been to Branson (no nearby interstates) but tonight I’m blessed to be getting Branson’s finest (& with rap guy!)! #Grammys

19.  Get the Elders off the stage as now Grandson wants to tell her that he “knows she wants it.” Awful sex stuff! #Grammys

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20.  I see Australian guy on short leash. He sings “You’re so innocent.” Next a guy is restrained & imitates a white singer. #Grammys

21.  I love this instrumental solo/rendition of Prince’s “When the doves cry.” Just the good notes up high on that ax! #Grammys

22.  YEA! Commercials are great too! Austin Mahone is back! I’m so glad he broke off from the rest of his domineering family. #Grammys

23.  “Your love keeps lifting me higher & higher.” As guy sniffs sheets happily, up comes warning about sniffing sheets. Huh? #GrammysCommerical

24.  9-Time Grammy Winner John Legend sings from his heart & about the value of his legal name change. Not “Novella” but “Legend.” #Grammys

25.  That closing LEGEND piano chord was to say “I’m deep.” And “this was deep.” #Grammys

26.  My wild guess!!! A song called “God Was Dead” won’t win an award! #Grammys

27.  Nirvana drummer & Beatles bass player wins something. Go Vegan! They “knocked it out in a couple of hours” NO age jokes. #Grammys

28.  “My good friend Taylor Swift.” WARNING – Perfect intonation ahead. WARNING – intonation perfect or not does not matter. 🙂 #Grammys

29.  If she doesn’t bob her head up and down fiercely the loudness level won’t rise – it will stay a sensitive ballad. WINNING bob! #Grammys

30.  For those of us who love music theory, we can notice tonight that if you’re deep, you don’t end on the One Chord. #Grammys

31.  Absolutely bizarre COINCIDENCE! John “Please Consider Me A” Legend sang at the Grammys & is singing for a car commercial #Grammys

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I quickly looked away to the Twitterverse & laughed at this tweet connecting a particular Grammy performer with Mick Huckabee’s “women” statement.  (Why do some white male “Get Off My Lawn” politicians so often describe/prescribe for women?)

LOLGOP ‏@LOLGOP

Mike Huckabee wants you to know he thinks Taylor Swift can control her libido and it’s totally not weird that he’s thinking about that.

32.  He sings at the Superbowl but immorally says, “Strap yourselves in…” This is not family time TV. And now Color Pink sings #Grammys

33.  I don’t follow these shows closely but I think the stripping thing is having an impact. Pink swings. Where’s her pole? #Grammys

34.  NEVER COMPLAIN ABOUT TAYLOR SWIFT’s SINGING AGAIN with this

diminutive mustache guy’s attempt to sing #Grammys

35.  I think she & mustache are singing at each other trying to one up the other. She’ll win. #Grammys

36.  Lord + e wins! “This is the one thing that I did not expect the most about tonight…” giggle #Grammys #Grammar

37.  “Unleash your love for music…” More of this double entendre language by my Grammy people. What’s with this enticing talk? #Grammys

38.  Next time I sing in public, i’ll make sure my red lipstick & my red mic match! Love these commercials! #BandPerry #Grammys

In the words of Ozzy

39.  Ozzy says, ” FTVGYJK iojhu …%^TY&ing ^TY&U*fab f^&*(ck…. Ringo Starr!” #Grammys

40.  Yea! White hair at the Grammys! Even the trumpet player is singing (fortunately without a mic). Go Ringo! #Grammys

41.  I just heard from her parents. In print her parents prefer, “Lord Plus E.” Apologies. I stand corrected. #Grammys

42.  He must be important. He’s reading from a teleprompter without a female counterpart. “The nominees are…” #Grammys

43.  Love the “all the pregnant women are like what do I got to…” And pregnant woman’s man WINS! #Grammys

44.  “I want to thank God a little bit…” A LITTLE BIT? Wow – there should be hell and damnation coming down on him soon! #Grammys

45.  Yea to Def Jam! This is the educational moment instead of DON’T DONWLOAD YOU BAD & evil stealin’ YOUNG ‘UNS. #Grammys

46.  He sings about “prison binds” & is dressed in a tight white top. Now there are more dressed in those tight whites. #Prisonmongers #Grammys

47.  This will be another one of those great nursing home anthems in 2050. The residents will all dress in white & wave their arms.

48.  An exciting new voice in country music & in case you don’t believe it, we’ve provided neon cactus as background. #Grammys

49.  That pink neon female cactus with the protruding middle finger/TALL part is about grrrrllll cccactusssss empowerment. #Grammys

50.  The most creative people are in advertising and I’m thrilled that I get to work with a lot of them! Stone time. #Grammys

51.  Julia Roberts is here as a reminder that her film needs more ticket buyers. “I’m still hot & my film is in theaters.” #Grammys

New Beatles/Paul McCartney Song

52.  Paul & Ringo will play a new song. The audience will demand it be short or sound like a Beatles song they know. #Grammys

53.  It’s what you’d expect from Paul – melodic, instantly identifiable & in a few sections a la Uncle Albert. #Grammys

54.  Legally, Yoko would not have been allowed to dance to Paul’s singing back when they were suing each other for decades. #Grammys

55.  I LOVE SEEING TWO BEATLES TOGETHER on stage or anywhere! Wonderful! #Grammys

56.  Pharrell with lots of r’s and l’s … Isn’t he one of the guys who stole Marvin Gaye’s sex song? #GRAMMYs

57.  Thanking your Mom is the best thing you can do. Very good to hear! (even if after thanking his manager.) #Grammys

58.  This can’t be! Paul just sang this song for the 1st time & Surface stole it & put it in their commercial! No way! #Grammys

59.  Finally, someone champions the color grey! #Grammys But importantly these are great musicians/artists!

60.  Awesome music history then & now here on stage. Willie & Kris & Merle! #Grammys Jokingly in 2014, Don’t do pot!|

61.  Irony and William Shattner-ism galore on stage! Just say NO to pot, shaggy hair & cowboy-as-a-career path! #Grammys

62.  More country musicians on stage (she & he as should be), this time without signifying neon cactus/cact-eye! #Grammys

63.  I didn’t see Faith Hill offstage mouthing, “WHAT?!?!?!” Was Faith there? Yes, thank Nashville & Mercury Records. #Grammys

64.  Every player on that stage should be introduced on this Daft Punk Stevie Wonder song. Punk Punk Stevie. #Grammys

65.  Sure, sing “Freak out, freak out!” but someone BADLY needs an introduction! Music history moment again! #Grammys

66.  Excellent transition to “Another Star” by Stevie Wonder! Oh yeah. The best of 1976 fits here! Great performance! #Grammys

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67.  Loving many of these commercials – Google & Zorba The Greek mashup. #Grammys

68.  Cyndi Lauper is always original, self-deprecating, funny and timeless. Cool to intro Carole King from Brooklyn! #Grammys

69.  Carole & Sara work great together. Proof that age/gender/color/religion etc are to be ignored. #Grammys

70.  Oh. They gave this song away & it resulted in just a bit of success? Really? Free can lead to success? A business model! #Grammys

71.  I’m still waiting for the introduction of that musician – 3 syllables – who performed earlier with Punk Punk Stevie. #Grammys

72.  Lou Reed well-deserved accolades. Music history time again. #Grammys

73.  Jaymz Lennfield – The great & supportive Metallica! Unlike Sony, these guys are in Beatallica’s (our) corner! #Grammys

74.  Day-uhm! Metallica are more than just holding up! Nice! No rust, no decay! #Grammys

75.  Beethoven’s 9th, Stravinsky’s Rite of Spring, Lord + E’s Royal. I’m starting to understand how popularity works. #Grammys

76.  Well, they’ve introduced the ROBOTS but no… wait, they did! Nile Rodgers has been mentioned verbally & on stage! #Grammys

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Weddings

77.  Oh cool! The commitment to love can only mean one thing – the freedom to date & marry! Human rights, dignity & music can work! #Grammys

78.  I was turned on to Macklemore & Ryan Lewis in 2012 by Harvard Law students. I’m very appreciative to have learned about them. #Grammys

79.  Yea! The freedom to choose friends, start to date and maybe get married. Why oppose this? Good move #Grammys

80.  Portnow usually is the worst part of the Grammys show. But this time, I predict no rant against technology. #Grammys

81.  Passing of Van Cliburn, George Jones, Ray Manzarek, McPartland, George Duke, Ramone, Winters, Cowboy Jack, Starker… #Grammys

82.  Very good Armstrong/Lambert rendition of Everly Brothers. Everlys will last. #Grammys

83.  Glad to see my friend Milt Olin mentioned as a great who recently died. I didn’t see Mulgrew Miler’s name. Was he mentioned? #Grammys

84.  Tragic that the name John Legend can sound when John LENNON is intended. My teaching moment – John Lennon was better. #Grammys

85.  Paul Williams & Nile Rodgers! Williams – 2 robots called Williams after he was sober & asked him to write music. Funny! #Grammys

86.  @john_kubicsko That’s a real shame & bad oversight. Mulgrew Miller’s passing was really significant. Thanks for letting me know, John!

87.  Pretty good Grammys show – no STOP DOWNLOADING silliness. I’m glad I watched – I rarely do. Now, back to Netflix. Dexter again? #Grammys

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Dexter Not Only Murders, He Steals Intellectual Property – Part 1

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Referencing Song Titles in Dexter

Dexter Not Only Murders, He Steals Intellectual Property (“IP” to its friends) – Part 1

Everything, Everywhere, Anytime, Anyway

Publishers Might Not Mind Murder but Theft Of Intellectual Property?  That Should Lead To Murder.  (Theft of IP – now we’re talking real crime!)

I am very new to the great Showtime original series, DEXTER.  I “cut the cord,” got Netflix and am now a proud Netflix sheep/minion who watches television based to a large degree on what’s available on Netflix.

I was attracted to Netflix because I loved the nature of the Netflix beast  –  for a reasonable monthly fee, we could watch/ingest anything and everything we wanted, when, where and how we wanted  – via 55 inch television, 27 inch iMac, iPad with or without retina display, iPhone, Google Glass or wrist watch, although those latter two are not widely available on Earth as of late December 2013.  But Netflix is part of what’s right about my intellectual property (IP) demands for life in the 21st century.  My demands are fourfold:

  1. E V E R Y T H I N G
  2. E V E R Y W H E R E
  3. A N Y T I M E
  4. A N Y W A Y

Netflix does not provide EVERYTHING – every piece of intellectual property (IP) – but it does provide a reasonable amount of IP/visual/audio programming aka works of authorship.

Netflix does very well at fulfilling the EVERYWHERE of my demand at least in that my EVERYWHERE demand is limited to perceiving Netflix everywhere in the United States.

Netflix is nearly perfect at fulfilling the ANYTIME.  If Netflix has it, I can view it at ANYTIME.  One of the problems, however, is that some of their streamed IP/works of authorship that are available have an artificially-imposed limited shelf life.  Many Netflix movies, for example, are scheduled to die/evaporate/shrivel up on January 1, 2014.  There are probably typical business and licensing reasons for the shriveling/evaporation/death-ing and the reasons for these non-essential, human-ordained killings are likely to make sense to Netflix’ shareholders, but in my role as demanding and don’t-tell-me-no customer, I don’t care.  It is the 21st century and those excuses need to be as obsolete as premature death of something that needn’t die.  If Netflix or any other company will not give the customer what s/he wants, someone else will or another avenue, or four or five avenues to that IP, will open.

Netflix is doing very well with respect to ANYWAY as Netflix makes their content available across many platforms.  I have blithely and propitiously watched Netflix programming on my

55 inch

27 inch

13 inch

9.7 inch

4 inch

devices.

(The numbers above correspond respectively to the following gadgets in this room:  my JVC TV, iMac, MacBook Pro, iPad 5, iPhone 5.)

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The Showtime original series, DEXTER, lasted for eight (8) seasons – each season featured twelve (12) episodes.

I was immediately intrigued by the series because of its extremely original setting and theme – a blood splatter analyst for the Miami Police Department, Dexter Morgan, a hard working, principled but troubled protagonist who always operates with a “dark passenger” by his side (Dexter’s evil inner being).  In most episodes, Dexter acted as a vigilante who would capture bad people who seemed guilty of one or more murders (or child abuse, etc.).  Often these seemingly guilty murderers had been found not guilty for what is commonly known in popular society/popular media (not by lawyers!) as “technicalities” – evidence was obtained illegally, the search warrant contained a misspelling, etc.

During the first season, I was amused by the titles of episodes especially because many were references to songs, lyrics or movies.  I feel strongly that creators in contemporary cultures should feel free to acknowledge, borrow, reference, copy and transform preexisting material – in these examples, lyrics or text.  The titles of episodes in DEXTER that have been referenced do not constitute any type of legal problem.  The specifics of copyright/intellectual property law, with respect to referencing of titles, need not and will not be addressed in this post.

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S O N G S   (and  Dexter)

Many episodes of DEXTER are titled after titles and/or lyrics from popular music songs.  Stated a few other ways:

DEXTER references song titles

DEXTER copies song titles

DEXTER steals song titles

DEXTER misappropriates song titles

DEXTER appropriates song titles

DEXTER plunders song titles

DEXTER rips off song titles

DEXTER thieves song titles

(I use the word, “thieves,” as a verb above, humorously, knowing that “thieves” is NOT a verb.)

“Referencing” song titles is the most appropriate verb above.

What follows is my take on DEXTER episodes that reference song titles.

1.

DEXTER – Season 1 Episode 4 –  Let’s Give The Boy A Hand.   “Let’s give the boy a hand” was a lyric/phrase from the 1984 song, “Let’s Hear It For The Boy” recorded by Deniece Williams.

Deniece Williams  –  Let’s Hear It For The Boy  (1984)

Many would sue for copyright infringement because all six (6) words of the Dexter title are the same as the lyric of the song.

Many would sue for copyright infringement because two (2) of the three (3) words are the same, and the title of this film.

2.

DEXTER – Season 1 Episode 5 –  Love American Style.  “Love American Style” was a television show that aired from 1969-1974.

The Love American Style theme song  (1969)

Many would sue for copyright infringement because all three (3) words of the Dexter episode are the same as the title of the song (and television show).

3.

DEXTER – Season 1 Episode 6 – Return To Sender.   “Return To Sender” was a 1962 Elvis Presley hit song.

Elvis Presley  –  Return To Sender  (1962)

“…(using a forever stamp), I gave a letter to the postman, he put it in his sack, bright and early next morning he brought my letter back…”

Many would sue for copyright infringement because all three (3) words of the Dexter episode are the same as the title of the song.

4.

DEXTER – Season 3 Episode 3 –  The Lion Sleeps Tonight.  The long, rich and complex history of  “The Lion Sleeps Tonight” is discussed in the Wikipedia entry.

Well-known versions of “The Lion Sleeps Tonight” include:

The Tokens  –  The Lion Sleeps Tonight  (1961)

Robert John  –  The Lion Sleeps Tonight  (1972)

They Might Be Giants  –  The Guitar (The Lion Sleeps Tonight)  (1992)

Many would sue for copyright infringement because all four (4) words of the Dexter episode are the same as the title of the song.

5.

DEXTER – Season 3 Episode 10  –  Go Your Own Way.  “Go Your Own Way” is likely in reference/deference to the Fleetwood Mac song about the breakup of a romantic couple as this Dexter episode is about the pending breakup of “Dexter Morgan” and “Miguel Prado,” Dexter’s brief murder accomplice, in this pivotal DEXTER episode.

Fleetwood Mac  –  Go Your Own Way  (1976)

Many would sue for copyright infringement because all four (4) words of the Dexter episode are the same as the title of the song.

6.

DEXTER – Season 4 Episode 3  –  Blinded By The Light. 

Manfred Mann  –  Blinded By The Light  (1976)

Bruce Springsteen  –  Blinded By The Light  (1973)

“Blinded By The Light” was written and recorded initially by Bruce Springsteen.  Manfred Mann’s cover of Blinded By The Light was more commercially successful, as well as an example of pretentious art-rock, for which you can thank Manfred Mann or not.)

Many would sue for copyright infringement because all four (4) words of the Dexter episode are the same as the title of the song.

7.

DEXTER – Season 4 Episode 6 – If I Had A Hammer.  “If I Had A Hammer” was written in 1949  by the great American folksinger/activist/humanist Pete Seeger.  Below are two (2) famous versions – the Peter, Paul & Mary 1963 live performance at the Newport Folk Festival, and the original 1950 recording by Pete Seeger & The Weavers:

Pete Seeger/The Weavers  –  If I Had A Hammer (1950)

Peter, Paul & Mary  –  If I Had A Hammer  (1963)

Many would sue for copyright infringement because all five (5) words of the Dexter episode are the same as the title of the song.

When it comes to DEXTER, a hammer can be an effective killing weapon, not just a metaphorical hammer that bludgeons one’s competitors (think Apple, Samsung and other litigating bodies) but the REAL thing  –  the means by which one human murders another human.

8.

DEXTER – Season 5 Episode 9 – Teenage Wasteland.  “Teenage Wasteland” refers to the 1971 song by The Who entitled, “Baba O’Riley,” with its chorus phrase, “it’s only teenage wasteland.”

The Who  –  Baba O’Riley  (1971)

Many would sue for copyright infringement because both words of the Dexter episode are the same as the lyrics of Baba O’Riley.

9.

DEXTER – Season 6 Episode 5 – The Angel Of Death.  “The Angel Of Death,” is most likely a reference to the famous Hank Williams song.

Hank Williams  –  Angel Of Death  (posthumously released in 1954)

Many would sue for copyright infringement because all four (4) words of the Dexter episode are the same as the title of the song.

10.

DEXTER – Season 7 Episode 9 – Helter Skelter.

“Helter Skelter” most likely refers to the 1968 Beatles song Helter Skelter from “The Beatles” better known as The White Album.

“Helter Skelter” is also the name of a carnival ride – an “amusement park ride with a slide built in a spiral around a high tower.”

In 1713, Robert Louis Stevenson wrote the poem, Helter Skelter.

Many would sue for copyright infringement because both words of the Dexter episode are the same as the title of the Beatles song.

11.

DEXTER – Season 7 Episode 11 – Do You See What I See?  “Do You See What I See?” likely refers to the 1962 Christmas song, “Do You Hear What I Hear?”

Bing Crosby  –  Do You Hear What I Hear  (1962)

Many would sue for copyright infringement because four (4) of the six (6) words of the Dexter episode are the same, and the title of this song.

12.

DEXTER – Season 8 Episode 9 – Make Your Own Kind Of Music.  “Make Your Own Kind Of Music” likely refers to the 1969 “Mama” Cass Elliot song, “Make Your Own Kind Of Music.”

“Mama” Cass Elliot  –  Make Your Own Kind Of Music  (1969)

Many would sue for copyright infringement because all six (6) words of the Dexter episode are the same as the title of the song.

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In future posts about DEXTER, I will discuss the referencing of movies, television shows and other cultural artifacts.

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2013 Future of Music Coalition – Viola Jokes & My Tweets, Rants & Reactions (Part 2 of 2)

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This is Part 2 of 2 posts about the Future of Music Coalition‘s Annual Policy Summit held October 28-29, 2013.  If you’ve not read enough acronyms today, this will be your place for fulfillment as you’ll read FMC, ISRC, ISWC,  ISNI and GUID.  I also found it worthwhile to link to two of my Pinterest pins from my New York City & The Arts Pinterest board, as well as a beautiful viola concerto written by Hector Berlioz, but only after seeking absolution from violists for having linked to pages of viola jokes.

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This begins with my friend Tim Quirk.  I believe that Tim & I first met in Seattle when we both spoke on a panel about sampling at the Experience Music Project in 2003.  As I recall, this article – Been Caught Stealing – pretty much is what Tim delivered our on EMP panel.  I am delighted to be mentioned at the outset for my then-new proposal for a compulsory license to sample master recordings.  (My proposal would later be discussed in this 2006 Franklin Pierce Law Center article by David M. Cook.)  Tim was at Rhapsody and is now at Google.  Some backward-thinking music industry people prefer to think of Google as the always-bad-intentioned Anti-Christ.  I think the anger of those is misplaced.  It’s all Thomas Edison’s fault.  As a species we lived for x number of years without electricity.  Then came Thomas Edison and electricity and moments later, Google, and now all is lost.

T I M   Q U I R K

76.  Tim Quirk at #FMC13 Tim’s always insightful, irreverent, too much fun and I’m glad he’s my friend.

77.  Tim is about to rail against a writer who is angered that too much choice is bad for music. Tim’s right. That’s idiotic. #FMC13

78.  YEA!!! Don’t fetishize the past!!! (EMH – I’m so sick of those who claim the past was so great for musicians. No it wasn’t!) #FMC13

79.  One cannot devalue music. Songs are not worth precisely 99 cents or $9.99. Music is priceless, literally. #FMC13

80.  Quirk – Same song will always be worth different amounts to different people and at different times. #FMC13

81.  As one climbs the pyramid, there are fewer fans but they are willing to pay much more. Always been this way. #FMC13

82.  Fewer fans but they are willing to pay much more. Always been this way. But now causal fans can get music for free. That’s what’s new #FMC13

83.  We build services by which fans can find masterpieces as opposed to being told by MASTER (head curator) what is the masterpiece. #FMC13

84.  Music programmer is like park ranger – we have our own paths (we might like less traveled) but we help visitors. #FMC13

85.  Point visitors to trails that they might like as opposed to trails you wish they’d like. #FMC13 Excellent suggestions/principles

86.  Free (via P2P) doesn’t mean the artist isn’t making money. It means the listener is not paying. #FMC13

87.  How do companies “slice and dice” their record catalogs? Value in all of the different approaches. #FMC13

88.  How choices are made – Master tastemaker make decisions, audience makes decisions (Spotify, P2P), use of critics taste, etc. #FMC13

89.  Google station done by musician-trained algorithms (as I understand part of Tim Quirk’s explanation- “mucking with metadata”) #FMC13

90.  “Mucking with Metadata.” Metadata is merchandising. Online service that relies on metadata-most metadata is shockingly incomplete #FMC13

91.  Joey Ramone shouldn’t be played with Maroon 5. That could result from crazy or incomplete metadata. #FMC13

92.  If hearing more music means quickly liking but not remembering, the “more” part is more likely to lead to loving more music #FMC13

93.  Google (and 2013) customers live on their devices. Upside down pyramid is a funnel. “Funnel into Play” #FMC13

94.  Country music under-performs digitally. Genre page programming fixes this. #FMC13

95.  Each level of the pyramid is addressed (ideally) in online programming. Lowest-casual fan up to top super fan. #FMC13

96.  Capturing & hanging on to peoples’ attention & imagination is fundamental in 2013. Unlimited shelf space in digital-curse & blessing #FMC13

97.  Musicians need to embrace the new ability to speak to every kind of fan. Google is trying to do this. #FMC13

98.  Question about orphan works? – copyright ownership/metadata has been scrubbed off the recording. (This wasn’t a q – just a point) #FMC13

99.  Music cannot be devalued. The perceived value may have changed but that’s different from changing the value. #FMC13

100.  Music has not been devalued – too many only focus on the bottom tier (who get it free). There used to ONLY be a bottom tier. #FMC13

101.  My response to q from aud: Bottom tier fans are not important. Find mid & top tier-they are passionate. #FMC13

102.  Metadata panel is coming next. Jean Cook of FMC will moderate. #FMC13

103.  SAG-AFTRA uses metadata. Fund for non-featured performers. Small piece of IP pie w/large group of people to be paid. #FMC13

104.  SAG-AFTRA divisions. Largest? Sound recording division. Smallest? Orchestral/symphonic. Not surprised. #FMC13

Then came a brief exchange with Tim during this metadata session.  

105.  @tbquirk Too bad we can’t do a good “Honoring of Alcohol” tonight. You know I’m not an old bitter female bass player, right?

106.  @emh2625 I will be sure to drink a few in your honor.

107.  @tbquirk Thank you, Tim. I’ll toast you from NashVegas! Better still, raise a few! 🙂

And now back to the metadata session.

108.  The 3 codes that apply to the music industry (with respect to metadata) ISRC ISWC  ISNI  #FMC13

109.  Make it required or profitable that people register? PROFITABLE is better. That will make it happen (Jim Griffin) #FMC13

110.  Bugs in a system for database is not a problem. There are no databases. Codes are not being kept track of. Need for a standard! #FMC13

111.  YouTube search for Sinatra song yielded US record label. Other times, EU label. Need for standardization & usable Registry #FMC13

112.  Registry is an anathema to Berne & some international orgs. Strong need for GUID. GUID=Globally Unique Identifier. #FMC13

113.  Jim Griffin’s concluding words (from the metadata panel): “If we make it profitable (a global registry), it will occur.” #FMC13

Being able to specifically and correctly identify recordings transmitted on the Internet would be…. nice?  helpful?  essential?  so essential that if we fail to implement a system that will correctly identify streamed/broadcast recordings anarchy will destroy the music industry?  

There are three (3) codes that apply to the music industry.  ISRC (International Standard Recording Code) is an international identification system used by many digital distribution companies that sell music online.   ISWC (International Standard Musical Work Code) is “a unique, permanent and internationally recognized ISO reference number for the identification of musical works.”  ISNI (International Standard Name Identifier) is another internationally-recognized “certified global standard number for identifying the millions of contributors to creative works and those active in their distribution, including researchers, inventors, writers, artists, visual creators, performers, producers, publishers, aggregators, and more.”  The language and length of language from the ISNI reminds me of parts of the Copyright Law of the United States.  I felt the need to reward them (ISNI) for their length and I will never do that again.  Only here and now.

114.  Jill Sobule on next panel. She was early in crowd funding (2007) #FMC13

115.  Sobule figured a way to give her “mighty fanbase” a way to help her from “polished rock” to “plutonium” (record on her new LP) #FMC13

116.  Early fanfunding techniques drew ire & huge criticism from some fans. (EMH-capitalism is bad?) #FMC13

117.  Sobule did record & fan funding of it with John Doe (of X). #FMC13

118.  Next up – Crista Kende, Performing Arts Specialist at Indiegogo. She is a classical (of course) violist. #FMC13

This is not the time or place for viola jokes.  There will be no links to viola jokes (2)  here either.  The viola is part of the string trio as well as the string quartet.  My favorite composition for viola is Harold In Italy by Hector Berlioz.

119.  It’s daunting for many artists to go from musician to one who has to do business & raise money. Indiegog assists with this #FMC13

120.  Emily White co-founder runs Readymade Records. Artist can own master rights. Wow. #FMC13

121.  David Macias, Co-Founder, Thirty Tigers Mgt is a service co. Don’t own masters. Provide infrastructure & staff. #FMC13

122.  thirtytigers.com  is home for disparate artists. Keep 75% of revenues. 100% of road sales, and some other revenues. #FMC13

123.  Michael Drexler, BMI. Distributed more than $800 million in distribution. 9% increase. BMI is 75 yrs old #FMC13

124.  Q. Why more distribution from BMI? A. new media. BMI uses “aggressive sales.” More digital/census than sample data. #FMC13

125.  New tech – “BMI Live” allows musician to upload their set lists at restaurants, etc. #FMC13

126.  Streaming services are getting a bad name – they are paying 70% of their revenue. They feel free but are not (value of subscription) #FMC13

127.  Media space & ways to monetize are fragmenting. This makes it hard to collect money. Need to make payment easier. #FMC13

128.  Because there is so much competition, artists need to think of “narrative.” Need to spread the narrative. (artist’s good story) #FMC13

129.  Narrative for artists is longterm, not short. #FMC13

130.  Old paradigm gets old -get record deal, record, tour, repeat. Artists need new outlets for creativity. – Jill Sobule #FMC13

131.  Sobule Q about streaming – streaming & revenue is so mysterious. Old days one got cocaine under the table. How does it work? #FMC13

132.  Streaming is not mysterious (30 Tigers answer) as they are set – digital. Number of streams can’t be compared to downloads. #FMC13

133.  Spotify is between 3-4% of marketshare. There’s still larger entities – iTunes, etc. #FMC13 Sweden is a forest of streaming.

134.  We should be applauding streaming services. We should have made Napster legal. It took 15 yrs (Erin McKeown) YEA – I agree! #FMC13

135.  Yell at your record label if you’re not getting much money. Try to own your master. (McKeown) #FMC13

136.  Rhapsody is a little higher. Rdio is a little lower (comparisons to money collected from Spoitfy) #FMC13

137.  New developments in music industry that broaden the possibilities? Disappoitntment – SR do not have terrestrial performance right. #FMC13

138.  Q. What’s biggest impediment for crowd funding? A. Time. Artists have to be more pro-active & learn business. #FMC13

For many years (since the 20th century, one century ago), I’ve used the CIA World Factbook to learn about other countries (as well as other sources).  Here is Sweden, CIA style.  Is a “forest of streaming” good, great, bad, horrible, neutral, inevitable or just the way it is?  Or some combination of those descriptive adjectives in that last sentence?

139.  Audience member: No one knows where the streams are happening. Sales can be traced. Is streaming info shared? #FMC13

140.  Indiegogo works with Google Analytics to track and classify income. I-Gogo encourages artist & aud to be smart in planning & funding #FMC13

141.  This panel is good but I need to get away from my screen & go play outdoors in the fresh air & diminishing sun before Red Sox game #FMC13

142.  RT @emh2625: Q. Why more distribution from BMI? A. new media. BMI uses “aggressive sales.” More digital/census than sample data. #FMC13

143.  Best example ever why metadata so unreliable: there’s no database of the ISRC numbers given out to recordings over past two decades. #FMC13

Back to that identity problem…  Will a singular GUID (Globally Unique Identifier) be developed that will manage this, or will there be another means by combining preexisting numbers and codes mentioned above that can handle this identification/royalty system?  That is an important question in going further with the transmission/broadcast of recorded (and live) music and the collection and distribution of royalties.

 

 

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2013 Future of Music Coalition – My Tweets, Rants & Reactions (Part 1 of 2)

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I thought before too much time passes, I should collect my tweets and comments about The 2013 Future of Music Coalition Policy Summit held in Washington DC October 28-29, 2013.  The 2013 World Series was happening at the same time, so FMC was not my top priority.  Taking notes and tweeting about an event is also not my favorite activity but one that I occasionally delve into. (Grammar Girl believes we should be able to end sentences with prepositions, in case you were wondering abut that last sentence.)

This will be fun to collect and NUMBER tweets.  I had no idea that I wrote 75 tweets (shown below) and more in the next posts.  I wrote more at one part of the program but will not include these as I was writing about the worst presentation I had ever seen at an FMC event.  (If you are curious about it, you could go search my tweets from October 28-29, 2013.  I won’t and I don’t think you should either.)

It is important to note when reading tweets below that Peter Jenner has a great British accent and would usually be the smartest guy in the room.

1.  Peter Jenner is dead on. It has to be made easier to access music. The scandal is that Spotify is the only best access to music #fmc13

2.  Peter Jenner: “Anyone who thinks that we can control the Internet is up their ass.” #FMC13

3.  Peter Jenner – we have to think “collective” in order to create a means by which more are paid. (Socialism! Hah hah!) #fmc13

Like I said. The man’s lovable RT @emh2625: Peter Jenner: “Anyone who thinks that we can control the Internet is up their ass.” #FMC13

4.  Peter Jenner: “Anyone who thinks that we can control the Internet is up their ass.” #FMC13

5.  Peter Jenner – we have to think “collective” in order to create a means by which more are paid. (Socialism! Hah hah!) #fmc13

6.  Are you sure you want to be in the music biz? Be extraordinary. Do not sharecrop. Don’t sell copyright unless price is high. #fmc13

7.  Make community, support & be supported. Learn to pay fair wage & get fair wage. If you don’t like status quo, change it. #fmc13

8.  Learn you’ll be popular & not know why. Learn you’ll be UN-popular & not know why. Love music. (Erin McKeown) #fmc13

9.  Music business should be a part of music instruction. (EMH – do 4 hrs, not 8, 2 not 4 in a practice room-Learn Business & more) #fmc13

I had to add that ditty to my tweet as I think time has long passed when musicians, songwriters, and music students in music colleges and conservatories can expect to work 100% on their craft and the gorgeous invisible substance of sound and music.  Musicians, whether they want to acknowledge it or not, are involved in the world of business (who pays for these habits of theirs?) and technology (the body is tech, instruments are tech, electronics are tech, computers are tech, etc.).  Musicians need to develop their skills of conning people into thinking they (the musicians) are needed and should receive money for playing and/or writing music.  These skills have to be developed with an eye and ear for social media, business, technology, government and new means of touching the world.  I added “government” in that sentence because if it wasn’t for a very large and powerful central federal government and its blueprint plans, i.e., the Constitution, there would be no copyright law and no basis for federal support for authors and inventors.  And with the status of laws and litigation always in flux, interested parties need to continue to lobby their government to keep acting on their behalf.

10.  Jeremy Peters: Copyright is broken but other than Creative Commons, what is being done to fix it? #fmc13

11.  We’re moving from culture of owners to that of renters (of intellectual property – IP) #FMC13

12.  The conversation of “you are all thieves” to those not paying for IP is useless. Reminsicent of Federal government shutdown. #fmc13

13.  Artists who have been burned so badly by the miscreants in the music business – go out on their own is an option #fmc13

14.  Stream of income helps buy new gear, but this is not a solution, just an income stream #fmc13

15.  Get rid of minimal fee (for mechanical royalty) & concentrate on the amount of time is used in a composition or film #fmc13

16.  Methodology that can fairly compensate artists, writers. Amount of time is more realistic and fairer. #fmc13

17.  A new mechanical license proposal that is clear to artists, publishers, lawyers & the courts is needed. Modernization. #fmc13

18.  Songwriters Assn of Canada Prez has introduced himself as “sad Eddie.” Because of the Cardinals WS loss? Songwriters’ prospects? #fmc13

19.  New models gaining traction (Spotify). Legit, paid. Pandora too. Music creators embrace these models (EMH: not the RIAA) #fmc13

I think it is very bad to always ignore, then underestimate, misunderstand, litigate and then try to legislate against new technologies (a la RIAA & MPAA versus every new tech toy). The technologies always win.  

20.  Uh-oh. We’re hearing “I love the Internet” (“some of my best friends are black” comes to mind…) Then comes the HOWEVER. #fmc13

21.  “However” is Canadian for “but.” Some arithmetic is coming “the nitty gritty.” What’ll follow is lots of Internet plays & tiny money #fmc13

22.  For the umpteenth time & to paraphrase Carl Sagan “billions & billions of” music spins & zero money. #fmc13

23.  To legitimate creators there is no difference between piracy & the legitimate new services. (Oh God) That attitude will help. #fmc13

24.  Rich people get richer by these new legit services while musicians stay poor. Music creators need a new narrative & new initiative #fmc13

25.  “Adopt fair trade” principles for musicians. (Good!) Next he describes the new categories. Now he’s bemoaning SOPA. (Glad it lost!) #fmc13

26.  To put all our eggs into the US Congress basket is a bad idea. They were crushed by the crushing of SOPA. #fmc13

27.  Fair trade criteria that is fair to consumers & businesses. Certify biz as fair trade coffee is done. Fair principles for creators #fmc13

28.  What is fair compensation for creators? “fair & sustainable” Need for transparency in all collective societies, pubs, labels. #fmc13

29.  Shouldn’t everyone be transparent in all the facets? (Yes, but keep dreaming, I’m afraid. This is the music industry…) #fmc13

29.  Want transparency? Good but when did that ever happen in the past? Too many speak as if the past was great & now is Evil Google #FMC13

30.  Canadians are not calling for new legislation or regulation. They are being pro-active. But pro-active in what way? Huh? #fmc13

31.  Canadians songwriting group is being pro-active. But pro-active in what way? By applying a “fair trade” sticker? No law, no reg? #fmc13

32.  Music Creators Alliance & Songwriters Guild of America are behind these past ideas (from my tweets). #FMC13

@future_of_music Thank you! I hadn’t heard the Happy and Sads from earlier! Being a Bostonian, first I think baseball & Boston & St. Louis!

I appreciated the FMC informing me of the “Happy” and “Sad” humorous labels from earlier.  (This was only the second FMC Policy Summit I’ve missed.  They are great events – much better in person –  and I hope to be at the next one.)

33.  Now we are able to hear the audio of FMC stream. Thank you, you tech people who turned it up to 11. #FMC13

34.  Small broadcasters have no clout when it comes to licensing. One-stop shopping (licenses) is essential to run music services/streams #FMC13

35.  Are exclusive deals (direct licensing) harmful to smaller broadcasters (I think so). Can anti-trust issues get in the way? #FMC13

36.  Good news about direct licensing – they can license around the consent decree. #FMC13

37.  Direct licenses problem – transparency! Usually there are non-disclosure agreements. Songwriters are kept in the dark. #FMC13

38.  Publisher can cut off payments to a songwriter during a dispute.” – Sad Eddie (of Canada) #FMC13

39.  Non-disclosure agreements hurt (prevent) transparency. #FMC13

And now, Jim Griffin.  When Jim Griffin speaks, I listen.  Only fools wouldn’t.

40.  What would direct licensing be on the entire music atmosphere? “Fragmentation is cancer.” – Jim Griffin #FMC13

41.  There needs to be a draft-draft musicians into publishing agreements like athletes are drafted by teams! – Jim Griffin #FMC13

42.  Jim Griffin is joking (somewhat) but his point is that there is power in unity. (Sounds like pro-union too.) #FMC13

43.  When athletes work together to get as much money as they can, musicians should do the same. But there’s antirust to prevent it! #FMC13

44.  Why is there only one (1) antitrust department? Excellent funny question relayed by Jim Griffin! (power via unity is the point!) #FMC13

45.  Musicians especially those early in career need better legal representation. – Sad Eddie (of Canada) #FMC13

46.  Why someone who has significant part of market then pulls out is now exempt from legal restraints? (issue in direct licensing) #FMC13

47.  Excellent and educational analogies with sports teams and unions presented. #FMC13 (EMH – We have to think this through and change.)

48.  Sound recording (SR) is not an exclusive license It is statutory right. Recordings cannot be withheld. #FMC13

49.  Ann Chaitovitz explaining SR & Sound Exchange. Perf right is split 50/50 – 50% musicians, 50% record label/SR owner. Copyright basics #FMC13

50.  Direct licensing by a label could (would/will/does?) result in keeping money from the artist/performers. #FMC13

51.  Union musicians until digital performance right (DPRSRA) & Sound Exchange were never paid for their contribution to sound recording #FMC13

52.  USA still does not have a terrestrial right for musicians (musicians are not paid when music is played on AM/FM) unlike rest of world #FMC13

53.  Musicians should be wary of the “workaround” that big broadcasters are doing by direct licensing. Big Radio wants to keep govt out. #FMC13

54.  U.S. “Green Paper” recommends a terrestrial right for sound recordings (SR). Terrestrial radio has huge advantage over digital radio #FMC13

Do you want to read the aforementioned “Green Paper?”  It is called, “Copyright Policy, Creativity, And Innovation In The Digital Economy” and was authored by the Department of Commerce Internet Policy Task Force in July 2013.  (If you are still reading and still interested, click on the following link and the 112-page “Copyright Policy, Creativity, And Innovation In The Digital Economy” will open. This enormous work is several other subjects for several other times.

55.  Is Pandora in favor of wanting a performance royalty for terrestrial radio? (Surely as it somewhat levels playing field) #FMC13

56.  Pandora might be paying over 50% of their revenues as opposed to others that pay much less. What is rationale for rate setting? #FMC13

57.  Exact same radio signal but different radio companies pay between 0 and 70% of revenue. Insane! What is the logic/rationale? #FMC13

58.  Argument about any study on this subject. Would be good to have written facts in front of the panel & audience. #FMC13

59.  For clarification, “Sad Eddie” as he has humorously been calling himself, is President-Songwriters Assn of Canada #FMC13

60.  Praise for US Copyright Law for Recapture Rights. YEA! Songwriters & musicians are able to recapture their copyright after 35 yrs #FMC13

61.  Recapture is the only country in the world that lets one change a contract after 35 years. #FMC13

62.  Better Call Saul! Ann Chaitovitz – 25 yrs after you’ve created something, call a lawyer (and get things fixed!) #FMC13

I use every possible occasion to mention Saul Goodman, an attorney who thinks quicker and acts more decisively than most and always has that 6th & 7th suggestion ready for you if you didn’t love the initial several.

63.  Best point yet – we’re in this mess because we deregulated radio in that damn awful Telecom Act of 1995 (bad Pres. Clinton bill) #FMC13

The Let’s Blow Up Clear Channel so that we can Homogenize the United States further and NEUTER Regional Radio and Music Act, i.e. The Telecommunications Act of 1996, did just what I described. 

64.  “Lifting the lid…”letting in antiseptic sunshine” (TRANSPARENCY) would be most helpful. #FMC13

65.  Best way to improve licensing- record & enumerate a globally-unique song identifier (VIN Vehicle Iden #) – Jim Griffin #FMC13

66.  If this (music) is property, why isn’t there a VIN or globally-unqiue identifier? Excellent idea by Jim Griffin (yea metadata!) #FMC13

67.  Musicians need level playing field. Can’t compete w/broadcasters. Musicians (serfs) must bow to broadcasters. #FMC13

68.  Both are true – musicians are not being paid via AM/FM radio and need the right, and some musicians fear testifying before Congress #FMC13

69.  It’s understandable that lowly musicians would fear speaking out against radio as radio can stop playing them. True? #FMC13

70.  Why is an audience member afraid to mention the huge radio station (for being against AM/FM performance license)? #FMC13

71.  Aud member: Many small club owners have stopped having live music b/c of high royalty rates via ASCAP, BMI, SESAC high rates. #FMC13

72.  You have to pay for the music or you won’t get much more of it. – Jim Griffin (last & great comments of panel) #FMC13

73.  The first Future of Music Honors dinner will be tonight. Sadly, I’ll be here in Nashville instead of Washington DC #FMC13

74.  4 bipartisan politicians have reauthorized FCC to create a new class of low power radio stations. Will be honored tonight at FMC #FMC13

75.  Congratulations to my friends Ann Chaitovitz & John Simson who will be honored tonight by Future of Music Coalition at Honors awards #FMC13

Soon I will publish

FMC – My Tweets, Rants & Reactions, Part 2

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Copying & Using Lyrics As Lyrics, Names Of Bands, Magazines & Organizations

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“We may have to walk near dangers, close to awful things…“

I’ve been gone from this space for too long – most of November – but for very good reasons.

There was the trip to St. Louis to speak to students and faculty the St. Louis University Law School (October 23-24, 2013).

That was followed by a stay in Birmingham, Alabama where I spoke about fair use and copyright and my views on these subjects at a UAB Music Department convocation on November 6, 2013.

I also did a follow up to my 2nd Annual Indian Cultural Society Lecture to members of the Indian Cultural Society on November 8, 2013.  And that was sandwiched between attending the rehearsal and concert of Anoushka Shankar on Thursday, November 7 and Diwali, The Festival of Lights on Saturday, November 9, 2013.

On Saturday, November 16, I spoke about uses of social media and the future of the music industry at the IBS 2013 East Coast Regional Radio & Webcasting Conference at Simmons College in Boston.

On Monday, November 18, 2013 I spoke to students and faculty at the Harvard University Law School in Cambridge.

On Tuesday, November 19, 2013 I spoke to students and faculty at the Berklee College of Music in Boston.

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I want to mention and briefly discuss the copying of lyrics.

Many questions can arise pertaining to the copying of lyrics, questions that can be extremely wide-ranging.  For this space today, I am mostly concerned with identifying a few examples of copying that I find constructive, reconstructive and progressive, i.e., these examples of copying do not infringe copyright or constitute laziness on the part of the new author/creator.

Why are lyrics copied?  Are lyrics copied for some of the same reasons that music is copied?  I will pose a few possible answers as to why lyrics are copied:

Why do authors/creators copy lyrics? 

They like the meaning of the lyrics.

They like the sound of the lyrics.

They like all or some of the lyrics’ surrounding melody, harmony, rhythms, instrumentation, loudness levels, sounds, etc. isolated or in combination and believe that the copied lyrics can connote the same or similar meanings or feelings as the original.

They believe the copied lyric will sound good/function well in the new work of authorship.

To pay tribute to or honor a lyricist/author and/or a lyricist/author’s specific expression.

To make a lyric/cultural reference – to “signify.”

To answer what the original lyrics may have addressed, i.e., the new use constitutes all or part of an answer song.

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

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

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

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

To draw attention to an “opportunity” to spend money on a product or service.  This is especially common with lyrics and/or expression 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, action or involvement.

To draw attention to one’s own lyrics and/or expression (especially so if the borrowing occurs at the opening of the new work of authorship).

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 a good lyric and will work again (which 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 lyricist/author and/or better expression.

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

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

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The examples below can be divided into several parts:

Lyrics used as lyrics

Lyrics used as band names/artist names

Lyrics used as magazine name

Film titles used as band names

Lyrics used as name of organization

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1.  Lyrics Used As Lyrics

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Isaac Hayes’ Shaft used in Pearl Jam’s Dirty Frank.

The Rolling Stones’ Get Off Of My Cloud used in SheDaisy’s Get Over Yourself.

James Brown Papa’s Got A Brand New Bag used in Mystikal’s Never Gonna Bounce.

Jimi Hendrix If 6 Was 9 used in Crosby, Stills, Nash & Young’s Almost Cut My Hair.

Jimi Hendrix If 6 Was 9 used in They Might Be Giants How Can I Sing Like A Girl.

S P E C I F I C A L L Y

the referenced lyrics and locations are:

Isaac Hayes’ Shaft – “you see this cat Shaft is a bad mother—-Shut your mouth!—well I’m talking about Shaft— we can dig it” – is heard between 3.21-3.28.

It is copied (and altered) in Pearl Jam’s Dirty Frank – “well that Dirty Frank was a bad mother—Shut your mouth!—hey man I’m just talking about Dirty Frank” – and heard between 1.47-1.52.

The Rolling Stones’ Get Off Of My Cloud – “get off of my cloud” is first heard at 0.43.

It is copied by SheDaisy’s Get Over Yourself and first heard at 0.50.

James Brown Papa’s Got A Brand New Bag – “Papa’s got a brand new bag” is first heard at 0.20.  “Papa’s got a brand new bag” is used in Mystikal’s Never Gonna Bounce at 0.27-0.29.

Jimi Hendrix If 6 Was 9 – “but I’m gonna wave my freak flag high, high!” is heard at 1.42.

It is copied in Crosby, Stills, Nash & Young’s Almost Cut My Hair  – “I feel like letting my freak flag…” and heard at 0.52.

Jimi Hendrix If 6 Was 9 – “but I’m gonna wave my freak flag high, high!” is heard at 1.42.

It is copied in They Might Be Giants’ How Can I Sing Like A Girl  – “I want to raise my freak flag higher and higher and, I want to raise my freak flag…” is heard between 0.58-1.11 and 2.30-2.43.

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2.  Lyrics Used As Names Of Bands

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Bob Dylan’s Ballad Of Frankie Lee And Judas Priest was used for band name, Judas Priest.

Talking Heads Radio Head was used for band name, Radiohead.

Queen’s Radio Ga Ga was used for artist name, Lady Gaga.

Tommie Johnson’s Canned Heat Blues was used for band name, Canned Heat.

Muddy Waters’ Rolling Stone was used for band name, The Rolling Stones.

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3.  Lyrics Used As Magazine Name

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Muddy Waters’ Rolling Stone was used for magazine name, Rolling Stone.

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4.  Movie Titles Used As Names Of Bands

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The film, Black Sabbath was used for the band name, Black Sabbath.

The film, All The Fine Young Cannibals was used for the band name, Fine Young Cannibals.

The film, Shaolin and Wu Tang was used for the band name, Wu-Tang Clan.

The film, They Might Be Giants was used for the band name, They Might Be Giants.  In a very cool nod to the film, They Might Be Giants also wrote a song called, They Might Be Giants.

I love the closing scene of the film, They Might Be Giants.

“We may have to walk near dangers, close to awful things…“

Does justice ever lose?

It does from time to time…”

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5.  Lyrics Used As Names Of Organizations

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Elvis Costello’s Poor Fractured Atlas – “poor fractured Atlas…” was used for nonprofit organization name, Fractured Atlas.

Much more about this subject at another time….

H A P P Y    S U N D A Y    E V E R Y O N E !

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Wiz Khalifa’s Black & Yellow Does Not Infringe The Copyright of Pink & Yellow by Maxamillion

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Wiz Khalifa has been sued by an artist named Maxamillion [sic].  I was approached by lawyers representing Maxamillion.  These lawyers wanted me to support them in their belief that Maxamillion’s song, Pink N Yellow, had been infringed by the well-known artist, Wiz Khalifa in his song, Black And Yellow.  Notice that I wrote

“These lawyers wanted me to support them in their belief…”

that Pink N Yellow had been infringed by Black & Yellow.

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Lawyers who are considering filing a music copyright infringement lawsuit should consult someone with expertise in the field of music.  I have passed for having “expertise,” and U. S. district courts have called me an “expert.”  When I deal with issues outside of my field, I call on experts.  The best lawyers call on experts because the lawyers know that their expertise does not extend to other non-legal areas, especially one such as music that requires so many years of specialization.

These lawyers wanted me to agree with their assertion that Wiz Khalifa had infringed the copyright of Maxamillion.  They came to me for my expertise.  They paid me for my expertise and expert opinion but as soon as they received my expert opinion, they argued with me about my findings.

If I could change my expert opinion based on one attorney’s argument, I would either

A.  Not have “expertise” in music

B.  Not have “expertise” in the intersection of copyright law & music

C.  Not have a rigorously established methodology in which to complete the necessary analysis of the recordings & issues

D.  Not have a substantive amassment of opinions I had written that established my methodology and philosophical bent on the subjects

E.  Not have done good work in my analysis of both recordings

F.  Not have personal integrity or principles

G.  Have abandoned my principles and decided that making money was more important than any other consideration(s)

H.  Any combination of letters A – G

To expand upon this….

If the lawyers could have talked me into taking their position instead of mine, then they would have created very significant potential (and I think “actual”) problems for their client (and possibly themselves) when it would be discovered that I had been talked into taking a diametrically opposite position by the attorney (or both attorneys), or I had come to one conclusion and then  taken the opposite conclusion (the deadly, I was for it before I was against it kind of shuffle).  Attorneys for the other side should, and usually do, ask about the conditions that led to an expert being hired by attorneys.  It is a simple matter to formulate the few questions that the other side would need to ask an expert about the conditions that led to his/her being hired.  And when the other side would discover that an expert was either squishy or flexible with the truth or his convictions, or incompetent, etc., they would likely move to have that expert excluded.

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These lawyers should have been relieved because that my opinion was not to their liking.  What they should have done after receiving my opinion…  Well, first….

They were right to ask questions about my findings and even argue about my facts and opinions.  After the questioning and/or debate has taken place and the questions and answers have run their course (between them and me), it is time to NOT ACT.  To NOT file a copyright infringement suit.

A.  The lawyers should explain to their client that they hired a music expert witness who thoroughly analyzed both recordings and determined that there was NO infringement of copyright, and that a lawsuit should NOT be filed.

B.  The lawyers have the option of hiring another expert.  If this next contacted expert is knowledgeable about music, copyright law, music theory, and musicology, he will agree with me and give them another rejection.  (The second person/expert they approach could say something along the lines of, “Thank you – you look nice under this light, and I appreciate your money but I have principles and need to decline your lovely offer,” or words to that effect.)

C.  Keep hiring experts until they find the HIRED GUN, i.e., an expert without scruples whose services and low morals/lack of principles can be bought.  This letter “C” option could be repeated if the lawyers are so headstrong as to want nothing more than to file a copyright infringement action.  Often this, in fact, happens and eventually, one can find someone who then, usually unknowingly, falls into the trap of being an expert witness/”novice” hired gun, a lethal detriment-in-the-making.

D.  The lawyers should realize that the expert who turned them down is almost by default a person of high character and principles as this expert is turning down the opportunity to make a very good amount of money.

When an expert says any of the following words –

“NO”

“NO”

“NO”

after initial contact, the money and his involvement stop.  If the expert says “YES,” the money and his involvement continue for anywhere from a few months to 6, 7, 8 years or more.  It is in the expert’s best financial interest to tell a client what he/she/they want(s) to hear so as to keep the money and time engagement growing and flowing.

The lawyers should thank the expert for his work, heed his advice, and not file a federal copyright action.  The letters “A” and “D” above were the wisest choices.  But, despite my best efforts, this frivolous lawsuit against Wiz Khalifa was filed.

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Here are the two (2) songs at issue.

Maxamillion  –  Pink N Yellow

Wiz Khalifa  –  Black And Yellow

I could (but won’t) start out in this post by presenting a formal report.  It might read like this:

First, a cut-to-the-chase summary:

There are important differences between PLAINTIFF and WIZ KHALIFA with respect to melody, harmony, rhythm, key, structure and lyrics that reveal that the songs in question, despite a few uncopyrightable similarities with respect to two (2) words, “and yellow,” are not substantially similar.

1.  STYLE

PLAINTIFF and WIZ KHALIFA are both urban/R & B songs.

2.  TEMPO

With respect to tempo, PLAINTIFF is faster than WIZ KHALIFA.

In PLAINTIFF, the tempo is 90 beats per minute.

In WIZ KHALIFA, the tempo is 82 beats per minute.

3.  TONALITY

The songs are in different keys.

PLAINTIFF is in the key of G Major.

WIZ KHALIFA is in the key of D Minor.

The difference between the songs with respect to key is significant due to the nature of a song in a major key as opposed to a minor key.

According to the Harvard Dictionary Of Music, 4th Edition, 2003 (p. 443) since the 1500’s, major keys have often been associated “with happiness or brightness and minor keys with sadness or darkness.”

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The report might look like that at the outset.  It would then go on and on.

Instead, I had an odd confluence of two (2) Wiz Khalifa spottings recently that led to this blog post.  Someone emailed me about the Wiz Khalifa case.  An hour later, I stumbled upon this lawyer’s blog and in particular her few words about the Wiz Khalifa case.  Rather than devote much time to what she had written, I decided to quickly write my thoughts about this case (from relatively distant memory) and disagree with a point:

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One more time, so you don’t have to scroll – here are the recordings at issue:

Maxamillion  –  Pink N Yellow

Wiz Khalifa  –  Black And Yellow

The choruses to both songs are EXTREMELY DIFFERENT as are the lyrics and other parts of both songs.

This is one of the most absurd music copyright infringement lawsuits ever filed.

Wiz is in a minor key and features a chord progression.
Maxamillion is in a major key and does not have a chord progression (it is essentially a single chord from beginning to end).

Wiz is sung.
Maxamillion features no singing.

There are only two (2) words in common between both songs:

“and yellow.”

In Wiz, the emphasized syllable is “Black” (“Black” is on the downbeat)
In Maxamillion, the emphasized syllable is “Yel” of “Yellow (“Yel” is on the downbeat.)

Again, there is NO copyrightable melody or even short copyrightable MELODIC phrase in common between both songs.

There are NO copyrightable rhythms or rhythmic figures between both songs.

There are NO copyrightable harmonies or harmonic progressions between both songs.

I know of NO copyrightable similarities between both songs.

Do you know of ANY music copyright infringement case (not involving sampling) in which there was NO melody in common between both songs?

Do you know of ANY music copyright infringement case in which only two (2) very common words were in common between both songs? (“And yellow”) And these two words were SUNG in one song and rapped in the other. Therefore, there is no melodic similarity here either.

Again, the rhythms between “BLACK and yellow” and “pink and YEL-low” are four 16th notes but the rhythmic accents are in different places: the first 16th (downbeat) of Wiz (“Black”) v. the 3rd 16th (upbeat) of Maxamillion (“Yel” of “yellow”).

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In important news, the Boston Red Sox lead the St. Louis Cardinals 3 games to 2 in the 2013 World Series.  I spoke at St. Louis University Law School on the night of Game 1 (Wednesday, October 23, 2013).  My Bostonian self was the only thing Bostonian about that wonderful night with really good faculty and students in that nice city.  My superstitions prevent me from saying, writing or even thinking anything else about the 2013 World Series.  Except to say –

Go Red Sox – I’m thrilled at their 2013 season!

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

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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”

Vivaldi

Bartok

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.

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

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

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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.):

http://www.mix97fm.com/common/more.php?m=58&ts=1376906421&article=E296BF5408B611E386DEFEFDADE6840A&mode=2

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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

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Who’s tripping down the streets of the city? Robin Thicke?

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In my last post, I explained some of my reasoning, analysis and conclusions about the Black Crowes’ action against Gretchen Wilson.  The Black Crowes felt that their song, Jealous Again had been infringed by Gretchen Wilson’s song, Work Hard, Play Harder.  I strongly disagreed.

Both songs have a very similar 6-note melodic phrase in common.  The first 5 notes are the same, but the 6th is different.  The Black Crowes’ 6th note is scale degree “6.”  Gretchen Wilson’s 6th note is indeterminate.

My conclusions from the previous post:

1.  The short melodic phrase, 3-5-3-2-1-6,  is not the same as 3-5-3-2-1-x.

2.  The Black Crowes’ 3-5-3-2-1-6  is not the same as Gretchen Wilson’s 3-5-3-2-1-x.

3.  The Black Crowes sing the short melodic phrase, 3-5-3-2-1-6, three (3) times in their song.

4.  The sum of the Black Crowes’ 3-5-3-2-1 phrases last, at most, 6 seconds out of the 267 seconds of their song.

5.  The Black Crowes’ 3-5-3-2-1-6 statements account for 2% of their song.

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Questions raised in the previous post now answered:

1.  If Artist B copied a less-than-2-second phrase from Artist A (that when repeated in Artist A’s song amounted to 2% of Artist A’s song), should Artist A be entitled to 50% of Artist B’s profits?  

Answer:  NO

2.  Is awarding 50% of Artist B’s copyright to Artist A sufficient recompense for the copy of 2% of Artist A’s copyright?

Answer:  NO

3.  Is awarding 50% of Artist B’s copyright to Artist A excessive recompense for the copy of 2% of Artist A’s copyright?

Answer:  YES

4.  Do the Black Crowes deserve copyright protection for the less-than-2-second “3-5-3-2-1-6” melodic phrase?

Answer:  NO

5.  Were the Black Crowes the first to compose/create the less-than-2-second “3-5-3-2-1-6” melodic phrase?

Answer:  NO

6.  If they were NOT the first to compose/create the 3-5-3-2-1-6 do they own copyright in 3-5-3-2-1-6?

Answer:  NO, particularly because this melodic phrase is so brief and unoriginal.

7.  Can one own copyright in a less-than-2-second melodic phrase?

Answer:  POSSIBLY.  If the expression is original and substantial, it could be possible to own copyright in a less-than-2-second melodic phrase.

8.  Can one own copyright in the Black Crowes’ specific  less-than-2-second melodic phrase, i.e. 3-5-3-2-1-6?

Answer:  NO.  It is not original or substantial.

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Other music that features 3-5-3-2-1-6

As mentioned, the Black Crowes were NOT the first to originate or create the 3-5-3-2-1-6 motive.  Other songs/compositions written before Jealous Again also use the 3-5-3-2-1-6 melody.  These include:

Stevie Wonder – I Wish

Technically, the melodic phrase Stevie Wonder sings is similar (not identical) to 3-5-3-2-1-6 and sung over two chords, not one.  This short melodic phrase also occupies a significant amount of I Wish.

I Wish is from Stevie Wonder’s Songs In The Key Of Life album and was released in 1976.

0.18   “Looking back on when I…”

0.20  “Was a little…”

0.27  “Then my only worry…”

0.29  “Was for…”

0.45  “Sneaking out the back door…”

0.47  “Hang out…”

0.54  “Greeted at the back door…”

0.56  “Thought I…”

1.39  “Brother says he’s tellin’…”

1.42  “Caught you…”

1.48  “Just don’t tell I’ll give you…”

1.50  “Anything…”

2.06  “Smoking cigarettes and…”

2.08  “Writing something…”

2.16  “Teacher sends you to the…”

2.18  “Principal’s office…”

The Association – Windy

In Windy, the 3-5-3-2-1-6 melody also occurs although with a slightly different rhythm.  Also, the final “6” of the phrase is up from the “1” and not down from the “1.”  The 3-5-3-2-1-6 melodic phrase is sung over three chords.  The 3-5-3-2-1-6 melodic phrase is extremely prominent throughout Windy.

Windy is from The Association’s Insight Out album and was released in 1967.

0.00  instrumental

0.03

0.07

0.14  “Who’s peeking…”

0.18  “Calling a name…”

0.21  “Who’s bending…”

0.31  “Who’s tripping…”

0.34  “Smiling at…”

0.37  “Who’s reaching…”

1.07  flute

1.10

1.14

1.42  “Who’s tripping…”

1.46  “Smiling at…”

1.50  “Who’s reaching…”

1.57  “Who’s tripping…”

2.01  “Smiling at…”

2.05  “Who’s reaching…”

2.12  “Who’s tripping…”

2.15  “Smiling at…”

2.19  “Who’s reaching…”

2.26  “Who’s tripping…”

2.30  “Smiling at…”

2.34  “Who’s reaching…”

2.40  “Who’s tripping…”

2.44  “Smiling at…”

2.48  “Who’s reaching…”

Windy is 174 seconds long (2 minutes and 54 seconds).

The 3-5-3-2-1-6 is heard in Windy between 0.00-0.09, 0.14-0.24, 0.31-0.40, 1.07-1.17, 1.42-1.53, 1.57-2.07. 2.12-2.21, 2.26-2.36 and 2.41-2.51.

The 3-5-3-2-1-6 is NOT heard in Windy between 0.10-0.13, 0.25-0.30, 0.41-1.06, 1.18-1.41, 1.54-1.56, 2.08-2.11, 2.22-2.25, 2.37-2.40 and 2.52-2.54.

*The Association’s 3-5-3-2-1-6 statements account for 49% of Windy.*

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The melodic phrase, 3-5-3-2-1-6, also is heard in

Gustav Holst – Two Songs Without Words, Op. 22

Edward MacDowell – Piano Concerto No. 1, Op. 15

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Sue some more?

A famous hit song written AFTER Jealous Again that uses the 3-5-3-2-1-6 melody is Robin Thicke’s mega-hit, Blurred Lines.  Why mention music written AFTER the plaintiff’s song?

1.  It could give the parties who initiated the legal action against Gretchen Wilson

something else to do

and

someone else to sue

2.  And suing Robin Thicke and associated parties would be BIG FISH to fry – they have made a lot of money from Blurred Lines.

3.  But realistically, and using better judgment, it also shows that the 3-5-3-2-1-6 expressed as it is in Jealous Again is NOT copyrightable and does not deserve copyright protection.

4.  The 3-5-3-2-1-6 melodic phrase is short and in the public domain – these notes have been and are being used by others.

Robin Thicke (featuring T.I. and Pharrell) – Blurred Lines

1.23  “What do they make dreams for”

1.28  “What do we need steam for”

Blurred Lines is from Robin Thicke’s Blurred Lines album and was released in 2013.

This and the previous two (2) posts are NOT expert witness reports.  They are merely initial findings presented informally.

H A P P Y   S U N D A Y   to everyone!

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