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How NOT To Write A Hit Song (Pt. 3/3), Ernő Rubik, Bob Dylan, Iannis Xenakis, Whitfield & Strong

 


 

How NOT To Write A Hit Song  –  Part 3  –  The end of this discussion.

The song I’ve been discussing over the previous two posts:

The Temptations – Papa Was A Rollin’ Stone

 

1.  Make it 7 minutes long.

This song last 7 minutes, a very long time for a hit single in 1972.  (There were a few earlier long hit songs  –  Bob Dylan – Like A Rolling Stone, The Doors – Light My Fire, The Beatles – Hey Jude, etc.)

2.  Use 5 different singers.

This song is by The Temptations and all five sing lead vocals at different times.

3.  Make sure that no singing is heard for the first 2 minutes of the song.

The song builds a fantastic groove  – the first two minutes introduce bass guitar, drums (especially hi hat), orchestral strings and the shimmering use of tremolo, wah-wah guitar, trumpet, harps and handclaps.  I did shave off a few seconds – the first vocal is heard at 1.55, almost 2.00, when “it was the 3rd of September,” the opening words are sung.

4.  Make sure the bass  guitar only plays 3 different pitches (for all 7 minutes).

The three pitches in the bass are:  A-flat, B-flat and D-flat.  In numbers these pitches can be labelled, b7, 1, b3

5.  Make sure that the entire bass guitar melody is 6 notes long.

The bass guitar melody is:

“b7-1, b3-b3-b7-1”

6.  Make sure that this 6-note bass guitar melody is played once and then repeated 51 times.

That 6-note melody is repeated 51 times.  It is never varied in any manner.  To use a cliche, it “anchors” the song.

7.  Make sure that there are no chords (and, therefore, no chord changes) in the entire song.

It is very unusual for a hit song, or any pop song, to have only chord.  [How’s this for a zen-ish statement – if there is only one chord, there are no chords.  “Talk amongst yourselves.”]  Eliminating chord changes makes other aspects of the music more noticeable and important. 

8.  Make sure that the principal solo instrument in the song is an instrument that is not a preferred one – it should be an instrument that the audience for this song does not especially like.

The first instrument to have melodic prominence, and the first solo, is the trumpet.  In pop and soul and R & B (“Papa Was A Rolling Stone” can be categorized as those three styles), trumpet is not the most common and most expected melody/solo instrument. 

9.  Make sure that this song has appeal to U. S. and international audiences.

International audiences in 1972-73 liked and loved this song.  American soul/pop/R & B styles are “big” overseas.

10.  Make sure that the subject matter of the lyrics is about a person who has no redeeming qualities.

The song is about a man who has abandoned his own wife and  children, failed at most things he has done, and probably fathered three more children with another woman (who might have been his wife).  He was always too busy “chasing women and drinking.”

11.  Make sure that this is not a love song.

As stated above, this is not a love song.  It’s a sad song in which children are asking their Mom about the Father they never knew.

A few other aspects of this song that I love:

The arrangement featuring extremely original orchestral string writing including very fast melodic outbursts in unison strings.  This orchestral arrangement screams PAUL RISER (Motown’s best-known arranger) to me.  I’m 99.3421% certain that Paul Riser is the arranger of PWARS.

The very deep vocal, “And Mama,” at 3.37.  For the rest of my life, I would imitate this and frequently say, in as deep a voice as this, “Hey Mama,” to my Mother, who would always smile and laugh at this.

The great little “natural 6” inflection on the syllable, “drink,” between 5.20-5.22.  This short passage still is one of my favorite examples of the Dorian mode.

To repeat, one final time, from previous posts  –

Do you think the eleven (11) constructs/stipulations are good advice for a songwriter?  For a composer?  (What’s the difference between a songwriter and a composer?  This is a question to be explored in future posts.)

Could you write a a great piece of music following these eleven (11) points?

If you wrote a song that followed these exact eleven (11) stipulations, would you be infringing copyright?  That’s an enormous question and one that could lead to debate, certainty, uncertainty, anxiety, anger or confusion.  Of that, I am certain.  If you’d like, please start off that discussion below.  I promise I can add to whatever discussion begins.  🙂

I expect that an attorney in the future will ask me this specific question at a deposition.  (Rather than answer this question now, I’ll leave it in this post just to annoy an attorney or two.  I have also inserted a few statements in previous posts to see if attorneys or their paralegals are paying attention. This includes a factual omission I’m almost certain they’ll never catch  –  smile smile!)

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How NOT To Write Great Music – Part 2


Before I delve into How NOT To Write A Hit Song – Part 2, I wonder – did you notice that today’s photo above is as colorful as yesterday’s photo?  That was intentional.  I wish I could tell you that there’s a profound reason behind my selection of colors and shapes.  I can’t but I think the bright rainbow colors unite the sustained theme of how NOT to write a hit song.

Now, let’s describe more ways  –  specific music compositional ideas  –  to finish the hit song (great musical composition) I began to describe yesterday.

How NOT To Write A Hit Song  –  Part 2

Let’s repeat from yesterday:

1.  make it 7 minutes long

2.  use 5 different singers

3.  make sure that no singing is heard for the first 2 minutes of the song

4.  make sure the bass  guitar only plays 3 different pitches (for all 7 minutes)

5.  make sure that the entire bass guitar melody is 6 notes long

6.  make sure that this 6-note bass guitar melody is played once and then repeated 51 times

NOW, here are the final five (5) steps:

7.  make sure that there are no chords (and, therefore, no chord changes) in the entire song

8.  make sure that the principal solo instrument in the song is an instrument that is not a preferred one – it should be an instrument that the audience for this song does not especially like.

9.  make sure that this song has appeal to U. S. and international audiences

10.  make sure that the subject matter of the lyrics is about a person who has no redeeming qualities

11.  make sure that this is not a love song

To repeat and expand from yesterday’s post…

Do you think the above eleven (11) constructs/stipulations are good advice for a songwriter?  For a composer?  (What’s the difference between a songwriter and a composer?  This is a question to be explored in future posts.)

Could you write a a great piece of music following these eleven (11) points?

If you wrote a song that followed these exact eleven (11) stipulations, would you be infringing copyright? That is a complex question and one that could lead to debate, certainty, uncertainty, anxiety, anger or confusion.  Of that, I am certain.  If you’d like, please start off that discussion below.  I promise I can add to whatever discussion begins.  🙂

Do you know of anyone who has set out to write a song/musical composition, in such a foolish manner as mentioned above?

The FINAL QUESTION 

From the above description, can you name the famous popular song that fits the eleven (11) points above?  I will post the answer next week, if you don’t post it first.  Please post away!

 

Have a great weekend and great weekend music – start with this song:

It’s Friday, Thank God it’s Friday.  Did you just get paid? 

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How NOT To Write Great Music – Part 1

I have been involved in many styles of music as a composer, performer, theorist, musicologist, ethnomusicologist, conductor, guitarist and pianist and lover of music.  I’ve plunged into almost every kind of music from almost every period and continent.  I am not claiming to have expertise or even knowledge in and about so many kinds of music.  I am claiming to be very curious about, attracted to and in love with music from all over this planet.

One of the best things about a being a music theorist, or musicologist, or best word yet – ethnomusicologist – is that we strive to understand how music – the music we experience – came to be.  Ideally, the more one knows about how the music was conceived, created, performed, recorded, disseminated and valued, the more likely it is that we can better enjoy the music, better understand the people who created the music, better understand our own music, culture and identity and, ideally, live better.

How do we create music?  What are the best and worst ways to create music?  Is it possible to answer these questions?  I try to answer them in my own life and will begin a discussion with this post.  So, here goes.  I hope that the end result is laudable.  I know the answer/end point and will concoct this path to get to the end.  The way I’ll approach these particular posts is to examine what NOT to do.  By examining what NOT to do, we might better deduce what TO DO.  (This series of posts, like some of my others, will be ongoing but intermittent.)

The overall title is  —   How NOT To Write Great Music.  But for these first posts, we will change “…Write Great Music,” to the more specific, “…Write A Hit Song.”  The title, therefore, is “How NOT To Write A Hit Song.”  I will outline a series of music compositional steps that might seem foolish, and guaranteed to result in not good music, but were followed in the creation of this music.  And despite the foolish musical suggestions/directions/prescriptions/steps, the result was Great Music, or a Hit Song.

How NOT To Write A Hit Song

1.  make it 7 minutes long

2.  use 5 different singers

3.  make sure that no singing is heard for the first 2 minutes of the song

4.  make sure the bass guitar only plays 3 different pitches (for all 7 minutes)

5.  make sure that the entire bass guitar melody is 6 notes long

6.  make sure that this 6-note bass guitar melody is played once and then repeated 51 times

A few questions for anyone reading this –

Do you think the above six (6) constructs are good advice for a songwriter?  For a composer?  (What’s the difference between a songwriter and a composer?)

Could you write a great piece of music following these six (6) stipulations?
Do you know of anyone who has set out to write a song, or musical composition, in such a foolish manner?

The FINAL QUESTION

From the above prescription, can you name the famous popular song that fits the 6 points above?  The next post will present more information and more clues.  I will post the answer soon, if you don’t post it first.

I hope to hear from you.

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Do The Macarena (On A Fishing Boat In The North Atlantic With An HP Printer)

C O M M E R C I A L S

Do you like this HP Office Jet Pro commercial?  I think it is very effective.  The people are of all ages, attractive (including adorable little kids in commercials, TV shows, video and film is usually a no-brainer) and very happy.  The colors are beautiful.  Everyone seems to be having fun in the upcoming celebration of AnnaBel’s birthday.  The fishermen look like good wholesome hard working Scandinavians or Scandinavian-types, and the ocean is a sapphire blue – it must be the North Atlantic.  The wood of the ships is good wood (that sounded like something Mitt Romney would have said  –   “the trees are the right height, the wood is good wood”) .  Everything that needs to be good is good.  Everything that needs to have color has color.  And so on.

But what first caught my attention is the music of this HP Office Jet Pro commercial.  Because I am always multitasking, I am always hearing television before I am watching television  For me, the trick is – if the music and/or sound is interesting enough or familiar enough, I look up.  If not, I keep writing/goofing off at my iMac while I am also looking at my iMac, not a television screen.

While working on a project, I heard this HP Office Jet Pro commercial and looked up.  What distracted me and attracted me to the commercial was the manner in which it referenced the way-too-big hit song from the mid 1990’s, “Macarena.”  (When I just wrote, M-A-C-A-R-E-N-A, WordPress thought perhaps I meant, “Macaroni,” or “Macaroon.”  No, I meant M-A-C-A-R-E-N-A.  It might take a few more years to convince the world of words that Macarena is Macarena, just as it took a long time to make “Beatles” not be “Beetles.”

“Macarena” features its hook at these eleven (11) places in Macarena:

0.41-0.50

0.51-0.59

1.19-1.27

1.28-1.37

2.14-2.23

2.24-2.32

2.54-3.03

3.04-3.12

3.13-3.22

3.23-3.31

3.32-3.40

The hook in the “HP Office Jet Pro commercial” is heard once in HP Office Jet Pro commercial:

0.07-0.17

Do you think the hooks between these two songs are similar?

Which of the following do you think is/are true?

HP Office Jet Pro commercial  copies  Macarena

HP Office Jet Pro commercial  infringes the copyright of  Macarena

HP Office Jet Pro commercial  references  Macarena

HP Office Jet Pro commercial  does not reference  Macarena

Please post your thoughts.  Maybe I’ll post mine.

One final thought re these videos:

“I like, uh, I like seeing the, uh, I like seeing the videos.  I love the videos.  There’s something very special here.  The great videos but also all the little inland videos that dot the, uh, the, uh, parts of Michigan. Um…” 

 

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Haiku 101, Intellectual Property Haiku (IP Haiku)

I’ve written thousands of haiku.  It all started one morning in Pittsburgh.  I woke from the strangest dream.  In my dream, I tried to convince people I was a composer (I was and am a composer) but they wouldn’t listen.  They found a poetry journal from Australia and in the journal were haiku I had written.  They told me I was an INTERNATIONALLY PUBLISHED POET who specialized in haiku.  I told them I was a composer, not a poet, but I couldn’t convince them of this.  Strangely, after I awoke, I laughed at this bizarre dream but then started to research haiku.

I found out that the most common form of haiku was a three-line poem consisting of 17 syllables.  And there was a nice symmetry to the structure.  The first line consisted of 5 syllables, the second had 7 syllables and the third had 5 syllables.  An “A – B – A” form.  In music a “rondo” has an A – B – A form (and a rondo can have a few other forms).  I had never written a rondo (and still haven’t) but I decided to start my RONDO CAREER as a poet instead of  a composer.  So, I started to write   5  –  7  –  5  haiku.

My haiku obsession – haiku career – began that way.  I’ve gone through periods of writing hundreds in a few hours.  Sometimes my haiku tell a story.  Other times they are related to a theme, and still other times they are disconnected and without any purpose, like my life.  (I do not have a purposeful life – I have a purpose-less life.  An ambient free-form, drifting life.  Enough of this theme.)

I used to get reprimanded by poets and scholars who knew better than I (knew better than I about everything – just ask them).  Even my Japanese girlfriend told me that haiku were supposed to be about nature, not vehicles for telling deranged and absurd stories that would be parodic and unauthorized episodes of   –  –  –  –

The Dating Game

Leave It To Beaver

The Brady Bunch or

Love Boat

Or that haiku were not supposed to be vehicles to criticize and protest President Reagan, Barry Manilow or American pop culture.  My haiku started out as an escape mechanism – I was composing too much complicated concert music and found that if I got away from the music and started to write in this happy 5-7-5 format, I’d feel better.  My escape would be realized.

Here is one installment of a bunch.   These are about copyright and intellectual property and date back to 2004.  If I can find my first analog book of haiku, I’ll break those out over a period of time at emichaelmusic.com.  But for now, here are some IP haiku.

INTRO

Copyright haiku
Musings manipulations
And sometimes held thoughts

If you can publish
Them they might bring you good luck
Forward them to friends

(Maybe I’m confused
Maybe it’s email that needs
To be forwarded)

In any event
Here is the first installment
Of  I. P.  haiku

Chapter 1

I just bought a bomb
It came from Best Buy and I
Think it is legal

The bomb has a name –
Jay-Z’s “A Cappella Black
Album.”  Still, a bomb

I think of it as
Silly Putty; a means for
Creativity

But this Putty is
Also copyrighted stuff
So, fun with limits

Press Silly Putty
Onto newspapers and watch
The print get copied

I now have a new
Cool thing –  an embodiment
And derivative

My Silly Putty
Has infringed the copyright
Of a newspaper

Chapter 2

And it gets worse – I
Copied an Op-Ed piece from
Today’s New York Times

I took the writer’s
Best part and transferred it to
My Silly Putty

This Silly Putty
Is worth more financially
As I took good stuff

My idea was
To combine Putty and print
And make something new

There were thousands of
Print sources for me to use
I had to choose well

Or I could phrase it
This way – there were thousands of
Sources I could steal

Not “use” but “steal.” But
Isn’t all expression at
Some level not new?

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Mrs. General David Petraeus, Your Husband Is Cheatin’ On Us; The World Wide (spider) Web

 

What have I heard about the blues?  Things like this:

Blues is real

Blues is life

Blues is real life

Blues is the story of life

Blues tells the story of our lives

Blues reflects our times

Blues tells the truth

The blues chases away the blues

The blues is a woman

And when it comes to lovin’, cheatin’, hurtin’ and schemin’, the blues has that covered too.

In the past few days I’ve come to realize that blues is intrinsic to, and helps tell the story of, THE BIG DEAL at the Central Intelligence Agency.  The CIA is in the center of all news right now (Monday, November 12, 2012).  General David Petraeus, the Director of the CIA, resigned last week because of an affair.  We are now finding out more.

Petraeus has been married to Wife (Woman A) for 37 years.  Petraeus had an affair with Woman B.  Woman B then finds out that Woman C might be interested in Petraeus.  If Woman B is comfortable with her role as Sometimes-He’s-Mine, than Woman B does not want Woman C in the picture.  What can happen next?  Woman B tells Woman A that there is a Woman C.  (The songs and lyrics will be spelled out below).  Woman B can go to Woman A and tell her that Your Husband Is Cheating On Us.  (Denise LaSalle already has expressed this so well and will be repeated below).

Now, all of General Petraeus’ shenanigans struck me immediately as a few good ol’ blues songs, and I thought I would summarize the story here by means of the blues.  The more I think about this, the more songs I could throw into the carnal mix but I’ll stop with my first six (with links to five).

*    *    *    *    *    *    *    *    *    *    *    *

I summarize the David Petraeus Blues this way –

I see four (4) characters and five (5) songs that describe the situation.  (I added a sixth song below as well.)

PETRAEUS  –  (“Back Door Man”)  (The Back Door Man will also sing “Mean Red Spider”)

WOMAN A  –  Petraeus’ wife  (“Insane Asylum”)

WOMAN B  –  The Mean Red Spider  (“Your Husband Is Cheatin’ On Us”)

WOMAN C  –  (“Don’t Start Me To Talkin'”)

PETRAEUS  bragging as a surreptitious dog:

Howlin’ Wolf   Back Door Man   “When everybody’s trying to sleep, I’m somewhere making my midnight creep, yes in the morning, when the rooster crow, something tell me I got to go”

WOMAN A to Petraeus:

Willie Dixon & Koko Taylor   Insane Asylum   “When your love has ceased to be, there’s no other place for me, if you don’t hold me in your arms, I’d rather be here from now on”

Woman B, about Woman C, to Woman A:

Denise LaSalle   Your Husband Is Cheatin’ on Us    “Honey your husband is cheating on us, I  know you thought you had a good man, thought you had a man that you could trust.”  “The lies he used to tell you I know them all too well, but now he’s lying to me girl, and that’s why I’m going to tell, hey lady, honey your husband is cheating on us, I know you thought you had a good man, thought you had a man that you could trust”  “Here’s another thing, he’s got too many women, now somebody’s got to go but before I bow out gracefully I’ll tell everything I know!…”

Petraeus on Woman B:

Muddy Waters   Mean Red Spider   “I got a mean red spider and she been webbin’ all over town”  (Amazing how Muddy Waters predicted the World Wide Spider Web back in the late 1940’s!)

Woman C to Petraeus:

Sonny Boy Williamson   Don’t Start Me To Talkin’   “Don’t start me to talkin’, I’ll tell everything I know, I’m gonna break up this signifying cause somebody’s got to go!”

Cash McCall’s  Something Funny Is Going On   would also be a song Woman C could sing to Petraeus (I didn’t include it because I could not find the song on YouTube):   “I smell a rat, babe.  There’s something funny going on, Oh I smell a rat baby, there’s something funny going on, the last time you acted like this I looked around and you were gone, You’re hiding something from me baby, I can tell by the way you act, you’re hiding something from me baby, I can tell by the way you act, now I’m not blind so come on let’s deal with the facts.”

A N D    S O    B E    T H E    B L U E S !

 

 

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Did Taylor Swift Steal A Lyric From Matt Nathanson? Elvis Presley, Johnny Cash, Andy Williams & Tony Bennett

We’re in Day Two of 30-70 mph winds only now rain has come as well.  There are two equidistant paths to the ocean here.  One is flat, just barely higher than sea level, and slopes down to the beach.  That path results in really strong sand blasts to the face.  The other is down a hill, in between huge rocks, and sand-less.  Well, no sand in the face.  That’s usually my preferred route.

I love the power of the ocean and winds.  It feels great to go outside and weather it for awhile.  Coming back into my house, at least on a day like this, feels even better.  After I finish this post and  French Roast (“post” and French “Roast”, an AA rhyme scheme) , I’ll go outside to see and possibly film the ferociousness of Winter Storm Athena.

*  *  *  *  *  *  *  *  *  *  *  *

My friend, Sarah Hasu, posted this AOL Music Blog report on my Facebook site.  Sarah wanted my opinion, so here is my opinion.  First, I need to write some qualifying statements – here come the qualifying statements.

These will be my preliminary and cursory thoughts.  I’ll throw in some more cautionary and qualifying words so that I can stress that these are my quick and almost-preliminary thoughts.  If I were more serious and studied this fully, I might refer to my thoughts as “findings,” but I’ll stick with almost-preliminary thoughts.

*  *  *  *  *  *  *  *  *  *  *  *

From the AOL Music Blog:

“Even though Taylor Swift’s new CD Red has sold a recording-breaking 1.2 million copies, one person in particular isn’t thrilled with Tay’s lyric choices. Singer Matt Nathanson is accusing Taylor from stealing a lyric from his 2003 song “I Saw” and using it in her song “All Too Well.”

The lyric in question? Nathanson sings in his song: “and I’ll forget about you long enough to forget why I need to.” And Taylor’s song lyric is: “and I forget about you long enough to forget why I needed to.”

*  *  *  *  *  *  *  *  *  *  *  *

So, the issue seems to be – is Taylor Swift’s “and I forget about you long enough to forget why I needed to,” an unauthorized copy of Matt Nathanson’s “and I’ll forget about you long enough to forget why I need to.”

“and I’ll forget about you long enough to forget why I need to”

“and I forget about you long enough to forget why I needed to”

My first impression is that I would side with Taylor Swift as I think two (or more) authors could come up with those very similar words independently, i.e., without copying.  And if one did not copy the other, it is not copyright infringement.

These two short lyric excerpts from larger songs are of a style of lyric writing I have seen before, one in which a clever literary device is at play.  Songs with these literary devices are fairly common in Nashville, country and pop.  It reminds me of songs and song titles like these:

“I’m Left, You’re Right, She’s Gone,”   (Elvis Presley recording) and

“I Forgot To Remember To Forget,”   (Johnny Cash recording) and

“Everybody Has The Right To Be Wrong,”    (performance by Andy Williams and Tony Bennett)

Even if Taylor Swift were to admit that she took this or it could be shown that she likely copied this line, there still are reasons why this might not be copyright infringement, or SERIOUS copyright infringement.

1.  it is only one line.

2.  it is short (almost the same as “it is only one line”).

3.  it could be considered an example of de minimis copying (that could include reasons 1 & 2).

4.  it could be considered “fair use” for a few reasons.  Fair use would cover reasons 1, 2 & 3 but at least one more reason.  This copying would have no negative financial effect on the original, i.e., her borrowing would not hurt the market for the original song.

5.  Swift’s melody did not copy Nathanson’s melody.

6.  Swift’s harmony did not copy Nathanson’s harmony.

7.  Swift’s rhythm did not copy Nathanson’s rhythm.

8.  Swift’s tempo did not copy Nathanson’s tempo.

All of these points can be spelled out in more detail and more reasons along these lines can be added.  Also, not all of these points are created equal.

There are also these considerations:

1.  Would this ever get remedied through legal action?  (That’s a big one to consider as what does “remedied” really mean, and how do you know when you’ve been “remedied?”  — smile smile.)

2.  Would Nathanson want the bad press/ill will that could come from suing Taylor Swift?  He already has made some very public decisions that are not wise.  For example, he should NEVER have tweeted that Taylor Swift is “a thief.”

3.  Can Nathanson afford better lawyers than Swift’s lawyers?

4.  How much time would Nathanson want to spend on this issue –

1 year?

2 years?

3 years?

4 years?

5 years?

6 years?

7 years?

8 years?

9 years?

10 years or more on this?

I was involved as expert witness in a copyright infringement case over three (3) words, that lasted three (3) years.  I’ve spent up to seven (7) years in a case, and I know cases that lasted longer.  Time, and the money it takes to fund the time, will cost money.

5.  Does Nathanson believe he could/would win via legal motions?

6.  If he won (or lost) at trial, would be able to afford an appeal?

7.  Does Nathanson have the money to pay all of the defendant’s expenses in this matter?   Some courts have ruled that plaintiffs have to pay defendants’ court costs.

8.  These reasons can be rearranged – the order above might not be optimal.  That is why I referred to all of this rambling as almost-preliminary thoughts.

 

So, what are your thoughts on these issues?

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Unfair Competition, Election Night 2012, Swimming at 57 F / 41 F

I’ve had a fantastic election night.  Things went my way all throughout MASSACHUSETTS, especially with the election of Elizabeth Warren as our new U. S. Senator, and our first female senator (in such a progressive state, it’s odd that it took this long!).  I wanted President Obama to be reelected as well as Sen. Brown in Ohio, Sen. Klobuchar in Minnesota, Sen McCaskill in Missouri and a few others.  Yes, election night was a lot of fun.

But the day had been perfect in terms of weather here – 41 F, sunny and no wind – so I expected a continuation this evening.  The sunny and no wind part got me to actually swim in the Atlantic Ocean – the water temp was 57 F.  It was very cold and I didn’t stay in long!  I’ve got this foolish idea that I will swim at least one day every month.  September and October were very easy.  November was chilly and challenging and December is coming!

I wanted to write about “unfair competition.”  It’s a subject that can pertain to music and it’s come up many times in my professional and musical activities.  So, a few words:

U N F A I R      C O M P E T I T I O N

“Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.”   The Federal Trade Commission Act (Title 15 United States Code, Section 45. 1.)

In both unfair competition and trademark it is important that the consumer should not be confused as to the origin of goods and services.

An example of unfair competition would occur if an unknown musician, or any non-Beatle, released an album of 13 supposedly original songs, whose titles, in order, were:

  1. “Sgt. Pepper’s Lonely Hearts Club Band”
  2. “With A Little Help From My Friends”
  3. “Lucy In The Sky With Diamonds”
  4. “Getting Better”
  5. “Fixing A Hole”
  6. “She’s Leaving Home”
  7. “Being For The Benefit Of Mr. Kite”
  8. “Within You Without You”
  9. “When I’m Sixty-Four”
  10. “Lovely Rita”
  11. “Good Morning Good Morning”
  12. “Sgt. Pepper’s Lonely Hearts Club Band (Reprise)”
  13. “A Day In The Life”

In the example above, it is obvious that someone is trying to confuse the consumer by naming all of the songs the same as all 13 songs, and in the same order, as the 13 songs on the Beatles’ “Sgt. Pepper’s Lonely Hearts Club Band” album.   Obviously, a consumer in a store could glance at an album with these 13 song titles and conclude that this is a Beatles’ cover album, or possibly a re-issue of “Sgt. Pepper,” or even a Beatles-sanctioned or affiliated project.  Factor in the additional problems this could cause if this counterfeit album was sold on the Internet, where search engines could turn up this album in any Beatles’ search, and it becomes clear that this musician is unethically riding on the Beatles’ coattails and confusing consumers.  Thusly, this would be an example of unfair competition.

The title, “Sgt. Pepper’s Lonely Hearts Club Band,” like most titles, is not protected under copyright.  Stringing together thirteen (13) titles, in the above example, might be protected under copyright as these thirteen titles written consecutively in order could be copyrightable expression.  (I could argue that these specific thirteen (13) titles in consecutive order would be copy protected – I’ll be happy to do that in another post.)

It is likely that most of these 13 song titles could be used by other authors as titles for their independently created copyrighted songs.  For example, the title, “Getting Better,” consists of two (2) unprotectable words:

 Getting, Better

Obviously these common words did not originate with the Beatles, and the title, “Getting Better,” in its entirety, or subsumed within a larger title, likely was used prior to this Beatles’ song.  “Getting Better” or “It’s Getting Better” are titles that anyone could use.

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Minotaur Shock, Band Of The Day App

 

M I N O T A U R     S H O C K 

 

This morning I was listening to the podcast (from Stitcher) of This Week In Tech: Episode 378 from TWIT.TV – it’s a good, fun episode – when I found out that I had some apps to update on my iPhone 5.  Of course this little iPhone 5 machine can update away while I’m listing to Stitcher, so I proceeded to give my blessings so the updates could update.

Next, “Genius,” the Apple app Recommender-In-Chief that I’ve wisely enabled, suggested a few apps I just had to have.  Check.  Got them.

Next came another Genius app recommendation – BAND OF THE DAY.  Band Of The Day, according to its own statement of honest hype, “unearths the best new music by delivering one new artist a day, every single day.  Through expert curation, free music (commercial-free and uninterrupted), a stunning user interface, videos, photographs, biographies, and more, we help you discover your new favorite band.”  And wouldn’t you know, I loved today’s recommendation – Minotaur Shock.  Even if I was always a bit scared of Newton the Minotaur – maybe he was a centaur and not a minotaur? –  from The Mighty Hercules animated series that was aired when I was a little kid.  (I kept expecting to run into a minotaur one day in the woods near my house. I never did.)

I love the song and video that is being pushed  –  Saundersfoot.  The opening wind chimes sounds work perfectly and the composition unfolds really nicely.  I heard “Saundersfoot” first and then came to the video after hearing about 5 other songs by MInotaur Shock.  I hear elements of acid jazz, ambient and Aaron Copland (his pandiatonicism) in this composition.

The brief description of Minotaur Shock, from the record label, contains a word that will likely scare off some young audiences.  The description:  “Gorgeously warm and tranquil electronic music from a Bristol, UK producer.”  Of course that frightening word is… T R A N Q U I L.”  If tranquil is “not your cup of tea” (to keep up the British theme of these sentences), just tell yourself that the music is warmongering, threatening, inked and bad ass, force yourself to concentrate and listen for 30 minutes, and you’ll be fine, improved and even glad you did.

I wrote that last sentence after taking my own advice and listening to song after song by Dave Edwards aka Minotaur Shock for about 30 minutes (there’s that 30 minute theme again).

This is a rarer moment than in old days – I’ve just found some new music I like.  Often I like people more than their music (I am usually surrounded by music of friends and especially new friends I don’t yet know well).  Orchard, this new Minotaur Shock album, is really good stuff  as is the Band Of The Day app.  I highly recommend both.

Have a great November 6, 2012, Election Day in the United States.

 

 

 

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Watching Me Walk Around Naked

D I R E C T V

Directv has created and is airing a sticky – to be more concise, “ICKY” – television commercial that only succeeds at showing a young couple in their loveless relationship.  And the “zinger” line, aired by the male, is mean spirited and aimed at demeaning the woman.  It suggests danger, discomfort and intimidation, not exactly positive qualities to connote by means of a television commercial.  When I first saw this commercial, I was shocked and thought, “he didn’t just say that, did he?  Yikes, this is one ugly and disturbing commercial.”

I’ve heard:

All publicity is good publicity.

Being bad is good for a reputation.

Hey, at least you remembered the commercial – you’re talking about it, aren’t you?

Yet I feel that these three sentences/sentiments do not apply to television commercials or a company’s reputation in the age of ubiquitous social media.  It’s a hard enough proposition for a telecom to have a good reputation and associated good will without the company airing an ugly and disconcerting commercial.

This awful 30-second television commercial is so bad:

FIRST  –  There’s no music.  Music should be in almost every TV/radio/Internet commercial as it can enhance the company or service’s message, as much as visual stimuli  –  art, photographs, video  –  can enhance text.  (Notice the visual for this post.)

To move slightly off the subject and introduce something to explore later:

Music accompanying a television commercial should

a)  herald the message (of the commercial)

b)  be supportive of the message

c)  reinforce the message, or best of all

d)  be memorable so that when the music is heard again, the audience will conjure up the commercial

e)  optimally, introduce a cool new music composition, style, musical artist, band or gangnam-like/macarena-like thing or other foolish fad

SECOND  –  these two young lovers (they were likely lovers in a distant time and galaxy) are at their worst and we the audience are watching the précis worst of their worst.

THIRD  –  the commercial opens with what looks to be the making of an Alfred Hitchcock-Janet Lee-Psycho type shower murder scene – the glass is foggy, and she is naked and cannot see the danger that is lurking just outside the shower.

FOURTH  –  the woman is vulnerable and frightened by an enormous bright billboard-like sign that is waiting for her as she exits the shower.   The unrealistic large sign indicates…

“R E C O R D I N G     C O N F L I C T” 

FIFTH  –  now for the demeaning part.   Shocked by and referring to the sign, the woman says, “OK I am sick of this thing!”  He replies, “Hmm.  Well, see we have cable and if it didn’t record your shows while I am recording my shows, we wouldn’t have to deal with this” (as he points to the huge sign).  She replies, “I just feel like it’s watching me walk around naked.”  He then stops brushing his teeth and delivers his zinger, “Well, at least somebody gets to.”  He smirks, starts to brush extra hard and walks away.  Meanwhile, she looks hurt by his callousness and stands frozen, tightly holding the towel around her body.  Just before the scene fades, a message in white letters, “DON’T LIVE WITH CABLE’S CONFLICT BOX” is briefly displayed on the screen.   Finally, an unseen new male VOICE says, “Upgrade to Directv and record five shows at once.  Call 1-800-DIRECTV.”

The commercial has reminded us that a naked woman in a shower is in a potentially dangerous situation – how can Hitchcock’s “Psycho” not be implied?  Instead of being murdered by a psychotic individual, an enormous psychotic sign is there to startle her.  The only conversation after this is meant to belittle her – she doesn’t know enough about technology for the household, but if she did, the psycho sign wouldn’t be there to scare her coming out of the shower.

As an obnoxious bonus, we are reminded that as a lover, this woman is worse than she is a technophile – she is belittled because she does not know that Directv is better than cable.  Finally, we are told that at least the scary sign is likely to see her naked –  she is more receptive to the Big Brother Recording Conflict sign than the male in the house as he never gets to see her naked.

In this, the most expensive and media-saturated election period in United States history, we have heard several infamous, idiotic and sexist utterances from certain Republican male politicians including these sledge hammers:

“if it’s a legitimate rape, uh, the female body has ways to try to shut that whole thing down,” (Todd Akin, R-MO)

and

“I came to realize that life is that gift from God and I think even when life begins in that horrible situation of rape, that it is something that God intended to happen.” (Richard Mourdock, R-IN)

At any time in civilized society, this Directv commercial would have been inappropriate.  But in this 2012 “legitimate rape” and “God intended to happen” election period, this Directv commercial is vile, offensive, more off base and ultimately more harmful than beneficial to the Directv brand.