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Angie Aparo v. Five For Fighting (Part 3 of 3)

PART 3 of 3

We left off in this cliffhanger with the promise of an ending in this highly abbreviated fictionalized account of what could have been a copyright infringement action brought by Angie Aparo and affiliated parties against Five For Fighting and affiliated parties.

Plaintiff: What country song  features 1-2-3-5?

Defendant:  “Tomorrow Never Comes” by Ernest Tubb does.  Conway Twitty’s “I’m Not Through Loving You Yet” also features 1-2-3-5.

Plaintiff:  What rock song  features 1-2-3-5?

Defendant: “I’ll Follow The Sun” by The Beatles.”  The Beatles‘ “You Won’t See Me” also features 1-2-3-5.

Plaintiff: What soul/R & B song features 1-2-3-5?

Defendant:  “My Girl” by The Temptations.

Plaintiff: What Brazilian song  features 1-2-3-5?

Defendant:  “Canto Do Povo De Um Lugar” by Caetano Veloso.

Plaintiff: What song recorded in Minnesota features 1-2-3-5?

Defendant:  “Paisley Park” by Prince.

Plaintiff:  And you stated, yesterday, that you do not know a song recorded in Iowa that features 1-2-3-5?

Defendant: What is Iowa?  Is there a gas station near there?

Plaintiff:  You also stated yesterday that you do not know a 17th century popular Persian song that features 1-2-3-5?

Defendant: No, my life up until this point has been incomplete as I do not know any 17th century Persian popular songs.

Plaintiff: Is there something you want to tell me?

Defendant: What?

Plaintiff: You seem to be almost laughing, or is that a smirk?  Is there something you would like to share with us?

Defendant: Well, when you put it that way, yes, there is something I would like to say.

Plaintiff: Go ahead.

Defendant: I have the best example to show that we did not copy your client.

This is a very famous example of 1-2-3-5.  And although your client’s song and our client’s song has the same 1-2-3-5, this really famous song from the 1970’s should put an end to this foolish lawsuit.

Here’s what I want you to do:

I want you to sing three (3) phrases from the first chorus of Aparo’s song.  Or we could cue the iPad or iPod (I brought both with me today – one can never get too redundant on the preparation thing, you know? ) – to 1.21 of the live version:

Angie Aparo – “Seed”
(YouTube:  http://bit.ly/Ri53Wr )

“For every seed”   [1-2-3-5]
“once there were two”  [1-2-3-5]
“wrestle your heart”  [1-2-3-5]

They’re the same, right?  Now I want you to sing the first chorus of Five For Fighting’s song.  Or we could cue the iPad to 0.37:

Five For Fighting – “Superman (It’s Not Easy)”
(YouTube:   http://bit.ly/QlaDHC )

“I’m more than a bird”  [1-2-3-5]
“I’m more than a plane” [1-2-3-5]

Those phrases from Five For Fighting are the same melody as the analogous phrases from Angie Aparo, right?

Now I want to introduce a new song as part of our evidence:

A fairly famous song from 1971 that your expert seemed to either overlook, or perhaps he doesn’t know this song.

“All The Young Dudes” by Mott The Hoople – their most famous single.

And as with Aparo and Five For Fighting, guess what melody is at the heart of the chorus?  Yes:  1-2-3-5.

Now I want you to sing the first chorus of  Mott The Hoople’s “All The Young Dudes”  Let’s cue the iPad to 0.52:

Mott The Hoople – “All The Young Dudes”
(YouTube:   http://bit.ly/Rl1sXA )

“all the young dudes”  [1-2-3-5]
“boogaloo dudes”  [1-2-3-5]
“all the young dudes”  [1-2-3-5]
“boogaloo dudes”  [1-2-3-5]

These three (3) songs, by

Mott The Hoople
Angie Aparo
Five For Fighting

…and these specific melodies are interchangeable!  You don’t have a case!    

Or perhaps now we should both worry that David Bowie, who wrote “All The Young Dudes,” and related parties will sue us?

No, they won’t.  They won’t sue because this melody is:

too short;
not original enough to be copyrighted, and;
has occurred in many songs/compositions in many styles of music dating back to Bach.

The short and simple melodic gesture, 1-2-3-5, is in the public domain.

This just goes to show that if not Mott The Hoople, a lot of great music can be traced back to Bach, don’t you think?

(And did you notice that the chorus of Mott The Hoople consists of two (2) nineteen (19)-beat phrases?  Four (4) measures of 4/4 plus one (1) one measure of 3/4 with that entire thing stated twice, i.e. 19/4 + 19/4.  Cool, huh?)

Anyone up for lunch?

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Does Five For Fighting’s “Superman” Infringe Angie Aparo’s “Seed? (Part 2 of 3)

Chess Game

Chess Game

If accused of copyright infringement (copying Angie Aparo’s “Seed”), Five For Fighting could reply:  “We didn’t copy your song.”

(That defense should be enough, don’t you think?)

Then, someone on the potential plaintiff’s side (lawyer/publisher/manager etc.) could say, “YES you did.”

Defendant (Five For Fighting) could reply, “NO we didn’t.”

Then, Plaintiff could state, “You HAD to copy it.  You COULDN’T have written it any other way.”

Then, Defendant could state, “NO.  We wrote it without copying.  There was no copying.  Now, go away.”

Plaintiff could bring in an “expert” in music.  This expert could state that the defendant stole the song.

Defendant could bring in another expert who could state that the Defendant did not copy the Plaintiff.

(Now we will drop the conditional auxiliary verb – “could” – as we’ve got a barn-burner of a federal copyright infringement matter here.)

Experts for the Plaintiff and Defendant agree to present evidence, and to two (2) nomenclative points:

  1. Melody is indicated by numerical scale degrees: 1-2-3-4-5-6-7-8
  2. Time is indicated by a number, decimal point and two-digit number.  This configuration is identical to that indicated by an MP3 player or CD player.  For example, the indication, “2.31” indicates “two minutes and thirty-one seconds.”

Plaintiff and Defendant agree that the melody in question is:

1-2-3-5

and that 1-2-3-5 occurs at these points:

(It is common that there can be slight disagreements as to the exact temporal location of some of the numbers, but these are inconsequential in the determination of copyright infringement in this specific case)

Angie Aparo – “Seed”
(YouTube:  http://bit.ly/Ri53Wr )

1.21, 1.24, 1.29
1.43, 1.54
2.39,
3.25, 3.35, 3.45

Five For Fighting – “Superman (It’s Not Easy)”
(YouTube:   http://bit.ly/QlaDHC )

0.37, 0.39
1.12, 1.14, 1.21, 1.23
2.16, 2.18, 2.25, 2.27
2.51, 2.53, 3.00, 3.02

Plaintiff’s expert touts and further explains his evidence.

Defendant’s expert states that the melody in common is not copyrighted because it can be found in many songs written before the Plaintiff’s song.

Plaintiffs demand Defendants’ expert witness prove that the melody in question is not copyrighted.

Defendant’s expert witness shows that the melody is found in the music of:  Bach, Borodin, Brahms, Dvorak, Foster, Guonod, Haydn. Lear, Mendelssohn and Mozart.

Plaintiff demands specificity.

Defendant specifies:

Bach –  Jesu, Joy Of Man’s Desiring (Cantata No. 147)
Borodin – Prince Igor
Brahms – Piano Concerto No. 1 in D minor
Dvorak – Sonatina in G for Piano and Violin, Op. 100
Foster – Oh, Susannah
Guonod – Mors et vita
Haydn – Trumpet Concerto in Eb
Lear – Frasquita
Mendelssohn – Piano Concerto in G minor
Mozart – Piano Concerto in Bb, K. 191

Plaintiff is not impressed and wants Defendant to give them evidence from a song written and recorded in the past 50 years.

Defendant says that will be easy and that he can find this simple melody in several popular music styles.

Plaintiff feels that the Defendant’s Expert may have gotten himself into a predicament  that could easily backfire.  Talking too much, and too large, can cause trouble.

Plaintiff asks, “can you provide a country song that features 1-2-3-5?”
Defendant replies, “yes.”

Plaintiff asks, “can you provide a rock song that features 1-2-3-5?”
Defendant replies, “yes.”

Plaintiff asks, “can you provide a soul/R & B song that features 1-2-3-5?”
Defendant replies, “yes.”

Plaintiff asks, “can you provide a Brazilian song that features 1-2-3-5?”
Defendant replies, “yes.”

Plaintiff asks, “can you provide a song recorded in Minnesota that features 1-2-3-5?”
Defendant replies, “yes.”

Plaintiff asks, “can you provide a song recorded in Iowa that features 1-2-3-5?”
Defendant replies, “no.”

Plaintiff asks, “can you provide a 17th century popular Persian song that features 1-2-3-5?”
Defendant replies, “no.”

The Defendant’s expert wasn’t as cocky as Plaintiffs anticipated.  But surely there will be enough here to discredit him.  We will ask him more tomorrow – hand him more rope.

Tomorrow we will end this discussion.  Both side are convinced that they are right.

 

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Does Five For Fighting’s “Superman (It’s Not Easy)” Infringe Angie Aparo’s “Seed?”

Tiger in Cage

In a very good post yesterday, Kate M Singleton stated that she thinks we should be able to copy short excerpts of others’ expression.  She also brought up a potential borrowing or copyright infringement example.  She posed the question – did a song by Five For Fighting infringe a song by Angie Aparo.

I decided that her thoughtful answer to my question deserved its own post.  Here are links to both songs:


Angie Aparo – “Seed”
http://www.youtube.com/watch?v=p5lUE_bI8zY

Five for Fighting – Superman (It’s not Easy)”
http://www.youtube.com/watch?v=GRz4FY0ZcwI

I’d like for almost all of my posts to have visual interest – you know, a photograph.  So, here’s the photo I’ve selected – a tiger behind bars.  The tiger is beautiful but possibly angry at being locked up.  Perhaps the tiger’s song has been infringed and he wants to – get ready for a rhyme – get the HELL out of the CELL.

Tiger in Cage

OK – now on to my response to her post.

I agree with Kate – I think we should be able to take expression from others and use it.  Or re-use it, as a defendant-type or one of those RE-MIX people – those COPY-LEFT’ers – might say or write.  And we should be able to take things – expression – without asking permission.

We teach our children to STEAL other peoples’ thoughts without asking permission.  (I’m referring to what some teachers and professors do – make their students write “papers” that consist of their own thoughts mixed with the (better, older and more respected) thoughts of others.  We FORCE THEM TO STEAL.   All we ask is that our students have to correctly indicate (cite) their exact source(s).  We would not allow them to even ask for permission.  (Imagine writing to Houghton Mifflin to ask for their permission to copy a short paragraph?  They’d never get back to the student in a timely manner, if at all, and then the student’s paper would be late.  Despite the student’s honorable intention and actions, the student would flunk even though all the student was trying to do was abide by the U. S. Copyright Act.  Asking permission to use copyrighted material in this instance would be harmful to one’s education!)

Kate stated her opinion well.  I’m simply agreeing with her – that one should be able to use preexisting creative expression without asking for permission.

NEXT—-  was Angie Aparo’s “Seed” infringed – ripped off, stolen, etc – by Five For Fighting’s “Superman (It’s Not Easy).”

I like Kate’s description of her metamorphosis on the subject – how she used to get angry when hearing the two songs, but has transitioned to thinking that maybe FFF  (the group, not a type of battery) did not steal from AA (the artist, not the type of battery).

(I happen to have a better, for our comparative purposes, studio recording of Angie Aparo’s song and listened carefully to both Aparo versions and the one FFF version.)

It is easy to hear the VERY STRONG similarity between the songs in the sections she describes.  They are very similar with respect to melody, and the “shared” melody is virtually identical.  (“Virtually” is one loaded word.  I’ll get into “loaded words” – I never wrote “loaded words” before just now – in a later blog post.)

This post is long enough. I think I’ll post my answer tomorrow.  For anyone reading, please post your answers today.

Does that seem like a good idea – to listen to both songs and decide whether Five For Fighting’s song infringes Angie Aparo’s song?  Want to play?  You should.  It’s only play, and if you’re an adult reading this, you likely don’t play enough.

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Welcome!

Welcome to EMichaelMusic.com, a place for the exchange of ideas on a multitude of subjects.  Because I am paying for this website and registered it, and you just discovered its existence, I’ll start.

By the way, the “I am paying for this website” is a variant of Spencer Tracy’s “I am paying for this broadcast,” from the film, “State Of The Union,” of 1948, and Ronald Reagan’s “I am paying for this microphone,” of 1980.)

Please watch this short excerpt: http://www.youtube.com/watch?v=RRI6iSrS1kc

QUESTIONS

  1. Is it OK for a songwriter or composer to copy music and/or lyrics from someone else?
  2. Do you have a favorite example of a songwriter/composer copying music and/or lyrics from someone else?
  3. Do you have a LEAST favorite (or hated) example of a songwriter/composer copying music and/or lyrics from someone else?

Let me make Question 1 even more specific – is it OK to copy someone else’s expression without asking for her/his/their permission?  Asking its permission?  (I write “its” because it could be that you are expected to ask a company or corporation for “its” permission.  Companies are not people, my friend.)

I will only wait another day or two before I chime in.  I welcome your input first.