Happy St. Patrick’s Day from Mahavishnu Orchestra, John Lennon, The Band, The Rolling Stones, Chieftains, Van Morrison, Govinda & Mary & Mars

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Ireland

Happy St. Patrick’s Day 2014

Music of The Band, The Chieftains, Govinda, Mary & Mars, John McLaughlin & The Mahavishnu Orchestra, Van Morrison and The Rolling Stones are featured below.

For St. Patrick’s Day, I have compiled six (6) musical works I own that are in a very direct or indirect way pertinent to Ireland, Irish music or St. Patrick’s Day.  I am of Irish descent – lots of it – and take pride in this day when millions wear green and pretend to be irish, or at least use March 17 as an excuse to ingest green colored drinks and foods.

Very oddly I’ve only used one Chieftains recording in this post.  If I do another March 17 St. Patrick’s Day post in 2015, I’ll have to atone for that sin.

I wanted to incude Louis Armststrong’s great Irish Black Bottom with his free and swinging interpolation of “When Irish Eyes Are Smiling,” but couldn’t find a high enough audio quality recording on YouTube.  My recording is from Satchmo’s excellent The Complete Hot Five And Hot Seven Recordings [Disc 1]

The best known of the following recordings (recordings, not songs) is probably John Lennon’s Luck Of The Irish an unabashedly pro-Irish/anti-English political diatribe.  (I’ll resist the temptation to be political here – John Lennon did it for me!)

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Govinda – Celtica

Composed by Shane O’Madden – from the Govinda album, “O Earthly Gods.”

The Rolling Stones & The Chieftains – The Rocky Road To Dublin

If you only had one means to learn about the music of Jamaica, I’d recommend Bob Marley.  If you had only one means to learn about the music of Ireland, I’d recommend The Chieftains.

I especially like The Rolling Stones’ agitated and fun insertion/interpolation of “Satisfaction” at 1.07 – 1.22.

The Band & Van Morrison – Tura Lura Lura (That’s An Irish Lullaby)

This unique version, sung by The Band’s Richard Manuel along with guest Van Morrison, is from The Band’s fantastic farewell concert/film, The Last Waltz.  One can watch the performance here.

John McLaughlin & The Mahavishnu Orchestra – A Lotus On Irish Streams

The Inner Mounting Flame was an album of genius and astounding virtuosity that inspired and guided me ever since it was released.  The album is not very “Irish” except for the title of this one musical work, A Lotus On Irish Streams.  To me, this is a just a great excuse to highlight John McLaughlin, Jerry Goodman, Billy Cobham, Jan Hammer and Rick Laird (who is from Ireland!).

John Lennon – Luck Of The Irish

This is a brilliant, cutting and direct account of Ireland’s fate at the hands of the English.

 

If you had the luck of the Irish

You’d be sorry and wish you were dead

You should have the luck of the Irish

And you’d wish you was English instead

 

A thousand years of torture and hunger

Drove the people away from their land

A land full of beauty and wonder

Was raped by the British brigands!  God damn, God damn!

Mary & Mars – Ireland’s Green Shores

Songwriter, composer, mandolinist, vocalist Sharon Gilchrist of Mary & Mars is a friend, great musician and former student of mine.  That would be reason enough to include her here, except that Mary & Mars’ Ireland’s Green Shores is a very nice work!

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Alphabetically by artist – isn’t alphabetically by artist usually a great way of experiencing a collection of songs?

The Band & Van Morrison – Tura Lura Lura (That’s An Irish Lullaby)

Govinda – Celtica 

John Lennon – Luck Of The Irish

Mary & Mars – Ireland’s Green Shores

John McLaughlin & The Mahavishnu Orchestra – A Lotus On Irish Streams

The Rolling Stones & The Chieftains – The Rocky Road To Dublin

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My Take On Pearl Jam’s Elderly Woman Behind The Counter In A Small Town

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If I have only heard a band in a random, unplanned fashion, I feel I do not know their music.  For me, getting to know music requires careful listening, analysis and transcription.  In the fall of 1993, when Pearl Jam were on the covers of TIME MagazineMUSICIAN Magazine, and SPIN Magazine, I decided it was time to spend study Pearl Jam and the music, lyrics and structure of their new album, Vs.  This took about 12 hours but was time very well spent.  (Had I not found the music interesting, my initial Pearl Jam phase would have ended as soon as the CD ended.)

Pearl Jam – Elderly Woman Behind The Counter In A Small Town

Elderly Woman Behind The Counter In A Small Town  is a beautiful but poignant portrait of a woman who has lived her entire life in the same small town.   While working at the diner, she meets someone she once knew.  This encounter triggers recollections and daydreams –

“lifetimes are catching up with me…all these changes taking places…wish I’d seen the place…no one’s ever taken me…”

and is the first hint of the woman’s dissatisfaction with her lot in life.  She never had an objective perspective on the small town where she was raised –

“wish I’d seen the place”

and is saddened that

“no one’s ever taken me”

a possible reference to the fact that she is probably not married and/or was not rescued from her destiny.

She at first doesn’t recognize the customer;  when she does, she hopes that he doesn’t recognize her as she is embarrassed by her fate in life.   She wants to be able to tell him something positive about herself, for example, that she is now accomplished, successful or happy.  As soon as she gets to this, she freezes, saying,

“I’m not my former…

it’s hard when you’re stuck up on the shelf”

realizing that she may be her former self or, in any event, did not change enough to merit talking about it.  She may have once been young and beautiful with a promising future, one who was placed on a pedestal, although more correctly, she was

“stuck up on the shelf”

one who could not or did not develop.

“I changed by not changing at all…small town predicts my fate, perhaps that’s what no one wants to see…”

Her frustration and yet resolve with the immediate situation continue:

“I just want to scream…hello.  My God, it’s been so long…never dreamed you’d return, but now here you are and here I am…” 

When she sings the chorus for the final time

“hearts and thoughts they fade, fade away”

it is initially in the same tone of voice and the same musical register as the verse.  But then, as she realizes that she has accepted her fate and must be realistic, the song returns to its original somber feel and lower musical register.  The song continues to repeat the chorus, getting softer and quieter each time until the end of the song.  The song and the woman have said all that they could.

Making Music Make Sense; Making Music Make Evidence

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I spoke to students and faculty at the Harvard University Law School on Tuesday, March 11, 2014.  I am always thrilled and humbled to be invited to come to that great campus and interact with these brilliant, insightful and original thinkers.  Fortunately, many of our ideas and concerns overlap and intersect and as fortunately, there are always surprises for me and them.

One constant issue with which I struggle is how to explain music – music as evidence – evidence that will sway a judge and/or jury to understand what I know about the music.  Many probing questions were addressed to me about this concern.  Explaining music as evidence to a judge and/or jury is similar to teaching whether in the forms of interaction with a student, small group of students, class, or large class in person or online.  Teaching music, something I have been paid to do since I was 12, has always been an extremely happy-engendering, inspiring activity that is similar to presenting evidence of a musical nature.  The end goals – will my intended audience understand how I perceive this music – are similar.  Is what I have selected and arranged for the particular audience pertinent, relevant, meaningful and/or convincing?

Teaching a judge and/or jury is analogous to teaching in the traditional offline and online manner.  (Online instruction has been around long enough – since the pre-Google, pre-Napster mid/late 1990’s – that I would claim online teaching is itself “traditional” and that there are traditional models of online education.)  At its core, there are perhaps four (4) components with respect to evidence –

Substance

Means of communication

Perception

Outcome

which to me are tantamount to

Content

Delivery

Determination

Conclusion

The following possibilities are in play:

Have I gathered the right materials to get across my point(s)?

If so, have I used the right or good/good enough, means to get across my point(s)?

If I do not have the right materials, then even if the means to present the materials are very good, the end result could be failure.

If I have the best means to convey my message/materials but have gathered  material that is not optimal, the end result could be failure.

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How does one make music make sense or make music make evidence?  Does music ever make sense?  What does it mean to “make sense?”  A lot of effort and ink has been spent on trying to understand the meaning of music and even more have labored to understand the meaning of life.  (Let’s leave life out of this!)  But the meaning of music, from a philosophical perspective, is irrelevant in most and perhaps every legal situation.

How does one explain music?  By explain music, I am suggesting that we can make someone hear something specific and special in music.  It could be a chord or chord pattern, an unusual sound or sounds, a specific melody or melodies, a lyric or lyrics, a combination of any or all of these, etc.

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What will best convey the message, i.e., make the evidence most effective?  What is/are the most important factor(s) in making the message understandable and persuasive to listeners, jury, judge, students and audience?

A.   The messenger’s skills, credentials and background.

B.   The nature and quality of the technical and visual exhibits (charts, numbers, graphs, images, etc.).

C.   The musical examples (perhaps edited and/or enhanced).

D.   The musical examples along with technical exhibits and complex verbal expression.

E.   The musical examples along with technical exhibits and simple, understandable verbal expression.

F.   The musical examples along with non-technical exhibits and simple, understandable verbal expression.

G.   The musical examples along with non-technical exhibits and complex verbal expression. 

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Musical evidence can be

1.  Technical

2.  Not Technical

3.  A Hybrid of Technical & Not Technical

Can one type of evidence work in one particular instance and another type of evidence work in another instance?

Would a musical style dictate or suggest a particular type of evidence?

Can the style and substance of evidence differ according to a musical style?

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(This post reminds me of another post of mine – Which Words Work With Which Music? – in which the difficulties and frustrations of writing about music are played with.)

These and many more questions should be addressed and evaluated along the road to making music make sense and making music make evidence.  Until then the state of musical evidence and its presentation continues to be (as reflected in this short lyric) “something wild and unruly.”

 

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

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

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

THIS IS IT.

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

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

putting it my way, but nicely.

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

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

3-4-5-8

3-4-5-5-8-8-8  (as sung by Badfinger)

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

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

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

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

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

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

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

Beatles – Little Child (1963)

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

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

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

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

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

0.01  getting to know you

0.04  getting to know all (about you)

0.16  getting to know you

0.19  putting it my way (but nicely)

0.31  getting to know you

0.34  getting to feel free (and easy)

1.08  getting to know you

1.11  getting to know all (about you)

1.23  getting to know you

1.26  putting it my way (but nicely)

1.38  getting to know you

1.41  getting to feel free (and easy)

and frequently throughout

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

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

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

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

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

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

 

 

Blind Lemon Jefferson – The Big Bang Of Blues

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

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

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

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

Elvis Presley – That’s All Right (1954)

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

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

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

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

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

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

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

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

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

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

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

Is the determination of authorship of the lyric important now?

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

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

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

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Blind Lemon Jefferson might be the Big Bang of Blues.

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

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

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

Names Of Songs Used As Names Of Bands – Can’t Think Of A Name For Your Band, Copy One

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Even though many do not believe this and suffer the fear and trepidation over the subject of copyright and copyright protection, it is LEGAL and COMMON to copy a name and use it as another name.  In fact, copyright does NOT protect names, titles, or short phrases or expressions.

It is common to copy MOVIE titles and use them as titles of television episodes.  I addressed this in a discussion of names of movies used as names of Dexter episodes.

It is common to copy SONG titles and use them as titles of television episodes.  I addressed this in a discussion of names of songs used as names of Dexter episodes.

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These could be considered examples of referencing – a title has been referenced by its use as another title.  These could be considered examples of copying – a title has been copied and used as another title.

Listed below are some of the categories and specific names that are NOT copyright protected:

Names of businesses Comcast, Xfinity, Dupont, Monsanto, Apple, Samsung, Honda, L.L. Bean, etc.

Names of organizationsAFL-CIO, Major League Baseball, Electronic Frontier Foundation, the Boston Red Sox, etc.

Names of performing groups –  Stevie Wonder, The Beatles, Broken Bells, Bob Marley, Arctic Monkeys, Daft Punk, Neil Young, etc.

Names of title of works Alien, Animal House, Citizen Kane, Things Fall Apart, Pride and Prejudice, Life of Pi, Take Five, Ring Of Fire, A Hard Day’s Night, etc.

Advertising slogansHey Mikey…He Likes It; Don’t Leave Home Without It; Got Milk; A Diamond Is Forever; Plop Plop Fizz Fizz, etc.

List of ingredients – butter, eggs, flour, milk, salt, baking powder, mild cheddar cheese, frozen chopped spinach, chopped onion and salt

Recipe 

4 Tbsp  butter

3 eggs

1 c flour

1 c milk

1 tsp salt

1 tsp baking powder

1 pound mild cheddar,  grated

2 packages frozen chopped spinach  (thawed and drained)

1 Tbsp chopped onion  (optional)

seasoned salt  (optional)

The documentation – Circular 34 – from the U. S. Copyright Office describing this lack of copyright protection is found here and the first link of this sentence.

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These are examples of referencing – a title has been referenced by its use as another title.  These could be considered examples of copying – a title has been copied and used as another title.

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The titles of the following thirteen (13) songs did NOT sacrifice their lives for (but did spawn) second lives as names of bands.  Re-using a name is respectable, common, copyright-legal and in keeping with the traditions of many societies.

THE SONGS and THE BANDS

1.  Beatles Hello Goodbye (1967) was used for band name, Hello Goodbye.

2.  Black Sabbath After Forever (1971) was used for band name, After Forever.

3.  Bonzo Dog Doo-Dah Band Death Cab For Cutie (1967) was used for band name, Death Cab For Cutie.

4.  Dave Brubeck Take Five (1959) was used for band name, Take 6.

5.  Bob Dylan Ballad Of Frankie Lee And Judas Priest (1967) was used for band name, Judas Priest.

6.  Inside Out Rage Against The Machine (1991) was used for band name, Rage Against The Machine.

7.  Tommie Johnson Canned Heat Blues (1928) was used for band name, Canned Heat.

8.  New Edition Boys To Men (1988) was used for band name, Boyz II Men.

9.  Queen Radio Ga Ga” (1984) was used for artist name, Lady Gaga.

10.  Steely Dan Deacon Blues (1977) was used for artist name, Deacon Blue.

11.  Talking Heads Radio Head (1986) was used for band name, Radiohead.

12.  Talking Heads The Big Country (1978) was used for band name, Big Country.

13.  Muddy Waters Rolling Stone (1950) was used for band name, The Rolling Stones.

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The moral of the story – the tongue-in-cheek humorous moral of the story?  If you’re stuck coming up with a name for your band, song, film, poem, novel, photograph or sculpture, you will probably not get into copyright trouble by naming your work of authorship after someone else’s work of authorship.

If you can’t think, copy someone who can.

If the name was good then, it might be good now.

If you can’t create, copy.

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Should The Rolling Stones Sue Badfinger?

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

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

Today’s songs and potential case:

The Rolling Stones – Street Fighting Man  (1968)

Badfinger – Come And Get It (1970)

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

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

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

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

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

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

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

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

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

The Rolling Stones – Street Fighting Man  (1968)

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

0.39  cause in sleepy

0.40  London town there’s

0.42  just no place for a street fighting (man)

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

1.24  cause in sleepy

1.25  London town there’s

1.27  just no place for a street fighting (man)

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

2.14   cause in sleepy

2.15  London town there’s

2.17  just no place for a street fighting (man)

Badfinger – Come And Get It (1970)

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

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

0.05  if you want it here it is

0.15  if you want it any time

0.38  if you want it here it is

0.51  if you want it here it is

1.02  if you want it any time

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

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Should Badfinger Sue XTC?

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

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

XTC’s Then She Appeared (1992)

Toby Keith – Red Solo Cup (2011)

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

Toby Keith – Red Solo Cup (2011)

Sebastian Mikael – Last Night ft. Wale (2013)

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

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

Badfinger’s Come And Get It (1970)

XTC’s Then She Appeared (1992)

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

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

0.05  if you want it here it is

0.15  if you want it any time

0.38  if you want it here it is

0.51  if you want it here it is

1.02  if you want it any time

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

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

XTC – Then She Appeared  (1992)

0.22  then she appeared

0.31  then she appeared

0.50  cherubim cheered

0.59  then she appeared

1.08  then she appeared

1.26  know it sounds weird

2.02  then she appeared

2.11  then she appeared

2.30  all Edward leared

3.06  then she appeared

3.15  then she appeared

3.24  then she appeared

3.33  then she appeared

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

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

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

As always, I welcome your comments.

Too Many Frivolous Music Copyright Infringement Lawsuits

Toy

Saturday, March 1, 2014.

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

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

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

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

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

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

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

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

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

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

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

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

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

Your thoughts?

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

 

 

Should XTC Sue Toby Keith?

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

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

Toby Keith – Red Solo Cup (2011)

Sebastian Mikael – Last Night ft. Wale (2013)

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

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

XTC  Then She Appeared (1992)

Toby Keith  Red Solo Cup (2011)

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

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

XTC – Then She Appeared  (1992)

0.22  then she appeared

0.31  then she appeared

0.50  cherubim cheered

0.59  then she appeared

1.08  then she appeared

1.26  know it sounds weird

2.02  then she appeared

2.11  then she appeared

2.30  all Edward Lear-ed

3.06  then she appeared

3.15  then she appeared

3.24  then she appeared

3.33  then she appeared

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

0.32  red solo cup

0.35  I fill you up

0.44  red solo cup

0.47  I lift you up

1.19  red solo cup

1.22  I fill you up

1.31  red solo cup

1.33  I lift you up

2.21  red solo cup

2.24  I fill you up

2.32  red solo cup

2.35  I lift you up

2.44  red solo cup

2.47  I fill you up

2.56  red solo cup

2.59  I lift you up

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

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

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

As always, I welcome your comments.