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Making Lyrics From Other Lyrics – Fair Use & Reference – Part 1

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Song Lyrics That Reference Other Song Lyrics – Part 1

Making Lyrics From Other Lyrics – Fair Use & Reference (1)

Mystikal, George Harrison & Steve Miller Stealing Lyrics?

Reference/Copy/Steal Lyrics

In many Western popular music styles and Western popular culture in general, it is not uncommon for lyrics to be referenced.  Often, lyrics, text and/or names that might not have been very important in one context receive transformative value via this re-contextualiziation.

I often explore this type of creativity and have begun to compile and categorize examples of works of authorship involving lyrics/text (and not music) that reference other works of authorship.  As of this morning, I have twelve (12) categories.  Here are the first five (5) categories:

A)  Lyrics referenced as lyrics

B)  Lyrics referenced as names of bands/artists

C)  Lyrics referenced as magazine name

D)  Lyrics referenced as names of organizations

E)  Lyrics referenced as names of companies

With respect to the first category –

“Lyrics referenced as lyrics” means that lyrics found in one particular song have been repurposed and placed into another song.  This referencing/repurposing was intentional, not subconscious.

Sometimes when lyrics are referenced they can be problematic from a copyright/legal point of view.  Referencing lyrics too closely or too substantively can potentially lead to copyright infringement.

Referencing of lyrics/text and/or music has been a respected practice in many cultures and traditions.   I have written this and will write future posts to show that in our society – Western, North American, South American, U. S. (and elsewhere) –  we commonly reference.  Culture is built by expression which is manifested by origination, accretion, reference, imitation, reproduction and other means.  (There will be a time for more nouns and verbs related to the process of creating works of authorship but that will come in future posts.)

In my opinion, in the examples below, copyright has NOT been infringed.  These are examples of fair use.

The music below is drawn from:

James Brown

The Clovers

Bob Dylan

The Four Tops

George Harrison

Steve Miller

Mystikal

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These particular lyrics/text references likely occurred for one or more of the following reasons:

The new author liked the meaning of the lyrics.

The new author liked the sound of the lyrics.

The new author liked some or all of the lyrics’ surrounding melody, harmony, rhythms, instrumentation, loudness levels, sounds, etc. isolated or in combination and believed that the referenced lyrics could connote the same or similar meanings or feelings as the original.

The new author believed the referenced lyric would sound good/function well in the new work of authorship.

The new author wanted to pay tribute to or honor a lyricist/author and/or a lyricist/author’s specific expression.

The new author wanted to make a lyric/cultural reference – to “signify.”

The new author wanted to give the referenced lyrics new meaning by placing them in a new context.

The new author was capable of original expression but felt that referencing from the earlier source would result in original expression, i.e., the new author aimed to make original expression out of earlier expression.

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1.

James Brown’s Papa’s Got A Brand New Bag  (1965) is referenced in Mystikal’s Never Gonna Bounce  (1996).

James Brown’s Papa’s Got A Brand New Bag  (1965) – “Papa’s got a brand new bag” is first heard at 0.20.

Mystikal’s Never Gonna Bounce  (1996) – “Papa’s got a brand new bag” is first heard at 0.27-0.29.

“Papa’s got a brand new bag” is a two-second phrase that only occurs twice in James Brown’s “Papa’s Got A Brand New Bag” and once in Mystikal’s “Never Gonna Bounce.”

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2.

The Clovers’ Lovey Dovey  (1954)  is referenced in Steve Miller’s The Joker  (1973).  This is a longer and more substantive quote than others in this blog post and perhaps to some this would NOT constitute fair use.  I welcome others’ opinions.

The Clovers’ Lovey Dovey  (1954) – “you the cutest thing that I did ever see, I really love your peaches want to shake your tree, lovey dovey, lovey dovey, all the time…” is heard from 0.10-0.32.

Steve Miller The Joker  (1973) – “you’re the cutest thing that I ever did see, I really love your peaches want to shake your tree, lovey dovey, lovey dovey, lovey dovey all the time…” is heard from 2.02-2.19 of this Steve Miller single, but from 1.37-1.54 of this YouTube clip.

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3.

Bob Dylan’s It’s All Over Now Baby Blue  (1965) is referenced in George Harrison’s When We Was Fab  (1988).

Bob Dylan’s It’s All Over Now Baby Blue  (1965)  – “it’s all over now, Baby Blue” is heard at

0.47-0.53

1.34-1.40

2.21-2.26

3.53-3.59

of the original studio recording of “It’s All Over Now, Baby Blue” from Dylan’s 1965 album, Bringing It All Back Home.

With respect to the YouTube link to the live performance provided above, “it’s all over now, Baby Blue” is heard at

1.45-1.50

2.44-2.49

3.40-3.45

5.25-5.30.

George Harrison’s When We Was Fab  (1988) – “but it’s all over now, Baby Blue” is heard at 2.28-2.32.

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4.

The Four Tops’ I Can’t Help Myself (Sugar Pie, Honey Bunch)  (1965) is referenced in George Harrison’s This Song  (1976).

The Four Tops’ I Can’t Help Myself (Sugar Pie, Honey Bunch)  (1965)  – “sugar pie, honey bunch” – is first heard at 0.11-0.13.

George Harrison’s This Song  (1976) – “sugar pie, honey bunch” – is heard at 1.32-1.34.  (George Harrison’s “This Song” features several other references of text, as well as references done in humorous and sometimes veiled means.)

More posts on referencing lyrics will follow.

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

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Referencing Song Titles in Dexter

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

Everything, Everywhere, Anytime, Anyway

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

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

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

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

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

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

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

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

55 inch

27 inch

13 inch

9.7 inch

4 inch

devices.

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

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

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

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

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S O N G S   (and  Dexter)

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

DEXTER references song titles

DEXTER copies song titles

DEXTER steals song titles

DEXTER misappropriates song titles

DEXTER appropriates song titles

DEXTER plunders song titles

DEXTER rips off song titles

DEXTER thieves song titles

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

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

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

1.

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

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

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

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

2.

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

The Love American Style theme song  (1969)

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

3.

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

Elvis Presley  –  Return To Sender  (1962)

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

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

4.

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

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

The Tokens  –  The Lion Sleeps Tonight  (1961)

Robert John  –  The Lion Sleeps Tonight  (1972)

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

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

5.

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

Fleetwood Mac  –  Go Your Own Way  (1976)

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

6.

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

Manfred Mann  –  Blinded By The Light  (1976)

Bruce Springsteen  –  Blinded By The Light  (1973)

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

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

7.

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

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

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

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

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

8.

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

The Who  –  Baba O’Riley  (1971)

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

9.

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

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

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

10.

DEXTER – Season 7 Episode 9 – Helter Skelter.

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

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

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

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

11.

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

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

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

12.

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

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

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

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

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

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

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

T I M   Q U I R K

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And now back to the metadata session.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Soon I will publish

FMC – My Tweets, Rants & Reactions, Part 2

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

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

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

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

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

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

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

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

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

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

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

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

Why do authors/creators copy lyrics? 

They like the meaning of the lyrics.

They like the sound of the lyrics.

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

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

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

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

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

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

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

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

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

To draw attention to an “opportunity” to spend money on a product or service.  This is especially common with lyrics and/or expression used in television commercials as the company wants to draw your attention before your eyes and/or ears leave the “messaging area.”

To draw inspire action that is not commercial in nature but instead a “call to duty,” engagement, action or involvement.

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

The borrower was capable of original expression but felt that borrowing from a few to many sources could result in original expression, i.e., the borrower aimed to make original expression out of earlier or contemporaneous expression.

It may have worked well the first time – it is a good lyric and will work again (which leads to the worst reasons for borrowing – the next few reasons;)

The borrower has run out of ideas and needs to borrow, copy or steal from elsewhere.

To ride the coattails of a better lyricist/author and/or better expression.

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

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

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The examples below can be divided into several parts:

Lyrics used as lyrics

Lyrics used as band names/artist names

Lyrics used as magazine name

Film titles used as band names

Lyrics used as name of organization

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1.  Lyrics Used As Lyrics

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

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

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

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

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

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

the referenced lyrics and locations are:

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

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

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

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

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

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

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

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

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

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2.  Lyrics Used As Names Of Bands

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

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

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

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

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

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3.  Lyrics Used As Magazine Name

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

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4.  Movie Titles Used As Names Of Bands

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

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

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

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

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

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

Does justice ever lose?

It does from time to time…”

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5.  Lyrics Used As Names Of Organizations

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

Much more about this subject at another time….

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

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

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

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

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

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

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

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

A.  Not have “expertise” in music

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

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

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

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

F.  Not have personal integrity or principles

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

H.  Any combination of letters A – G

To expand upon this….

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

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

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

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

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

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

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

When an expert says any of the following words –

“NO”

“NO”

“NO”

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

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

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Here are the two (2) songs at issue.

Maxamillion  –  Pink N Yellow

Wiz Khalifa  –  Black And Yellow

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

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

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

1.  STYLE

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

2.  TEMPO

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

In PLAINTIFF, the tempo is 90 beats per minute.

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

3.  TONALITY

The songs are in different keys.

PLAINTIFF is in the key of G Major.

WIZ KHALIFA is in the key of D Minor.

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

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

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

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

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

Maxamillion  –  Pink N Yellow

Wiz Khalifa  –  Black And Yellow

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

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

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

Wiz is sung.
Maxamillion features no singing.

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

“and yellow.”

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

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

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

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

I know of NO copyrightable similarities between both songs.

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

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

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

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

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

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In Phoenix Before The Dust Storm, the Birthday of EMichaelMusic.com & John Lennon & Listen to Moses

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One year ago today (October 9, 2012), I wrote my first blog post on emichaelmusic.com. I knew October 9 was John Lennon’s birthday and thought that my new effort should coincide with a day that had meaning to me.  All things John Lennon have always been important to me.  I would not have become a musician if not for The Beatles and Lennon was my favorite Beatle.  (If you were alive in 1964 when The Beatles invaded my continent, you had a favorite Beatle.)

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I did something similar back when I was a graduate student at the University of Miami.  I needed to set a deadline to finish my orchestral composition that would be at the center of my master’s thesis.  I thought that the summer would be the best to time to complete a project this large, thought about what are my favorite dates, and then chose July 2, the date in which Thomas Jefferson finished writing the Declaration of Independence .  So, on July 2, I successfully pulled off something as responsible, mature and adult-ish as completing a large project on time that loomed many months ahead.  And as an extra bonus and most importantly, I loved the music I had written.  My orchestral master’s thesis is entitled:

C H E M I C A L      F O L K L O R E

Someday I might write about it here, but not today.

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Today I am in Phoenix, Arizona to speak to NARIP about my work in music copyright/IP, publishing and advertising, and to spout and rant too.  My 3-hour interactive lecture to NARIP will take place on Wednesday, October 9, 2013 at Paradise Valley Community College.  I’ve been referring this college as Paradise.  I like to abbreviate names sometimes especially when the abbreviated name seems appropriate – this area is really beautiful!

I’ll also discuss digital issues and possibly the fair and essential use of sampling as well.  By essential use of sampling, I am referring to situations when one MUST sample without permission in order to create a PARODY.  (Is Essential Sampling a good phrase?  Should it be Requisite Sampling?  Compulsory Sampling?  Sampling Because You Must?)  That First Amendment thing is important and should trump other given rights at times.

I’ll leave this topic now.  Near the end of my last talk at Harvard Law School on April 15, 2013, I first brought up this YOU MUST SAMPLE TO PARODY (in these specific examples) idea.  It was risky to talk this way then and there and maybe more so today.  But also, in three hours of interactivity today – interactivity is not the same as hyperactivity – this issue does not have to come up.  I’ll ponder another time or two between now and 2  PM and decide about this FORCED/ENFORCED sampling notion.

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There is a “BLOWING DUST ADVISORY for GREATER PHOENIX AREA, AZ” today and tomorrow here in Phoenix – blowing winds, reduced vision, warnings that cars must pull over, stop and hope for the best.  People shouldn’t breathe or be outside….  And I’ll be wearing my best black suit!  Yikes – this is not Gloucester MA or Nashville TN.  I am in a real desert – the Sonoran Desert – in the real, wild American West.

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And the best news for last – The BOSTON RED SOX won the ALDS last night beating Tampa 3 games to 1.  We were the worst team in baseball last year.  This year, objectively speaking, we are the best!  It was preordained.

“Listen to Moses!”

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Fair Use and Copyright Abuse – My AIMP Talk Is SOLD OUT. Scalpers? Buehler?

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I have the great honor and privilege to speak to the Association of Independent Music Publishers (AIMP) on Wednesday, September 25, 2013 at ASCAP in Nashville.  Here is the announcement and details about my presentation.  Surprisingly (to me) there are two words in CAPS that I never see used in conjunction with me:  SOLD OUT.  Fortunately this refers to the fact that there is no more room for the luncheon at ASCAP where I am speaking and NOT that I have SOLD OUT (my principles).  Or so I am going to assume.

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My work as a consultant in copyright and intellectual property (IP) matters is always fun and original as very crazy things can occur when we creators create.  I get brought into some of the events surrounding potential and actual problems.  I have been and continue to be witness to brilliant decision making, as well average and poor decision making when it comes to music, IP law and money.  People do things that will make them profits and prosperous.  Some do average, ho-0hum expected things, and yet others make bad decisions that will be negative financially for more than 100 years.  (Copyrights might outlive many glaciers at the northern and southern ends of our planet.  When a 30 year-old gives up part or her copyright, it is a decision that could last for 130 years.  Assuming she will live 60 more years, her copyright will last 130 more years:  60 years alive + 70 years after her death.  And I expect that every twenty years, copyright will be extended another twenty years – the 130 year decision might become a 200 year decision.)

We have been and continue to be surrounded by IP – train and car horns blast their metal music made from metal objects, adverts are seen and heard mostly with music or sounds, radio sometimes play music (in those few radio stations when radio is not presenting the sounds of more adverts and humans speaking to and at each other, i.e., “talk radio”), the Internet, music on the Internet, televised and transmitted images (often with sounds) from mobile devices, large devices, billboards, etc.

We absorb and reflect a lot of the sounds, sights, ideas and attitudes we perceive.  We have to copy some of it as it is important that we use UNORIGINAL words in our speech, writings and music, and UNORIGINAL melodies, chords, rhythms, sounds and loudnesses in our music.  (With respect to music, I am referring to UNORIGINAL, individual (or very brief-lasting) musical components.  ORIGINAL expression usually consists of UNORIGINAL elements strung together in ORIGINAL ways.)

Problems that can happen include:

1)  What we create sounds like something else, something already created.

2)  What we create looks like something else, something already created.

3)  What we create sounds and looks like something else, something already created.

And some might say, “So What?”  And in response one might say, “So What?   You stole my song, that’s ‘So What.’  Your success is due to infringing my copyright.  You’re only successful because of my creativity, my ideas, my expression, my copyright.  (My my my….my.)  I’ll see you in court!”  (Oh, but it is never that simple.)

Two more things before I get to fair use.

1.  We STEAL (copy) ACCIDENTALLY.  Let’s be kinder – let’s say it this way.  We inadvertently copy from other sources.  How can we NOT copy from other sources when we are bombarded by external stimuli?

2.  We STEAL (copy) on purpose.  We INTEND to STEAL (copy) and we do.  We copy because we like the sound of some preexisting sound, or the sound and effectiveness of some preexisting chord, chords, phrase of a melody, phrases of text or lyrics, individual words, certain instruments (a Coke bottle has been in the music copyright infringement news lately – that ubiquitous Blurred Lines by Robin Thicke, and its imitation of Marvin Gaye’s Got To Give It Up), combinations of instruments, sounds, combinations of sounds, etc.

There is a part of the Copyright Law that acknowledges and enunciates that we can make use of an original work of authorship – “original work of authorship” that is NOT our work, and WITHOUT permission – if we have a good reason for doing so.  This part of the Copyright Law is Section 107.  It is entitled, “Limitations on exclusive rights:  Fair use:”

“§ 107. “Limitations on exclusive rights:  Fair use.“

Copying someone else’s expression is allowed.  Perhaps it is more accurate to state it this way:  Copying someone else’s expression is possible.  Is permissible.  Can happen.  Can happen without negative consequences.  (Fair use can mean that one has the right to hire expensive attorneys to fight back against a plaintiff’s assertion that you have infringed her copyright.  The “without negative consequences” is initially a theory –  it often takes time, money, attorneys and experts to negate the “negative consequences.”)

As to why and how one can use someone else’s creations – their original work of authorship without their permission – the authors of the Copyright Law might have been careful and diligent in listing SOME of the reasons why it would be permissible to not seek permission:

“…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…”

“The fair use of a copyrighted work…is NOT an infringement of copyright.”  (I capitalized “NOT” in that sentence from Section 107 .)

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I will delve into fair use today as well as the other related subject below.  My flow today will likely go this way:

1.  The definition of “original”

2.  With respect to music and copyright, examples of Bad Lawyering/Bad Lawyers in Bad Practice (there is not a kinder way of expressing this.)

3.   What is fair use?  Examples of fair use – copying music only, words only, words and music.

4.  What is “co-authorsip?”  What is a “joint work?”  The assessment of each writer’s expression in a joint work.

5.  The Worst Music Publishing Mistake Ever Made By Famous, Wealthy Musicians

6.  My most recent work for a plaintiff

7.  “…As the world turns….As copyright becomes irrelevant…”

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I will play and discuss music from these composers/creators/authors/artists.  (As you might guess, many of these will be short excerpts.)

Aerosmith

Atomic Kitten

B. S. G.

Baby Game

Burt Bacharach

Baha Men

Barrio Boyzz

Bela Bartok

Beatles

Bon Jovi

Asha Bhosle & Kishore Kumar

Jimmy Boyd

Garth Brooks

Brooks & Dunn

Circle Of Success

LL Cool J

Jonathan Coulton

Cream

Creedence Clearwater Revival

Crime Boss

Crosby, Stills, Nash & Young

Culture Club

Joe Diffie

Hilary Duff

Dr. Dre

Bob Dylan

Eminem

Fatback Band

Fifty Cent

Flintstones

The Game

George Gershwin

Isaac Hayes

Jimi Hendrix

Faith Hill

Buddy Holly

Hootie & The Blowfish

Mary Hopkin

Marques Houston

Jefferson Airplane

Elton John

George Jones

Montell Jordan

Wiz Khalifa

King Crimson

Krayzie Bone

k.d. lang

Lil Malcolm

Little River Band

Lootenant

M.I.A.

Madrugada

Gustav Mahler

Mary Martin

Mistah F.A.B.

Sir Mix-A-Lot

Mystikal

Nirvana

The Orioles

Outkast

Pearl Jam

Scoob Rock

Snoop Dogg (Snoop Lion)

Sonic Dream Collective

Britney Spears

Naomi Striemer

Supertramp

James Taylor

Wham!

Lil iROCC Williams

Bill Withers

Youngbloods

9 Milli Major

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Happy Autumn!  I hope you enjoy the cover photograph.

Wishing everyone a surprising and happy Wednesday.   

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Buddy Holly stutters. John Lennon stutters. Are their stutters copyrightable expression?

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Stuttering the hits from Buddy Holly to John Lennon.

Can one copyright a stutter?  What is a “stutter?”

A stutter, according to Dictionary.com, is “the act or habit of stuttering.”  As a verb, stutter means, “to speak in such a way that the rhythm is interrupted by repetitions, blocks or spasms…”  “Spasms” might help describe stutter as well (especially in the music below).

I am interested in slightly modifying the Dictionary dot com definition of stutter by changing the verb at the beginning of the definition of stutter from

“to SPEAK in such a way…”

to

“to SING in such a way…”

Is a stutter unmusical?  Could something as unmusical as a stutter be subject to copyright protection?  If a stutter is sung, is it more likely to be musical?  If a stutter is musical, is it more likely copyrightable?  Could “stutter” be simply a stutter, or a well-crafted, complex vocal articulation that is musical, difficult to reproduce and original expression that is subject to copyright protection?

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Buddy Holly wrote and recorded Rave On in 1958.  It opens with Buddy Holly singing the word, “well,” in a stuttered, polysyllabic, prolonged fashion.  Holly’s articulation of “well” seems to take seven (7) syllables and notes rather than the one (1) syllable a listener would likely expect.  By performing/singing “well” in this manner – a stutter/spasm – has Buddy Holly created original expression?  The seven (7) articulations of “well” constitute a seven-note melodic phrase.  Although this melodic phrase is short in duration, is it original expression?  Is it copyrightable?  Is a stutter copyrightable expression?  Could any stutter conceivably be copyrightable expression?

John Lennon also turned a single syllable into a precocious, stuttering (and stunning?) musical moment. John Lennon wrote and recorded Dear Yoko in 1980.  At 0.11 of Dear Yoko, Lennon sings “well” also as a seven (7) syllable seven (7)-note “well.”

“Well, even after all these years I miss you when you’re not here, I wish you were here my dear Yoko…”

But to reiterate, Buddy Holly wrote and recorded Rave On in 1958, twenty-two (22) years before John Lennon’s Dear Yoko.  At 0.00 of Rave On, Holly sings “well” also as a seven (7) syllable seven (7)-note “well.”

“Well, the little things you say and do, make me want to be with you, rave on it’s a crazy feeling and I know it’s got me reeling…”

It is obvious that John Lennon’s 1980 polysyllabic, “well,” is extremely similar to Buddy Holly’s 1958 polysyllabic, “well.”

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Is this similarity a problem?

Is the polysyllabic, “well,” copyrightable expression?

Did John Lennon COPY Buddy Holly or was this independently created?

Does copying the polysyllabic, “well,” constitute copyright infringement?

Is this an example of John Lennon parodying Buddy Holly?

Is this an example of John Lennon satirizing Buddy Holly?

Is this an example of John Lennon honoring Buddy Holly?

Is this an example of John Lennon paying tribute to Buddy Holly?

Would it make a difference, in terms of potential copyright problems, if John Lennon is honoring or criticizing Buddy Holly?

How similar are the songs aside from the polysyllabic “well“?

Does John Lennon’s song, aside from the polysyllabic “well,” infringe the copyright in Buddy Holly’s song?

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These are a few questions (of potentially many more) about these moments in these two songs.
I look forward to your responses.

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Why do musicians borrow (from other musicians)?

Why do musicians borrow? 

This will be a short list only.  I do not want to give examples below of each reason musicians borrow.  That can be done at a different time and place.  For now, I only want to list a few reasons why musicians borrow.

By use of the words, “musicians” and “borrow,” I am asserting that if one is “simply” a musician who plays an instrument (one who performs music), one is also at least one of the following –

composer

creator

author

songwriter.

For many, linking one of these four words to a musician might be an enormous leap of faith, and an assignment of talent, creativity and intelligence that all musicians do not, by default, possess.  I disagree and feel that a performer has to add original expression to every musical performance especially if the music being performed is notated.  This is because notation (in every system from every country I have studied) always requires at the very least a modicum of interpretation, and interpretation requires intentional creating, composing or authoring.  For example, in the most immediate situation, one has to make decisions as to the exact point when a note begins, sustains and ends, the loudness levels of the note during its three-part life – the beginning, sustain and end of the note, and even the exact temporal points of the note’s beginning and end.  And when one multiplies each decision that impacts each begin-sustain-end of a sound by the number of those events, one has done much more composing, creating or authoring than many consciously consider.

These thoughts also, however, can be elaborated at another time and cyber-venue.

One final thought in this short preamble –  I intentionally used the verb, “borrow,” rather than copy, steal, lift, appropriate, misappropriate or other verbs that often are more pejorative.  Whether or not “borrow” is the correct term is not important to me in this post.  I am, instead, pondering the reasons why borrowing occurs.

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Why do musicians borrow? 

They like the sound.

They like all or some of the melody, harmony, rhythms, instrumentation, loudness levels, sounds, etc. isolated or in combination.

The borrower believes that the borrowed material will sound good in the new music.

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

To pay tribute to or honor an artist and/or an artist’s music.

To make a cultural or musical reference – to “signify.”

It is a rule/one MUST borrow – if the tradition or culture dictates that some amount of new music has to come from a prior source (“cantus firmus” as a melody line that must be used in a new composition – the new  composer creates additional new melodies to the composition;  “parody” mass of the Middle Ages/Renaissance, etc.)

To answer what the original material may have addressed, i.e., answer song.

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

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

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

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

To draw attention to an “opportunity” to spend money on a product or service.  This is especially common with music used in television commercials as the company wants to draw your attention before your eyes and/or ears leave the “messaging area.”

To draw inspire action that is not commercial in nature but instead a “call to duty,” engagement or involvement.

To draw attention to your own song (especially so if the borrowing occurs at the opening of the new song).

The borrower was capable of original expression but felt that borrowing from a few to many sources could result in original expression, i.e., the borrower aimed to make original expression out of earlier or contemporaneous expression.

It may have worked well the first time – it is good music and will work again (This leads to the worst reasons for borrowing – the next few reasons;)

The borrower has run out of ideas and needs to borrow, copy or steal from elsewhere.

To ride the coattails of a better artist and/or better music.

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

I welcome others’ ideas on the subject of borrowing.  I hope your September 11 is a great day.

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