Ministry of Sound v. Spotify setlists, and Madness in Parrots

Ministry of Sound v. Spotify setlists, and Madness in Parrots

Ministry of Sound’s attorneys are bored and need something to do

This is one of the most absurd lawsuits I have ever seen. Ministry of Sound want only THEIR set list(s) to be the set lists that can be accessed when listeners are on Spotify. You can’t have your own. Forbidden. Verboten. Our words were etched into tablets received by Charlton Heston. Don’t mess with them.

Ministry of Sound in their thuggish action against Spotify remind me of a cranky Nigel Tufnel in This Is Spinal Tap when Nigel is getting overly emotional, territorial and protective of his guitars. Remember this exchange?

Nigel Tufnel: “This is special too…Look…Don’t touch it…well, don’t POINT even…”

Marty DiBergi: “Can I look at it?”

Nigel Tufnel: “No. No. You’ve seen enough of that one…”

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Ministry of Sound are cranky too, and their lawyers need something to do, so they fall back on their legal training, crank out some copyright law, extract parts that they’re convinced will ENABLE them to continue their crankiness, and then author (finally, something creative from them) and initiate a lawsuit. Now, they’ve turned their boredom, frustration and schooling into something that will get them attention and hopefully stop the public from becoming too excited by their own passion for music and instead buy into the Ministry of Sound’s way of listening to songs. Ministry of Sound: “It’s our way, or else!”

There is coverage of Ministry of Sound v. Spotify in

The Guardian

Hollywood Reporter, Esq

The Wall Street Journal

And a please-pay-us-some-respect plea from Ministry of Sound:

The Guardian Technology Blog

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Copyright is supposed to protect “original works of authorship.” Copyright is NOT meant to protect a simple list or a simple list of song titles. A list of song titles is not an original work of authorship.

Even if Ministry Of Sound claims that “a lot of research” went into compiling the list, what the public sees is only a list of nouns, nouns that Ministry of Sound did not create!

If Ministry of Sound published substantial, creative and original prose to describe all that went into their choice and sequential ordering of each song, only that “original prose” (which does not exist in this case) could potentially be protected by copyright, but not the list of proper nouns in and of themselves.

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A S H O P P I N G S E T L I S T

Compiling a list of songs one likes in a specific order deserves as much copyright protection as compiling a list of things one did in Manhattan today:

“Shopped at Bergdorf, then Macy’s, then Bloomingdale’s, then tapas at Rock Center, then shopping at Saks, then Henri Bendel, then Armani and then Tiffany. Then we shared a frozen hot chocolate at Serendipity III. Then came Trump Tower…” [May I never use the word, “then,” that often in proximity again.]

I wonder if the Ministry Of Sound’s legal minds (lawyers employed by Ministry Of Sound) would consider the ITALICIZATION of my list above as a significant artistic addition that would result in an original work of authorship that should be subject to copyright protection. Let’s try it now:

“Shopped at Bergdorf, then Macy’s, then Bloomingdale’s, then tapas at Rock Center, then shopping at Saks, then Henri Bendel, then Armani and then Tiffany. Then we shared a frozen hot chocolate at Serendipity III. Then came Trump Tower…..”

It really does look different. It is now an uncreative list but one that has been italicized. Still, not something that can be copyrighted.

What if we turn the same list from a HORIZONTAL presentation into a VERTICAL presentation? And let’s crank up the creativity even further – we’ll highlight the entire section, italicize and put it in BOLD font! Will all of this “sweat of brow” labor heighten the case for copyright protection? If “sweat of brow” won’t do it, perhaps the “creative” and “artistic” additions by means of highlighted, italicized and BOLD font will render this more worthy of copyright protection? No. It is still trivial and not subject to copyright protection. From horizontal to vertical is also NOT a creative and original act that should be afforded copyright protection.

Bergdorf

Macy’s

Bloomingdale’s

Rock Center (tapas)

Saks

Henri Bendel

Armani

Tiffany

Serendipity III (frozen hot chocolate)

Trump Tower

Ministry of Sound, despite their silly and intellectually impoverished wailings, do NOT deserve copyright protection for a song playlist. The public also will never respect an edict which would attempt to oppress their enthusiasm about music and ability to shout out their taste in music (and branding as individuals). People also want to experience the related fun from viewing friends’ and strangers’ recommendations and setlists for music discovery and enjoyment. We have become a society that is not primarily top-down when it comes to music choice. User-generated lists and friends’ recommendations mean more than anything a group of ministers wants to dictate from above.

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Although Ministry of Sound prefer their own authoritarian type of setlist model, one in which they dictate to the public along the lines of “we own it, this is how it is, this is your option, deal with it,” music fans and the ministers themselves live in a freer society where users exert their rights to express their artistic taste and preferences.

Ministry of Sound is, however, doing a good job of purchasing some very bad will by suing Spotify.

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B O R E D O M

The culling of copyright law by MOS attorneys led them to sue Spotify, I believe, because they were bored. First, because they were bored and before launching a lawsuit, they should have done a simple search of the words, “Boredom can lead to.” I conducted this exact search and immediately came upon “Tarique,” who in his “Tarique’s Travails,” warns of a dastardly potential problem for parrots or lawyers that are bored. To comprehend the angst and misery that lie ahead, simply substitute “MOS lawyers” for “parrots” and “birds” and the warning becomes more momentous and worth heeding:

“Boredom can lead to madness in parrots. When caged by themselves and neglected for long periods of time, these intelligent, sociable birds can easily become mentally ill. Many inflict wounds upon themselves, develop strange tics, and rip out their feather.”

Without having met them, I can imagine MOS attorneys as intelligent and sociable. I hope the inflictions can be stopped before they begin.

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September 4, 2013June 8, 2014

Fair Use, the 2-line rule & my heart tells me it’s real

The 3,398th Day Anniversary of an email

As I was wading through “All Posts” in the space behind/under the hood of my site, I stumbled upon this – an email I posted to an online discussion of Fair Use nine years (3,398 days) ago. I don’t remember the person to whom it was addressed or the name of the forum so I will expunge three names in my post.

I wanted a 2/3 silly title to this post and I hope I have succeeded.

1.

“Fair Use.” Fair use is not silly – it’s essential. Fair use is the use a copyrighted work (or more than one) without the author’s permission. It’s what we were forced to do in the American education system. It’s not enough that we spouted our views – we needed to COPY and quote others’ views as well, and it was unthinkable that we’d go to the trouble of writing to a book publisher to ask for permission, for example, to COPY a few sentences/paragraph from an author and insert it into our original work. This new original work by a student was usually a paper that had to be handed in to a teacher to fulfill an assignment. Asking for permission would take too long. Proper attribution (and copyright notice) for an academic assignment is usually considered a good reason to violate/break/pillage the “Copyright Law of the United States and Related Laws…”

2.

The “2-line rule.” There are so many references to a “2-line rule” that many believe there might really be a 2-line rule. To annoy certain people and for the humor of it, I have gone to that ultimate DETERMINER of what does and does not exist – Wikipedia. I entered the term, “2 line rule,” and then “2-line rule” and both times got this in return:

“The page “2 line rule” does not exist. You can ask for it to be created, but consider checking the search results below to see whether the topic is already covered.
For search help, please visit Help:Searching.”

I guess that puts an end to it – there is NO 2 line rule! But the next item Wikipedia informed me of was “Bright-Line rule,” and still, under Bright-line rule, there is no 2 line/2-line rule, hyphen or not. Therefore, I still believe, unlike Virginia with Santa Claus, that there is NO 2-line rule.

3.

“My heart tells me it’s real.” To some, this short phrase is a sweet sentiment but I find the lyric silly, so that is my 2nd and final silly part of a 3-part title (but I will quote these six words again below).

To summarize the analysis of this post’s title:

Part 1 (“Fair use”) – Not Silly.

Part 2 (“2-line rule”) – Silly.

Part 3 (“my heart tells me it’s real”) – Silly.

Now to my ranting about fair use from May 2004. I could revise and re-word this (and perhaps I should) but I won’t. I’ll let this frozen-in-time rant imperfectly represent my thoughts from that day.

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4. May 16, 2004

May 16, 2004

Dear X:

Your story (and Y’s paper) well illustrates the out of balance copyright world. Few people know that the first U. S. copyright law was meant as, and called, “An Act for The Encouragement of Learning.” The most important reason for copyright in the U. S. was to provide our not well educated 18th century public inexpensive access to educational materials. The Founding Fathers felt that an educated public was necessary in order to have a well intentioned government. The second point of copyright, and one that was not as important as the dissemination of knowledge, was to provide the writers and inventors a reasonable financial return on their labors. This financial reward was to come about through a monopoly for a short time on their works. But judges throughout our history have made it clear that the authors’ and inventors’ monopoly for limited times was of secondary importance to dissemination of a rich wealth of ideas in a rich public domain. Today, however, the balance between the welfare of the public and that of the authors is out of whack, as many copyright holders wield far too much power, and the public either is unaware of its importance or unwilling or financially unable to fight back.

I highly encourage U. S. citizens/authors/educators to be well aware of section 107 of Title 17 of the United States Code (The 1976 U. S. Copyright Act). Section 107 outlines the four Fair Use factors which allow anyone to borrow from a copyrighted work without the permission of the copyright owner, but with consideration of these four factors.

There are no bright line tests to determine whether one has infringed a copyright by borrowing from another work. The law states that copyright protection subsists in original works of authorship fixed in any tangible medium. But no law can state what is original and what is not, and at what point does original and protectible expression arise. There are no specifics in the 1976 Act pertaining to how much can be taken from another work, but a close look at any short “sample” of an original work of authorship reveals that little is original. In fact, in most works of authorship of popular expression, short segments are unoriginal. They merge with more unoriginal segments and eventually become original. This applies to words, pitches, sounds, colors on a canvas, dialog, etc.

One should use other copyrighted works after one has assessed the originality of the material that is being borrowed, the amount to be taken, the nature of the material (facts are rarely protectible; fiction can have much more protection), whether the intent is educational or for profit, and the effect the borrowing will have on the market for the original work. I know of no “standard formula of seeking permission whenever quoting more than two lines of a song.” If there is such a “standard formula,” to the best of my knowledge it is not based in the law or common law. One cannot be found guilty of copying if what is copied is unoriginal. Copyright infringement only comes when what is copied is “original” (and “fixed in any tangible medium…”).

To illustrate why one could copy more than two lines of a song without permission, I offer the following. I would feel free to quote the following four lines without asking permission:

Tell me how you feel

I finally know how love feels

Tell me if it’s real

And my heart tells me it’s real

Or the following:

When it’s warm outside

And the look in your eyes

Is longing to show me the way

I don’t want to wait

or the following:

I don’t know how to live without your love

I was born to make you happy

cuz you’re the only one within my heart

Again, I would reiterate the importance of considering the four fair use factors in assessing the “criminality” of the above “thefts.” In all three, the “purpose and character” of my use is educational. Even if the use is for profit, that still would not exclude the borrowing from being a fair use. Secondly, the nature of the copyrighted work is fictional/creative. Borrowing from creative works is less fair than borrowing from factual works. So, this factor goes in favor of the original author, and against my borrowing. The third factor is two pronged: what is the quantity and quality of what I have taken? The quantity is relatively small in relation to the work. The quality is very low in that these words are extremely common, mundane and unoriginal. And copying unoriginal material is not infringing a copyright as unoriginal material, by law, cannot have copy protection, i.e., is uncopyrightable. Fourth, what effect would my borrowing have on the market for the originals? Answer: None. These excerpts are from three Britney Spears songs. Assuming Britney Spears fans are reading this email, would this email containing exact short quotes from her songs (or if the email found its way into my forthcoming book) be a substitute for three actual recordings of her singing these songs? Certainly not. So, I win on most of the fair use considerations and could borrow without asking permission.

I recommend a less fearful reading, interpretation and implementation of Section 107 of the Copyright Act, and would recommend the model of Oxford University Press. Check out the two-volume “The Beatles As Musicians,” by Walter Everett. Where in these two books does it state that lyrics or music has been used with permission? All of the excerpts were considered to be fair uses.

Before I ramble on too long in this long email, I will close by responding to a point made in Z’s previous email. Fair use in sampling is now here. Get the excellent opinion of Judge Higgins in a recent case in the Middle District of Tennessee – Bridgeport Music et al v. Dimension Films et al (October 11, 2002). I discussed Higgins’ ruling briefly at my EMP presentation this month.

Sincerely,

E. Michael Harrington

September 4, 2013 postlude: There really might be more to this talking heart thing (“my heart tells me it’s real”) than I realized.

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September 1, 2013February 11, 2014

Robin Thicke “Blurred Lines” v. Marvin Gaye “Got To Give It Up” – My Interview with the Canadian Broadcasting Corporation – “Day 6”

Brent Bambury, host of the CBC Radio program “Day 6,” interviewed me while I was in Birmingham, Alabama. (Wednesday, August 28, 2013)

I was in Birmingham, Alabama last week to speak to three (3) wonderful and diverse groups – the Birmingham Rotary Club, the University of Alabama at Birmingham, and the Indian Cultural Society.

At 12:40 PM, Wednesday, August 28, 2013, I spoke to the Birmingham Rotary Club. Two hours earlier, I did a pre-blog pre-post while having a very distracted breakfast.

At 3:00 PM, I had the great pleasure of speaking with (in the form of an interview) Brent Bambury for the CBC Day 6 program.

At 7:00 PM, I spoke to students, faculty and others at the University of Alabama at Birmingham where I had once served as Jemison Professor. It was an exhausting but perfect day!

The next evening, at the Birmingham Museum of Art, I had the great honor of delivering the 2nd Annual Indian Cultural Society Lecture. (I created a Pinterest board for my talk which can be seen here.)

I would like to write to more about each of these three (3) lectures in Birmingham, But for now, I will write about the 4th and extremely unexpected interview with the CBC.

The interview can be heard at the CBC Day 6 website. I transcribed CBC Day 6 host Brent Bambury’s interview with me below.

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In the transcribed interview below:

“B” stands for CBC Day 6 host, Brent Bambury;

“E” stands for E. Michael Harrington.

B will be in normal font.

E will be in bold and italics.

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B: This is the summer that Canadian singer Robin Thicke has the biggest hit of his career. (Song begins to play) The song is Blurred Lines and it’s been holding down the #1 spot on the Billboard Hot 100 for weeks now. But it hasn’t been an easy road. Controversy seems to cling to this song like a flesh-colored latex bikini. A video clip for the song features topless models cavorting with Thicke and his collaborators, producer Pharrell Williams and rapper T.I. (Blurred Lines is heard).

And that video, along with the song’s lyrics, led many to slam the song as degrading to women. Some even said Blurred Lines evokes rape. (Blurred Lines is heard – music – “I know you want it, I know you want it, I know you want it’)

More controversy came this week when Robin Thicke and Miley Cyrus turned up in an awkwardly suggestive performance of the hit on the MTV Video Awards. (Blurred Lines is heard)

And if all that wasn’t enough, a completely separate debate has been bubbling under all summer. This time the controversy is about the origin of the song itself. Since its release, critics have been saying that Blurred Lines sounds an awful like Got To Give It Up, a 1977 hit by the late Marvin Gaye. (Got To Give It Up is heard)

You can hear the similarity but the question is: are the two songs similar enough to be called “plagiarism?” According to The Hollywood Reporter, the Gaye estate turned down a six-figure settlement deal to keep the case out of court. And that led to a preemptive lawsuit against Gaye’s estate filed by Robin Thicke, Pharrell Williams and T.I. That’s right – the songwriters of Blurred Lines are suing Marvin Gaye’s family over a copyright infringement lawsuit that might come down in the future.

To help us understand what it would take to prove that Blurred Lines rips off Got To Give It Up in a court of law, we’re joined by musicologist and law professor Dr. E. Michael Harrington who has served as a consultant and expert witness in copyright cases involving everyone from the Dixie Chicks, Lady Gaga to Woody Guthrie. He joins us from Birmingham, Alabama.

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B: Michael, welcome to Day 6.

E: Thank you, Brent. I’m very happy to be here.

B: Nice to have you with us. Let’s begin by taking a look at some of the similarities between these two songs. And we’ll start with the rhythm. This is the intro to the Marvin Gaye song….

And now here’s Blurred Lines…

Now the tempo and the rhythm of those two songs seem very close to me. What do you make of that?

E: I think you’re hearing it correctly. The tempos of both songs are very close. The tempo of Marvin Gaye, I believe, is 125 beats per minute and I think Robin Thicke is 123. I think it’s off by 2.

B: Wow.

E: So, what it would sound to most of us is identical. It’s not like one’s very fast and one’s slow. But the rhythm of those instruments – so far, we’re just talking about the accompaniment we just heard – it’s not significant enough yet. It’s like the intro to a book. We haven’t gotten far into the book yet.

B: OK. And they use a pretty standard bass, guitar, drum lineup for instrumentation but there is this unusual percussion accent in both of them. It sounds a little bit like a cowbell. What do you think about that?

E: Ah, that caught my attention right away. What I think you’re referring to – to me, I thought it was a Coke bottle. And I believe I read references to that many years ago when the song was new – Marvin Gaye’s song. So I think they both are using, like a Coke bottle to cut through. A Coke bottle has a particular timbre and a tonal quality – you know you hear it in the context more clearly.

B: So that’s unusual and would also seem to be a direct reference, on the part of the makers of Blurred Lines, to the Marvin Gaye song.

E: I think so. I can’t name you 5 or 10 other songs with Coke bottles.

B: But isn’t melody key? Is there anything in Blurred Lines that reminds you of Marvin Gaye’s melody?

E: I think… Good luck finding any exact melodies that are in common between the two. The chord progressions in the two songs are extremely different.

In the Robin Thicke, in Blurred Lines, there are only two (2) chords: A I (1) chord and a V (5) chord. I believe it’s G Major and D Major.

In the Marvin Gaye, there are some very interesting chord progressions involving four (4) different chords – a I chord, a IV, a V, and a II (2) chord that’s major. (The “ii chord” is usually minor.)

In the Robin Thicke, you’re just on this chord or you’re on that chord and that’s it.

B: Hmm… That’s really interesting, So, you could make the argument that there’s a lot more going on melodically in Marvin Gaye’s song, but could a plaintiff argue that Blurred Lines is a dumbed down version of Got To Give It Up, but still a copy?

E: That’s an interesting way of putting it – a dumbed down version. You could say – and people do this – they use a song as an inspiration, it’s an influence surely, but it’s an inspiration and maybe it’s something you imitate. They’re free to do that because you know, they haven’t copied it. Maybe they haven’t copied enough of it, or the pertinent aspects. Because sometimes in these court cases, there are some terms and some parts of music are most important. Just like in a book you don’t say, “Well, how did you like page 87? No one thinks, “I really loved 114!”

It [the determination of copyright infringement] has to be approached uniquely, kind of the way you’re going about this right now is the right way – isolating the elements and putting them together. And then assessing [assigning] some strength and weight to each.

B: Ok, so we’ve found some influences, maybe some similarities but some key divergences.

The moment of truth – in your expert opinion, would the Marvin Gaye estate have any chance of successfully suing in this case?

E: I would say they wouldn’t win. I am impartial in this – I could choose either side. And I would choose Robin Thicke’s side. I don’t think he has infringed copyright because of the big big “M word” – MELODY.

B: Does it break your heart to side against Marvin Gaye?

E: Ha! In a way, I mean I love the music of Marvin Gaye but this is a different issue. There’s stuff that conjures up Motown, and specifically that song. But once you really look carefully these items you see, well, they’re all different though.

I have to just say a musical, a music theory, and legal analysis – put all that together – and to me it’s not an infringement.

B: Michael. Great to talk to you. Thank you.

E: Thank you very much.

B: That was Dr. E. Michael Harrington in Birmingham, Alabama. Dr. Harrington has worked as a consultant and expert witness in many music copyright trials.

And I want to know what you think. What do your ears tell you? Is Blurred Lines a blatant ripoff of Marvin Gaye’s Got To Give It Up?” Let us know. Vote in our online poll. It’s at www.cbc.ca/day6 .

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August 28, 2013February 11, 2014

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

I’m thrilled to be able to speak to the Birmingham Rotary this morning especially after having spent a great night with many of them last night at Silver Coin Indian Grille in Hoover AL.

Because I was asked to speak at the ROTARY, I assumed the topic of business would be pertinent. And because I am a musician, I am well aware of how important business is. And because I am a musician, I know that technology is present in every second of expression, and musical expression. And because my life has taken me into copyright law, I’ve learned that copyright law is also present at every moment of expression – public expression.

Music – I used to define it as “anything which vibrates for any amount of time which can or cannot be perceived.” I concocted that definition because all of the “normal ones,” i.e., more traditional definitions of music featured words like, “pleasing,” and “intelligible,” and to me, were too culturally-imposed and culturally-biased. They were concocted by people who had to make order out of sounds. And that’s another thing I hated – sounds were usually considered outside of the definition of music. “Sounds” only became a part of music if they were “pleasing.” These Cultural-Charged Members of The Defining Class annoyed me. I had to set up something better. And on a different note, I was fascinated by the spectrum of vibrating waves – very short ones made for higher pitches, longer ones made lower pitches. And the range of vibrating particles that covered music were so small in the BIG PICTURE of waves.

And let’s leave out taste. I prefer the radicalism, bad taste and shock value of Stravinsky and Xenakis to Cyrus and Thicke (wow – is this ever an August 2013-dated sentiment!).

Technology – I first think of the technology of the human body. We can improve it – grow taller, gain weight, lose weight, study how to project your voice, how to sing more than one note at a time, how to out scream her/him, how to strike instruments and sing for 12 hours nonstop, etc. That’s one fine body or technologically adequate body you’ve got there. That’s some technology. Other technology – build a bigger and better piano by gathering and making stronger and longer pianos. Bach had a better keyboard than Gesualdo, Beethoven’s was better than Bach’s, Liszt’s was better than Beethoven’s and so on.

And technology means digital – digital instruments in your mobile handheld device that can sound like an oboe even if it is an iPhone without a double reed or damn expensive beautiful black wood.

And technology means the Internet – communicate with everyone everywhere whether they like it or not. And the cost of that communication, reproduction, etc. can be free or nearly free. It certainly feels free. So, I’ll talk something about technology this morning.

Business – someone is supporting your habit of making music – playing and/or creating music. Blue collar musicians, those who are “so good with their hands,” can be a valued group in society until one moves in next door, serenades you on a date in a restaurant or tries to date your child. But business is always involved in the dissemination (and sometimes) creation of music.

Law – law at its best REFLECTS our values (or gets out of the way of our values); at its worse, law REGULATES our values (sits on the face of, pounces on, hammers down on what we want to express and receive).

So, if music is done in public, or done TO another person in public or private (via MP4, MP4+, etc.), we have by necessity the confluence of all four (4) – music, technology, business and law.

And then comes copyright law which sometimes is at the heart of evaluating expression – matching the amount of legal protection particular expression has with its amount of originality. Of course money/business and technology are looking over the fence peering in and wanting to play alongside Music and Copyright Law. “Don’t fence us out, dude!”

That’s where I come in. My name is Friday. I wear a badge (is that how Dragnet begins?).

It was Wednesday, August 28, 2013 and I was sitting next to the nicest woman who just left. We were both having breakfast but I was typing more than eating and laughing at how foolish it is to think I should write a blog post here surrounded by so many pretty business women in the hotel breakfast place. I laugh too much and especially now as I am writing this.

What should I play today?

The USPS “Creepy Clown commercial”

Vivaldi

Bartok

Joe Diffie

The Beatles

Dolly Parton as Tracy Chapman

Bob Dylan

Which One Is Hootie

Jonathan Coulton

T.I. (and not Thicke?), etc.?

And I have to bring Breaking Bad into this.

Walt is about 50, Jesse is about 25. “50” seems respectable. “25” is young and gullible. 50 knows more and gives orders. 25 trusts him. 50 is always taking advantage and winning over 25. 25’s immaturity and lack of seriousness leads to so many mistakes, usually for 25 but at other times he causes 50 trouble. 50 and 25 make some great product and money together but you know in the end 25 doesn’t stand a chance. 50 will spit him out and find another 25.

That’s Breaking Bad. That’s the music industry.

To be continued. I hope everyone loves and enjoys their Wednesday with or without humps.

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August 25, 2013February 11, 2014

Joe Escalante Will Interview Me Today About Robin Thicke v. Marvin Gaye

Joe Escalante Will Interview Me Today

About Robin Thicke v. Marvin Gaye

This post’s interruptions are now getting interrupted. The newest interruption led me to write poetic, rhyming verse. (You can read this rhyme above and instantly realize why I do not write rhyming verse.) The newest interruption is very cool – Attorney/Talk Show-Podcast-Netcast Host/Vandals Founder Joe Escalante will interview me live on KTLK-AM 1150 this afternoon at 9 PM EDT, 8 PM CDT, 7 PM MDT, 6 PM EDT. If you are in Melbourne, Australia, the interview will be live tomorrow (way in the future – Monday) at 11 AM.

Do you know Joe?
I know Joe

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I was interviewed about Robin Thicke’s Blurred Lines, and three (3) other music copyright infringement matters that are in the news nows, by ABC News on Friday, August 16, 2013. Because they wanted higher fidelity and more reliable communication (I assume), they asked if they could call me on a landline. And in 2013, I do not have a landline, printer or cable TV subscription.

So, I drove down to the studio and had a lot of fun being interviewed. In fact, after I had talked for awhile and answered questions, I was told, “Thank you so much.” I think I then asked,

“Thank you for what?”

“The interview.”

“That was it? Wow! That was fun!”

The interview was about Robin Thicke’s Blurred Lines and whether it had infringed Marvin Gaye’s Got To Give It Up, and whether Blurred Lines had infringed Funkadelic’s Sexy Ways. _____________________________________________________________________________

Before I get into some of the items that are surrounding Robin Thicke, I’d like to pose a question about the introductions to two different songs –

Funkadelic’s Sexy Ways (released in 1974)

and

Diana Ross & The Supreme’s Love Child (released in 1968)

Both songs begin with solo electric guitar strumming chords that, to some, sound very similar. Was the Supremes’ famous song’s famous intro copied by a related artist so audiences would pay attention to the rest of a newer, unfamiliar song? Is the guitar intro of Sexy Ways copyright infringement? A rip off? A theft? A foolish idea presented in a blog?

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But back to the Buzz of The Month – just how guilty is Robin Thicke? Has he infringed not only one famous song – Marvin Gaye’s Got To Give It Up – but has he also infringed another – Funkadelic’s Sexy Ways ?

1.

I started to write the following re this Marvin Gaye v. Robin Thicke, or Robin Thicke v. Marvin Gaye stuff:

Listen to Marvin Gaye’s classic big hit, Got To Give It Up. The groove of that song – funky bass, with percussion that might include a struck Coke bottle.

Gaye Q= 123

Thicke Q = 121

Very close in tempo. So what?

Gaye is in the key of A Major.

Thicke is in the Key of G Major.

Gaye has a distinct chord progression.

Thicke has only two chords – the I chord and the V chord.

The “groove” sounds similar. (The “groove” is similar. Is a “groove” felt more than heard? Felt and heard?) The songs have a similar “feel.” This leads to four (and many more) questions –

1. What is a “groove?”

2. How legally significant is a “groove?”

3. What is a “feel?”

4. How legally significant is a “feel?”

I then paused and went about other projects and work. I didn’t know when or if I’d come back to it. But then came the email from and interview by ABC News, which resulted in my August 19, 2013 post in which I answered questions about Robin Thicke v. Marvin Gaye (and Robin Thicke v. Funkadelic), Sara Bareilles v. Katy Perry, The Who v. One Direction, and Madonna v. Lady Gaga. I was told about the article summarizing my ABC interview – I then posted it and moved on to other items and was going to leave the world of Robin Thicke until a friend told me that an attorney has posted on my site that he “strongly disagree[d]” with my analysis of the Thicke situation. That lead me to quickly and briefly address his points.

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Here is what I wrote to the attorney. You can read his letter and my response here (August 19, 2013 post)

I agree with you that Marvin Gaye’s “groove” and “bounce” were “quite original.” But are there any music copyright infringement lawsuits in which “groove” and/or “bounce” (aside from sampling/sound recording copyright issues) were held to be copyrightable expression? Is there an agreed upon/standard definition of “groove” or “bounce” in any case law?

Can you cite for me a successful music composition (not sound recording, but music composition) copyright infringement lawsuit in which plaintiffs have prevailed when there was NO copying of MELODY, harmony or rhythm? Objectively, there is NO protectable expression (melody, harmony, etc.) that has been copied by Thicke.

What do you mean by “counterpoint of all the rhythm section instruments?” Has that phrase been used in any case law?

I would argue that Thicke is NOT an arrangement of Gaye because none of Gaye’s melodies, harmonies or harmonic rhythm were recreated. And because both songs have lyrics, it seems that there is no significant similarity of words/lyrics between Gaye and Thicke.

Gaye’s song uses 4 unique chords – the Gaye chord progression is: -I-IV-V-I-V/V-IV-V-I-V/V-I-. Thicke’s song uses 2 unique chords – the Thicke chord “progression is simply -I-V-. There is no copying of copyrightable expression involving harmonies of the two songs.

What is extremely close between the songs is the tempo: Gaye is approximately Q = 123; Thicke is approximately Q = 121. They are very close, not identical, but tempo is not copyrightable.

The accompanying percussion in both songs might both use a struck Coke bottle as well as typical drum set and cymbals. Instrumentation is not copyrightable.

I work extensively in advertising. In advertising, “referencing” is very common. Thicke, in my opinion, references Gaye, but does not infringe the copyright of Gaye.

Again, if there is an example of music copyright infringement WITHOUT the copying of MELODY, please let me know.

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2.

Now, for the other possibly problematic musical similarity –

Listen to Funkadelic’s 1974 song, Sexy Ways. Never mind the little joke from above – is the Funkadelic opening electric guitar solo strumming an infringement of the opening electric guitar solo strumming of The Supremes’ “Love Child.”

But pay attention to the first vocal melody, -3-5-3-2-1-, sung to the words, “I just want to say” at 0.08-0.10 of the song. Even though the words, “I just want to say,” occur four (4) more times in SEXY WAYS, the melody -3-5-3-2-1- never occurs again. This itty bitty less-than-two-second melody (-3-5-3-2-1-) is only heard once in the song.

This same itty bitty less-than-two-second melodic phrase, -3-5-3-2-1-, is heard in Robin Thicke’s Blurred Lines. Uh-oh. But when -3-5-3-2-1- occurs in Blurred Lines, it is no longer itty bitty. It is now larger. (If 3-5-3-2-1- gets one more note, perhaps it becomes “bitty,” and “itty bitty” is rendered inappropriate.)

3-5-3-2-1 of Sexy Ways has now grown to

3-5-3-2-1-6 of Blurred Lines.

Oh no – we’re back on 3-5-3-2-1 which means 3-5-3-2-1-6 is nearby (they are very closely related obviously). But this leads me back to several posts of mine re Gretchen Wilson and the copyright infringement action brought against her. Part of that was discussed in my July 28, 2013 Who’s Tripping Down The Streets Of The City post, so I will not repeat it here.

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August 19, 2013February 11, 2014

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

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

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I was interviewed about Robin Thicke’s Blurred Lines, and three (3) other music copyright infringement matters that are in the news now, by ABC News on Friday, August 16, 2013. Because they wanted higher fidelity and more reliable communication (I assume), they asked if they could call me on a landline. And in 2013, I do not have a landline, printer or cable TV subscription.

Living in Nashville, and relatively close to downtown, I drove down to the studio and had a lot of fun being interviewed. In fact, after I had talked for awhile and answered questions, I was told, “Thank you so much.” I think I then asked,

“Thank you for what?”

“The interview.”

“That was it? Wow! That was fun!”

Now to the ABC article, reprinted below. (The title of this post is borrowed from the title of the ABC article below.):

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

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From the ABC News interview with me:

Hey music fans: it’s time to stop accusing artists of ripping off other artists. Because according to an expert in music copyright law, nobody really has a case.

Exhibit #1: Robin Thicke‘s “Blurred Lines.” Robin and his co-writers just went to court to to establish that “Blurred Lines” doesn’t rip off two particular songs: Marvin Gaye‘s “Got to Give It Up. Pt.1” and “Sexy Ways,” by the group Funkadelic. But let’s say Robin was to get sued anyway. Would he lose? Music copyright law professor Dr. E. Michael Harrington says no.

Dr. Harrington, who’s on the faculty of the Berklee College of Music, has served as an expert witness in hundreds of music copyright matters. Comparing “Blurred Lines” to “Got to Give It Up,” he says, “I can hear the similarity and you can see where maybe they’re even copying or even imitating…the style of ‘Got to Give It Up.’ And I can hear that right away…but the melody’s not that close at all, so the copyrightable parts of this are really not that significant.”

As for “Sexy Ways,” Harrington says, “The opening melody of it is similar to a section about 1:26 into Robin Thicke’s song…and that’s very close, but that’s very brief, but I don’t think it’s that original.” That’s the key, according to Harrington: if what you’re copying isn’t that original to begin with, and has been used many times before, it’s fine.

Exhibit #2: Katy Perry‘s “Roar.” Fans have been up in arms about the fact that the song’s intro sounds remarkably like the intro to “Brave” by Sara Bareilles. In fact, Katy is an admitted fan of Sara’s song. But could Sara sue Katy for ripping her off? Again, Harrington says no.

“There are some similarities but nothing significant,” he explains. “They’re both in the key of B flat. And they keep repeating this piano [part]…but so what? That’s called a repeated chord. It’s just, y’know, that’s part of a style. There’s nothing really there. I mean, I could break it down technically, more, but I would say don’t bother filing that lawsuit.”

Exhibit #3: One Direction‘s “Best Song Ever.” There were rumors that the legendary rock band The Who was going to sue the British boy banders because the intro to that song sounds like their 1971 classic “Baba O’Riley.” Who guitarist Pete Townshend, who wrote the song, says he has no plans to sue, but could he if he wanted to? Harrington says sorry, but no.

“I mean I can definitely hear the similarity,” he says, but points out that the notes used in the Who song and the notes in the 1D song are different. “Two of the three notes are the same,” he says, “But you’re talking about just, the basic, kinda…’get into this bass note, to this chord, and this bass note.’ That can’t be an infringement.”

Harrington adds, “It’s kind of what they do in the advertising world. You always hear something that sounds like something else, but they know how to come close to reference it. They call it referencing. So One Direction, I would definitely say they’re definitely referencing The Who.”

Exhibit #4: Lady Gaga‘s “Applause.” Fans of Madonna and Gaga have been feuding for ages now, and more fuel was added to the fire when Madonna’s fans accused Gaga of ripping off the Queen of Pop’s song “Girl Gone Wild” in the chorus for “Applause.” Do they have a point? Harrington says not even close.

“No, and I listened a few times,” he laughs. “The others, I can hear things, but this…I don’t get it.”

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July 28, 2013February 11, 2014

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

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

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

My conclusions from the previous post:

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

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

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

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

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

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Questions raised in the previous post now answered:

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

Answer: NO

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

Answer: NO

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

Answer: YES

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

Answer: NO

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

Answer: NO

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

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

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

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

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

Answer: NO. It is not original or substantial.

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

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

Stevie Wonder – I Wish

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

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

0.18 “Looking back on when I…”

0.20 “Was a little…”

0.27 “Then my only worry…”

0.29 “Was for…”

0.45 “Sneaking out the back door…”

0.47 “Hang out…”

0.54 “Greeted at the back door…”

0.56 “Thought I…”

1.39 “Brother says he’s tellin’…”

1.42 “Caught you…”

1.48 “Just don’t tell I’ll give you…”

1.50 “Anything…”

2.06 “Smoking cigarettes and…”

2.08 “Writing something…”

2.16 “Teacher sends you to the…”

2.18 “Principal’s office…”

The Association – Windy

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

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

0.00 instrumental

0.03

0.07

0.14 “Who’s peeking…”

0.18 “Calling a name…”

0.21 “Who’s bending…”

0.31 “Who’s tripping…”

0.34 “Smiling at…”

0.37 “Who’s reaching…”

1.07 flute

1.10

1.14

1.42 “Who’s tripping…”

1.46 “Smiling at…”

1.50  “Who’s reaching…”

1.57 “Who’s tripping…”

2.01 “Smiling at…”

2.05  “Who’s reaching…”

2.12 “Who’s tripping…”

2.15 “Smiling at…”

2.19  “Who’s reaching…”

2.26 “Who’s tripping…”

2.30 “Smiling at…”

2.34  “Who’s reaching…”

2.40 “Who’s tripping…”

2.44 “Smiling at…”

2.48  “Who’s reaching…”

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

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

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

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

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

Gustav Holst – Two Songs Without Words, Op. 22

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

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Sue some more?

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

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

something else to do

and

someone else to sue

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

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

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

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

1.23 “What do they make dreams for”

1.28 “What do we need steam for”

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

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

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

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July 26, 2013February 11, 2014

You Stole 2% Of My Song – Now Give Me 50% Of Your Song. (That’s How We Count ‘Round Here.)

1.

1. Listen to the Black Crowes’ song: Jealous Again

2. Listen to Gretchen Wilson’s song: Work Hard, Play Harder

3. Did you hear anything similar between Jealous Again and Work Hard, Play Harder ?

4. Verse 1, verse 2 and verse 3 of Jealous Again open with the same simple melody: 3-5-3-2-1-6.

Verse 1: “cheat the odds that made you” – 3-5-3-2-1-6 at 0.17 – 0.19

Verse 2: “always drunk on Sunday” – 3-5-3-2-1-6 at 0.50 – 0.52

Verse 3: “never felt like smiling” – 3-5-3-2-1-6 at 1.49 – 1.51

5. Each statement of the short melodic phrase, 3-5-3-2-1-6, lasts more than one (1) but less than two (2) seconds.

6. The 3-5-3-2-1-6 melody only occurs at these three (3) places in Jealous Again.

7. Jealous Again lasts four minutes and twenty-seven seconds.

8. The 3-5-3-2-1-6 melody lasts for less than 6 seconds out of 267 total seconds of Jealous Again.

9. The 3-5-3-2-1-6 melody accounts for 2% of Jealous Again. Two percent.

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2.

1. Listen to Gretchen Wilson’s song: Work Hard, Play Harder

2. At 0.19, Gretchen Wilson sings “I work a double shift on Monday.”

3. The first five (5) notes of the melody to this lyric are 3-5-3-2-1.

4. The next note after the “1” MIGHT be “6,” or it MIGHT be another “1” or it might be an indeterminate pitch. The 6th and final note of this short phrase is not as clear to perceive, in terms of pitch, as are the first five (5) notes of the melody.

5. Perhaps this 3-5-3-2-1 melodic phrase with an indeterminate 6th pitch, could be called, “3-5-3-2-1-x” or “ALMOST 3-5-3-2-1-6.”

6. If you are on the Black Crowes side, this melody is 3-5-3-2-1-6 and you want to give Gretchen Wilson “credit” for singing that last extremely short note (or ALMOST note) as “6.”

7. If you are not on the Black Crowes side, or neutral, Gretchen Wilson’s melody is 3-5-3-2-1-x, where “x” means indeterminate.

8. Gretchen Wilson sings 3-5-3-2-1-x at the following four (4) places in her song, with these words:

0.19 “…double shift on Monday”

0.27 “Wednesday pouring coffee”

1.12 “I don’t waste my time on”

1.20 “…pay no never mind to”

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3.

1. 3-5-3-2-1-6 is not the same as 3-5-3-2-1-x.

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

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

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

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

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4.

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

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

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

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

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

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

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

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

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The questions above can be answered. In addition, there are many more questions to pose and answer, as well as important concepts and theories that could be considered.

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July 23, 2013February 11, 2014

Did Gretchen Wilson infringe the Black Crowes?

I want to continue from what I had introduced in my February 28, 2013 post – Preying On Songwriters…

From February 28, 2013:

Songwriter A’s publisher and/or attorney receive(s) a letter from songwriter B’s publisher and/or lawyer telling Songwriter A that her new song has ripped off or infringed or copied or stolen Songwriter B’s song. Publisher A/Attorney A informs Songwriter A that we better fix this. The way to fix this? Songwriter A simply and quickly needs to fork over half of A’s copyright and future royalties on her song, and make sure that Songwriter B’s name appears everywhere that Songwriter A’s name appears on this song. All future royalties will be split between A and B.

Or another sharing scheme could be worked out. If not 50/50, perhaps 55/45, 60/40, 65/35, 75/25, etc., and the larger percentages could be assigned to Songwriter B. Songwriter A might not only lose a lot now and for generations of nameless/faceless descendants (copyright is nearly eternal in length), but Songwriter A might get marked as an easy mark for others to attack in the future.

Why should this happen? Can someone simply assert that you, the Songwriter, have stolen someone else’s music? Does the fact that someone alleges theft make it a theft? Are you guilty because someone with more (A) power, (B) influence or (C) money (A, B, C, A+B, A+C, B+C, A+B+C) asserts so? Does that more powerful person have any alternate and/or better idea(s)? Has that more powerful person investigated other solutions? What can you, the Songwriter, do? Do you admit to the “facts” with which you have been confronted? Is there a loved one, friend or family member who can help? Do you need emotional help? Do you need financial help? Do you need legal help? Do you need MUSICAL help? Or do you need every kind of help just mentioned and more?

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The post in essence came down to this situation involving two songs and two songwriters (or two sets of songwriters):

“Songwriter A’s publisher and/or attorney receive(s) a letter from songwriter B’s publisher and/or lawyer telling Songwriter A that her new song has ripped off or infringed or copied or stolen Songwriter B’s song.”

Next, what are the options for the Accused, i.e., Songwriter A.

Here are a few:

Songwriter A ignores this and Songwriter B abandons the idea. It’s too much trouble for Songwriter B and everything is forgotten. This was just a hollow threat from Songwriter B and/or Songwriter B’s publisher (or B’s publisher and/or lawyer).

Songwriter A wants this matter to go away. Songwriter A decides to give Songwriter B 50% of all future royalties. Songwriter B is happier than Songwriter A, but the problem has been resolved and the problem goes away.

Songwriter A discusses other options with one or two associates (or more – her team, or her team that becomes wisely supplemented) and then negotiates a better solution.

Songwriter A explores options that could include disagreement with Songwriter B’s team and the exercise of A’s legal rights.

Songwriter B could, at any point, “up the ante,” “lawyer up,” “throw more at the wall and hope something sticks,” or more. (Insert your own cliches, tired or not, to describe/predict the next steps for Songwriter B.)

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Earlier this year I was told that Gretchen Wilson had to part with some of the copyright ownership/publishing of her song,

Work Hard, Play Harder

This was supposedly due to the fact that Gretchen Wilson’s Work Hard, Play Harder infringed the Black Crowes song, Jealous Again.

If her song infringed their song, it would follow that Jealous Again was written before Work Hard, Play Harder and that Gretchen Wilson had the opportunity to hear the Black Crowes song. Is it reasonable to believe that Gretchen could have had the opportunity to hear the Black Crowes song?

And if a significant portion of her copyright (50%, possibly) was transferred to the Black Crowes because she supposedly infringed their song, then it would follow that one would hear the Black Crowes song when one plays the Gretchen Wilson song.

And it should follow that one would strongly be able to hear Gretchen Wilson’s song when one plays the Black Crowes’ song.

And it should follow that in order for half of Gretchen Wilson’s copyright and publishing and royalties to be transferred to the Black Crowes, a substantive amount of the Black Crowes song was copied by Gretchen Wilson.

Here is Gretchen Wilson’s song: Work Hard, Play Harder

Here is the Black Crowes’ song: Jealous Again

Listening to these two songs, can you hear what was infringed? Can you hear what was copied without permission? If you can hear what was copied, is what was copied significant? If you can hear what was copied, is the copied expression protected by copyright, or is it not protected by copyright?

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On a different note and one that might be illustrative later, I have many other questions about the beginning of this accusation – you did me wrong, now pay me – process.

Who was the first person to claim that there was an unauthorized copying problem?

Did this person work for the Black Crowes?

Did this person work for the Black Crowes’ publisher?

Does this person work for the Black Crowes’ management?

Does this person work for the Black Crowes’ lawyer?

Did this person know someone who worked for the Black Crowes?

Was this person a fan of the Black Crowes?

I would like to leave the reader with a few questions I posed above. Please feel free to state your opinion. I know mine very well but I want the input/opinion of others. I really want the input/opinion of others. I am not just being polite – I want the input/opinion of others. (I’ve just stated that three times – surely I mean it!)

Listening to these two songs, can you hear what was infringed?

Can you hear what was copied without permission?

If you can hear what was copied, is what was copied significant?

If you can hear what was copied, is the copied expression protected by copyright, or is it not protected by copyright?

This conversation will continue very soon.

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July 16, 2013February 11, 2014

“The phone is at the forefront of the future”

“The phone is at the forefront of the future” (imagine those words spoken with cave-like echo)

Have you heard the news? Not the Elvis Presley, “Have you heard the news, there’s good rockin’ tonight!”

No, this news:

“Jay-Z has always been a trendsetter and he is continuing that by being the first artist to distribute his music and connect with fans in a mobile environment. This is a move to watch.”

From the company’s press release we learn the following:

“Technology now provides us with the opportunity to deliver music in new ways.”

That sentence could just as easily have applied to the development of the pianoforte, aka, the “piano,” in the 18th century. But this new technology sentence is used in connection with Jay-Z.

“The…phone is at the forefront of the future which includes buying music instantly and taking it with you wherever you go.”

“Buying music instantly…” That “instant” aspect of the trick was what Amazon accomplished in 1999 with its infamous “one-click” patent. This “ooh aah, imagine that!” patent allows a customer the ease to only click a mouse once and be done with the purchase. It’s fast and simple. And despite millions of people using it, thousands assailed the U. S. Patent and Trademark Office for granting such an “obvious” (and dunce-headedly simpleminded) patent. The E. U. is often not as slipshod as the U. S. in awarding patents and refused Amazon’s one-click patent application stating that the patent lacked the “inventive step.” Again, the company’s quote above is used in conjunction with Jay-Z.

More of the phone hype:

“…phone represents the company’s commitment to music and developing devices that match the lifestyles of consumers…”

and

“…this relationship pairs the leader in mobility with a leading artist to deliver music and the full fan experience in a unique new way.”

And now some more Jay-Z hype from the company’s same press release:

“An entrepreneur at heart, Jay-Z has risen to the top of the rap genre since starting his own record label, Roc-a-Fella Records…”

This Jay-Z/Phone news, or Phone/Jay-Z news, has been reported in dozens of online and offline media outlets and appears to be the marriage of digital distribution, hip hop and mobile technology. But wait – that’s a marriage of three (3). Even the U. S. Supreme Court won’t let three (3) be united as one (1). But I digress.

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What’s noteworthy about what I’ve written above is that it is not from an important tech/mobile/hip hop/branding/endorsement news story of July 2013 but from an important tech/mobile/hip hop/branding/endorsement news story of December 2003, ten years ago! A few of the statements above are true – the story does involve a new phone, new music included with that phone, new and exciting branding news, and Jay-Z. I left out the name of the company from 2003 that joined forces with Jay-Z, as well as the names of the new phone and Jay-Z’s new music.

The phone was the then new Nokia 3300.

The music was the then new Jay-Z Black Album.

Back in December 2003, the Jay-Z phone foray began when Nokia offered a “Black Phone” that was the companion cell phone to Jay-Z’s “Black Album.” This was billed as a music and wireless industry first. (Very coincidentally, I was expert witness in a matter involving DJ Danger Mouse’s Grey Album, a brilliant and creative mashup of Jay-Z’s Black Album, Jay-Z’s Black Album release that featured only vocal tracks, and the Beatles White Album aka The Beatles. The Grey Album is still the most famous/infamous mashup ever and an enormous subject on which I should elaborate at another time.)

Co-branding and the unusual affiliation between musician(s) and tech companies was unusual in 2003 but the biggest co-branding between a mobile music device and a musician, however, came one year later, in 2004, when Apple introduced its U2 iPod which featured the new U2 album, How To Dismantle An Atomic Bomb. The new red and black iPod was a success in its limited special edition release. In a red and black case it looked like this.

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The biggest and most hyped music news of July 2013 seems to be the new alliance between Jay-Z and Samsung. This deal is very good for Jay-Z as Samsung has bought 1 million copies of Jay-Z’s new album, Magna Carta Holy Grail. (Warning – Magna Carta Holy Grail begins with Justin Timberlake singing. And he’s singing in a very high register. This is a hip hop album? A hip hop album that does not begin with a skit?) Jay-Z received $5 million for the 1 million copies. Magna Carta Holy Grail will be free for the first 1 million Samsung phone users who download the app.

Articles about the Jay-Z/Samsung alliance are found in

Engadget

USA Today

NPR

Forbes

My favorite of these is this particular Time story for which I was interviewed:

Time

What has interested me for several years, and is discussed in the Time article, are albums as apps and artists who create apps and content – music and visual – for apps. My favorite has been Bjork’s massive and adventurous, Biophilia. Here is a “tour” of the app – how it was conceived, designed and implemented. Tour of Bjork’s Biophilia

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What negatives or potential negatives are there in this Samsung Jay-Z relationship?

Privacy

Privacy. A hip hop album and privacy? As with anything that is digital, online, travels online and especially resides in a device that relies on the Internet for its transmission, there will be privacy concerns. Because of all these aspects, there will also be legal ramifications, data tracking and privacy concerns, and new bizarre powers enabled by this potent concoction of technologies. For example, should Jay-Z be able to track you via GPS? (It’s one thing to be on an artist’s email list but quite another to be cyber-scrutinized by an artist. From NME: Privacy Issues Raised Over Terms And Conditions Of Jay-Z’s Samsung App.

The privacy problem is even more problematic (too easy and obvious a Jay-Z “99 problems” joke) as the Electronic Privacy Information Center (EPIC) is asking the Federal Trade Commission (FTC) to investigate. This is not what one might suspect from many hip hop/rock/pop albums – warning stickers about lyric content that were voluntarily “awarded” (stuck on) the album packaging. No, I would suspect that this is the first album to ever warrant federal government inspection over privacy concerns as data mining meets music meets telecoms meets Internet.

Leakage aka Piracy

Leakage aka Piracy. Because it is digital, it should be no surprise that Jay-Z’s album-inside-a-Samsung has already been hacked onto an HTC device. Soon, Magna Carta Holy Grail will leave the Samsung Galaxy and be all over the more impressive galaxy.

Here is another account of the leak of Magna Carta Holy Grail (Spin, July 4, 2013).

It’s been hacked. It’s been leaked. It’s been copied. It’s been transmitted. Ho hum. It’s digital. This happens to digital.

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Will Jay-Z/Samsung turn out to be as forgettable 10 years later as Jay-Z/Nokia? Or the Apple U2 iPod? (Speaking of the iPod – just what is an iPod? Are there many iPods in 2013? Aren’t small dedicated music playing mobile devices now subsumed within every mobile phone? Sadly, iPods and mobile devices could hold much more content than they do but the tech companies would prefer keeping the devices small and the clouds large so that we will continue to buy and rent all of our intellectual property.

It’s not enough to love your IP – you need to pay for it in

many ways over many days and many decades.

May 2024
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