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

Buddy Holly

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

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

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

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

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

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

Christmas Decorations With Shallow Depth of Field

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.”

Copyright 2013 ABC News Radio

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My Favorite 9 Minutes of George Duke – Did A Vehicle Did A Vehicle Did A Vehicle

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Did a vehicle did a vehicle did a vehicle

Guacamole queen guacamole queen guacamole queen

Was George Duke a vehicle that came from somewhere out there?

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1.

Yesterday, August 6, 2013, I learned that George Duke had died.  George Duke, to me, was a mythical character.  I loved so much of his playing and singing, and I couldn’t figure him out because of his great diversity and depth.  He was a great pianist, keyboardist, singer, band leader, sideman, creator, performer, improvisor, persona and, according to so many who knew him, wonderful and kind man.  By “persona,” I am referring to George Duke as an actor, and by “actor” I mean “live musician on stage with Frank Zappa.”  In addition to being a musician in any of Frank Zappa’s bands over the decades, one had to be able to act.  One had a persona and maybe a changing persona over time.

My favorite George Duke performance is his multiple keyboards, keyboard styles, vocals and vocal styles on Frank Zappa’s Inca Roads, from Zappa’s brilliant 1975 album, One Size Fits All.  (This also happens to be my favorite performance of percussionist Ruth Underwood.)  As a bonus, there is the great claymation interspersed with this public TV performance of Frank Zappa and the Mothers Of Invention.

Inca Roads, more than any other performance, is the finest demonstration of every musical aspect of George Duke.  Duke sings a very challenging melody – rhythmically as well as in terms of intervals, melodic range and tempos.  His keyboard playing covers many areas – from playing “spacecraft landing” sounds and sweeps on an analog synthesizer, to jazz and rock, to extensive solos in several styles, and superb unison and harmony playing with others in the band.

My informal guide to this supremely brilliant performance of Inca Roads:

Sections:

0.00 – 0.35  intro & spaceship landing

0.36 – 0.59  “Did a vehicle come from somewhere out there…”

1.00 – 1.14  “I ain’t never seen nothing like that…”

1.15 – 1.47  “Did a vehicle did a vehicle did a vehicle…”

1.48 – 2.03  mallets, keyboard & flute unison bridge transition to Zappa guitar solo

2.04 – 4.41   Zappa red Gibson SG guitar (my electric guitar) solo over two repeated chords

4.41 – 5.12  wordless harmony vocals over the same two chords

5.13 – 5.30  repeat of mallets, keyboard & flute unison bridge (from 1.48)

5.31 – 5.44  “did a vehicle come from somewhere out there did a vehicle come…” – very fast vocal

5.45 – 6.37  “did a vehicle” melody, now instrumental & embellished

6:38 – 7.16  great George Duke solo mostly on Fender Rhodes

7.17 – 7.55  George Duke solo continued – now synth reenters

7.56 – 8.08  killer mallet solo

8.09 – 8:13  “Did a booger bear….”

8.14 –  8.21  “Guacamole queen guacamole queen guacamole queen…”

8.22 – 8.24  “Chester’s thing, on Ruth!”

8.25 – 8.48  “Did a booger bear….that’s Ruth!”

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2.

Two more George Duke performances:

Here is a great piano solo by George Duke from 1983 in Tokyo.  (Note also his personality and affability in this performance.)

This is George Duke and Billy Cobham live at the Montreux Jazz Festival in 1976.

Here is George Duke’s enormous discography.  This multifaceted special human left us with so much music.  We are fortunate to have had George Duke land here.

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Yesterday, Another Day, John Lennon Fires & Ends The War on Paul

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My last post (July 30, 2013) was about Paul McCartney’s attack on John Lennon, during the historical time period known as

1971

Paul wrote and recorded Too Many People, and John would soon respond with a song on his Imagine album.  To regurgitate some of the past – with the release of McCartney’s second solo (post-Beatles) album, Ram, the feud between Paul McCartney and John Lennon went public.

On the front cover of Ram, McCartney is holding a ram by the horns.  Lennon responded.  On the back cover of his album, Imagine, John mocked Paul  by holding a pig by the ears.

On the back cover of Ram is a picture of two beetles copulating.

If John only had responded with a photo holding a pig by the ears, this feud likely would not have been significant.  Paul’s attack on John was most conspicuous and unmistakable because of the following lyrics:

That was your first mistake 

You took your lucky break and broke it in two

The only interpretation seemed to be that John was lucky to have been a Beatle and that he destroyed his “lucky break” be breaking up The Beatles.  The rest of the lyrics of Too Many People were far too subtle in comparison – “too many reaching for a pice of cake…” – and were not intended to signal an attack.

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To fully grasp all that John Lennon would do in his SONG OF REVENGE (and then some), How Do You Sleep?, it is important to understand a difference between John and Paul – production.  Fully-fledged productions often favored by Paul, as opposed to simpler raw rock songs favored by John.  The Beatles’ Abbey Road album is an excellent example of these two philosophies at work –  John liked Side 1, Paul liked Side 2.

Side 1 is simple – record six songs and be done with it.  Side 2 is complex – record songs, some of which have many parts, and with great time and care, meticulously tie the enormous work together.  Side 1 would be easy to play live;  Side 2 would not.

Side 1 of Abbey Road

On side 1 of Abbey Road, there are six (6) songs written and recorded by The Beatles.  Each of the six songs are stand-alone, unconnected songs.  Every song is separated by a few seconds of silence.  In other words, it is album side of songs that do not convey a special message.  They do not have to flow into each other to create a greater whole or suggest something deeper than the message of the single song.  John preferred an album of stand-alone songs, like those on side 1.

Side 2 of Abbey Road

Side 2 of Abbey Road is a collection of songs that after the first two –  Here Comes The Sun and Because – are connected, i.e. flow together without pause (except for the brief separation before Golden Slumbers) until the end.  The final song heard on the album – Her Majesty – begins at the end of side 2 – The End.  (Her Majesty may have been the first “hidden track,” a favorite trick found on many CD’s.)

You Never Give Me Your Money which begins the suite of songs at the center of Abbey Road Side 2 is itself a microcosm of Side 2 as it is a complex musical work consisting of multiple short well-produced songs that transition into one another.  You Never Give Me Your Money was not the simpler offering that comprised side 1.

0.00 – 1.09  “You never give me your money…”

1.10 – 1.30  “Out of college money spent…”

1.31 – 2.11  “but oh the magic feeling…”

2.12 – 2.27  instrumental transition

2.28 – 2.47  “one sweet dream…”

2.48 – 4.02  “came true today…

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AN ORCHESTRA TUNING (becomes a weapon)

The concept of Sgt. Pepper’s Lonely Hearts Club Band had been Paul’s idea – the opening song, Sgt. Pepper’s Lonely Hearts Club Band , was Paul’s composition.  The sound of the orchestra heard at the opening was also Paul’s idea.  The Sgt. Pepper show had a beginning that was large in scope featuring a large ensemble (a classical/art music orchestra) to open the large show.  Orchestras first tune just before the big show opens.  Orchestras are big.  An orchestra tuning must be a big idea.  Just as the Sgt. Pepper show opened with an orchestra tuning, so too would How Do You Sleep? open with an orchestra tuning.  Paul liked Big Ideas.  John ridiculed Paul’s Big Idea penchant even before the first note of John’s message song to Paul had begun.

Beatles – Sgt. Pepper’s Lonely Hearts Club Band  (the opening sounds of strings in an orchestra tuning before the concert or show).

How Do You Sleep? opens with the obvious reference to Sgt. Pepper’s Lonely Hearts Club Band – an orchestra tuning along with an audience member clearing his throat.  ____________________________________________________________________________

Unlike Paul McCartney in Too Many People, John Lennon in How Do You Sleep? is blunt and direct with no room left for subtlety or interpretation.  John brings on the blunt immediately beginning with the word, “so,” as if the conversation had been ongoing – John had been in the room already letting Paul have the benefit of his wisdom.

So, Sgt. Pepper took you by surprise

You better see right through that mother’s eyes

Those freaks was right when they said you was dead

There had been a worldwide rumor that Paul had died some time before the recording of Sgt. Pepper.  John’s reference to the death of Paul is particularly hard hitting.  How is Paul “dead?”  As  a person?  An artist?  A friend?

You live with straights who tell you you was king

Jump when your momma tell you anything

“Straights” were those who were of The Establishment –  the bland, boring, uncreative sheep who had the power and ran the worlds of business and politics, and brought on The Vietnam War.

“Jump” when Linda Eastman McCartney, Paul’s wife, tells Paul to jump – that was John’s one and only direct attack on Paul’s wife (in the song).

The only thing you done was Yesterday

And since you’re gone you’re just Another Day

This was the most direct attack so far in the song.  John gives Paul credit for having written one good song during the Beatles – Yesterday – and one good song post-Beatles – Another Day.

A pretty face may last a year or two

But pretty soon they’ll see what you can do

Paul is good looking – that doesn’t last – but how will he fare without his partnership with John, and the Beatles?

The sound you make is Muzak to my ears

You must have learned something in all those years

John saves the toughest assault for the end – Paul’s songwriting isn’t good and there’s no excuse for it – why didn’t he learn more in his songwriting and performing days with John and The Beatles?

To add more insult to injury, George Harrison plays guitar on How Do You Sleep?.  George had grown weary of Paul’s demanding ways during the last days of the Beatles as can be seen in this tense, to-hell-with-you-Paul excerpt from the Beatles Let It Be film.

And Ringo had already recorded with John post-Beatles, but not with Paul.

The John Paul Wars were the best and most thoughtful of all of the rock music wars.

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