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


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

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


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

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

putting it my way, but nicely.

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

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


3-4-5-5-8-8-8  (as sung by Badfinger)

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

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

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

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

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

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


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

Beatles – Little Child (1963)

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

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

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

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

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

0.01  getting to know you

0.04  getting to know all (about you)

0.16  getting to know you

0.19  putting it my way (but nicely)

0.31  getting to know you

0.34  getting to feel free (and easy)

1.08  getting to know you

1.11  getting to know all (about you)

1.23  getting to know you

1.26  putting it my way (but nicely)

1.38  getting to know you

1.41  getting to feel free (and easy)

and frequently throughout

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

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

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


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

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

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



2 Replies to “Putting It My Way But Nicely – There Should Be No More Lawsuits…”

  1. Yup, I figured that’s where you were going. I like the way you built up your argument and defense for your opinion.

    BTW, I’m stumped on getting any more “song to band” names!

  2. HI Dave:

    I’m glad you liked where 3-4-5-8 went and how it got there. I talked about it tonight at Harvard Law (among other things). I left out so many but I felt it needed to not be definitive as much as it should be sonically appealing and obvious to non-musicians. By non-musician, I am more referring to those who are not heavy into music theory. In the same way that you as a medical doctor can make things clear and comprehensible to the public, I need to do that when it comes to music.

    I can’t think of a band named after a song at the moment but I bet if we “cheated” and did a search, there’d be dozens. I want to to it by means of a natural association – not a search engine activity.

    Thanks for your thoughts – they’re greatly appreciated!

Leave a Reply

Your email address will not be published. Required fields are marked *