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Does Five For Fighting’s “Superman” Infringe Angie Aparo’s “Seed? (Part 2 of 3)

Chess Game

Chess Game

If accused of copyright infringement (copying Angie Aparo’s “Seed”), Five For Fighting could reply:  “We didn’t copy your song.”

(That defense should be enough, don’t you think?)

Then, someone on the potential plaintiff’s side (lawyer/publisher/manager etc.) could say, “YES you did.”

Defendant (Five For Fighting) could reply, “NO we didn’t.”

Then, Plaintiff could state, “You HAD to copy it.  You COULDN’T have written it any other way.”

Then, Defendant could state, “NO.  We wrote it without copying.  There was no copying.  Now, go away.”

Plaintiff could bring in an “expert” in music.  This expert could state that the defendant stole the song.

Defendant could bring in another expert who could state that the Defendant did not copy the Plaintiff.

(Now we will drop the conditional auxiliary verb – “could” – as we’ve got a barn-burner of a federal copyright infringement matter here.)

Experts for the Plaintiff and Defendant agree to present evidence, and to two (2) nomenclative points:

  1. Melody is indicated by numerical scale degrees: 1-2-3-4-5-6-7-8
  2. Time is indicated by a number, decimal point and two-digit number.  This configuration is identical to that indicated by an MP3 player or CD player.  For example, the indication, “2.31” indicates “two minutes and thirty-one seconds.”

Plaintiff and Defendant agree that the melody in question is:

1-2-3-5

and that 1-2-3-5 occurs at these points:

(It is common that there can be slight disagreements as to the exact temporal location of some of the numbers, but these are inconsequential in the determination of copyright infringement in this specific case)

Angie Aparo – “Seed”
(YouTube:  http://bit.ly/Ri53Wr )

1.21, 1.24, 1.29
1.43, 1.54
2.39,
3.25, 3.35, 3.45

Five For Fighting – “Superman (It’s Not Easy)”
(YouTube:   http://bit.ly/QlaDHC )

0.37, 0.39
1.12, 1.14, 1.21, 1.23
2.16, 2.18, 2.25, 2.27
2.51, 2.53, 3.00, 3.02

Plaintiff’s expert touts and further explains his evidence.

Defendant’s expert states that the melody in common is not copyrighted because it can be found in many songs written before the Plaintiff’s song.

Plaintiffs demand Defendants’ expert witness prove that the melody in question is not copyrighted.

Defendant’s expert witness shows that the melody is found in the music of:  Bach, Borodin, Brahms, Dvorak, Foster, Guonod, Haydn. Lear, Mendelssohn and Mozart.

Plaintiff demands specificity.

Defendant specifies:

Bach –  Jesu, Joy Of Man’s Desiring (Cantata No. 147)
Borodin – Prince Igor
Brahms – Piano Concerto No. 1 in D minor
Dvorak – Sonatina in G for Piano and Violin, Op. 100
Foster – Oh, Susannah
Guonod – Mors et vita
Haydn – Trumpet Concerto in Eb
Lear – Frasquita
Mendelssohn – Piano Concerto in G minor
Mozart – Piano Concerto in Bb, K. 191

Plaintiff is not impressed and wants Defendant to give them evidence from a song written and recorded in the past 50 years.

Defendant says that will be easy and that he can find this simple melody in several popular music styles.

Plaintiff feels that the Defendant’s Expert may have gotten himself into a predicament  that could easily backfire.  Talking too much, and too large, can cause trouble.

Plaintiff asks, “can you provide a country song that features 1-2-3-5?”
Defendant replies, “yes.”

Plaintiff asks, “can you provide a rock song that features 1-2-3-5?”
Defendant replies, “yes.”

Plaintiff asks, “can you provide a soul/R & B song that features 1-2-3-5?”
Defendant replies, “yes.”

Plaintiff asks, “can you provide a Brazilian song that features 1-2-3-5?”
Defendant replies, “yes.”

Plaintiff asks, “can you provide a song recorded in Minnesota that features 1-2-3-5?”
Defendant replies, “yes.”

Plaintiff asks, “can you provide a song recorded in Iowa that features 1-2-3-5?”
Defendant replies, “no.”

Plaintiff asks, “can you provide a 17th century popular Persian song that features 1-2-3-5?”
Defendant replies, “no.”

The Defendant’s expert wasn’t as cocky as Plaintiffs anticipated.  But surely there will be enough here to discredit him.  We will ask him more tomorrow – hand him more rope.

Tomorrow we will end this discussion.  Both side are convinced that they are right.

 

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Does Five For Fighting’s “Superman (It’s Not Easy)” Infringe Angie Aparo’s “Seed?”

Tiger in Cage

In a very good post yesterday, Kate M Singleton stated that she thinks we should be able to copy short excerpts of others’ expression.  She also brought up a potential borrowing or copyright infringement example.  She posed the question – did a song by Five For Fighting infringe a song by Angie Aparo.

I decided that her thoughtful answer to my question deserved its own post.  Here are links to both songs:


Angie Aparo – “Seed”
http://www.youtube.com/watch?v=p5lUE_bI8zY

Five for Fighting – Superman (It’s not Easy)”
http://www.youtube.com/watch?v=GRz4FY0ZcwI

I’d like for almost all of my posts to have visual interest – you know, a photograph.  So, here’s the photo I’ve selected – a tiger behind bars.  The tiger is beautiful but possibly angry at being locked up.  Perhaps the tiger’s song has been infringed and he wants to – get ready for a rhyme – get the HELL out of the CELL.

Tiger in Cage

OK – now on to my response to her post.

I agree with Kate – I think we should be able to take expression from others and use it.  Or re-use it, as a defendant-type or one of those RE-MIX people – those COPY-LEFT’ers – might say or write.  And we should be able to take things – expression – without asking permission.

We teach our children to STEAL other peoples’ thoughts without asking permission.  (I’m referring to what some teachers and professors do – make their students write “papers” that consist of their own thoughts mixed with the (better, older and more respected) thoughts of others.  We FORCE THEM TO STEAL.   All we ask is that our students have to correctly indicate (cite) their exact source(s).  We would not allow them to even ask for permission.  (Imagine writing to Houghton Mifflin to ask for their permission to copy a short paragraph?  They’d never get back to the student in a timely manner, if at all, and then the student’s paper would be late.  Despite the student’s honorable intention and actions, the student would flunk even though all the student was trying to do was abide by the U. S. Copyright Act.  Asking permission to use copyrighted material in this instance would be harmful to one’s education!)

Kate stated her opinion well.  I’m simply agreeing with her – that one should be able to use preexisting creative expression without asking for permission.

NEXT—-  was Angie Aparo’s “Seed” infringed – ripped off, stolen, etc – by Five For Fighting’s “Superman (It’s Not Easy).”

I like Kate’s description of her metamorphosis on the subject – how she used to get angry when hearing the two songs, but has transitioned to thinking that maybe FFF  (the group, not a type of battery) did not steal from AA (the artist, not the type of battery).

(I happen to have a better, for our comparative purposes, studio recording of Angie Aparo’s song and listened carefully to both Aparo versions and the one FFF version.)

It is easy to hear the VERY STRONG similarity between the songs in the sections she describes.  They are very similar with respect to melody, and the “shared” melody is virtually identical.  (“Virtually” is one loaded word.  I’ll get into “loaded words” – I never wrote “loaded words” before just now – in a later blog post.)

This post is long enough. I think I’ll post my answer tomorrow.  For anyone reading, please post your answers today.

Does that seem like a good idea – to listen to both songs and decide whether Five For Fighting’s song infringes Angie Aparo’s song?  Want to play?  You should.  It’s only play, and if you’re an adult reading this, you likely don’t play enough.