Is There More Copyright Infringement In Pinterest Or Led Zeppelin II? My DMCA Takedown

A Kinder, Gentler DMCA or…

What’s more criminal – Pinterest or Led Zeppelin II?

Someday I will write a love letter to and about Pinterest. But for now, I’ll write about an unusual thing that happened to me Monday.

As of this week, I think I am the only American with a DMCA takedown (over Pinterest) who has never had a speeding ticket. Or both of those who was also an ice cream man for 3 years and a manager at a fish & chips restaurant for 3 months. (I hope I’m “only” at something.)

I received two (2) identical emails this week from Pinterest. They were very professional, respectful and kindly. Because the emails were in accordance with the Digital Millennium Copyright Act, one shouldn’t expect adjectives such as professional, respectful and kindly but they were. I guess that’s just how Pinterest is – the kinder, gentler hub for copyright infringement. The softer side of federal law enforcement.

We “pinners,” those who chug, those who swallow and those who merely sip from the Pinterest Kool-Aid, understand that we toil in the world of photographs. We find photos that someone else took, or “authored” in the words of the Copyright Law, and then copy them by means of a “Pin It” tool created and provided by Pinterest. There is one more step – we have to provide a written character or a few, many or hundreds of characters that all be displayed bekiw the photo we pinned. Our work as Pinterest pinners, therefore, is four-fold:

1. we find a photo

2. we copy it

3. we decide which of our boards should house this photo

4. we provide text underneath the photo

There are other options as well, options which I often delve into:

5. I add a link that will enhance the meaning of my pin and/or board. Often this can be a performance on YouTube.

6. I publicize this new pin on my board by posting bit.ly links to it on Facebook, Twitter, Google Plus, LinkedIn, Tumblr and So.cl.

I know that millions of other Pinners and I are guilty of copyright infringement and the penalty for this significant busting of federal law can be enormous – anywhere from $750 to $150,000 per offense. With two (2) infringements brought to my attention (because I reposted Gary Larson Far Side dog/cat cartoons I stumbled upon on the Internets), I could have been fined as much as $300,000.00. Fortunately, Gary Larson and Pinterest seem to want me to survive. Pinterest even goes so far as to encourage me to keep battering the Copyright Law of the United States and any copyrighted photograph in my way with their sincere, “Happy Pinning and thanks again for using Pinterest.” I’m thrilled that they didn’t word this as they could have:

“You have twice violated Title 17 of The United States Code. You will be prosecuted to the fullest extent of the law. Even your friends won’t know recognize you are when we are done with you. And it won’t be cinematic.” Fortunately, I am in the presence of more charitable, benevolent souls.

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Here is the email I received from Pinterest. The only heavily legalese word is “per.” They didn’t mean “percent.” And I would venture to guess that very few legal DMCA takedown notices use the word, HAPPY. Pinterest even utters the sweetest and most insincere thing one can say in a romantic breakup. It wasn’t “…you or your pin.” It’s me, not you.

Hi E. Michael Harrington (emh2625),

We’re getting in touch to let you know we received a copyright complaint and have removed one (or more) of your Pins. The complaint wasn’t directed against you or your Pin; it was directed against another user’s Pin of the same content from:

http://3.bp.blogspot.com/_9ihK9_CfYX0/S7nZBZ7y-0I/AAAAAAAACUY/o7kMVh_3L7g/s1600/gary+larson.jpg

While many copyright owners are happy to have their content on Pinterest, we recognize that some do not want their content to appear on Pinterest, or did not receive attribution for the content. When a copyright owner sends us a complete notice per the Digital Millennium Copyright Act (DMCA), it’s our policy to remove the Pin(s).

Again, this complaint was not directed at you, or anything you did: we just thought you’d like to know why we removed your Pin.

Happy Pinning and thanks again for using Pinterest.

The Pinterest Team

Pinterest DMCA #ID 99753122

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I will miss this Gary Larson Far Side pin of a dog on trial, with this dog defense attorney pleading to a jury not of his peers but of cats. The dog defense attorney pleads,

“A cat killer? Is that the face of a cat killer? Cat chaser maybe. But hey—– who isn’t?”

In my sadness at the Far Side eradication, I softly but resolutely sing this empowering message to my deleted pins (adapted from the tragic heartbreaking ending of Titanic):

“You’re here, there’s nothing I fear

And I know that my pins will go on

We’ll stay forever this way

You are safe in my heart

And my pins will go on and on”

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Oh yeah. To answer the question posed in the title – Is there more copyright infringement in Pinterest or Led Zeppelin II?

The answer is simple – Pinterest. Virtually every pin on every board is a copy of a copyrighted photograph. On Led Zeppelin II, not every song references (or copies) Chess Records’ recordings but at least three (3) of the eight (8) do:

Compare Led Zeppelin “Whole Lotta Love” to Muddy Waters “You Need Love.”

Compare Led Zeppelin “Lemon Song” to Howlin’ Wolf “Killing Floor.”

Compare Led Zeppelin “Bring It On Home” to Sonny Boy Williamson “Bring It On Home.”

Led Zeppelin is a wonderful subject for many other posts and I can provide links to those songs. For now, I ponder the fates of those black and white dogs, cats and jurors memorialized in those pins I willfully copied and repurposed.

As always I look forward to your comment and questions.

Annuit coeptis.

May 13, 2014May 29, 2014

Why 10 Ft Ganja Plant, Gibson Brothers, Booth Brothers & James Ingram Should Sue Rick Ross For Copyright Infringement

Today we turn the tables and illustrate a few recordings released prior to Rick Ross’ Hustlin’ (2006) which also feature the lyric, “Everyday I”m.” Using the soft and breezy music of The Gibson Brothers, gospel music of The Booth Brothers, the cannabis reggae-tinged music of 10 Ft. Ganja Plant and the sexy love stylings of James Ingram we will turn the tables on Rick Ross and illustrate why Rick Ross can be sued for copyright infringement.

I want to get back to the foolish and unwise copyright infringement lawsuit brought by Rick Ross and his attorneys. I have no doubt that Rick Ross’ lawyers (had they not been Rick Ross’ lawyers but lawyers for someone else), with their musical knowledge and legal reasoning, could find many reasons to sue Rick Ross for his “theft” of “everyday I’m” from a few earlier artists. “Everyday I’m,” which they’ve turned against LMFAO, could just as easily be turned against them.

For another post or two I’ll continue discussing the stupidity of the Rick Ross v. LMFAO copyright infringement lawsuit that’s appeared in past posts – March 26, 2014 and April 1, 2014. Even though I posted that on April 1, it was not originally intended as an April Fools’ Day joke/prank/punk unless it was Freudian.

To summarize – Rick Ross’ Hustlin’ (2006) sued LMFAO alleging that Party Rock Anthem (2011) infringed Hustlin’ (2006). Factually, the most prominent similarity between the two songs are the two (2) common and uncopyrightable words, “everyday” and “I’m.” Rick Ross, however, cannot claim copyright in these two (2) words. But he sued anyway. In my April 1, 2014 post, I sarcastically (and disrespectfully) made the claim that there are even more artists for Rick Ross to sue for “stealing” Rick Ross’ words, “Everyday I’m:”

Maysa, in her song, Grateful (2008) sings “everyday I’m” at 3.04 – 3.07.

Jeremy Fisher, in his song, Come Fly Away (2010) sings “everyday I’m” at 0.25 – 0.29.

Little Big, in their song, Everyday I’m Drinking (2013) sing “everyday I’m” eighteen (18) times.

A few recordings released prior to Rick Ross’ Hustlin’ (2006) also feature the lyric, “Everyday I”m.” These copyright owners, using the Rick Ross standard of originality (at odds with the Copyright Law of the United States), could just as illogically sue Rick Ross for infringing their “Everyday I’m” two (2) words without permission. To paraphrase from Rick Ross’ lawsuit against LMFAO, these artists could sue Rick Ross and claim that Rick Ross

“…copied, interpolated the lyrics, underlying music and beat of …” (fill in the blank with each new plaintiff’s song title.

We will now illustrate why The Gibson Brothers (2005), The Booth Brothers (2001), 10 Ft Ganja Plant (1999) and James Ingram (1999) can sue Rick Ross for stealing “everyday I”m.”

I was recently interviewed about music copyright issues at Berklee on Boylston in Boston (BOBIB) and the foolishness of the Rick Ross lawsuit against LMFAO came up. The 45-minute Faculty Open House Clinic interview can be viewed here.

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Let’s Sue Rick Ross

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1. The Gibson Brothers

The Gibson Brothers’ island-y escape to sunshine anthem, Sunshine, was released in 2005. One of my favorite aspects of the song is its shifting keys. It is in C minor until the second half of each chorus when the surprising modulation (or tonicization or temporary key change) to the very unlikey key of A minor happens. The duration of the seven (7) sections of Sunshine (2005) are below:

Key of C minor: 0.00 Key of A minor: 1.00 Key of C minor: 1.16 Key of A minor: 2.09

Key of C minor: 2.25 Key of A minor: 3.18 Key of C minor: 3.34

But back to the “everyday I’m” issue at hand – Listen for the lyric, “everyday I’m,” which is heard prominently at the opening of the second verse of Sunshine (2005):

1.25 – 1.29 Everyday I’m (dreaming)

That’s it! Just one (1) statement of “everyday I’m” by The Gibson Brothers but their single statement of “everyday I’m” was released before Rick Ross recorded and released his “everyday I’m.”

2. The Booth Brothers

This performance of The Booth Brothers’ gospel song, Still Feeling Fine from 2001, contains six (6) statements of “everyday I’m.” (There are also, from an ethnomusicological point of view, fascinating approaches to rhythm displayed by many in the audience who seem to want to clap and articulate different rhythmic points within each measure, most often not on downbeats. Perhaps there is a predilection for beats 1 and 3).

The Booth Brothers’ “Everyday I’m (climbing)” statements are prominent and heard at least six (6) times:

0.42 – 0.44 Everyday I’m (climbing)

1.32 – 1.34 Everyday I’m (climbing)

1.52 – 1.54 Everyday I’m (climbing)

2.12 – 2.14 Everyday I’m (climbing)

2.59 – 3.01 Everyday I’m (climbing)

3.19 – 3.21 Everyday I’m (climbing)

The Booth Brothers’ Still Feeling Fine (2001) was released before Rick Ross recorded and released his “everyday I’m.”

3. 10 Ft. Ganja Plant

10 Ft. Ganja Plant released their Top Down (1999) and it too is another of these “Everyday I’m” songs. 10 Ft. Ganja Plant’s Top Down (1999) features “Everyday I’m (working).” And, yes, Rick Ross may have copied from 10 Ft. Ganja Plant as well as The Gibson Brothers and The Booth Brothers.

1.54 – 1.57 “everyday I’m working”

10 Ft. Ganja Plant’s Top Down (1999) was released before Rick Ross recorded and released his “everyday I’m.”

4. James Ingram

Sexy love songs. James Ingram. There must be hundreds of concatenations of words, “sexy love songs” and “James Ingram.”

Everyday I’m (in love) – James Ingram (1999)

James Ingram – I Believe In Those Love Songs (1999)

1.35 – 1.39 everyday I’m (in love)

James Ingram’s I Believe In Those Love Songs (1999)was released before Rick Ross recorded and released his “everyday I’m.”

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In a future post, I might also show that The Supremes & The Temptations (as a duet), as well as The Beatles could also sue Rick Ross. Or I might finally get to writing about bassoons, english horns and future record labels named, “Google” “Samsung,” “Nokia” and “iTunes Records.”

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April 1, 2014May 13, 2014

Will Rick Ross Sue Other Artists For Copyright Infringement?

Everyday I’m Verbing (i.e., using a verb)

Three More (potential) Copyright Infringement Lawsuits Over The 2 Words That Rick Ross Thinks He Owns – “Everyday I’m.”

Music of Jeremy Fisher, Little Big, Maysa and Rick Ross.

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In my post from Wednesday, March 26, 2014, I discussed the music copyright infringement lawsuit filed by Rick Ross against LMFAO reported by the Hollywood Reporter.

I mentioned the COMPLAINT filed by Rick Ross’ attorneys and especially the first sentence in the COMPLAINT that mentioned “music” or “lyrics:”

“‘Party Rock Anthem’ copies, interpolates the lyrics, underlying music and beat of ‘Hustlin’…”

I analyzed Rick Ross’ Hustlin’ (2006) and LMFAO’s Party Rock Anthem (2011) and took issue with the allegations in Rick Ross’ complaint, specifically that sentence from The Complaint. My conclusions about that loaded sentence included:

1. Party Rock Anthem did NOT copy the lyrics of ‘Hustlin’…”

2. Party Rock Anthem did NOT copy the underlying music of ‘Hustlin’…”

3. Party Rock Anthem did NOT copy the beat of ‘Hustlin’…”

4. Party Rock Anthem did NOT interpolate the lyrics of ‘Hustlin’…”

5. Party Rock Anthem did NOT interpolate the underlying music of ‘Hustlin’…”

6. Party Rock Anthem did NOT interpolate the beat of ‘Hustlin’…”

7. Party Rock Anthem did NOT copy, interpolate the lyrics of ‘Hustlin’…”

8. Party Rock Anthem did NOT copy, interpolate the underlying music of ‘Hustlin’…”

9. Party Rock Anthem did NOT copy, interpolate the beat of ‘Hustlin’…”

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I mentioned that I had a few suggestions for Rick Ross’ attorneys, suggestions are based on the following:

1. The infamous Rick Ross sentence –

“‘Party Rock Anthem’ copies, interpolates the lyrics, underlying music and beat of ‘Hustlin’…”

– from the COMPLAINT is inaccurate. In the nine (9) points above, I refute the allegations by Rick Ross. The best but farfetched scenario for Rick Ross would be that LMFAO copied two uncopyrightable words – “everyday I’m.”

2. Rick Ross sang “everyday I’m” in 2006.

3. LMFAO sang “everyday I’m” in 2011 and were sued by Rick Ross because of their use of “everyday I’m.”

4. The artist, Maysa, sang “everyday I’m” in 2008, AFTER Rick Ross.

5. The artist, Jeremy Fisher, sang “everyday I’m” in 2010, AFTER Rick Ross.

6. The band, “Little Big,” sang “everyday I’m” in 2013, AFTER Rick Ross.

7. Using a minuscule degree of perspicacity similar to that used to sue LMFAO, it would follow that Rick Ross could initiate three (3) more copyright infringement lawsuits against the artists above. As with the case against LMFAO, suspension of credibility and rationality would be an important consideration before filing these lawsuits as well.

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Let’s identify the new lawsuits that could be filed against Maysa, Jeremy Fisher and Little Big for using the two (2) Rick Ross copyrighted words,

“everyday I’m.”

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1. Maysa

Maysa released Grateful in 2008. Maysa clearly sings “everyday I’m” at 3.04 – 3.07.

In my opinion, Maysa does NOT copy, interpolate the lyrics, underlying music and beat of ‘Hustlin’.” But if Rick Ross can sue LMFAO who have also not copied or interpolated ‘Hustlin’,” I would expect him to sue others, such as Maysa, who have used the same non-copyrightable words, “everyday I’m.”

To the best of my knowledge, Maysa has not yet been sued by Rick Ross.

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2. Jeremy Fisher

Jeremy Fisher released Come Fly Away in 2010. Jeremy Fisher clearly sings “everyday I’m” at 0.25 – 0.29. In context, “everyday I’m” is heard within:

“Like a sparrow on a wire, singing the same song everyday, I’m feeling restless but I’m tired…”

In my opinion, Jeremy Fisher does NOT copy, interpolate the lyrics, underlying music and beat of ‘Hustlin’.” But if Rick Ross can sue LMFAO who have also not copied or interpolated ‘Hustlin’,” I would expect Rick Ross and his attorneys to sue Jeremy Fisher and others who have used the same uncopyrightable words, “everyday I’m.”

To the best of my knowledge, Jeremy Fisher has not yet been sued by Rick Ross.

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Now Comes Big & Blatant Copyright Infringement (by Rick Ross standards)

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3. Little Big

When Rick Ross and his imaginative lawyers hear Little Big with their loud and multiple “everyday I’m” statements, they’ll know that they are in Plaintiff Heaven as Little Big have so boldly gone where LMFAO so daintily tread.

Little Big released Everyday I’m Drinking in 2013. Little Big clearly sing “everyday I’m” eighteen (18) times! Or, as Rick Ross’ attorneys might state it,

“Little Big’s Everyday I’m Drinking (2013) copies, interpolates the lyrics, underlying music and beat of Rick Ross’ Hustlin’ (2006)…”

Listen to Little Big’s Everyday I’m Drinking (2013) and one clearly hears “everyday I’m” eighteen (18) times. If Rick Ross owns copyright in “everyday I’m” as his lawyers have alleged in their COMPLAINT, then this is the quintessential copyright infringement goldmine (“We struck gold!“) for them.

0.39 everyday I’m (drinking)

0.40 everyday I’m (drinking)

0.42 everyday I’m (drinking) (I’m drinking) everyday

0.45 everyday I’m (drinking)

0.46 everyday I’m (drinking)

0.48 everyday I’m (drinking) (I’m drinking) everyday

1.06 everyday I’m (drinking)

1.07 everyday I’m (drinking)

1.09 everyday I’m (drinking) (I’m drinking) everyday

1.13 everyday I’m (drinking)

1.14 everyday I’m (drinking)

1.16 everyday I’m (drinking) (I’m drinking) everyday

2.15 everyday I’m (drinking)

2.16 everyday I’m (drinking)

2.18 everyday I’m (drinking) (I’m drinking) everyday

2.21 everyday I’m (drinking)

2.22 everyday I’m (drinking)

2.24 everyday I’m (drinking) (I’m drinking) everyday

In my opinion, Little Big do NOT copy, interpolate the lyrics, underlying music and beat of ‘Hustlin’.” But if Rick Ross can sue LMFAO who have also not copied or interpolated ‘Hustlin’,” I would expect him to sue others, such as Little Big, who have used the same not copyrightable words, “everyday I’m.”

To the best of my knowledge, Little Big have not yet been sued by Rick Ross.

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What do you think about these potential lawsuits for potential plaintiff (again) Rick Ross? It cannot be denied that Rick Ross sang/expressed “everyday I’m” before LMFAO, Maysa, Jeremy Fisher and Little Big.

Rick Ross has not yet sued Maysa or Jeremy Fisher. Maysa and Jeremy Fisher, like LMFAO, barely use the words, “everyday I’m” in their songs.

But Little Big…. In Facebook-ese expression: Wow. Oh. Wow. Little Big have intentionally, forcefully and boisterously sung the Rick Ross words, “Everyday I’m,” six times in every one of their choruses throughout their song, Everyday I’m Drinking (2013). Based on Rick Ross’ lawyers’ logic I’m surprised that Little Big have gone unsued and unscathed for this long.

As I hinted in my previous post (Wednesday, March 26, 2014), Rick Ross may, however, be sued for his original expression in Hustlin’ (2006).

The points of these posts are simply to examine expression from the viewpoints of originality, creativity and law, and critique musical/textual/legal arguments espoused by others. (I am not a party to this lawsuit or affiliated with any party in this lawsuit. Therefore, I feel it is appropriate to weigh in on the matters presented above.)

March 26, 2014April 1, 2014

A Copyright Infringement Lawsuit Over 2 Words – “Everyday I’m”

A Copyright Infringement Lawsuit Over 2 Words – Everyday I’m Ridiculing

Several friends contacted me via Facebook and email to ask my opinion on this Hollywood Reporter article about Rick Ross’ copyright infringement lawsuit against LMFAO. That was nice of them as I was unaware of this lawsuit but am interested in intellectual property (IP), creativity, originality, how we evaluate expression via law, how law is used to get relief, and other subjects that interpose music and law.

I read the HR article, got the music and listened. My first impression was that I might have the wrong music as there seemed to be not only NO copyright infringement but NO SIMILARITY.

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I then read the COMPLAINT filed by Rick Ross’ attorneys. The first sentence in the COMPLAINT that mentions “music” or “lyrics” states the following:

“‘Party Rock Anthem’ copies, interpolates the lyrics, underlying music and beat of ‘Hustlin’…”

I have analyzed Rick Ross’ Hustlin’ (2006) and LMFAO’s Party Rock Anthem (2011). I strongly disagree with the allegations in Rick Ross’ complaint, specifically that sentence, and have drawn a few conclusions to the contrary:

Party Rock Anthem has NOT copied the lyrics of ‘Hustlin’…”

Party Rock Anthem’ has NOT copied the underlying music of ‘Hustlin’…”

Party Rock Anthem’ has NOT copied the beat of ‘Hustlin’…”

Party Rock Anthem’ has NOT interpolated the lyrics of ‘Hustlin’…”

Party Rock Anthem’ has NOT interpolated the underlying music of ‘Hustlin’…”

Party Rock Anthem’ has NOT interpolated the beat of ‘Hustlin’…”

Even though I do not understand the lawyers’ use of English in the sentence above, with respect to the music contained in these two recordings (I don’t understand “copies, interpolates” as back-to-back action verbs), I have made an earnest attempt to understand what the lawyers might have meant and that has led me to arrive at these three (3) additional points:

Party Rock Anthem’ has NOT copied, interpolated the lyrics of ‘Hustlin’…”

Party Rock Anthem’ has NOT copied, interpolated the underlying music of ‘Hustlin’…”

Party Rock Anthem’ has NOT copied, interpolated the beat of ‘Hustlin’…”

There is one (1) similarity I notice between the two (2) songs, however. Both songs/recordings share two (2) identical words. Those words are:

1. Everyday

2. I’m

Despite the contention from Rick Ross’ attorneys that the songs ALMOST have three (3) words in common, there are two (2), not three (3) words in common as I will demonstrate below:

Rick Ross sings, “Everyday I’m hustling.”

LMFAO sing, “Everyday I’m shuffling.”

Perhaps Rick Ross’ attorneys think that LMFAO have copied three (3) and not two (2) words. Perhaps they are thinking, “Everyday I’m hustling” is the same as “Everyday I’m shuffling.” But, to my eyes, those final words of each phrase are different words with different meanings and different spellings:

HUSTLING is spelled

H-U-S-T-L-I-N-G

and

SHUFFLING is spelled

S-H-U-F-F-L-I-N-G

“Hustling” and “Shuffling” also have different meanings – here are links to the definitions from Dictionary.com:

Hustling (the verb used by Rick Ross in 2006) means “push or force one’s way.”

Shuffling (the verb used by LMFAO in 2011) means “moving in a dragging or clumsy manner.”

“Pushing or forcing one’s way” (“hustling”) seems to me to be the opposite of “moving in a dragging or clumsy manner” (shuffling”). If one person hustles and another person shuffles, are they engaged in the same kind of action? No, they are not.

The U. S. Copyright Law was created, in part, to protect “original works of authorship.” In my opinion, the word, “everyday” is not original. In my opinion, the word, “I’m,” is not original. When the words are joined to form a two-word phrase – “Everyday I’m” – they still do not form original expression.

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To “go all factual on you” for a moment – LMFAO sing “everyday I’m shuffling” (not “everyday I’m hustling”) only twice in “Party Rock Anthem.” This three-word phrase occurs at the following two places in “Party Rock Anthem:”

2.15 – 2.16 “everyday I’m shuffling'”

3.47 – 3.49 “everyday I’m shuffling'” (“shuffling” with a slight elongation/added syllable)

A reasonable person could conclude that:

1. “Everyday I’m shuffling” occurs only twice in Party Rock Anthem.

2. “Everyday I’m shuffling” is not very important to Party Rock Anthem.

3. One had an opinion about Party Rock Anthem well before one heard “Everyday I’m shuffling” at 2.15 into the song.

4. “Everyday I’m shuffling” is not the same phrase as “everyday I’m hustling.”

I toyed with these other titles for this post:

There’s Stupid & Then There’s Rick Ross Stupid

Rick Ross v. LMFAO – So This Is How (these) Florida Attorneys Sue

Why hasn’t Rick Ross sued Maysa, Jeremy Fisher or Little Big?

I’m glad I settled on A Copyright Infringement Lawsuit Over 2 Words.

In my next post or two on this subject, I will discuss some suggestions I have for Rick Ross and his attorneys regarding the music of Maysa, Jeremy Fisher and Little Big. If money matters to Rick Ross and his attorneys, I imagine they’ll be thrilled at what I’ll be able to show them. This new knowledge could lead them to new copyright infringement lawsuits and procure more billable hours for themselves and/or their law firm(s).

But the hand (silly mind) that giveth might taketh away as well as I have potentially bad news for Rick Ross. Using the same or similar reasoning and quality of evidence, in future posts I will describe scenarios and analyze and discuss music that could negate any happy gains Rick Ross might enjoy in his lawsuit against LMFAO. Perhaps Rick Ross himself could even be sued for copyright infringement.

The next post though should be happy happy for Rick Ross.

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March 13, 2014March 14, 2014

Making Music Make Sense; Making Music Make Evidence

I spoke to students and faculty at the Harvard University Law School on Tuesday, March 11, 2014. I am always thrilled and humbled to be invited to come to that great campus and interact with these brilliant, insightful and original thinkers. Fortunately, many of our ideas and concerns overlap and intersect and as fortunately, there are always surprises for me and them.

One constant issue with which I struggle is how to explain music – music as evidence – evidence that will sway a judge and/or jury to understand what I know about the music. Many probing questions were addressed to me about this concern. Explaining music as evidence to a judge and/or jury is similar to teaching whether in the forms of interaction with a student, small group of students, class, or large class in person or online. Teaching music, something I have been paid to do since I was 12, has always been an extremely happy-engendering, inspiring activity that is similar to presenting evidence of a musical nature. The end goals – will my intended audience understand how I perceive this music – are similar. Is what I have selected and arranged for the particular audience pertinent, relevant, meaningful and/or convincing?

Teaching a judge and/or jury is analogous to teaching in the traditional offline and online manner. (Online instruction has been around long enough – since the pre-Google, pre-Napster mid/late 1990’s – that I would claim online teaching is itself “traditional” and that there are traditional models of online education.) At its core, there are perhaps four (4) components with respect to evidence –

Substance

Means of communication

Perception

Outcome

which to me are tantamount to

Content

Delivery

Determination

Conclusion

The following possibilities are in play:

Have I gathered the right materials to get across my point(s)?

If so, have I used the right or good/good enough, means to get across my point(s)?

If I do not have the right materials, then even if the means to present the materials are very good, the end result could be failure.

If I have the best means to convey my message/materials but have gathered material that is not optimal, the end result could be failure.

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How does one make music make sense or make music make evidence? Does music ever make sense? What does it mean to “make sense?” A lot of effort and ink has been spent on trying to understand the meaning of music and even more have labored to understand the meaning of life. (Let’s leave life out of this!) But the meaning of music, from a philosophical perspective, is irrelevant in most and perhaps every legal situation.

How does one explain music? By explain music, I am suggesting that we can make someone hear something specific and special in music. It could be a chord or chord pattern, an unusual sound or sounds, a specific melody or melodies, a lyric or lyrics, a combination of any or all of these, etc.

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What will best convey the message, i.e., make the evidence most effective? What is/are the most important factor(s) in making the message understandable and persuasive to listeners, jury, judge, students and audience?

A. The messenger’s skills, credentials and background.

B. The nature and quality of the technical and visual exhibits (charts, numbers, graphs, images, etc.).

C. The musical examples (perhaps edited and/or enhanced).

D.   The musical examples along with technical exhibits and complex verbal expression.

E.   The musical examples along with technical exhibits and simple, understandable verbal expression.

F.   The musical examples along with non-technical exhibits and simple, understandable verbal expression.

G.   The musical examples along with non-technical exhibits and complex verbal expression.

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Musical evidence can be

1. Technical

2. Not Technical

3. A Hybrid of Technical & Not Technical

Can one type of evidence work in one particular instance and another type of evidence work in another instance?

Would a musical style dictate or suggest a particular type of evidence?

Can the style and substance of evidence differ according to a musical style?

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(This post reminds me of another post of mine – Which Words Work With Which Music? – in which the difficulties and frustrations of writing about music are played with.)

These and many more questions should be addressed and evaluated along the road to making music make sense and making music make evidence. Until then the state of musical evidence and its presentation continues to be (as reflected in this short lyric) “something wild and unruly.”

March 11, 2014June 16, 2014

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.

THIS IS IT.

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:

3-4-5-8

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)

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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).

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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._______________________________________________________________

March 4, 2014June 16, 2014

Should The Rolling Stones Sue Badfinger?

The 4th “SHOULD” post. The 4th “You stole my 3-4-5-8” post.

OK, this is getting long. How long will this 3-4-5-8 be stretched out? The answer? I’ll end this 3-4-5-8 posts with the next installment of the series: the 5th “SHOULD” post. But for today –

Today’s songs and potential case:

The Rolling Stones – Street Fighting Man (1968)

Badfinger – Come And Get It (1970)

My last three posts have featured pairs of songs that feature the same four (4) notes – 3-4-5-8 -prominently in their choruses/hooks. The songs and potential case from the previous post:

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

The songs and potential case from the post before that (February 27, 2014):

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

The songs and potential case from the post before that (February 24, 2014):

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

I raised the possibilities and reasons why these songs could be in litigation – all of those songs feature the 3-4-5-8 melody. I did NOT take a side – my purpose was to be illustrative and solicit responses. I heard “Last Night” by Sebastian Mikael for the first time as I was driving home from the airport in Nashville 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 and now The Rolling Stones.

_______________________________________________________________________

Today I ask a related question and what would be a precedent to the Badfinger v. XTC case which was a precedent to the XTC v. Toby Keith case which was a precedent to the Toby Keith v. Sebastian Mikael case – namely, should The Rolling Stones sue Badfinger for stealing the 3-4-5-8 of The Rolling Stones? (Again, all of these are, to my knowledge, hypothetical cases.) A funny twist to this is that it would be The Rolling Stones suing their friend Paul McCartney as McCartney wrote “Come And Get It.” (Here is Paul McCartney singing and playing every instrument on his song, Come And Get It. He allowed Badfinger to record it if they stuck to it as faithfully as he demanded. This recording is from The Beatles Anthology 3, a must have double CD.)

The 3-4-5-8 occurs prominently twelve (12) times in The Rolling Stones’ Street Fighting Man (1968).

The Rolling Stones – Street Fighting Man (1968)

0.35 except to sing for (a rock n roll band)

0.39 cause in sleepy

0.40 London town there’s

0.42 just no place for a street fighting (man)

1.20 except to sing for (a rock n roll band)

1.24 cause in sleepy

1.25 London town there’s

1.27 just no place for a street fighting (man)

2.10 except to sing for (a rock n roll band)

2.14 cause in sleepy

2.15 London town there’s

2.17 just no place for a street fighting (man)

Badfinger – Come And Get It (1970)

The 3-4-5-8 occurs frequently and prominently in Badfinger’s Come And Get It although slightly modified with a repeated “5” and “8” – 3-4-5-5-8-8-8. (As the song progresses, the 3-4-5-8 that usually features the lyrics “if you want it here it is” and “if you want it anytime” changes from 3-4-5-8 to 8-6-5-5 and other non-3-4-5-8 melodies.)

Badfinger’s Come And Get It (1970, U.S. release)

0.05 if you want it here it is

0.15 if you want it any time

0.38 if you want it here it is

0.51 if you want it here it is

1.02 if you want it any time

_______________________________________________________________________

Should The Rolling Stones sue Badfinger over the 3-4-5-8 melody that was so prominent in their Street Fighting Man and so prominent in Badfinger’s Come And Get It? As I’ve stated before, there are music copyright infringement lawsuits in the courts in 2014 that involve NO melodic similarity.

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March 2, 2014June 16, 2014

Should Badfinger Sue XTC?

The 3rd “SHOULD” post. The 3rd “You stole my 3-4-5-8” post.

Two of my last posts have featured pairs of songs that feature the same four (4) notes – 3-4-5-8 -prominently in their choruses/hooks. The songs from the February 27, 2014 post:

XTC’s Then She Appeared (1992)

Toby Keith – Red Solo Cup (2011)

The songs from the post before that (February 24, 2014):

Toby Keith – Red Solo Cup (2011)

Sebastian Mikael – Last Night ft. Wale (2013)

I raised the possibilities and reasons why these songs could be in litigation. I did NOT advocate that a lawsuit should happen and I did NOT take a side – my purpose was to be illustrative and solicit responses. I heard “Last Night” by Sebastian Mikael for the first time as I was driving home from the airport in Nashville 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 and now Badfinger.

_______________________________________________________________________

Today I ask a related question and what would be a precedent to the XTC v. Toby Keith case which was a precedent for the Toby Keith v. Sebastian Mikael possibility – namely, should Badfinger sue XTC for stealing “Badfinger’s” 3-4-5-8?

Badfinger’s Come And Get It (1970)

XTC’s Then She Appeared (1992)

Badfinger’s Come And Get It (1970, U.S. release)

0.05 if you want it here it is

0.15 if you want it any time

0.38 if you want it here it is

0.51 if you want it here it is

1.02 if you want it any time

XTC’s Then She Appeared (1992) is a song written and recorded almost twenty (20) years before Toby Keith’s Red Solo Cup (2011) but more than twenty (20) AFTER Badfinger’s Come And Get It (1970). It also prominently features the 3-4-5-8 melody. The 3-4-5-8 is the opening vocal and the hook throughout the entire song.

The thirteen (13) examples of 3-4-5-8 in Then She Appeared, complete with associated lyrics, are heard here:

XTC – Then She Appeared (1992)

0.22 then she appeared

0.31 then she appeared

0.50 cherubim cheered

0.59 then she appeared

1.08 then she appeared

1.26 know it sounds weird

2.02 then she appeared

2.11 then she appeared

2.30 all Edward leared

3.06 then she appeared

3.15 then she appeared

3.24 then she appeared

3.33 then she appeared

_______________________________________________________________________

Are four (4) prominent and clearly-heard notes in common between songs reason enough to instigate a copyright infringement lawsuit? As mentioned before, one answer could be found in comparing this hypothetical (or not) Badfinger v. XTC music copyright infringement case to the actual Marvin Gaye v. Robin Thicke copyright infringement case in which NO notes were in common between the songs.

If one can sue when the similarity is only STYLE and NOT melody, surely one is even more likely to sue when the similarity is MELODY and not STYLE.

(Do any/all the tags in this post have any bearing on the merit of this potential copyright infringement lawsuit?)

As always, I welcome your comments.

March 1, 2014June 1, 2014

Too Many Frivolous Music Copyright Infringement Lawsuits

Saturday, March 1, 2014.

On March 1, 1810, one of my great musical heroes Frédéric Chopin was born.

February passed too fast. I had too much to finish including two big projects for this weekend. It still feels like February. I should be working but I’ll procrastinate with a few thoughts below.

I was interviewed by Substream Magazine awhile ago and the interview appeared in print on February 27, 2014. Katie McCort, who interviewed me and wrote the article, Copyright Law and the Music Industry: Part I, was very well prepared and knowledgeable and I really like the thrust of her writing. When I was interviewed I did not know that there was a specific reason for the interview – a specific new case, for example, the seeming nonstop talk about the Marvin Gaye / Robin Thicke matter from summer 2013. The conversation with Katie seemed to be more focused on copyright – the rationale for its existence and how copyright is actually manifested – the neutral, the good and the bad. Her research seemed to lead our conversation down particularly engaging paths including some specific copyright matters. There is a Part II to her series about copyright law and the music industry. I look forward to it.

I was interviewed about music copyright & Gaye & Thicke several times including one at ABC News Radio in Nashville. That was a really fun interview as I was sitting at the microphone with the interviewer simply chatting about these cases, thinking this was just a soundcheck. After a few minutes he thanked me and told me how good the interview had been. It was later broadcast on many ABC stations. I never heard it but heard from friends who remarked how well the interviewer (and I) had sounded. (I suddenly hear Stevie Wonder’s harmonica followed by Dionne Warwick singing, “That’s what friends are for…”)

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As a music copyright expert witness, I am in the position to assist so many to SUE so many. Potential and actual plaintiffs (and defendants) approach me with music. It is an extremely important responsibility to have thrust one’s way. Attorneys usually will heed my advice – when I’ve said something does not rise to the level of copyright infringement, usually a case is not initiated. If the case does not begin, my employment does not begin! If I agree with a potential plaintiff or defendant, my employment can last from a day to many years. (My longest term of employment has been over a span of 9 years, and, in 2014, is not over.)

I see too many experts in too many fields simply agree with every matter/potential employment that comes their way. The term for such a person is hired gun. There was once an American Western television show about a hired gun – an actual gun slinger, literally not figuratively with a gun. Have Gun Will Travel. (“I’d like you to take a look at this gun…This gun was handcrafted to my specifications and I rarely draw it unless I mean to use it.”)

[Note at 6.58 of that Have Gun Will Travel excerpt – “…until you get to Twin Peaks….” David Lynch’s Twin Peaks is one of favorite television shows and television series soundtracks. Coincidentally, David Lynch came up in conversation on Facebook last night as this great photograph of an unlikely trio – The Dixie Chicks, Rick Rubin and David Lynch – was published.]

If a consultant/expert ALWAYS sides with the side that approaches her/him, that consultant/expert is considered by some to be a hired gun. When a consultant/expert turns down the person/side approaching her/him, the consultant/expert is turning down employment. Some will credit a person who can say “no” to money as having some virtue. That person can have virtue but will not have income stemming from virtue or that potential source of income.

What many people seem to think when it comes to copyright infringement in music is….

if two songs sound alike, the new one must have infringed the first one.

But sounding similar or alike is not necessarily copyright infringement. (This issue is at the center of the Marvin Gaye / Robin Thicke matter. Those two (2) songs are NOT substantially similar in any other respect.)

The group, “America,” was thought by many to have infringed Neil Young because the singer on America’s Horse With No Name (1972) sounds similar to some recordings featuring Neil Young singing. Many other musical artists have been accused of copyright infringement based solely on the non-copy protected sound of a musical group or artist.

The sound alike / soundalike issue fascinates me and is one to explore in additional posts. Unfortunately, sounding alike can, unnecessarily, lead to copyright infringement lawsuits.

Your thoughts?

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[My third of five (5) articles in a series about potential music copyright infringement cases will be posted tomorrow.]

February 27, 2014June 16, 2014

Should XTC Sue Toby Keith?

Another “SHOULD” post. Another “You stole my 3-4-5-8” post.

My last post was about two (2) songs that both featured the same four (4) notes – 3-4-5-8 – prominently in their choruses/hooks. The songs were

Toby Keith – Red Solo Cup (2011)

Sebastian Mikael – Last Night ft. Wale (2013)

I raised the possibility and reasons why these songs could be in litigation. I did NOT take a side – my purpose was to be illustrative and solicit responses. I heard “Last Night” by Sebastian Mikael for the first time as I was driving home from the airport in Nashville Sunday night (February 23, 2014) and couldn’t help but notice the 3-4-5-8’s jumping out of the car radio.

_______________________________________________________________________

Today I ask a related question and what would be a precedent to the Toby Keith v. Sebastian Mikael possibility – namely, should XTC sue Toby Keith for stealing their 3-4-5-8?

XTC Then She Appeared (1992)

Toby Keith Red Solo Cup (2011)

XTC’s Then She Appeared (1992) is a song written and recorded almost twenty (20) years before Toby Keith’s Red Solo Cup (2011). It also prominently features the 3-4-5-8 melody. The 3-4-5-8 is the opening vocal and hook throughout the entire song.

The thirteen (13) examples of 3-4-5-8 in Then She Appeared, complete with associated lyrics, are heard here:

XTC – Then She Appeared (1992)

0.22 then she appeared

0.31 then she appeared

0.50 cherubim cheered

0.59 then she appeared

1.08 then she appeared

1.26 know it sounds weird

2.02 then she appeared

2.11 then she appeared

2.30 all Edward Lear-ed

3.06 then she appeared

3.15 then she appeared

3.24 then she appeared

3.33 then she appeared

The sixteen (16) statements of 3-4-5-8 in Toby Keith’s Red Solo Cup (2011):

0.32 red solo cup

0.35 I fill you up

0.44 red solo cup

0.47 I lift you up

1.19 red solo cup

1.22 I fill you up

1.31 red solo cup

1.33 I lift you up

2.21 red solo cup

2.24 I fill you up

2.32 red solo cup

2.35 I lift you up

2.44 red solo cup

2.47 I fill you up

2.56 red solo cup

2.59 I lift you up

_______________________________________________________________________

Are four (4) prominent and clearly-heard notes in common between songs reason enough to instigate a copyright infringement lawsuit? One answer could be found in comparing this hypothetical (or not) XTC v. Toby Keith music copyright infringement case to the actual Marvin Gaye v. Robin Thicke copyright infringement case in which NO notes were in common between the songs.

If one can sue when the similarity is only STYLE and NOT melody, surely one is even more likely to sue when the similarity is MELODY and not STYLE.

(Do any/all the tags in this post have any bearing on the merit of this potential copyright infringement lawsuit?)

As always, I welcome your comments.

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