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Should Toby Keith Sue Sebastian Mikael?

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Should Toby Keith sue Sebastian Mikael?  Have you heard Toby Keith’s 2011 song, “Red Solo Cup?”  Have you heard Sebastian Mikael’s 2013 song, “Red Solo Cup?”

Toby Keith – Red Solo Cup (2011)

Sebastian Mikael – Last Night ft. Wale (2013)

Toby Keith’s Red Solo Cup features the lyrics, “red solo cup, I fill you up” and “red solo cup, I lift you up” always sung to the same melody, an ascending four-note pattern that is the hook:  -3-4-5-8.

The 3-4-5-8 melody is heard sixteen (16) times in Red Solo Cup.

Sebastian Mikael’s Last Night features the lyric, “four shots ago,” always sung to the same four-note pattern as heard in Red Solo Cup, used in all four (4) choruses, and in a similar prominent manner as well:  3-4-5-8.

The 3-4-5-8 melody is heard four (4) times in Last Night.

If both songs use the same pitches but one was recorded and released earlier, shouldn’t the publisher(s) of Toby Keith’s Red Solo Cup sue the publisher(s) of Sebastian Mikael’s Last Night ?

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

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

The four (4) statements of 3-4-5-8 in Sebastian Mikael’s Last Night:

0.46  four shots ago

1.54  four shots ago

2.37  four shots ago

3.40  four shots ago 

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To reiterate some of the similarities between Red Solo Cup and Last Night:

Toby Keith sings 3-4-5-8 sixteen (16) times throughout Red Solo Cup.

3-4-5-8 is the hook.

Sebastian Mikael sings 3-4-5-8 four (4) times throughout Last Night.

3-4-5-8 is always an important part of each chorus.

Both songs feature the same four (4) notes –  3-4-5-8.

Toby Keith recorded and released Red Solo Cup well before Sebastian Mikael recored and released Last Night.

Why wouldn’t Toby Keith’s publisher(s) sue Sebastian Mikael?

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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) Toby Keith v. Sebastian Mikael 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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Tracing The Origins Of Blues Songs: Culture Or Copying?

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Music of Blind Lemon Jefferson, Leadbelly, Carl Perkins, Albert King and The Beatles 

Many songs’ origins can be traced to earlier sources and often specific authorship, or authorship as a mighty fortress that had to exert its mighty power, was a foreign concept.  Ideas and the expressions of ideas are often regarded as benevolent entities and means by which a society builds its culture.  Members of a society share what is performed, heard, seen, filmed, photographed, painted, sculpted, danced, acted, woven, cooked, eaten and more.

It can be illuminating to examine how certain songs have come into existence.  How important was authorship?  Were several responsible for the creation of a song?  Did parts of the song come together at different times and places?

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Albert King “Searching For A Woman” (1961) referenced Carl Perkins “Matchbox” (1956)

Albert King’s Searching For A Woman  (1961) –  At 0.28 – 0.48 of this recording, one hears:

“sometimes I wonder would a matchbox hold my clothes, yeah sometimes I wonder would a matchbox hold my clothes, I don’t have so many but I’ve got so far to go.”  

Albert King is not the author of that lyric as it had been heard prior to “Searching For A Woman.”  King simply interpolated it/referenced it from a prior source.  Or was it from more than one prior source?

Carl Perkins’ Matchbox  (1956) – At 0.05 – 0.20 of this recording, one hears:

“well I’m sitting here wondering would a matchbox hold my clothes, yeah I’m sitting here wondering would a matchbox hold my clothes, I ain’t got no matches but I got a long way to go.”

Carl Perkins’ Matchbox  (1956) was a big hit in the 1950’s.

The Beatles released their version of Matchbox in 1964, reviving Perkins’ popular song.  The Beatles loved Carl Perkins and recorded three (3) of his songs.  (Notice that Ringo’s vocal is double-tracked in Matchbox and typical for Beatles’ cover recordings, they stay as true to the original as possible.)

Continuing with MATCHBOX…

Carl Perkins “Matchbox” (1956) referenced Leadbelly “Packin’ Trunk” (1935)

Carl Perkins’ Matchbox  (1956) – At 0.05 – 0.20 of this recording, one hears:

“well I’m sitting here wondering would a matchbox hold my clothes, yeah I’m sitting here wondering would a matchbox hold my clothes, I ain’t got no matches but I got a long way to go.”

Leadbelly’s Packin’ Trunk  (1935) – at 0.45-1.05 of this recording one hears:

“I’m sitting down here wondering would a matchbox hold my clothes, I’m sitting down here wondering would a matchbox hold my clothes, I’m sitting down here wondering would a matchbox hold my clothes”

Leadbelly “Packin’ Trunk” (1935) referenced Blind Lemon Jefferson “Match Box Blues” (1927)

Leadbelly’s Packin’ Trunk  (1935) – at 0.45 – 1.05 of this recording one hears:

“I’m sitting down here wondering would a matchbox hold my clothes, I’m sitting down here wondering would a matchbox hold my clothes, I’m sitting down here wondering would a matchbox hold my clothes”

Blind Lemon Jefferson’s Match Box Blues  (1927) – at 0.38 – 1.04 of this recording, one hears:

“sitting here wondering would a matchbox hold my clothes, I’m sitting here wondering would a matchbox hold my clothes, I ain’t got so many matches but I’ve got so far to go” 

Is Blind Lemon Jefferson the source of this lyric about a person owning so little that all of his clothes could fit into a matchbox?

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Do lyrics and/or music of any of these songs REFERENCE any other song(s)?

Do lyrics and/or music of any of these songs COPY any other song(s)?

Do lyrics and/or music of any of these songs STEAL FROM any other song(s)?

Do lyrics and/or music of any of these songs INFRINGE any other song(s)?

Are musical traditions, for example in any of the songs above, at odds with copyright law?

Assuming that any of these instances above involves the TAKING of someone’s intellectual property, isn’t it only taking a “little bit” and how important can a little bit be?

Should musical tradition(s) trump copyright law?

Should copyright law trump musical tradition(s)?

If Blind Lemon Jefferson’s Match Box Blues  (1927) is under copyright, would one or more of those who followed him have infringed his copyright?

If Blind Lemon Jefferson’s Match Box Blues  (1927) is NOT under copyright and in the public domain, would copyright vest in Leadbelly’s Packin’ Trunk  (1935)?

And how does one answer any/all of the questions above if the country of origin of the manufacture and distribution of specific recordings are OUTSIDE of the United States of America?

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Dr. Dre Should Have Hired Me

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The moral of the story below?  Not hiring me can cost money.

Dr. Dre hired a musicologist for an opinion on whether he could use a bass line from another song, one that Dr. Dre had not composed.  That expert told Dr. Dre that the bass line was not original and therefore Dr. Dre was free to use it.

I would have told Dr. Dre that that bass line WAS original and that Dr. Dre should NOT use it. 

But, Dr. Dre did not consult with me.  Dr. Dre took the advice of a different expert witness and it cost him $1.5 million.

The two songs are:

Fatback Band – Backstrokin’  (1980)

Dr. Dre – Let’s Get High (2001)

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Fatback Band’s Backstrokin’  (1980) is a long, fun funk song.  It is just over 6 minutes long and primarily alternates between two sections:  A and B.  Section A is the chorus where one hears the message of the song – “tighten up on your backstroke.”  Section B is the contrasting section, similar to a verse section.  Other than A & B there is an introduction from 0.00 – 0.16 that returns at 4.17  – 4.54.

The overall form is:

intro, A, B, A, B, A, B, intro, A.

The time each section begins is below:

0.00 –  intro

0.17  –  A

1.22  –  B

1.55  –  A

2.44  –  B

3.17  –  A

4.06  –  B

4.17  –  intro

4.55  –  A

Dr. Dre was a musician who liked the bass line of the A section of Backstrokin’ (1980) and wanted to use it in a song he was going to record – Let’s Get High (2001).  Dr. Dre was not going to sample the bass line on his recording – instead he hired a bass player to re-perform that bass line.

Dr. Dre decided to get the opinion of a musicologist as to whether he could legally re-perform that bass line.  The musicologist hired (not me) told him that the bass line was unoriginal, not subject to protection by copyright law and therefore Dr. Dre would be free to recreate the bass line.  (“Recreate” is also known as “interpolate” or “replay.”)

The bass line consists of only a few diatonic, unoriginal pitches from the minor scale.  The pitches are:

1-2-b3-2  which are heard in the first measure, and

1-2-b3-5  which are heard in the second measure.

In total, the bass line is 1-2-b3-2-1-2-b3-5. two (2) brief measures, and is repeated throughout each A section.  This bass line could be considered the hook (or one of the hooks) of the song.

As a single, short two-measure phrase (-1-2-b3-2-  -1-2-b3-5- ), this bass line is NOT original.  But what Dr. Dre intended was NOT one (1) single statement for a few seconds, but to repeat this phrase over and over for the entire two (2) + minutes of the song.  Once this phrase is repeated a few times, it is no longer unoriginal – it becomes ORIGINAL and subject to copyright protection. 

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It is easy to find earlier examples of this basic, common -1-2-b3-2-1-2-b3 melody (with or without the “-5-” at the end) that is featured prominently throughout Backstrokin’.

The first that came to my mind was the principal melody of the 3rd movement of the Symphony No. 1 in D by Gustav Mahler:

Gustav Mahler –  Symphony No. 1 in D, Mvt. III  (1896).  The entire first movement is based on this 1-2-b3-2-1 melody.  This motif/melody is masterfully developed by one of the best art music composers – Gustav Mahler.  (The melody begins at 0.13 played by a solo contrabass.  The next instrument to play the melody is the bassoon at 0.41.  You’ll likely notice that this is a variant of the famous “Frere Jacques” but in a minor key, instead of major key.  Dr. Dre co-opted Fatback Band who co-opted Mahler co-opting and contorting “Frere Jacques.”)

Other music that features 1-2-b3-2-1-2-b3, recorded before Fatback Band and Dr. Dre include:

Pink Floyd – Another Brick In The Wall  (1979)  The 1-2-b3-2-1-2-b3 melody is heard in the words, “We don’t need no education” beginning at 0.09.

Cream – We’re Going Wrong  (1967)  The 1-2-b3-2-1-2-b3 melody is heard in the strummed chords in Eric Clapton’s guitar, and Jack Bruce’s faint bass, beginning at 0.02.

Pete Seeger – Waist Deep In The Big Muddy  (1967)   The 1-2-b3-2-1-2-b3 melody is heard in  the guitar beginning at 0.03.

Music recorded after Fatback Band that features 1-2-b3-2-1-2-b3 include:

Tupac Shakur – Nothing But Love  (1997)  The 1-2-b3-2-1-2-b3 melody is heard in the synth beginning at 0.00.

Michael Jackson – Smooth Criminal  (1987)  The 1-2-b3-2-1-2-b3 melody is heard in the synth beginning at 0.14.

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To repeat – Dr. Dre could have used the simple 1-2-b3-2-1-2-b3-5 melody without a serious copyright problem IF he had used it only once or twice.  But using that melody repeatedly in the same manner as Fatback Band spelled trouble.  Dr. Dre was given bad advice.  I am thrilled that I was not the one to make such a big mistake.

The added bonus of this post – I am encouraging readers to listen to Gustav Mahler, Pete Seeger, Cream, Pink Floyd, Fatback Band, Michael Jackson, Dr. Dre and Tupac Shakur.

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Music Discovery

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I had a really good meeting with a friend last night who went “under the hood” of my website with me and offered some great ideas.  One was to add a new entry under “Categories” –

* * * MUSIC DISCOVERY * * * 

I think what he intended by Music Discovery was for me to feature and write about music that mattered a lot to me and/or music I stumbled upon recently and wanted to highlight.  I think a new section of www.EMichaelMusic.com might spring from it.  But for now, I am treating this “Music Discovery” in another way.  I want this more interesting and lesser known music to be a more easily searchable item.

After we hung out, I created the category, “Music Discovery,” traipsed through all of my posts to see which contained links or references to music that I thought might be unfamiliar to some of my friends, and linked them to “Music Discovery.”

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To begin with my oldest Music Discovery-categorized post, I’ll highlight this song by Caetano Veloso.

Caetano Veloso – Canto Do Povo De Um Lugar

This is a beautiful song recorded by Caetano Veloso, one of my favorite musician/composer/songwriter/singers, and an extremely important Brazilian musical/cultural icon.  In future posts I will elaborate on some of the music and creative output of Caetano Veloso as I have hundreds of his songs and have seen him live in concert several times in the United States.

In music, it is often important to be simple rather than complicated – to not reveal everything you know in one short space.  There are times to fill a space with a large amount of data, but more often it is important to sacrifice virtuosity and excess for clarity and memorability.  Caetano Veloso does this throughout Canto Do Povo De Um Lugar.

A few things to notice within the song –

the crescendo beginning at 0.44 as a second guitar, and then bass, enter the song

the beautiful switch to falsetto singing at 1.38

the sudden QUIET and shift of vocal register at 2.09 (pop recordings rarely/never get suddenly quiet!)

more guitar melodies in the instrumental section beginning at 2.21 – 3.28.  Within the instrumental comes the abandonment of the chord progression in favor of a single chord and more solitude, enhanced by the added prominence of the organ.

the introduction of a jarring, out of place, diminished chord  at 3.29 – 3.44, followed by a return to normal, then solace and fade out

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This song was selected for inclusion in my October 12, 2012 post for two reasons:

1.  The melodic cell, 1-2-3-5, is the first four notes that Caetano sings. These four notes did not originate with this song.  They can be heard in many other musical compositions before this – they should be free to be sung and/or performed without the threat of a lawsuit.  They are, in other words, in the public domain.  I included Caetano’s recording in my October 12, 2012 post as supportive musical evidence in a hypothetical music copyright infringement case.  In this hypothetical case, Five For Fighting’s song, “Superman (It’s Not Easy),” is alleged to infringe the copyright of Angie Aparo’s “Seed.”  I was asked to opine about this, from my vantage point as one who actually works in music copyright infringement actions, by a reader.  I proceeded to analyze both songs, make the decision as to where I stood (in this particular matter, with the hypothetical defendant) and then  explain some of the reasoning and evidence I would use to prove that the defendant had not infringed the plaintiff’s copyright.  (The first four notes Caetano sings – 1-2-3-5 – are the same four notes at the center of the hypothetical Aparo/Five For Fighting matter.)

The October 12 post was the third and final post about this hypothetical case.  (The first was from October 10, 2012;  the second from October 11, 2012.)

2.  Caetano Veloso’s Canto Do Povo De Um Lugar is a beautiful song.  Given an excuse to promote Caetano Veloso or his music, I will!  In my perfect world, everyone in the U. S. would be fascinated by the music and musicians of Brazil.

So, I think I will treat “Music Discovery” as music which I know – maybe learned a few minutes or a few decades ago – that I find intriguing, inspiring, innovative, beautiful, novel or just cool, and for which I want to advocate.

As always I look forward to your input.

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Copying & Using Lyrics As Lyrics, Names Of Bands, Magazines & Organizations

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“We may have to walk near dangers, close to awful things…“

I’ve been gone from this space for too long – most of November – but for very good reasons.

There was the trip to St. Louis to speak to students and faculty the St. Louis University Law School (October 23-24, 2013).

That was followed by a stay in Birmingham, Alabama where I spoke about fair use and copyright and my views on these subjects at a UAB Music Department convocation on November 6, 2013.

I also did a follow up to my 2nd Annual Indian Cultural Society Lecture to members of the Indian Cultural Society on November 8, 2013.  And that was sandwiched between attending the rehearsal and concert of Anoushka Shankar on Thursday, November 7 and Diwali, The Festival of Lights on Saturday, November 9, 2013.

On Saturday, November 16, I spoke about uses of social media and the future of the music industry at the IBS 2013 East Coast Regional Radio & Webcasting Conference at Simmons College in Boston.

On Monday, November 18, 2013 I spoke to students and faculty at the Harvard University Law School in Cambridge.

On Tuesday, November 19, 2013 I spoke to students and faculty at the Berklee College of Music in Boston.

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I want to mention and briefly discuss the copying of lyrics.

Many questions can arise pertaining to the copying of lyrics, questions that can be extremely wide-ranging.  For this space today, I am mostly concerned with identifying a few examples of copying that I find constructive, reconstructive and progressive, i.e., these examples of copying do not infringe copyright or constitute laziness on the part of the new author/creator.

Why are lyrics copied?  Are lyrics copied for some of the same reasons that music is copied?  I will pose a few possible answers as to why lyrics are copied:

Why do authors/creators copy lyrics? 

They like the meaning of the lyrics.

They like the sound of the lyrics.

They like all or some of the lyrics’ surrounding melody, harmony, rhythms, instrumentation, loudness levels, sounds, etc. isolated or in combination and believe that the copied lyrics can connote the same or similar meanings or feelings as the original.

They believe the copied lyric will sound good/function well in the new work of authorship.

To pay tribute to or honor a lyricist/author and/or a lyricist/author’s specific expression.

To make a lyric/cultural reference – to “signify.”

To answer what the original lyrics may have addressed, i.e., the new use constitutes all or part of an answer song.

To give the borrowed lyrics new meaning by placing them in a new context.

To comment, criticize or ridicule the borrowed lyrics, i.e., parody.

To use the lyrics to comment, criticize or ridicule something other than the borrowed material, i.e., satire.

To draw attention to one’s own lyrics and/or music because the new author believes her/his new lyric is an improvement on the original source.  The new author is asserting that if the original had been better, it would have been authored like this.

To draw attention to an “opportunity” to spend money on a product or service.  This is especially common with lyrics and/or expression 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, action or involvement.

To draw attention to one’s own lyrics and/or expression (especially so if the borrowing occurs at the opening of the new work of authorship).

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 a good lyric and will work again (which 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 lyricist/author and/or better expression.

They borrow/copy accidentally, unconsciously or unintentionally, i.e., they believe their lyric was original and not borrowed.

The borrower was never capable of original expression and chose to copy others’ expression.

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The examples below can be divided into several parts:

Lyrics used as lyrics

Lyrics used as band names/artist names

Lyrics used as magazine name

Film titles used as band names

Lyrics used as name of organization

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1.  Lyrics Used As Lyrics

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Isaac Hayes’ Shaft used in Pearl Jam’s Dirty Frank.

The Rolling Stones’ Get Off Of My Cloud used in SheDaisy’s Get Over Yourself.

James Brown Papa’s Got A Brand New Bag used in Mystikal’s Never Gonna Bounce.

Jimi Hendrix If 6 Was 9 used in Crosby, Stills, Nash & Young’s Almost Cut My Hair.

Jimi Hendrix If 6 Was 9 used in They Might Be Giants How Can I Sing Like A Girl.

S P E C I F I C A L L Y

the referenced lyrics and locations are:

Isaac Hayes’ Shaft – “you see this cat Shaft is a bad mother—-Shut your mouth!—well I’m talking about Shaft— we can dig it” – is heard between 3.21-3.28.

It is copied (and altered) in Pearl Jam’s Dirty Frank – “well that Dirty Frank was a bad mother—Shut your mouth!—hey man I’m just talking about Dirty Frank” – and heard between 1.47-1.52.

The Rolling Stones’ Get Off Of My Cloud – “get off of my cloud” is first heard at 0.43.

It is copied by SheDaisy’s Get Over Yourself and first heard at 0.50.

James Brown Papa’s Got A Brand New Bag – “Papa’s got a brand new bag” is first heard at 0.20.  “Papa’s got a brand new bag” is used in Mystikal’s Never Gonna Bounce at 0.27-0.29.

Jimi Hendrix If 6 Was 9 – “but I’m gonna wave my freak flag high, high!” is heard at 1.42.

It is copied in Crosby, Stills, Nash & Young’s Almost Cut My Hair  – “I feel like letting my freak flag…” and heard at 0.52.

Jimi Hendrix If 6 Was 9 – “but I’m gonna wave my freak flag high, high!” is heard at 1.42.

It is copied in They Might Be Giants’ How Can I Sing Like A Girl  – “I want to raise my freak flag higher and higher and, I want to raise my freak flag…” is heard between 0.58-1.11 and 2.30-2.43.

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2.  Lyrics Used As Names Of Bands

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Bob Dylan’s Ballad Of Frankie Lee And Judas Priest was used for band name, Judas Priest.

Talking Heads Radio Head was used for band name, Radiohead.

Queen’s Radio Ga Ga was used for artist name, Lady Gaga.

Tommie Johnson’s Canned Heat Blues was used for band name, Canned Heat.

Muddy Waters’ Rolling Stone was used for band name, The Rolling Stones.

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3.  Lyrics Used As Magazine Name

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Muddy Waters’ Rolling Stone was used for magazine name, Rolling Stone.

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4.  Movie Titles Used As Names Of Bands

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The film, Black Sabbath was used for the band name, Black Sabbath.

The film, All The Fine Young Cannibals was used for the band name, Fine Young Cannibals.

The film, Shaolin and Wu Tang was used for the band name, Wu-Tang Clan.

The film, They Might Be Giants was used for the band name, They Might Be Giants.  In a very cool nod to the film, They Might Be Giants also wrote a song called, They Might Be Giants.

I love the closing scene of the film, They Might Be Giants.

“We may have to walk near dangers, close to awful things…“

Does justice ever lose?

It does from time to time…”

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5.  Lyrics Used As Names Of Organizations

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Elvis Costello’s Poor Fractured Atlas – “poor fractured Atlas…” was used for nonprofit organization name, Fractured Atlas.

Much more about this subject at another time….

H A P P Y    S U N D A Y    E V E R Y O N E !

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Wiz Khalifa’s Black & Yellow Does Not Infringe The Copyright of Pink & Yellow by Maxamillion

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Wiz Khalifa has been sued by an artist named Maxamillion [sic].  I was approached by lawyers representing Maxamillion.  These lawyers wanted me to support them in their belief that Maxamillion’s song, Pink N Yellow, had been infringed by the well-known artist, Wiz Khalifa in his song, Black And Yellow.  Notice that I wrote

“These lawyers wanted me to support them in their belief…”

that Pink N Yellow had been infringed by Black & Yellow.

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Lawyers who are considering filing a music copyright infringement lawsuit should consult someone with expertise in the field of music.  I have passed for having “expertise,” and U. S. district courts have called me an “expert.”  When I deal with issues outside of my field, I call on experts.  The best lawyers call on experts because the lawyers know that their expertise does not extend to other non-legal areas, especially one such as music that requires so many years of specialization.

These lawyers wanted me to agree with their assertion that Wiz Khalifa had infringed the copyright of Maxamillion.  They came to me for my expertise.  They paid me for my expertise and expert opinion but as soon as they received my expert opinion, they argued with me about my findings.

If I could change my expert opinion based on one attorney’s argument, I would either

A.  Not have “expertise” in music

B.  Not have “expertise” in the intersection of copyright law & music

C.  Not have a rigorously established methodology in which to complete the necessary analysis of the recordings & issues

D.  Not have a substantive amassment of opinions I had written that established my methodology and philosophical bent on the subjects

E.  Not have done good work in my analysis of both recordings

F.  Not have personal integrity or principles

G.  Have abandoned my principles and decided that making money was more important than any other consideration(s)

H.  Any combination of letters A – G

To expand upon this….

If the lawyers could have talked me into taking their position instead of mine, then they would have created very significant potential (and I think “actual”) problems for their client (and possibly themselves) when it would be discovered that I had been talked into taking a diametrically opposite position by the attorney (or both attorneys), or I had come to one conclusion and then  taken the opposite conclusion (the deadly, I was for it before I was against it kind of shuffle).  Attorneys for the other side should, and usually do, ask about the conditions that led to an expert being hired by attorneys.  It is a simple matter to formulate the few questions that the other side would need to ask an expert about the conditions that led to his/her being hired.  And when the other side would discover that an expert was either squishy or flexible with the truth or his convictions, or incompetent, etc., they would likely move to have that expert excluded.

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These lawyers should have been relieved because that my opinion was not to their liking.  What they should have done after receiving my opinion…  Well, first….

They were right to ask questions about my findings and even argue about my facts and opinions.  After the questioning and/or debate has taken place and the questions and answers have run their course (between them and me), it is time to NOT ACT.  To NOT file a copyright infringement suit.

A.  The lawyers should explain to their client that they hired a music expert witness who thoroughly analyzed both recordings and determined that there was NO infringement of copyright, and that a lawsuit should NOT be filed.

B.  The lawyers have the option of hiring another expert.  If this next contacted expert is knowledgeable about music, copyright law, music theory, and musicology, he will agree with me and give them another rejection.  (The second person/expert they approach could say something along the lines of, “Thank you – you look nice under this light, and I appreciate your money but I have principles and need to decline your lovely offer,” or words to that effect.)

C.  Keep hiring experts until they find the HIRED GUN, i.e., an expert without scruples whose services and low morals/lack of principles can be bought.  This letter “C” option could be repeated if the lawyers are so headstrong as to want nothing more than to file a copyright infringement action.  Often this, in fact, happens and eventually, one can find someone who then, usually unknowingly, falls into the trap of being an expert witness/”novice” hired gun, a lethal detriment-in-the-making.

D.  The lawyers should realize that the expert who turned them down is almost by default a person of high character and principles as this expert is turning down the opportunity to make a very good amount of money.

When an expert says any of the following words –

“NO”

“NO”

“NO”

after initial contact, the money and his involvement stop.  If the expert says “YES,” the money and his involvement continue for anywhere from a few months to 6, 7, 8 years or more.  It is in the expert’s best financial interest to tell a client what he/she/they want(s) to hear so as to keep the money and time engagement growing and flowing.

The lawyers should thank the expert for his work, heed his advice, and not file a federal copyright action.  The letters “A” and “D” above were the wisest choices.  But, despite my best efforts, this frivolous lawsuit against Wiz Khalifa was filed.

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Here are the two (2) songs at issue.

Maxamillion  –  Pink N Yellow

Wiz Khalifa  –  Black And Yellow

I could (but won’t) start out in this post by presenting a formal report.  It might read like this:

First, a cut-to-the-chase summary:

There are important differences between PLAINTIFF and WIZ KHALIFA with respect to melody, harmony, rhythm, key, structure and lyrics that reveal that the songs in question, despite a few uncopyrightable similarities with respect to two (2) words, “and yellow,” are not substantially similar.

1.  STYLE

PLAINTIFF and WIZ KHALIFA are both urban/R & B songs.

2.  TEMPO

With respect to tempo, PLAINTIFF is faster than WIZ KHALIFA.

In PLAINTIFF, the tempo is 90 beats per minute.

In WIZ KHALIFA, the tempo is 82 beats per minute.

3.  TONALITY

The songs are in different keys.

PLAINTIFF is in the key of G Major.

WIZ KHALIFA is in the key of D Minor.

The difference between the songs with respect to key is significant due to the nature of a song in a major key as opposed to a minor key.

According to the Harvard Dictionary Of Music, 4th Edition, 2003 (p. 443) since the 1500’s, major keys have often been associated “with happiness or brightness and minor keys with sadness or darkness.”

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The report might look like that at the outset.  It would then go on and on.

Instead, I had an odd confluence of two (2) Wiz Khalifa spottings recently that led to this blog post.  Someone emailed me about the Wiz Khalifa case.  An hour later, I stumbled upon this lawyer’s blog and in particular her few words about the Wiz Khalifa case.  Rather than devote much time to what she had written, I decided to quickly write my thoughts about this case (from relatively distant memory) and disagree with a point:

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One more time, so you don’t have to scroll – here are the recordings at issue:

Maxamillion  –  Pink N Yellow

Wiz Khalifa  –  Black And Yellow

The choruses to both songs are EXTREMELY DIFFERENT as are the lyrics and other parts of both songs.

This is one of the most absurd music copyright infringement lawsuits ever filed.

Wiz is in a minor key and features a chord progression.
Maxamillion is in a major key and does not have a chord progression (it is essentially a single chord from beginning to end).

Wiz is sung.
Maxamillion features no singing.

There are only two (2) words in common between both songs:

“and yellow.”

In Wiz, the emphasized syllable is “Black” (“Black” is on the downbeat)
In Maxamillion, the emphasized syllable is “Yel” of “Yellow (“Yel” is on the downbeat.)

Again, there is NO copyrightable melody or even short copyrightable MELODIC phrase in common between both songs.

There are NO copyrightable rhythms or rhythmic figures between both songs.

There are NO copyrightable harmonies or harmonic progressions between both songs.

I know of NO copyrightable similarities between both songs.

Do you know of ANY music copyright infringement case (not involving sampling) in which there was NO melody in common between both songs?

Do you know of ANY music copyright infringement case in which only two (2) very common words were in common between both songs? (“And yellow”) And these two words were SUNG in one song and rapped in the other. Therefore, there is no melodic similarity here either.

Again, the rhythms between “BLACK and yellow” and “pink and YEL-low” are four 16th notes but the rhythmic accents are in different places: the first 16th (downbeat) of Wiz (“Black”) v. the 3rd 16th (upbeat) of Maxamillion (“Yel” of “yellow”).

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In important news, the Boston Red Sox lead the St. Louis Cardinals 3 games to 2 in the 2013 World Series.  I spoke at St. Louis University Law School on the night of Game 1 (Wednesday, October 23, 2013).  My Bostonian self was the only thing Bostonian about that wonderful night with really good faculty and students in that nice city.  My superstitions prevent me from saying, writing or even thinking anything else about the 2013 World Series.  Except to say –

Go Red Sox – I’m thrilled at their 2013 season!

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In Phoenix Before The Dust Storm, the Birthday of EMichaelMusic.com & John Lennon & Listen to Moses

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One year ago today (October 9, 2012), I wrote my first blog post on emichaelmusic.com. I knew October 9 was John Lennon’s birthday and thought that my new effort should coincide with a day that had meaning to me.  All things John Lennon have always been important to me.  I would not have become a musician if not for The Beatles and Lennon was my favorite Beatle.  (If you were alive in 1964 when The Beatles invaded my continent, you had a favorite Beatle.)

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I did something similar back when I was a graduate student at the University of Miami.  I needed to set a deadline to finish my orchestral composition that would be at the center of my master’s thesis.  I thought that the summer would be the best to time to complete a project this large, thought about what are my favorite dates, and then chose July 2, the date in which Thomas Jefferson finished writing the Declaration of Independence .  So, on July 2, I successfully pulled off something as responsible, mature and adult-ish as completing a large project on time that loomed many months ahead.  And as an extra bonus and most importantly, I loved the music I had written.  My orchestral master’s thesis is entitled:

C H E M I C A L      F O L K L O R E

Someday I might write about it here, but not today.

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Today I am in Phoenix, Arizona to speak to NARIP about my work in music copyright/IP, publishing and advertising, and to spout and rant too.  My 3-hour interactive lecture to NARIP will take place on Wednesday, October 9, 2013 at Paradise Valley Community College.  I’ve been referring this college as Paradise.  I like to abbreviate names sometimes especially when the abbreviated name seems appropriate – this area is really beautiful!

I’ll also discuss digital issues and possibly the fair and essential use of sampling as well.  By essential use of sampling, I am referring to situations when one MUST sample without permission in order to create a PARODY.  (Is Essential Sampling a good phrase?  Should it be Requisite Sampling?  Compulsory Sampling?  Sampling Because You Must?)  That First Amendment thing is important and should trump other given rights at times.

I’ll leave this topic now.  Near the end of my last talk at Harvard Law School on April 15, 2013, I first brought up this YOU MUST SAMPLE TO PARODY (in these specific examples) idea.  It was risky to talk this way then and there and maybe more so today.  But also, in three hours of interactivity today – interactivity is not the same as hyperactivity – this issue does not have to come up.  I’ll ponder another time or two between now and 2  PM and decide about this FORCED/ENFORCED sampling notion.

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There is a “BLOWING DUST ADVISORY for GREATER PHOENIX AREA, AZ” today and tomorrow here in Phoenix – blowing winds, reduced vision, warnings that cars must pull over, stop and hope for the best.  People shouldn’t breathe or be outside….  And I’ll be wearing my best black suit!  Yikes – this is not Gloucester MA or Nashville TN.  I am in a real desert – the Sonoran Desert – in the real, wild American West.

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And the best news for last – The BOSTON RED SOX won the ALDS last night beating Tampa 3 games to 1.  We were the worst team in baseball last year.  This year, objectively speaking, we are the best!  It was preordained.

“Listen to Moses!”

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Fair Use and Copyright Abuse – My AIMP Talk Is SOLD OUT. Scalpers? Buehler?

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I have the great honor and privilege to speak to the Association of Independent Music Publishers (AIMP) on Wednesday, September 25, 2013 at ASCAP in Nashville.  Here is the announcement and details about my presentation.  Surprisingly (to me) there are two words in CAPS that I never see used in conjunction with me:  SOLD OUT.  Fortunately this refers to the fact that there is no more room for the luncheon at ASCAP where I am speaking and NOT that I have SOLD OUT (my principles).  Or so I am going to assume.

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My work as a consultant in copyright and intellectual property (IP) matters is always fun and original as very crazy things can occur when we creators create.  I get brought into some of the events surrounding potential and actual problems.  I have been and continue to be witness to brilliant decision making, as well average and poor decision making when it comes to music, IP law and money.  People do things that will make them profits and prosperous.  Some do average, ho-0hum expected things, and yet others make bad decisions that will be negative financially for more than 100 years.  (Copyrights might outlive many glaciers at the northern and southern ends of our planet.  When a 30 year-old gives up part or her copyright, it is a decision that could last for 130 years.  Assuming she will live 60 more years, her copyright will last 130 more years:  60 years alive + 70 years after her death.  And I expect that every twenty years, copyright will be extended another twenty years – the 130 year decision might become a 200 year decision.)

We have been and continue to be surrounded by IP – train and car horns blast their metal music made from metal objects, adverts are seen and heard mostly with music or sounds, radio sometimes play music (in those few radio stations when radio is not presenting the sounds of more adverts and humans speaking to and at each other, i.e., “talk radio”), the Internet, music on the Internet, televised and transmitted images (often with sounds) from mobile devices, large devices, billboards, etc.

We absorb and reflect a lot of the sounds, sights, ideas and attitudes we perceive.  We have to copy some of it as it is important that we use UNORIGINAL words in our speech, writings and music, and UNORIGINAL melodies, chords, rhythms, sounds and loudnesses in our music.  (With respect to music, I am referring to UNORIGINAL, individual (or very brief-lasting) musical components.  ORIGINAL expression usually consists of UNORIGINAL elements strung together in ORIGINAL ways.)

Problems that can happen include:

1)  What we create sounds like something else, something already created.

2)  What we create looks like something else, something already created.

3)  What we create sounds and looks like something else, something already created.

And some might say, “So What?”  And in response one might say, “So What?   You stole my song, that’s ‘So What.’  Your success is due to infringing my copyright.  You’re only successful because of my creativity, my ideas, my expression, my copyright.  (My my my….my.)  I’ll see you in court!”  (Oh, but it is never that simple.)

Two more things before I get to fair use.

1.  We STEAL (copy) ACCIDENTALLY.  Let’s be kinder – let’s say it this way.  We inadvertently copy from other sources.  How can we NOT copy from other sources when we are bombarded by external stimuli?

2.  We STEAL (copy) on purpose.  We INTEND to STEAL (copy) and we do.  We copy because we like the sound of some preexisting sound, or the sound and effectiveness of some preexisting chord, chords, phrase of a melody, phrases of text or lyrics, individual words, certain instruments (a Coke bottle has been in the music copyright infringement news lately – that ubiquitous Blurred Lines by Robin Thicke, and its imitation of Marvin Gaye’s Got To Give It Up), combinations of instruments, sounds, combinations of sounds, etc.

There is a part of the Copyright Law that acknowledges and enunciates that we can make use of an original work of authorship – “original work of authorship” that is NOT our work, and WITHOUT permission – if we have a good reason for doing so.  This part of the Copyright Law is Section 107.  It is entitled, “Limitations on exclusive rights:  Fair use:”

“§ 107. “Limitations on exclusive rights:  Fair use.“

Copying someone else’s expression is allowed.  Perhaps it is more accurate to state it this way:  Copying someone else’s expression is possible.  Is permissible.  Can happen.  Can happen without negative consequences.  (Fair use can mean that one has the right to hire expensive attorneys to fight back against a plaintiff’s assertion that you have infringed her copyright.  The “without negative consequences” is initially a theory –  it often takes time, money, attorneys and experts to negate the “negative consequences.”)

As to why and how one can use someone else’s creations – their original work of authorship without their permission – the authors of the Copyright Law might have been careful and diligent in listing SOME of the reasons why it would be permissible to not seek permission:

“…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…”

“The fair use of a copyrighted work…is NOT an infringement of copyright.”  (I capitalized “NOT” in that sentence from Section 107 .)

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I will delve into fair use today as well as the other related subject below.  My flow today will likely go this way:

1.  The definition of “original”

2.  With respect to music and copyright, examples of Bad Lawyering/Bad Lawyers in Bad Practice (there is not a kinder way of expressing this.)

3.   What is fair use?  Examples of fair use – copying music only, words only, words and music.

4.  What is “co-authorsip?”  What is a “joint work?”  The assessment of each writer’s expression in a joint work.

5.  The Worst Music Publishing Mistake Ever Made By Famous, Wealthy Musicians

6.  My most recent work for a plaintiff

7.  “…As the world turns….As copyright becomes irrelevant…”

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I will play and discuss music from these composers/creators/authors/artists.  (As you might guess, many of these will be short excerpts.)

Aerosmith

Atomic Kitten

B. S. G.

Baby Game

Burt Bacharach

Baha Men

Barrio Boyzz

Bela Bartok

Beatles

Bon Jovi

Asha Bhosle & Kishore Kumar

Jimmy Boyd

Garth Brooks

Brooks & Dunn

Circle Of Success

LL Cool J

Jonathan Coulton

Cream

Creedence Clearwater Revival

Crime Boss

Crosby, Stills, Nash & Young

Culture Club

Joe Diffie

Hilary Duff

Dr. Dre

Bob Dylan

Eminem

Fatback Band

Fifty Cent

Flintstones

The Game

George Gershwin

Isaac Hayes

Jimi Hendrix

Faith Hill

Buddy Holly

Hootie & The Blowfish

Mary Hopkin

Marques Houston

Jefferson Airplane

Elton John

George Jones

Montell Jordan

Wiz Khalifa

King Crimson

Krayzie Bone

k.d. lang

Lil Malcolm

Little River Band

Lootenant

M.I.A.

Madrugada

Gustav Mahler

Mary Martin

Mistah F.A.B.

Sir Mix-A-Lot

Mystikal

Nirvana

The Orioles

Outkast

Pearl Jam

Scoob Rock

Snoop Dogg (Snoop Lion)

Sonic Dream Collective

Britney Spears

Naomi Striemer

Supertramp

James Taylor

Wham!

Lil iROCC Williams

Bill Withers

Youngbloods

9 Milli Major

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Happy Autumn!  I hope you enjoy the cover photograph.

Wishing everyone a surprising and happy Wednesday.   

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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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