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Did Taylor Swift Steal A Lyric From Matt Nathanson? Elvis Presley, Johnny Cash, Andy Williams & Tony Bennett

We’re in Day Two of 30-70 mph winds only now rain has come as well.  There are two equidistant paths to the ocean here.  One is flat, just barely higher than sea level, and slopes down to the beach.  That path results in really strong sand blasts to the face.  The other is down a hill, in between huge rocks, and sand-less.  Well, no sand in the face.  That’s usually my preferred route.

I love the power of the ocean and winds.  It feels great to go outside and weather it for awhile.  Coming back into my house, at least on a day like this, feels even better.  After I finish this post and  French Roast (“post” and French “Roast”, an AA rhyme scheme) , I’ll go outside to see and possibly film the ferociousness of Winter Storm Athena.

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My friend, Sarah Hasu, posted this AOL Music Blog report on my Facebook site.  Sarah wanted my opinion, so here is my opinion.  First, I need to write some qualifying statements – here come the qualifying statements.

These will be my preliminary and cursory thoughts.  I’ll throw in some more cautionary and qualifying words so that I can stress that these are my quick and almost-preliminary thoughts.  If I were more serious and studied this fully, I might refer to my thoughts as “findings,” but I’ll stick with almost-preliminary thoughts.

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From the AOL Music Blog:

“Even though Taylor Swift’s new CD Red has sold a recording-breaking 1.2 million copies, one person in particular isn’t thrilled with Tay’s lyric choices. Singer Matt Nathanson is accusing Taylor from stealing a lyric from his 2003 song “I Saw” and using it in her song “All Too Well.”

The lyric in question? Nathanson sings in his song: “and I’ll forget about you long enough to forget why I need to.” And Taylor’s song lyric is: “and I forget about you long enough to forget why I needed to.”

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So, the issue seems to be – is Taylor Swift’s “and I forget about you long enough to forget why I needed to,” an unauthorized copy of Matt Nathanson’s “and I’ll forget about you long enough to forget why I need to.”

“and I’ll forget about you long enough to forget why I need to”

“and I forget about you long enough to forget why I needed to”

My first impression is that I would side with Taylor Swift as I think two (or more) authors could come up with those very similar words independently, i.e., without copying.  And if one did not copy the other, it is not copyright infringement.

These two short lyric excerpts from larger songs are of a style of lyric writing I have seen before, one in which a clever literary device is at play.  Songs with these literary devices are fairly common in Nashville, country and pop.  It reminds me of songs and song titles like these:

“I’m Left, You’re Right, She’s Gone,”   (Elvis Presley recording) and

“I Forgot To Remember To Forget,”   (Johnny Cash recording) and

“Everybody Has The Right To Be Wrong,”    (performance by Andy Williams and Tony Bennett)

Even if Taylor Swift were to admit that she took this or it could be shown that she likely copied this line, there still are reasons why this might not be copyright infringement, or SERIOUS copyright infringement.

1.  it is only one line.

2.  it is short (almost the same as “it is only one line”).

3.  it could be considered an example of de minimis copying (that could include reasons 1 & 2).

4.  it could be considered “fair use” for a few reasons.  Fair use would cover reasons 1, 2 & 3 but at least one more reason.  This copying would have no negative financial effect on the original, i.e., her borrowing would not hurt the market for the original song.

5.  Swift’s melody did not copy Nathanson’s melody.

6.  Swift’s harmony did not copy Nathanson’s harmony.

7.  Swift’s rhythm did not copy Nathanson’s rhythm.

8.  Swift’s tempo did not copy Nathanson’s tempo.

All of these points can be spelled out in more detail and more reasons along these lines can be added.  Also, not all of these points are created equal.

There are also these considerations:

1.  Would this ever get remedied through legal action?  (That’s a big one to consider as what does “remedied” really mean, and how do you know when you’ve been “remedied?”  — smile smile.)

2.  Would Nathanson want the bad press/ill will that could come from suing Taylor Swift?  He already has made some very public decisions that are not wise.  For example, he should NEVER have tweeted that Taylor Swift is “a thief.”

3.  Can Nathanson afford better lawyers than Swift’s lawyers?

4.  How much time would Nathanson want to spend on this issue –

1 year?

2 years?

3 years?

4 years?

5 years?

6 years?

7 years?

8 years?

9 years?

10 years or more on this?

I was involved as expert witness in a copyright infringement case over three (3) words, that lasted three (3) years.  I’ve spent up to seven (7) years in a case, and I know cases that lasted longer.  Time, and the money it takes to fund the time, will cost money.

5.  Does Nathanson believe he could/would win via legal motions?

6.  If he won (or lost) at trial, would be able to afford an appeal?

7.  Does Nathanson have the money to pay all of the defendant’s expenses in this matter?   Some courts have ruled that plaintiffs have to pay defendants’ court costs.

8.  These reasons can be rearranged – the order above might not be optimal.  That is why I referred to all of this rambling as almost-preliminary thoughts.

 

So, what are your thoughts on these issues?

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Unfair Competition, Election Night 2012, Swimming at 57 F / 41 F

I’ve had a fantastic election night.  Things went my way all throughout MASSACHUSETTS, especially with the election of Elizabeth Warren as our new U. S. Senator, and our first female senator (in such a progressive state, it’s odd that it took this long!).  I wanted President Obama to be reelected as well as Sen. Brown in Ohio, Sen. Klobuchar in Minnesota, Sen McCaskill in Missouri and a few others.  Yes, election night was a lot of fun.

But the day had been perfect in terms of weather here – 41 F, sunny and no wind – so I expected a continuation this evening.  The sunny and no wind part got me to actually swim in the Atlantic Ocean – the water temp was 57 F.  It was very cold and I didn’t stay in long!  I’ve got this foolish idea that I will swim at least one day every month.  September and October were very easy.  November was chilly and challenging and December is coming!

I wanted to write about “unfair competition.”  It’s a subject that can pertain to music and it’s come up many times in my professional and musical activities.  So, a few words:

U N F A I R      C O M P E T I T I O N

“Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.”   The Federal Trade Commission Act (Title 15 United States Code, Section 45. 1.)

In both unfair competition and trademark it is important that the consumer should not be confused as to the origin of goods and services.

An example of unfair competition would occur if an unknown musician, or any non-Beatle, released an album of 13 supposedly original songs, whose titles, in order, were:

  1. “Sgt. Pepper’s Lonely Hearts Club Band”
  2. “With A Little Help From My Friends”
  3. “Lucy In The Sky With Diamonds”
  4. “Getting Better”
  5. “Fixing A Hole”
  6. “She’s Leaving Home”
  7. “Being For The Benefit Of Mr. Kite”
  8. “Within You Without You”
  9. “When I’m Sixty-Four”
  10. “Lovely Rita”
  11. “Good Morning Good Morning”
  12. “Sgt. Pepper’s Lonely Hearts Club Band (Reprise)”
  13. “A Day In The Life”

In the example above, it is obvious that someone is trying to confuse the consumer by naming all of the songs the same as all 13 songs, and in the same order, as the 13 songs on the Beatles’ “Sgt. Pepper’s Lonely Hearts Club Band” album.   Obviously, a consumer in a store could glance at an album with these 13 song titles and conclude that this is a Beatles’ cover album, or possibly a re-issue of “Sgt. Pepper,” or even a Beatles-sanctioned or affiliated project.  Factor in the additional problems this could cause if this counterfeit album was sold on the Internet, where search engines could turn up this album in any Beatles’ search, and it becomes clear that this musician is unethically riding on the Beatles’ coattails and confusing consumers.  Thusly, this would be an example of unfair competition.

The title, “Sgt. Pepper’s Lonely Hearts Club Band,” like most titles, is not protected under copyright.  Stringing together thirteen (13) titles, in the above example, might be protected under copyright as these thirteen titles written consecutively in order could be copyrightable expression.  (I could argue that these specific thirteen (13) titles in consecutive order would be copy protected – I’ll be happy to do that in another post.)

It is likely that most of these 13 song titles could be used by other authors as titles for their independently created copyrighted songs.  For example, the title, “Getting Better,” consists of two (2) unprotectable words:

 Getting, Better

Obviously these common words did not originate with the Beatles, and the title, “Getting Better,” in its entirety, or subsumed within a larger title, likely was used prior to this Beatles’ song.  “Getting Better” or “It’s Getting Better” are titles that anyone could use.

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Angie Aparo v. Five For Fighting (Part 3 of 3)

PART 3 of 3

We left off in this cliffhanger with the promise of an ending in this highly abbreviated fictionalized account of what could have been a copyright infringement action brought by Angie Aparo and affiliated parties against Five For Fighting and affiliated parties.

Plaintiff: What country song  features 1-2-3-5?

Defendant:  “Tomorrow Never Comes” by Ernest Tubb does.  Conway Twitty’s “I’m Not Through Loving You Yet” also features 1-2-3-5.

Plaintiff:  What rock song  features 1-2-3-5?

Defendant: “I’ll Follow The Sun” by The Beatles.”  The Beatles‘ “You Won’t See Me” also features 1-2-3-5.

Plaintiff: What soul/R & B song features 1-2-3-5?

Defendant:  “My Girl” by The Temptations.

Plaintiff: What Brazilian song  features 1-2-3-5?

Defendant:  “Canto Do Povo De Um Lugar” by Caetano Veloso.

Plaintiff: What song recorded in Minnesota features 1-2-3-5?

Defendant:  “Paisley Park” by Prince.

Plaintiff:  And you stated, yesterday, that you do not know a song recorded in Iowa that features 1-2-3-5?

Defendant: What is Iowa?  Is there a gas station near there?

Plaintiff:  You also stated yesterday that you do not know a 17th century popular Persian song that features 1-2-3-5?

Defendant: No, my life up until this point has been incomplete as I do not know any 17th century Persian popular songs.

Plaintiff: Is there something you want to tell me?

Defendant: What?

Plaintiff: You seem to be almost laughing, or is that a smirk?  Is there something you would like to share with us?

Defendant: Well, when you put it that way, yes, there is something I would like to say.

Plaintiff: Go ahead.

Defendant: I have the best example to show that we did not copy your client.

This is a very famous example of 1-2-3-5.  And although your client’s song and our client’s song has the same 1-2-3-5, this really famous song from the 1970’s should put an end to this foolish lawsuit.

Here’s what I want you to do:

I want you to sing three (3) phrases from the first chorus of Aparo’s song.  Or we could cue the iPad or iPod (I brought both with me today – one can never get too redundant on the preparation thing, you know? ) – to 1.21 of the live version:

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

“For every seed”   [1-2-3-5]
“once there were two”  [1-2-3-5]
“wrestle your heart”  [1-2-3-5]

They’re the same, right?  Now I want you to sing the first chorus of Five For Fighting’s song.  Or we could cue the iPad to 0.37:

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

“I’m more than a bird”  [1-2-3-5]
“I’m more than a plane” [1-2-3-5]

Those phrases from Five For Fighting are the same melody as the analogous phrases from Angie Aparo, right?

Now I want to introduce a new song as part of our evidence:

A fairly famous song from 1971 that your expert seemed to either overlook, or perhaps he doesn’t know this song.

“All The Young Dudes” by Mott The Hoople – their most famous single.

And as with Aparo and Five For Fighting, guess what melody is at the heart of the chorus?  Yes:  1-2-3-5.

Now I want you to sing the first chorus of  Mott The Hoople’s “All The Young Dudes”  Let’s cue the iPad to 0.52:

Mott The Hoople – “All The Young Dudes”
(YouTube:   http://bit.ly/Rl1sXA )

“all the young dudes”  [1-2-3-5]
“boogaloo dudes”  [1-2-3-5]
“all the young dudes”  [1-2-3-5]
“boogaloo dudes”  [1-2-3-5]

These three (3) songs, by

Mott The Hoople
Angie Aparo
Five For Fighting

…and these specific melodies are interchangeable!  You don’t have a case!    

Or perhaps now we should both worry that David Bowie, who wrote “All The Young Dudes,” and related parties will sue us?

No, they won’t.  They won’t sue because this melody is:

too short;
not original enough to be copyrighted, and;
has occurred in many songs/compositions in many styles of music dating back to Bach.

The short and simple melodic gesture, 1-2-3-5, is in the public domain.

This just goes to show that if not Mott The Hoople, a lot of great music can be traced back to Bach, don’t you think?

(And did you notice that the chorus of Mott The Hoople consists of two (2) nineteen (19)-beat phrases?  Four (4) measures of 4/4 plus one (1) one measure of 3/4 with that entire thing stated twice, i.e. 19/4 + 19/4.  Cool, huh?)

Anyone up for lunch?

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

Chess Game

Chess Game

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

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

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

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

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

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

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

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

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

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

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

Plaintiff and Defendant agree that the melody in question is:

1-2-3-5

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

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

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

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

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

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

Plaintiff’s expert touts and further explains his evidence.

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

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

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

Plaintiff demands specificity.

Defendant specifies:

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Tiger in Cage

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

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


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

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

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

Tiger in Cage

OK – now on to my response to her post.

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

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

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

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

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

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

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

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

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

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Welcome!

Welcome to EMichaelMusic.com, a place for the exchange of ideas on a multitude of subjects.  Because I am paying for this website and registered it, and you just discovered its existence, I’ll start.

By the way, the “I am paying for this website” is a variant of Spencer Tracy’s “I am paying for this broadcast,” from the film, “State Of The Union,” of 1948, and Ronald Reagan’s “I am paying for this microphone,” of 1980.)

Please watch this short excerpt: http://www.youtube.com/watch?v=RRI6iSrS1kc

QUESTIONS

  1. Is it OK for a songwriter or composer to copy music and/or lyrics from someone else?
  2. Do you have a favorite example of a songwriter/composer copying music and/or lyrics from someone else?
  3. Do you have a LEAST favorite (or hated) example of a songwriter/composer copying music and/or lyrics from someone else?

Let me make Question 1 even more specific – is it OK to copy someone else’s expression without asking for her/his/their permission?  Asking its permission?  (I write “its” because it could be that you are expected to ask a company or corporation for “its” permission.  Companies are not people, my friend.)

I will only wait another day or two before I chime in.  I welcome your input first.