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Too Many Frivolous Music Copyright Infringement Lawsuits

Toy

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.]

 

 

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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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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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Do these parts of Alicia Keys’ “Girl On Fire” remind you of another song?

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It’s close to Christmas Day and my plans are not yet finalized.  I don’t know where I’ll be come 12/25/2012.  But for now, the sun is breaking through (a rare event recently) and I’ve got a few things to finish this morning.

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Blog-wise, I am proceeding out of order.  I should have written the intended follow-up post – the proper one in the sequence – instead of this as I’ve got much more to write about Shuman v. Sony.  But I’ll delay that a bit as I want to do this quicker-to-write post.

Recently I wrote about ambulance chasers:

“I’ve known of “ambulance chasers,” (I’m not asserting Lowell is an ambulance chaser but “size matters” and Lowell’s video was at the top of my “ambulance chasers” search) with respect to music copyright infringement lawsuits  –  people who hear similarities between songs, and then contact interested parties with the hope that lawsuits will be filed and that they will receive money and/or acclaim.”  

I also wrote these few sentences which could very much excite an ambulance chaser/copyright troll:

“If someone wanted to sue Alicia Keys for her recording, “Girl On Fire”, there is a song by a potential plaintiff with much stronger similarities than, “Hey There Lonely Girl.”  It was a very big hit song that appeared in a very big 1980’s hit film.  Do you know of the song to which I refer?  Want to take a guess?  I’ll come back to that, and all of this Blogger Friedman/Shuman v. Sony stupidity, soon.”

There are six (6) places in “Girl On Fire” in which Alicia Keys sings, “Oh oh oh oh oh.”  Listen to the Alicia Keys  “Girl On Fire” and especially these six sections.

0.35     oh oh oh oh oh

1.39     oh oh oh oh oh

2.54     oh oh oh oh oh

3.04     oh oh oh oh oh

3.15     oh oh oh oh oh

3.25     oh oh oh oh oh

Do these five (5)-note melodic excerpts, that are heard six (6) times in “Girl On Fire,” remind you of another song?  As I mentioned, the song to which I am referring was a very big hit that appeared in a very big 1980’s hit film.  If you recognize the song, do you think there is a potential copyright problem?

I hope everyone has a nice Saturday and stays away from retail, or that you are able to do stressless surgical shopping strikes.

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Is Alicia Keys guilty of copyright infringement? A lawyer quotes a feebly written blog and files a foolish lawsuit

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I was told about an article from AcesShowBiz entitled, “Alicia Keys Gets Sued for ‘Girl On Fire,’ Debuts ‘Brand New Me’ Video.”  The article refers to a “write-up by Roger Friedman“, a blogger for Showbiz411.  Roger Friedman seems to proudly state that “Alicia Keys is a Girl in Trouble today,” because she has been sued for copyright infringement and that Friedman is partially to blame/credit for the lawsuit  –  “some of the suit is based on my reporting.”

The songs in question are:

Plaintiff’s song  –  Eddie Holman recording of  “Hey There Lonely Girl”

Defendant’s song  –  Alicia Keys recording of  “Girl On Fire”

I was startled to read that “some of the suit is based on my reporting” as I had never heard of a copyright infringement lawsuit filed because of the “reporting” of a blogger, and especially a blogger who demonstrates his incontrovertible ignorance of copyright law.

Friedman states, “Hopefully musicologists will be called in, etc. experts who can testify about Keys’s use of two lines from the chorus of ‘Hey There Lonely Girl’ in ‘Girl on Fire.'”

This is such a poorly conceived and written sentence.  First, is Friedman stating his hopes that musicologists “will be called in, etc.?”   As a musicologist who has testified in copyright infringement cases in U. S. federal courts for 20 years, I am extremely curious as to what Friedman means by “etc….”  As I try to understand, I think he might mean that we are called in and then comes other actions – the etcetra part.  Just what does the “etc.” of his sentence mean, and have I been “etc.-ing” these past 20 years or should I start “etc.-ing” now to make up for the times in which I did not etcetera?

Also, the normal practice is for both sides to employ at least one (1) expert.  Experts are not “called in” as if to investigate a crime scene.  Experts, optimally, are hired BEFORE the initiation of a federal copyright infringement lawsuit.  In this instance of Alicia Keys’ alleged infringement, if experts are hired, they might not agree with Blogger Friedman’s position that Alicia Keys “use[d] two lines” from the chorus of ‘Hey There Lonely Girl.”

Also from that same rich sentence, it seems that Blogger Friedman may not have learned that

the possessive of   —   Keys   —   is Keys’   —   not Keys’s

unless Blogger Friedman writes “Keys’s” because he pronounces “Keys’s” as KEE – ZIHZ, and not KEEZ.

But things soon get more feeble in his writing.  Blogger Friedman states that…

“Anyway, anyone who listens to “Girl on Fire” can hear Alicia sing “she’s a lonely girl/in a lonely world” about her burning subject. Why Keys or someone with her didn’t just clear this sample is beyond me. Keys is a sampling queen, with loads of history in this department.”

“…beyond me.”  What I claim is “beyond” Friedman is this particular subject matter – sampling and copyright law.  At this point, Friedman proves that he does not understand copyright with respect to music, or practices in the contemporary music industry.

Factually, Alicia Keys did NOT “sample” any part of the “Hey There Lonely Girl” sound recording.  Blogger Friedman does not know enough about copyright law to form, possess or articulate an opinion on the subject.  Yet he uses the word, “sampling” and falsely accuses Alicia Keys of “sampling.”

To reiterate  –  Friedman is factually incorrect.  Alicia Keys DID NOT sample the sound recording of “Hey There Lonely Girl.”

I will return to this shoddy journalism and the new lawsuit,

Earl Shuman v. Sony Music Entertainment et al

filed in the United States District Court Central District of California, December 10, 2012.  I have much more to write about Friedman’s writing and Shuman v. Sony.  But I want to pique the interest of anyone who might be reading this at this point today with a final thought.

*   *   *   *   *   *   *   *   *   *   *   *   *   *

I’ve known of “ambulance chasers,” (I’m not asserting Lowell is an ambulance chaser but “size matters” and Lowell’s video was at the top of my “ambulance chasers” search) with respect to music copyright infringement lawsuits  –  people who hear similarities between songs, and then contact interested parties with the hope that lawsuits will be filed and that they will receive money and/or acclaim.  If someone wanted to sue Alicia Keys for her recording, “Girl Of Fire,” there is a song by a potential plaintiff with much stronger similarities than, “Hey There Lonely Girl.”  It was a very big hit song that appeared in a very big 1980’s hit film.  Do you know of the song to which I refer?  Want to take a guess?  I’ll come back to that, and all of this Blogger Friedman/Shuman v. Sony stupidity, soon.

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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.