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New Compulsory License & The USPTO Green Paper Roundtable at Vanderbilt Law School – May 21, 2014

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A friend suggested I write a short account of the events at the Copyright Green Paper Roundtable Workshop sponsored by the United States Patent and Trademark Office and the Department of Commerce Internet Policy Task Force held at the Vanderbilt University Law School on May 21, 2014.  It was my privilege to serve on the three (3) roundtables that day:

Statutory Damages

The First Sale Doctrine in the Digital Environment

The Legal Framework for the Creation of Remixes

Each of the panels was followed by contribution from observers at the event and online.

Many of the panelists seemed to agree that the statutory damages for copyright infringement are too high.  The $150,000 per willful infringement screams of excess.  When penalties for copyright infringement are higher and more severe than what seem to be more serious crimes – domestic violence, abandoning a family, abuse and cruelty to animals to name a few – the public loses support and respect for copyright law.

Many of us agree that a small claims copyright court could be an improvement over the present expensive and time-protracted federal court situation.  If copyright infringement actions didn’t take so long, they wouldn’t cost so much and those who wish relief from the court would be more likely to pursue actions if the cost and time period was not as extensive.  (I’ve been in several cases that took more than 6 years – I am in Year 9 of one now.)

One songwriter expressed a strong desire to sue individuals who have downloaded his songs.  That, rather than the plight of those who are accused of infringing the copyright of an individual song by means of a new composition, was of more concern to one person on one panel.

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 Compulsory License to

Sample Master Recordings

An idea I brought up seemed to get a lot of attention.  It’s an idea I developed back in 2001 and first spoke about in 2002 at the first-ever Pop Conference at the Experience Music Project Museum in Seattle.  I thought that a Compulsory License to Sample Master Recordings was a very good idea.  And because back in those quaint antiquated early days of the 21st century it was becoming obvious that the public was technologically empowered to become more than simple, passive consumers of music and could with great ease, modify any music, video or work of authorship that was floating around the Internet.  And it seemed that nearly all music and video from everywhere and anytime was becoming available.

A Compulsory License to Sample Master Recordings is a long overdue and obvious idea.  A fair, respectful and business-happy aspect of this license would be that a recording MUST be at least ten (10) years old.  That way, the original recording has had ample time to be sold in its original form, followed by the inevitable decline/stop sales of the original recording.  A new version will draw attention to the original version, the public benefits from having more art (or more recordings if we do not want to be complimentary) and options, and money will be generated from the rebirth of a 10 year old recording.

Why is this particular compulsory license a good idea?

1.  People are going to re-author/mess with existing music anyway.  Sometimes for fun, sometimes for ridicule (parody), sometimes to make fun of something else (satire), sometimes to escape boredom, something to do while the flight is on its final approach to landing, sometimes to do something that will keep them off the streets and out of gangs, etc.

2.  It is impossible in a free society to stop people from expressing themselves by re-expressing ideas as well as specific expression that surrounds us.  Computers, one of the most ubiquitous and simple-to-use instruments of expression, come in all sizes and shapes, but regardless their speed and size are designed to copy.  Computers make copying expression – whether it is one’s own or someone else’s expression – perfectly simple.

3.  Sampling is an old and venerable practice that dates back centuries and is common in many cultures, styles and genres of music from many locations globally.  Of course I am using the term “sampling” to include non-electronic/non-silicon based means to use preexisting expression that one did not author but wishes to re-alter and include in new expression. If Palestrina, Josquin, Monteverdi, Vivaldi, Bach, Haydn, Mozart, Beethoven, Berlioz and others had had electricity, I believe they would have used it and associated technologies much as they used the best technologies of their times to compose.  If they could have sampled, they would have sampled.  Instead they simply copied, stole, ripped off, borrowed, quoted, paraphrased, paid respect and reverence to and venerated other composers who were their antecedents as well as contemporaries.  And always without consultation of preeminent forensic musicologists and attorneys.

4.  If this kind of creative or unauthorized behavior in the 21st century cannot be stopped, it could be monetized and legalized.  The creators of the new work could be required/mandated to pay for each version of the new work that is sold, just as the enormous BIG U. S. FEDERAL GOVERNMENT law mandates that when a songwriter has had her song recorded, anyone is free to record that same song provided the songwriter is paid.  If FAMOUS SONGWRITER’s EGO is so large that s/he only wants her/his version to exist, then s/he better have been born outside the United States in a country that shows more respect for the songwriter and will not anyone else record her/his song, if s/he so desires.  The United States of America would rather offend the songwriter and modify one of the exclusive rights given than deprive the American public of numerous (dozens/hundreds/thousands) versions of her song.  (Actually, there is an already hard-to-believe-and-rarely-used provision in the Copyright Law of the United States that is meant to assure that any re-recording of  an author’s work is to be done nicely and not change the “fundamental character” of the original work.)

Taking away a right from creators, like I am proposing above, is nothing new.  Our Big Federal Government takes away our rights as authors/creators.  It even does so in the Copyright Law of The United States.   Section 106 gives 6 exclusive rights but then Sections 107 and others modify some of those rights so as to benefit society.

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I’ve heard complaints from smart, well-intentioned songwriters and lawyers who bemoan the fact that this recorded music needs to be PROTECTED.  That the artist did not intend for this kind of expression.  But….

We do not have control of ideas and expression once they are released.  Editorial writers get slammed, authors get lampooned, musicians, actors, politicians, sports stars and celebrities get parodied, slammed and lampooned, etc.  This is what happens and fortunately in a free society, this can’t be stopped.  Far more often, however, writers get praised, elevated and worshipped as they are hailed as gifted, fearless, passionate, a singular voice for their generation,  etc.

A very good thing for these artists who are being parodied, slammed, belitted, etc. is that they already have the right to have their best version of their song/film published to the world (or where they want) with the support and backing of the very large United States federal government.  The artist has already released her/his best version and that version will live on no mater what subsequent versions are released.  Original artists are even free to re-record their song so as to acquire another copyright and/or re-imagine their new version.  Igor Stravinsky did this to take advantage of publishing and financial benefits that would stem from such actions.  And so too did The Beatles, The Beach Boys and all of those who re-release new versions of songs/compositions/works of authorship, greatest hits compilations and more.

I will delve into the specifics of my proposal for a Compulsory License to Sample Master Recording in another post but for now the appeal of hiking at Radnor Lake in Nashville, Tennessee (3 or 4 miles from my home) beckons.  Loudly.

Happy Sunday, June 1, 2014

 

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Blind Lemon Jefferson – The Big Bang Of Blues

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This is my 100th post, the actual transition from a 2-digit to 3-digit size collection of my musings onto the Inter-Tubes and towards a 4-digit size collection that will complete this part of my manifest destiny.

In a previous post (February 23, 2014), Albert King’s Searching For A Woman  (1961) was traced to Carl Perkins’ Matchbox  (1956) to Leadbelly’s Packin’ Trunk  (1935) to Blind Lemon Jefferson’s Match Box Blues  (1927).

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Another famous blues song, That’s All Right (sometimes known as “That’s Alright, Mama” or “That’s All Right, Mama”) can also be traced back from its best known version to earlier versions of that song.

In 1954, Elvis Presley recorded Arthur Crudup’s “That’s All Right.”

Elvis Presley – That’s All Right (1954)

Arthur “Big Boy” Crudup – That’s All Right (1946).

Elvis in That’s All Right sings Crudup’s lyric nearly exactly.  From 0.10 – 0.30:

Well that’s all right, mama, that’s all right for you, that’s all right mama, just any way you do that’s all right, that’s all right, that’s all right now mama any way you do…”

Arthur “Big Boy” Crudup –  That’s All Right Mama (1946.)  From 0.16 – 0.37:

“Well now that’s all right mama, that’s all right for you, that’s all right now mama any way you do but that’s all right, that’s all right, that’s all right now mama any way you do..”

Big Bill Broonzy – It’s A Lowdown Dirty Shame (1942).  Big Bill Broonzy sings of his love for a no-good married woman.  From 1.30 – 1.53:

“My baby, baby that’s alright with you, ooh baby that’s alright with you, baby that’s alright baby I mean that what you do…”

Blind Lemon Jefferson – That Black Snake Moan (1926).  From 1.33 – 1.55:

“Mama, that’s all right, mama that’s all right for you, Mama, that’s all right, mama that’s all right for you, Say baby that’s all right, most any old way you do…”

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A variant of the phrase, “that’s all right, mama, that’s all right for you, that’s all right mama, any way you do,” can be traced to Blind Lemon Jefferson.

Was sole authorship of the lyric “that’s all right, mama, that’s all right for you, that’s all right mama, any way you do,” important?

Is the determination of authorship of the lyric important now?

Is this lyric, or a particular version/variant of it, under copyright or in the public domain?

Can anyone use a particular portion/variant of it if the original is in the public domain?

Would use of the short, “that’s all right, mama,” be permissible under any circumstances?

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Blind Lemon Jefferson might be the Big Bang of Blues.

Carl Perkins’ Matchbox (1956) can be traced to Blind Lemon Jefferson’s Match Box Blues  (1927).

Elvis Presley’s That’s All Right (1954) can be traced to Blind Lemon Jefferson – That Black Snake Moan (1926).

There are other songs that can be traced to Blind Lemon Jefferson who in turn learned many songs from his contemporaries and those who came before him.  Authorship, sole authorship and copyright were not relevant to many practitioners of many styles of music.

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Names Of Songs Used As Names Of Bands – Can’t Think Of A Name For Your Band, Copy One

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Even though many do not believe this and suffer the fear and trepidation over the subject of copyright and copyright protection, it is LEGAL and COMMON to copy a name and use it as another name.  In fact, copyright does NOT protect names, titles, or short phrases or expressions.

It is common to copy MOVIE titles and use them as titles of television episodes.  I addressed this in a discussion of names of movies used as names of Dexter episodes.

It is common to copy SONG titles and use them as titles of television episodes.  I addressed this in a discussion of names of songs used as names of Dexter episodes.

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These could be considered examples of referencing – a title has been referenced by its use as another title.  These could be considered examples of copying – a title has been copied and used as another title.

Listed below are some of the categories and specific names that are NOT copyright protected:

Names of businesses – Comcast, Xfinity, Dupont, Monsanto, Apple, Samsung, Honda, L.L. Bean, etc.

Names of organizations – AFL-CIO, Major League Baseball, Electronic Frontier Foundation, the Boston Red Sox, etc.

Names of performing groups –  Stevie Wonder, The Beatles, Broken Bells, Bob Marley, Arctic Monkeys, Daft Punk, Neil Young, etc.

Names of title of works – Alien, Animal House, Citizen Kane, Things Fall Apart, Pride and Prejudice, Life of Pi, Take Five, Ring Of Fire, A Hard Day’s Night, etc.

Advertising slogans – Hey Mikey…He Likes It; Don’t Leave Home Without It; Got Milk; A Diamond Is Forever; Plop Plop Fizz Fizz, etc.

List of ingredients – butter, eggs, flour, milk, salt, baking powder, mild cheddar cheese, frozen chopped spinach, chopped onion and salt

Recipe –

4 Tbsp  butter

3 eggs

1 c flour

1 c milk

1 tsp salt

1 tsp baking powder

1 pound mild cheddar,  grated

2 packages frozen chopped spinach  (thawed and drained)

1 Tbsp chopped onion  (optional)

seasoned salt  (optional)

The documentation – Circular 34 – from the U. S. Copyright Office describing this lack of copyright protection is found here and the first link of this sentence.

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These are examples of referencing – a title has been referenced by its use as another title.  These could be considered examples of copying – a title has been copied and used as another title.

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The titles of the following thirteen (13) songs did NOT sacrifice their lives for (but did spawn) second lives as names of bands.  Re-using a name is respectable, common, copyright-legal and in keeping with the traditions of many societies.

THE SONGS and THE BANDS

1.  Beatles “Hello Goodbye” (1967) was used for band name, Hello Goodbye.

2.  Black Sabbath “After Forever” (1971) was used for band name, After Forever.

3.  Bonzo Dog Doo-Dah Band “Death Cab For Cutie” (1967) was used for band name, Death Cab For Cutie.

4.  Dave Brubeck “Take Five” (1959) was used for band name, Take 6.

5.  Bob Dylan “Ballad Of Frankie Lee And Judas Priest” (1967) was used for band name, Judas Priest.

6.  Inside Out “Rage Against The Machine” (1991) was used for band name, Rage Against The Machine.

7.  Tommie Johnson “Canned Heat Blues” (1928) was used for band name, Canned Heat.

8.  New Edition “Boys To Men” (1988) was used for band name, Boyz II Men.

9.  Queen “Radio Ga Ga” (1984) was used for artist name, Lady Gaga.

10.  Steely Dan “Deacon Blues” (1977) was used for artist name, Deacon Blue.

11.  Talking Heads “Radio Head” (1986) was used for band name, Radiohead.

12.  Talking Heads “The Big Country” (1978) was used for band name, Big Country.

13.  Muddy Waters “Rolling Stone” (1950) was used for band name, The Rolling Stones.

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The moral of the story – the tongue-in-cheek humorous moral of the story?  If you’re stuck coming up with a name for your band, song, film, poem, novel, photograph or sculpture, you will probably not get into copyright trouble by naming your work of authorship after someone else’s work of authorship.

If you can’t think, copy someone who can.

If the name was good then, it might be good now.

If you can’t create, copy.

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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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Dexter Not Only Murders, He Steals Film Titles

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Giving Zealous Publishers Ample Reason To Live:  I Sue Therefore I Am

Referencing FILM Titles in Dexter

Dexter Not Only Murders, He Steals Intellectual Property – Part 2

Dexter – Murderer & Larcenist Of Film Titles

Dexter, Piracy & Film (Titles)

Dexter, Piracy & Film – Publisher Perils

Dexter, Piracy & Film (Titles):  I Sue Therefore I Am

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This is my second blog post about DEXTER.  In the first I explored how many episodes of DEXTER were named after song lyrics and/or song titles.  In this post, I will identify episodes named after films.

The Showtime original series, DEXTER, lasted for eight (8) seasons – each season featured twelve (12) episodes.

Throughout DEXTER, I was surprised that so many titles of episodes were references to songs, lyrics or movies.  I feel strongly that creators in contemporary cultures should feel free to acknowledge, borrow, reference, copy and transform preexisting material – in these examples, words that constitute titles.  In my opinion, the titles of episodes in DEXTER that have been referenced should NOT lead to any type of legal problem or copyright infringement (although I have been a part of copyright infringement actions brought over as trivial and ridiculous similarities as these potential issues below from DEXTER).

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F I L M S   (and  Dexter)

Many episodes of DEXTER are titled after titles of films.  I’ll repeat the accusatory verbs that could be hurled at the copyright owners of DEXTER by each of the potential plaintiffs below.  While to some, referencing a movie title is not a reference/cultural reference/cultural signifier as much as it is an outrageous theft of their intellectual property.  There are many who have sued over four (4), three (3) or even two (2) words that have been copied/stolen/referenced/plundered from another source by cutthroat pirates.

To repeat the accusations from a previous post, only this time with respect to movie titles:

DEXTER references film titles

DEXTER copies film titles

DEXTER steals film titles

DEXTER misappropriates film titles

DEXTER appropriates film titles

DEXTER plunders film titles

DEXTER rips off  film titles

DEXTER thieves film titles

(I use the word, “thieves,” as a verb above, humorously, as I know “thieves” is NOT a verb.)

“Referencing” film titles is the most appropriate verb above.

What follows is my take on eleven (11) DEXTER episodes that reference movie titles.

1.

DEXTER – Season 1 Episode 12 –  Born Free.   “Born Free” was a successful 1966 British movie filmed in Kenya.  Its eponymous theme song was also famous and can be heard below.

Born Free  (IMDB)  (1966)

Born Free  (Wikipedia)

Born Free (Trailer)

Born Free  (Theme song sung by Andy Williams, with a frozen, awkwardly and uncomfortably smiling picture of Michael C. Hall (“Dexter Morgan” from DEXTER)

Many would sue for copyright infringement because two (2) words are the same, and the title of this film.

2.

DEXTER – Season 2 Episode 2 –  Waiting To Exhale.  

Waiting To Exhale  (IMDB)  (1995)

Waiting To Exhale  (Wikipedia)

Waiting To Exhale  (Trailer)

Many would sue for copyright infringement because all three (3) words are the same, and the title of this film.

3.

DEXTER – Season 2 Episode 3 – An Inconvenient Lie. 

The film, An Inconvenient Truth (2006), becomes the Dexter episode, An Inconvenient Lie.

An Inconvenient Truth  (IMDB)  (2006)

An Inconvenient Truth  (Wikipedia)

An Inconvenient Truth  (Trailer)

Many would sue for copyright infringement because two (2) of the three (3) words are the same, and the title of this film.

4.

DEXTER – Season 2 Episode 6 –  Dex, Lies & Videotape.  

The film, Sex, Lies & Videotape (1989), becomes the Dexter episode, Dex, Lies & Videotape.

Sex, Lies & Videotape  (IMDB)  (1989)

Sex, Lies & Videotape  (Wikipedia)

Sex, Lies & Videotape (trailer)

Many would sue for copyright infringement because two (2) words are the same (and the 3rd word is only letter different), and the title of this film.

5.

DEXTER – Season 2 Episode 10  –  There’s Something About Harry

The film, There’s Something About Mary  (1998), becomes the Dexter episode, There’s Something About Harry.

There’s Something About Mary  (IMDB)  (1998)

There’s Something About Mary  (Wikipedia)

There’s Something About Mary  (Trailer)

Many would sue for copyright infringement because three (3) words are the same (and the 4th word is only one letter different), and the title of this film.

6.

DEXTER – Season 3 Episode 9  –  About Last Night. 

About Last Night  (IMDB)  (1986)

About Last Night  (Wikipedia)

About Last Night  (Trailer)

Many would sue for copyright infringement because the three (3) words are the same, and the title of this film.

7.

DEXTER – Season 4 Episode 5 – Dirty Harry. 

Dirty Harry is the first a series of five (5) films based on San Francisco Police Inspector “Dirty” Harry Callahan, played by Clint Eastwood.  The first of these films, Dirty Harry, dates from 1971 – the fifth, The Dead Pool, from 1988.

From the 1971 trailer: 

“This is about a movie about a couple of killers.  Harry Callahan and a homicidal maniac.  The one with a badge is Harry.”

Dirty Harry  (IMDB)  (1971)

Dirty Harry  (Wikipedia)

Dirty Harry  (trailer)

When it comes to DEXTER, a hammer can be an effective killing weapon, not just a metaphorical hammer that bludgeons one’s competitors (think Apple, Samsung and other litigating bodies) but the REAL thing  –  the means by which one human murders another human.

Many would sue for copyright infringement because two (2) words are the same, and the title of this film.  The potential plaintiff could even more enthusiastically claim that “all two (2) words are the same.”

8.

DEXTER – Season 5 Episode 4 – Beauty & The Beast.

There have been at least seven (7) Beauty & The Beast films from 1946-2003.  The most successful was the 1991 animated Walt Disney version.

Beauty & The Beast  (IMDB)  (1991)

Beauty & The Beast  (Wikipedia)

Beauty & The Beast  (Trailer)

Many would sue for copyright infringement because all four (4) words are the same, and the title of this film.

9.

DEXTER – Season 6 Episode 3 – Smokey & The Bandit.

Smokey & The Bandit  (IMDB)  (1977)

Smokey & The Bandit  (Wikipedia) 

Smokey & The Bandit  (Trailer)

Many would sue for copyright infringement because all four (4) words are the same, and the title of this film.

10.

DEXTER – Season 7 Episode 6 – Do The Wrong Thing.

The film, Do The Right Thing (1989), becomes the Dexter episode, Do The Wrong Thing.

Do The Right Thing  (IMDB)  (1989)

Do The Right Thing  (Wikipedia)

Do The Right Thing  (Trailer)

Many would sue for copyright infringement because three (3) of the four (4) words are the same, and the title of this film.  Furthermore, “The Wrong Thing” could be a parody of “The Right Thing,” and many potential plaintiffs do not like being subjected to parody and ridicule.

11.

DEXTER – Season 8 Episode 3 – What’s Eating Dexter Morgan?

The film, What’s Eating Gilbert Grape  (1993), becomes the Dexter episode, What’s Eating Dexter Morgan?

What’s Eating Gilbert Grape?  (IMDB)  (1993)

What’s Eating Gilbert Grape?  (Wikipedia)

What’s Eating Gilbert Grape?  (Trailer)

Many would sue for copyright infringement because two (2) of the four (4) words are the same, and the title of this film.

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If this post seemed as if I have experience in this area, a penchant and a strong point of view, it is because I HAVE experience in this area with foolish lawsuits over trivial unprotect-ible (able) material – as few as two (2) or three (3) words in common between works of authorship – as well as a penchant and a strong point of view.

I will continue to explore how our society views referenced material from works of authorship, as well as how music and the arts intersect with law, business, technology and communication.  As always I welcome your input.

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Dexter Not Only Murders, He Steals Intellectual Property – Part 1

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Referencing Song Titles in Dexter

Dexter Not Only Murders, He Steals Intellectual Property (“IP” to its friends) – Part 1

Everything, Everywhere, Anytime, Anyway

Publishers Might Not Mind Murder but Theft Of Intellectual Property?  That Should Lead To Murder.  (Theft of IP – now we’re talking real crime!)

I am very new to the great Showtime original series, DEXTER.  I “cut the cord,” got Netflix and am now a proud Netflix sheep/minion who watches television based to a large degree on what’s available on Netflix.

I was attracted to Netflix because I loved the nature of the Netflix beast  –  for a reasonable monthly fee, we could watch/ingest anything and everything we wanted, when, where and how we wanted  – via 55 inch television, 27 inch iMac, iPad with or without retina display, iPhone, Google Glass or wrist watch, although those latter two are not widely available on Earth as of late December 2013.  But Netflix is part of what’s right about my intellectual property (IP) demands for life in the 21st century.  My demands are fourfold:

  1. E V E R Y T H I N G
  2. E V E R Y W H E R E
  3. A N Y T I M E
  4. A N Y W A Y

Netflix does not provide EVERYTHING – every piece of intellectual property (IP) – but it does provide a reasonable amount of IP/visual/audio programming aka works of authorship.

Netflix does very well at fulfilling the EVERYWHERE of my demand at least in that my EVERYWHERE demand is limited to perceiving Netflix everywhere in the United States.

Netflix is nearly perfect at fulfilling the ANYTIME.  If Netflix has it, I can view it at ANYTIME.  One of the problems, however, is that some of their streamed IP/works of authorship that are available have an artificially-imposed limited shelf life.  Many Netflix movies, for example, are scheduled to die/evaporate/shrivel up on January 1, 2014.  There are probably typical business and licensing reasons for the shriveling/evaporation/death-ing and the reasons for these non-essential, human-ordained killings are likely to make sense to Netflix’ shareholders, but in my role as demanding and don’t-tell-me-no customer, I don’t care.  It is the 21st century and those excuses need to be as obsolete as premature death of something that needn’t die.  If Netflix or any other company will not give the customer what s/he wants, someone else will or another avenue, or four or five avenues to that IP, will open.

Netflix is doing very well with respect to ANYWAY as Netflix makes their content available across many platforms.  I have blithely and propitiously watched Netflix programming on my

55 inch

27 inch

13 inch

9.7 inch

4 inch

devices.

(The numbers above correspond respectively to the following gadgets in this room:  my JVC TV, iMac, MacBook Pro, iPad 5, iPhone 5.)

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The Showtime original series, DEXTER, lasted for eight (8) seasons – each season featured twelve (12) episodes.

I was immediately intrigued by the series because of its extremely original setting and theme – a blood splatter analyst for the Miami Police Department, Dexter Morgan, a hard working, principled but troubled protagonist who always operates with a “dark passenger” by his side (Dexter’s evil inner being).  In most episodes, Dexter acted as a vigilante who would capture bad people who seemed guilty of one or more murders (or child abuse, etc.).  Often these seemingly guilty murderers had been found not guilty for what is commonly known in popular society/popular media (not by lawyers!) as “technicalities” – evidence was obtained illegally, the search warrant contained a misspelling, etc.

During the first season, I was amused by the titles of episodes especially because many were references to songs, lyrics or movies.  I feel strongly that creators in contemporary cultures should feel free to acknowledge, borrow, reference, copy and transform preexisting material – in these examples, lyrics or text.  The titles of episodes in DEXTER that have been referenced do not constitute any type of legal problem.  The specifics of copyright/intellectual property law, with respect to referencing of titles, need not and will not be addressed in this post.

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S O N G S   (and  Dexter)

Many episodes of DEXTER are titled after titles and/or lyrics from popular music songs.  Stated a few other ways:

DEXTER references song titles

DEXTER copies song titles

DEXTER steals song titles

DEXTER misappropriates song titles

DEXTER appropriates song titles

DEXTER plunders song titles

DEXTER rips off song titles

DEXTER thieves song titles

(I use the word, “thieves,” as a verb above, humorously, knowing that “thieves” is NOT a verb.)

“Referencing” song titles is the most appropriate verb above.

What follows is my take on DEXTER episodes that reference song titles.

1.

DEXTER – Season 1 Episode 4 –  Let’s Give The Boy A Hand.   “Let’s give the boy a hand” was a lyric/phrase from the 1984 song, “Let’s Hear It For The Boy” recorded by Deniece Williams.

Deniece Williams  –  Let’s Hear It For The Boy  (1984)

Many would sue for copyright infringement because all six (6) words of the Dexter title are the same as the lyric of the song.

Many would sue for copyright infringement because two (2) of the three (3) words are the same, and the title of this film.

2.

DEXTER – Season 1 Episode 5 –  Love American Style.  “Love American Style” was a television show that aired from 1969-1974.

The Love American Style theme song  (1969)

Many would sue for copyright infringement because all three (3) words of the Dexter episode are the same as the title of the song (and television show).

3.

DEXTER – Season 1 Episode 6 – Return To Sender.   “Return To Sender” was a 1962 Elvis Presley hit song.

Elvis Presley  –  Return To Sender  (1962)

“…(using a forever stamp), I gave a letter to the postman, he put it in his sack, bright and early next morning he brought my letter back…”

Many would sue for copyright infringement because all three (3) words of the Dexter episode are the same as the title of the song.

4.

DEXTER – Season 3 Episode 3 –  The Lion Sleeps Tonight.  The long, rich and complex history of  “The Lion Sleeps Tonight” is discussed in the Wikipedia entry.

Well-known versions of “The Lion Sleeps Tonight” include:

The Tokens  –  The Lion Sleeps Tonight  (1961)

Robert John  –  The Lion Sleeps Tonight  (1972)

They Might Be Giants  –  The Guitar (The Lion Sleeps Tonight)  (1992)

Many would sue for copyright infringement because all four (4) words of the Dexter episode are the same as the title of the song.

5.

DEXTER – Season 3 Episode 10  –  Go Your Own Way.  “Go Your Own Way” is likely in reference/deference to the Fleetwood Mac song about the breakup of a romantic couple as this Dexter episode is about the pending breakup of “Dexter Morgan” and “Miguel Prado,” Dexter’s brief murder accomplice, in this pivotal DEXTER episode.

Fleetwood Mac  –  Go Your Own Way  (1976)

Many would sue for copyright infringement because all four (4) words of the Dexter episode are the same as the title of the song.

6.

DEXTER – Season 4 Episode 3  –  Blinded By The Light. 

Manfred Mann  –  Blinded By The Light  (1976)

Bruce Springsteen  –  Blinded By The Light  (1973)

“Blinded By The Light” was written and recorded initially by Bruce Springsteen.  Manfred Mann’s cover of Blinded By The Light was more commercially successful, as well as an example of pretentious art-rock, for which you can thank Manfred Mann or not.)

Many would sue for copyright infringement because all four (4) words of the Dexter episode are the same as the title of the song.

7.

DEXTER – Season 4 Episode 6 – If I Had A Hammer.  “If I Had A Hammer” was written in 1949  by the great American folksinger/activist/humanist Pete Seeger.  Below are two (2) famous versions – the Peter, Paul & Mary 1963 live performance at the Newport Folk Festival, and the original 1950 recording by Pete Seeger & The Weavers:

Pete Seeger/The Weavers  –  If I Had A Hammer (1950)

Peter, Paul & Mary  –  If I Had A Hammer  (1963)

Many would sue for copyright infringement because all five (5) words of the Dexter episode are the same as the title of the song.

When it comes to DEXTER, a hammer can be an effective killing weapon, not just a metaphorical hammer that bludgeons one’s competitors (think Apple, Samsung and other litigating bodies) but the REAL thing  –  the means by which one human murders another human.

8.

DEXTER – Season 5 Episode 9 – Teenage Wasteland.  “Teenage Wasteland” refers to the 1971 song by The Who entitled, “Baba O’Riley,” with its chorus phrase, “it’s only teenage wasteland.”

The Who  –  Baba O’Riley  (1971)

Many would sue for copyright infringement because both words of the Dexter episode are the same as the lyrics of Baba O’Riley.

9.

DEXTER – Season 6 Episode 5 – The Angel Of Death.  “The Angel Of Death,” is most likely a reference to the famous Hank Williams song.

Hank Williams  –  Angel Of Death  (posthumously released in 1954)

Many would sue for copyright infringement because all four (4) words of the Dexter episode are the same as the title of the song.

10.

DEXTER – Season 7 Episode 9 – Helter Skelter.

“Helter Skelter” most likely refers to the 1968 Beatles song Helter Skelter from “The Beatles” better known as The White Album.

“Helter Skelter” is also the name of a carnival ride – an “amusement park ride with a slide built in a spiral around a high tower.”

In 1713, Robert Louis Stevenson wrote the poem, Helter Skelter.

Many would sue for copyright infringement because both words of the Dexter episode are the same as the title of the Beatles song.

11.

DEXTER – Season 7 Episode 11 – Do You See What I See?  “Do You See What I See?” likely refers to the 1962 Christmas song, “Do You Hear What I Hear?”

Bing Crosby  –  Do You Hear What I Hear  (1962)

Many would sue for copyright infringement because four (4) of the six (6) words of the Dexter episode are the same, and the title of this song.

12.

DEXTER – Season 8 Episode 9 – Make Your Own Kind Of Music.  “Make Your Own Kind Of Music” likely refers to the 1969 “Mama” Cass Elliot song, “Make Your Own Kind Of Music.”

“Mama” Cass Elliot  –  Make Your Own Kind Of Music  (1969)

Many would sue for copyright infringement because all six (6) words of the Dexter episode are the same as the title of the song.

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In future posts about DEXTER, I will discuss the referencing of movies, television shows and other cultural artifacts.

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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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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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