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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1.  Everyday

2.  I’m

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

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

LMFAO sing, “Everyday I’m shuffling.”

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

HUSTLING is spelled

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

and

SHUFFLING is spelled

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

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

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

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

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

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

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

2.15 – 2.16  “everyday I’m shuffling'”

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

A reasonable person could conclude that:

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

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

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

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

I toyed with these other titles for this post:

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

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

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

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

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

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

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

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

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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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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.

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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.