Posted on

Should Badfinger Sue XTC?

file1441263245035

The 3rd “SHOULD” post.  The 3rd “You stole my 3-4-5-8” post.

Two of my last posts have featured pairs of songs that feature the same four (4) notes –  3-4-5-8  -prominently in their choruses/hooks.  The songs from the February 27, 2014 post:

XTC’s Then She Appeared (1992)

Toby Keith – Red Solo Cup (2011)

The songs from the post before that (February 24, 2014):

Toby Keith – Red Solo Cup (2011)

Sebastian Mikael – Last Night ft. Wale (2013)

I raised the possibilities and reasons why these songs could be in litigation. I did NOT advocate that a lawsuit should happen and I did NOT take a side – my purpose was to be illustrative and solicit responses.  I heard “Last Night” by Sebastian Mikael for the first time as I was driving home from the airport in Nashville Sunday night (February 23, 2014) and couldn’t help but notice the 3-4-5-8’s jumping out of the car radio.  That led to an investigation of the 3-4-5-8 melody as well as the music of Sebastian Mikael, Toby Keith, XTC and now Badfinger.

_______________________________________________________________________

Today I ask a related question and what would be a precedent to the XTC v. Toby Keith case which was a precedent for the Toby Keith v. Sebastian Mikael possibility  – namely, should Badfinger sue XTC for stealing “Badfinger’s” 3-4-5-8?

Badfinger’s Come And Get It (1970)

XTC’s Then She Appeared (1992)

The 3-4-5-8 occurs frequently and prominently in Badfinger’s Come And Get It although slightly modified with a repeated “5” and “8”  –   3-4-5-5-8-8-8.  (As the song progresses, the  3-4-5-8 that usually features the lyrics “if you want it here it is” and “if you want it anytime” changes from 3-4-5-8 to 8-6-5-5 and other non-3-4-5-8 melodies.)

Badfinger’s Come And Get It (1970, U.S. release)

0.05  if you want it here it is

0.15  if you want it any time

0.38  if you want it here it is

0.51  if you want it here it is

1.02  if you want it any time

XTC’s  Then She Appeared (1992) is a song written and recorded almost twenty (20) years before Toby Keith’s Red Solo Cup (2011) but more than twenty (20) AFTER Badfinger’s Come And Get It (1970).  It also prominently features the 3-4-5-8 melody.  The 3-4-5-8 is the opening vocal and the hook throughout the entire song.

The thirteen (13) examples of 3-4-5-8 in Then She Appeared, complete with associated lyrics, are heard here:

XTC – Then She Appeared  (1992)

0.22  then she appeared

0.31  then she appeared

0.50  cherubim cheered

0.59  then she appeared

1.08  then she appeared

1.26  know it sounds weird

2.02  then she appeared

2.11  then she appeared

2.30  all Edward leared

3.06  then she appeared

3.15  then she appeared

3.24  then she appeared

3.33  then she appeared

_______________________________________________________________________

Are four (4) prominent and clearly-heard notes in common between songs reason enough to instigate a copyright infringement lawsuit?  As mentioned before, one answer could be found in comparing this hypothetical (or not) Badfinger v. XTC music copyright infringement case to the actual Marvin Gaye v. Robin Thicke copyright infringement case in which NO notes were in common between the songs.

If one can sue when the similarity is only STYLE and NOT melody, surely one is even more likely to sue when the similarity is MELODY and not STYLE.

(Do any/all the tags in this post have any bearing on the merit of this potential copyright infringement lawsuit?)

As always, I welcome your comments.

Posted on

Should XTC Sue Toby Keith?

file9991341804669

Another “SHOULD” post.  Another “You stole my 3-4-5-8” post.

My last post was about two (2) songs that both featured the same four (4) notes –  3-4-5-8  – prominently in their choruses/hooks.  The songs were

Toby Keith – Red Solo Cup (2011)

Sebastian Mikael – Last Night ft. Wale (2013)

I raised the possibility and reasons why these songs could be in litigation. I did NOT take a side – my purpose was to be illustrative and solicit responses.  I heard “Last Night” by Sebastian Mikael for the first time as I was driving home from the airport in Nashville Sunday night (February 23, 2014) and couldn’t help but notice the 3-4-5-8’s jumping out of the car radio.

_______________________________________________________________________

Today I ask a related question and what would be a precedent to the Toby Keith v. Sebastian Mikael possibility  – namely, should XTC sue Toby Keith for stealing their 3-4-5-8?

XTC  Then She Appeared (1992)

Toby Keith  Red Solo Cup (2011)

XTC’s Then She Appeared (1992) is a song written and recorded almost twenty (20) years before Toby Keith’s Red Solo Cup (2011).  It also prominently features the 3-4-5-8 melody.  The 3-4-5-8 is the opening vocal and hook throughout the entire song.

The thirteen (13) examples of 3-4-5-8 in Then She Appeared, complete with associated lyrics, are heard here:

XTC – Then She Appeared  (1992)

0.22  then she appeared

0.31  then she appeared

0.50  cherubim cheered

0.59  then she appeared

1.08  then she appeared

1.26  know it sounds weird

2.02  then she appeared

2.11  then she appeared

2.30  all Edward Lear-ed

3.06  then she appeared

3.15  then she appeared

3.24  then she appeared

3.33  then she appeared

The sixteen (16) statements of 3-4-5-8 in Toby Keith’s Red Solo Cup (2011):

0.32  red solo cup

0.35  I fill you up

0.44  red solo cup

0.47  I lift you up

1.19  red solo cup

1.22  I fill you up

1.31  red solo cup

1.33  I lift you up

2.21  red solo cup

2.24  I fill you up

2.32  red solo cup

2.35  I lift you up

2.44  red solo cup

2.47  I fill you up

2.56  red solo cup

2.59  I lift you up

_______________________________________________________________________

Are four (4) prominent and clearly-heard notes in common between songs reason enough to instigate a copyright infringement lawsuit?  One answer could be found in comparing this hypothetical (or not) XTC v. Toby Keith music copyright infringement case to the actual Marvin Gaye v. Robin Thicke copyright infringement case in which NO notes were in common between the songs.

If one can sue when the similarity is only STYLE and NOT melody, surely one is even more likely to sue when the similarity is MELODY and not STYLE.

(Do any/all the tags in this post have any bearing on the merit of this potential copyright infringement lawsuit?)

As always, I welcome your comments.

Posted on

Should Toby Keith Sue Sebastian Mikael?

file7001249784548

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

Toby Keith – Red Solo Cup (2011)

Sebastian Mikael – Last Night ft. Wale (2013)

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

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

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

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

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

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

0.32  red solo cup

0.35  I fill you up

0.44  red solo cup

0.47  I lift you up

1.19  red solo cup

1.22  I fill you up

1.31  red solo cup

1.33  I lift you up

2.21  red solo cup

2.24  I fill you up

2.32  red solo cup

2.35  I lift you up

2.44  red solo cup

2.47  I fill you up

2.56  red solo cup

2.59  I lift you up

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

0.46  four shots ago

1.54  four shots ago

2.37  four shots ago

3.40  four shots ago 

_______________________________________________________________________

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

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

3-4-5-8 is the hook.

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

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

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

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

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

_______________________________________________________________________

Are four (4) prominent and clearly-heard notes in common between songs reason enough to instigate a copyright infringement lawsuit?  One answer could be found in comparing this hypothetical (or not) Toby Keith v. Sebastian Mikael music copyright infringement case to the actual Marvin Gaye v. Robin Thicke copyright infringement case in which NO notes were in common between the songs.

If one can sue when the similarity is only STYLE and not melody, surely one is even more likely to sue when the similarity is MELODY and not style.

(Do any/all the tags in this post have any bearing on the merit of this potential copyright infringement lawsuit?)

As always, I welcome your  comments.

Posted on

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

file0001910536921

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.

_______________________________________________________________

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.

_______________________________________________________________

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.

_______________________________________________________________

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.”

_______________________________________________________________

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:

_______________________________________________________________

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”).

_______________________________________________________________

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!

Posted on

You Stole 2% Of My Song – Now Give Me 50% Of Your Song. (That’s How We Count ‘Round Here.)

OLYMPUS DIGITAL CAMERA

1.

1.  Listen to the Black Crowes’ song:    Jealous Again

2.  Listen to Gretchen Wilson’s song:   Work Hard, Play Harder

3.  Did you hear anything similar between Jealous Again and Work Hard, Play Harder ?

4.  Verse 1, verse 2 and verse 3 of Jealous Again open with the same simple melody:  3-5-3-2-1-6.

Verse 1:  “cheat the odds that made you”   –   3-5-3-2-1-6    at 0.17 – 0.19

Verse 2:  “always drunk on Sunday”   –   3-5-3-2-1-6    at  0.50 – 0.52

Verse 3:  “never felt like smiling”   –   3-5-3-2-1-6    at  1.49 – 1.51

5.  Each statement of the short melodic phrase, 3-5-3-2-1-6, lasts more than one (1) but less than two (2) seconds.

6.  The 3-5-3-2-1-6 melody only occurs at these three (3) places in Jealous Again.  

7.   Jealous Again lasts four minutes and twenty-seven seconds.

8.  The 3-5-3-2-1-6 melody lasts for less than 6 seconds out of 267 total seconds of  Jealous Again.

9.  The 3-5-3-2-1-6 melody accounts for 2% of Jealous Again.   Two percent.

________________________________________________________________________________

2.

1.  Listen to Gretchen Wilson’s song:   Work Hard, Play Harder

2.  At 0.19, Gretchen Wilson sings “I work a double shift on Monday.”

3.  The first five (5) notes of the melody to this lyric are 3-5-3-2-1.

4.  The next note after the “1” MIGHT be “6,” or it MIGHT be another “1” or it might be an indeterminate pitch.  The 6th and final note of this short phrase is not as clear to perceive, in terms of pitch, as are the first five (5) notes of the melody.

5.  Perhaps this 3-5-3-2-1 melodic phrase with an indeterminate 6th pitch, could be called, “3-5-3-2-1-x” or “ALMOST 3-5-3-2-1-6.”

6.  If you are on the Black Crowes side, this melody is 3-5-3-2-1-6 and you want to give Gretchen Wilson “credit” for singing that last extremely short note (or ALMOST note) as “6.”

7.  If you are not on the Black Crowes side, or neutral, Gretchen Wilson’s melody is 3-5-3-2-1-x, where “x” means indeterminate.

8.  Gretchen Wilson sings 3-5-3-2-1-x at the following four (4) places in her song, with these words:

0.19  “…double shift on Monday”

0.27  “Wednesday pouring coffee”

1.12  “I don’t waste my time on”

1.20  “…pay no never mind to”

________________________________________________________________________________

3.

1.  3-5-3-2-1-6  is not the same as 3-5-3-2-1-x.

2.  The Black Crowes’ 3-5-3-2-1-6  is not the same as Gretchen Wilson’s 3-5-3-2-1-x.

3.  The Black Crowes sing the short melodic phrase, 3-5-3-2-1-6, three (3) times in their song.

4.  The sum of the Black Crowes’ 3-5-3-2-1 phrases last, at most, 6 seconds out of the 267 seconds of their song.

5.  The Black Crowes’ 3-5-3-2-1-6 statements account for 2% of their song.

________________________________________________________________________________

4.

1.  If Artist B copied a less-than-2-second phrase from Artist A (that when repeated in Artist A’song amounted to 2% of Artist A’s song), should Artist A be entitled to 50% of Artist B’s profits?

2.  Is awarding 50% of Artist B’s copyright to Artist A sufficient recompense for the copy of 2% of Artist A’s copyright?

3.  Is awarding 50% of Artist B’s copyright to Artist A excessive recompense for the copy of 2% of Artist A’s copyright?

4.  Do the Black Crowes deserve copyright protection for the less-than-2-second “3-5-3-2-1-6” melodic phrase?

5.  Were the Black Crowes the first to compose/create the less-than-2-second “3-5-3-2-1-6” melodic phrase?

6.  If they were NOT the first to compose/create the 3-5-3-2-1-6 do they own copyright in 3-5-3-2-1-6?

7.  Can one own copyright in a less-than-2-second melodic phrase?

8.  Can one own copyright in the Black Crowes’ specific  less-than-2-second melodic phrase, i.e. 3-5-3-2-1-6?

________________________________________________________________________________

The questions above can be answered.  In addition, there are many more questions to pose and answer, as well as important concepts and theories that could be considered.

________________________________________________________________________________

Posted on

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

file0002116747178

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.

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

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.

Posted on

Best Chord Ever – Part 1 – The Beatles “All I’ve Got To Do”


I have revised this post by adding many more links to recordings found on YouTube (the Beatles’ “personal pronouns period” songs), definitions from Dictionary.com and Wikipedia, and links to Amazon.com if one is interested in purchasing The Beatles’ With The Beatles or Weather Report’s  I Sing The Body Electric.

This is the rainy Tuesday morning (December 18, 2012) in Gloucester after the New York Jets self-destructed on national television last night.  It is also the 40th blog post at www.emichaelmusic.com.  One way to celebrate would be to show a video someone made of me composing at the piano.  There will be a video below that will emphasize what I want to discuss today.  The  best chord ever.  At least for today, this is the best chord ever.

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

I love chords.  I’ve often composed at a piano by playing one chord, isolating it and thinking about where the sounding pitches want to go next, and then maybe writing the new chord that resolves the pitches from the first chord.  The first chord was a commanding boss that demanded to have its way.  The second chord, in the scenario I am describing, is a slave – it has no choice but to be and do as the first chord demands.

Or repeating or rearticulating my first chord.  Maybe the first chord wants to just linger and eventually fade away.  If it was really good, maybe it’s time to repeat it.  Or maybe it’s time for a series of chords led by this great chord.  The intervals in the chord can be unfolded and turned into melody, and maybe this melody will be harmonized by this chord or subsequent transpositions of this chord.  This type of composing can lead to countless areas and new musical expression.

In this post, I’m considering a chord one only hears in one context  –  in one particular song.  Without this chord, the song wouldn’t be as good.  But this great chord doesn’t fit in its context.

Listen to the first sounds, i.e., the first chord, in this Beatles song:

Beatles – All I’ve Got To Do

The chord has no business being here.  Or in any pop song.  Could this chord be heard in jazz?  I don’t think Ornette Coleman would use this chord.  I don’t think Thelonious Monk would have either.  Cecil Taylor?  Maybe Cecil Taylor would use it.  Early Weather Report?  Yes, maybe.   I could imagine this chord/hear this chord in “Vertical Invader“ from side 2, song 1 of Weather Report’s second album, I Sing The Body Electric.   The Rolling Stones, Aerosmith, Eminem and Kanye – nope, they wouldn’t use it.  The Beatles used it.  Once and only once.  The chord is used only at the opening.  Never again in any Beatles song.  Not in outtakes, bootlegs.  Nowhere.  Damn.  Or as Miles Davis would have said, “DAY-UHM.”

So, here is one of the best chords ever.  You hear it arpeggiated at the opening.

It is solo guitar  –

no singing

no bass

no drums

no keyboards

Only guitar playing this mystical chord:

Beatles – All I’ve Got To Do

The chord consists of these five (5) notes:

 E  G#  C  F#  A

The Beatles used this most advanced, dissonant and mystical chord only once and only here on their second album.  This was during their personal pronoun period.  The early Beatles’ song titles were filled with personal pronouns –

From Me To You

She Loves Me

And I Love Her

Love Me Do

All My Loving

Please Please Me

P. S. I Love You, etc.

Their lyrics too were very simple.  So, why with all of this simplicity and direct boy-girl expression, did they use this complex  chord?  The chord does not reappear in All I’ve Got To Do, the With The Beatles album, or any subsequent Beatles song or album.

Does this chord appear anywhere else, i.e., in any songs?  I’ve never done a search for it.  I think I would be searching for a very long time for this chord.

My point of this post  –  this is a GREAT CHORD.  It’s so striking and unusual.  It adds a lot to this song even if it is only used once – actually, once in the Beatles’ lifetimes.  As a little kid when I first heard All I’ve Got To Do, I thought the chord was scary.  As I got older it became mysterious, or in Boston speak, wicked cool.  What do you think of this chord?

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

Don’t read this section  –  (jump down to the final sentence).  It is the most music theory I’ve delved into yet in these forty (40) blog posts.

I made sure to avoid naming this chord.  This chord can have a few names  –  it can be…

E 11 #5  (pronounced “E eleven sharp five”) – this is probably the most acceptable name of names.  (To be literally correct, the pitch “C” should be re-spelled as a B#, pronounced B sharp, but most non-Western Classical musicians would rather see, hear, think and speak “C” than “B#.”)

F# min 9 b5 in 3rd inversion (pronounced F sharp minor nine flat five in third inversion) – a very foolish name but accurate description.

An F# min 9 b5 in 3rd inversion would also be an F# half diminished 7 with an added Major 9, again in 3rd inversion.  Again, a foolish name but accurate description.

This chord  is also the verticalization of the upper tetrachord of the A melodic minor ascending scale functioning as a dominant in A minor with the added 3rd from its resolution to an A minor chord.  Blah blah.

In pitch-class set theory, the chord is the pitch class set, 0 2 4 5 8.  Its most compact arrangement is:  E F# G# A C, which really spells out the upper tetrachord of the A melodic minor scale with an an added natural 3 of the A minor scale.  (I hope you didn’t read this section.)

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

I want to explore other “best chords ever” in the future.  Do you have any best chords ever/favorite chords?

Posted on

¡Cubanismo! at The Exit/In, Caetano Veloso, Café Tacuba & Music of The Americas

 

 

The Americas  –  Music by Caetano Veloso, ¡Cubanismo!, Café Tacuba  –  Copyrightable Intros

When I was growing up and loving and learning geography, there were three places called “America.”  The  globes, atlases and maps were mostly but not always in agreement.  The three (3) Americas:

1.  North America

2.  Central America

3.  South America

North America had the three (3) most powerful countries of the hemisphere  –  the United States of America, Canada and Mexico.

Central America sometimes had Mexico and those smaller countries.  Other times, Central America had just those smaller countries  –  Guatemala, Belize, El Salvador, Honduras, Nicaragua, Costa Rica and Panama –  and Mexico was considered part of North America.  One of the Latin America nations (oh yeah – just what was “Latin America” – Central America?) we “imperialists” in the U. S. really noticed was Panama as every ship had to go through the Isthmus of Panama’s Panama Canal that linked the Atlantic and Pacific Ocean.

South America had Brazil (the world’s largest Portuguese-speaking country) and a lot of other countries whose official language was Spanish.  Brazil had Carmen Miranda, samba, bossa nova and carnival, and the other countries (all Spanish speaking) had coffee, tin or llamas.  (Just a bit North American-centric!)

And then there were those islands – a petite floating continent  – known as The Caribbean and even the definition of Caribbean was odd as vacationers and cruise ship lines identified Bermuda as part of the Caribbean even though Bermuda was as far north as North Carolina, a decidedly non-tropical and non-Caribbean.

In terms of U. S. federal courts, geography becomes more confusing as Puerto Rico is part of the 1st Circuit Court of Appeals.  That means Puerto Rico and its natural adjacent neighbors (I am joking) –  Massachusetts, Maine, New Hampshire, and Rhode Island (which isn’t an island)  –  are part of the same appellate court, the First Circuit.  As if this isn’t nonsensical enough, Montana and Hawaii, non-natural neighbors, are part of the 9th Circuit Court of Appeals.  (No matter how these divisions are viewed, I’ll someday teach my “Music of The Caribbean” course again and still think of the Caribbean as its own entity, and not a part of North, South or Central America.)

Perhaps it is best that in 2012 the entire hemisphere is called THE AMERICAS, mostly to make things less messy when it comes to division via land mass.

*   *   *   *   *   *   *   *

To the simple point of this post  –  three (3) great songs from The Americas (the Americas situated south of continental U.S.) that feature * copyrightable introductions. *

B R A Z I L

I know of no other career like Caetano Veloso’s  –  it is astonishing to simply look at his album covers.  Caetano Veloso’s career, artistic and musical influences and output are enormous   –  samba, Antonio Carlos Jobim, bossa nova,  torch songs, Tropicálismo, Beatles, Jimi Hendrix, Arnold Schoenberg, minimalism, musique concrete, hip hop, experimental music, filmmaker, singer, songwriter, composer, soundtrack composer, political activist, political activist expelled from country, political activist welcomed back to country, etc.

I’ve plunked one song from his more than half-century output, and only to demonstrate a copyrightable introduction.

Caetano Veloso  –  Cada Macano No Seu (Cho Chuã) is from Tropicália 2, an album that pairs two of Brazil’s musical giants  –  Gilberto Gil and Caetano Veloso.  Tropicália 2 was one the best Brazilian albums of the 1990’s.

C U B A

¡Cubanismo!  –  Ibiono Utereran   ¡Cubanismo! is the superstar band of Afro-Cuba (Afro-Cuba is my name for the island of “Cuba.”).  The best musicians of the island coming together to show others how it’s done.  I’ve been most fortunate to see ¡Cubanismo! in Boston, New York and Nashville.  Yes.  That Nashville.  Tennessee.  Music City.  ¡Cubanismo! played the famous Exit/In.  To this day, it is the best concert and musicians I’ve seen in Nashville.

Ibiono Utereran begins as if a square, dull waltz is imminent.  The “one TWO AND three” waltz figure introduced by the tres gets beaten back quickly by the rhythm section and then the loud brass.  The tres pattern is then re-understood as one of several rhythms coexisting in complexity.

This is one of those ultimate “how do I dance to this” dilemmas.

“Ibiono Utereran” is from Cubanismo’s brilliant, Reencarnacion album.  Reencarnacion needs to be on your Must-Have Cuban album list.

M E X I C O

Café Tacuba  –  Camino Y Vereda    Café Tacuba has been in existence since 1989.  Their  frequently-changing musical styles have left them with passionate fans and music critics.  (The New York Times has praised Café Tacuba more than almost any other band.)

Intros to many of Café Tacuba’s songs feature copyrightable introductions.  I chose “Camino Y Vereda” because of its fun “how do I dance to this” metric deception dilemma intro, and to introduce any reader to their vital Cuatro Caminos album.

I hope to return to Caetano Veloso, ¡Cubanismo! and Café Tacuba in the future, as well as the music of Brazil, Cuba and Mexico.

*   *   *   *   *   *   *   *

To repeat the three (3) songs:

Caetano Veloso  –  Cada Macano No Seu (Cho Chuã)

¡Cubanismo!  –  Ibiono Utereran 

Café Tacuba  –  Camino Y Vereda

Posted on

Copyrightable Introductions – Willie Nelson, The Roots, Oingo Boingo, Beach Boys, Desert Rose Band, Beatles

 

Copyrightable Introductions – Willie Nelson, The Roots, Oingo Boingo, Beach Boys, Desert Rose Band, The Beatles, Brian Eno & David Byrne

*   *   *   *   *   *   *   *   *

I hope everyone had a great weekend.  In Gloucester we had snow  –  first the small flakes, then large flakes coupled with winds in excess of 20 mph.  And it got windier and snowier as I left the beach and drove into Beverly MA.  Very nice.

Today it is 58 F and perfectly sunny but the surf temperature has dropped to 50 F.  High tide is calling me, but I’m not ready for walking in the ocean this afternoon.  I’ll need a little more time to develop enough foolhardy bravery for that!

I want to go in the opposite direction from the last two posts  –  from introductions that are not very copyrightable to those that are very copyrightable.  These are introductions that feature substantive musical expression, not the kind that is often associated with introductions.  Again, these subjects  –  copyrightable intros and uncopyrightable intros   –  came up during this blogging process.  I’m very glad they did as I now have more fun topics to explore.

*   *   *   *   *   *   *   *   *

I ended the last blog post with this statement and one not-well-known Beatles recording:

At some point soon, I really want to explore the opposite  –  COPYRIGHTABLE introductions – highly copyrightable introductions.  I’ll tease by offering a highly highly highly copyrightable introduction.  It’s by The Beatles, a band that formed in Liverpool in the 1950’s.  This was early Beatles  –  pre-Ed Sullivan Beatles  – showing off.  One of the things I think they’re saying is:

“We’re darn good.  We can play well.  Can you play this much this fast?”

Here is their earliest Highly COPYRIGHTABLE intro:

Beatles  –  Like Dreamers Do

*   *   *   *   *   *   *   *   *

For today, I add the following songs, all with fantastic introductions and all highly copyrightable.  I’d recommend immediately dancing to “Start All Over Again” and “Grey Matter,” just for the fun that will take place when the meter shifts on you.  You’ll be duped  –  I love being duped/deceived by a rhythmic/metric trick at the beginning of a song.  (Metric deception is a gigantic category in itself, one that would well fit into Highly Copyrightable intros.)

The Roots  –  You Got Me

Desert Rose Band  –  Start All Over Again

Oingo Boingo  –  Grey Matter

Beach Boys  –  When I Grow Up To Be A Man

David Byrne & Brian Eno  –  I Feel My Stuff

And I’d add Willie Nelson’s recording of “December Days” from his “Moonlight Becomes You” album.  (I can’t find the exact version on YouTube.)  This is probably the strangest and most harmonically complicated introduction to any country song.  The opening chords are:

Eb Major   D minor   B Major   A Major   F Major   Bb Major

(NOTE  –  there were no typos in those six (6) chords)

Have you ever heard these exact chords in this exact sequence anywhere?  I haven’t and won’t begin a search for them now (too many other projects are lined up for my attention).

In my next post I want to explore world music, maybe again from the point of view of introductions to songs.

 

 

Posted on

When Is A Musical Introduction Copyrightable? Katy Perry, White Zombie, The Pixies, Neil Young, Isaac Hayes

 

I really liked Frank Reynolds’ post from yesterday.  I hope he doesn’t mind but I’ve reprinted it below.  All I’ve done to change his text is italicize it and BOLD some of it:

“I believe the sandals commercial is like the Black Eyed Peas song that rips off a portion of I’ve Had The Time Of My Life. So, let’s just blame will.i.am for the whole thing.

Great questions posed Dr. H.! It’s definitely not infringement in relation to copyright, and I don’t think they owe Lennon/McCartney (okay, probably just McCartney in this case) anything other than gratitude for coming up with the cool intro idea (which isn’t a copyrightable element). I wouldn’t call it copying, but rather paying homage if they’re even aware that they did it. It’s like the tradition of incorporating other people’s ideas in the blues genre. No one knows who wrote it the first time. I remember a lecture you gave on that, and it shuts up the Zeppelin haters when I use that logic on them. Cheers E. Michael!”

*   *   *   *   *   *   *   *   *

I think an introduction can be copyrightable, i.e., worthy of copyright protection, but with respect to The Beatles, and Sandals, there is no problem.  I agree with Frank  –  from a copyright perspective, the intro of the Beatles’ “Getting Better” has not been infringed by the intro of the Sandals.com commercial.  Here are the songs again:

Sandals – Do It All Again

The Beatles – Getting Better

If we agree that there are introductions that are NOT copyrightable, i.e., do not possess enough originality to be worthy of copyright protection, does it follow that there are introductions that ARE copyrightable?  Copyrightable introductions will be worth pursuing later, but not today.

I thought I would start to listen more carefully and analyze introductions to songs to find the least and most COPYRIGHTABLE introductions, as well as the “in-between” introductions, i.e., introductions that would exhibit some copyrightable elements.  I believe that there is a sliding scale of copyright protection – that some introductions are not copyrightable as musical compositions, some slightly so, some more so, and some extremely so.  The length of the excerpt, both in terms of temporal length as well as number of attacks and/or articulations, as well as its originality would also be factors used in determining how copyright protection should be afforded an introduction.  (That last sentence also applies, of course, to music that follows the introduction.)

My quick take is that there are more introductions that ARE copyrightable than NOT copyrightable.  I need to establish a few guidelines in order to conduct my analysis and report my findings.  Let’s say that we are looking at introductions of more than a few seconds and more than a few notes/attacks/articulations.  (This can get squishy very fast, can’t it?).

I’ve also started down this road  –  1.  delving into the construction and creation of music, and 2.  how copyright is involved in, and relates to, music.  And that brings me to a line from the song, “You Made Me Love You:”

“I didn’t want to do it, I didn’t want to do it”

I am doing a few things here:

1.  I am asserting that copyright is fluid – that some things are protectible and some not, and some lie “in-between,” i.e., they exhibit some copyright worthiness.  This is driving the conversation NEAR the ballpark, but not in the ball park, of defining copyright.  [Oh no.  Not yet I won’t.]

2.  I am starting to use various words and phrases that might be identical in meaning or nearly identical.  For example – “copyrightable” might be the same as, or similar to, “worthy of copyright protection.”  “Copyright-IBLE” might be the same as “copyright-ABLE,” and so on.  But we are not yet ready for too many SYNONYMS.

To paraphrase Documentarian Marty DiBergi, “But enough of my yacking, let’s boogie…to the introductions of various songs.”  All of these introductions represent very little worthiness of copyright protection as musical compositions.  It is important to note that I am not making musical judgments as I feel these songs have great and musical introductions.  [“Musical” can be a highly complimentary adjective.]  But the copyrightability of these introductions is not analogous to their musical merit.

Here are seven (7) intros today.  Maybe we’ll do seven (7) more tomorrow.

(Again, these are intros that are NOT very copyrightable.)

The Doors  –  Back Door Man

Isaac Hayes  –  By The Time I Get To Phoenix

 Frank Black  –  Hang On To Your Ego

Katy Perry  –  Circle The Drain

Neil Young  –  Without Rings

Pixies  –  Bone Machine

White Zombie  –  Thunder Kiss ’65 

Your thoughts?