Dr. Dre Should Have Hired Me


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)


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. 


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.


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 JacksonDr. Dre and Tupac Shakur.

Fair Use and Copyright Abuse – My AIMP Talk Is SOLD OUT. Scalpers? Buehler?


I have the great honor and privilege to speak to the Association of Independent Music Publishers (AIMP) on Wednesday, September 25, 2013 at ASCAP in Nashville.  Here is the announcement and details about my presentation.  Surprisingly (to me) there are two words in CAPS that I never see used in conjunction with me:  SOLD OUT.  Fortunately this refers to the fact that there is no more room for the luncheon at ASCAP where I am speaking and NOT that I have SOLD OUT (my principles).  Or so I am going to assume.


My work as a consultant in copyright and intellectual property (IP) matters is always fun and original as very crazy things can occur when we creators create.  I get brought into some of the events surrounding potential and actual problems.  I have been and continue to be witness to brilliant decision making, as well average and poor decision making when it comes to music, IP law and money.  People do things that will make them profits and prosperous.  Some do average, ho-0hum expected things, and yet others make bad decisions that will be negative financially for more than 100 years.  (Copyrights might outlive many glaciers at the northern and southern ends of our planet.  When a 30 year-old gives up part or her copyright, it is a decision that could last for 130 years.  Assuming she will live 60 more years, her copyright will last 130 more years:  60 years alive + 70 years after her death.  And I expect that every twenty years, copyright will be extended another twenty years – the 130 year decision might become a 200 year decision.)

We have been and continue to be surrounded by IP – train and car horns blast their metal music made from metal objects, adverts are seen and heard mostly with music or sounds, radio sometimes play music (in those few radio stations when radio is not presenting the sounds of more adverts and humans speaking to and at each other, i.e., “talk radio”), the Internet, music on the Internet, televised and transmitted images (often with sounds) from mobile devices, large devices, billboards, etc.

We absorb and reflect a lot of the sounds, sights, ideas and attitudes we perceive.  We have to copy some of it as it is important that we use UNORIGINAL words in our speech, writings and music, and UNORIGINAL melodies, chords, rhythms, sounds and loudnesses in our music.  (With respect to music, I am referring to UNORIGINAL, individual (or very brief-lasting) musical components.  ORIGINAL expression usually consists of UNORIGINAL elements strung together in ORIGINAL ways.)

Problems that can happen include:

1)  What we create sounds like something else, something already created.

2)  What we create looks like something else, something already created.

3)  What we create sounds and looks like something else, something already created.

And some might say, “So What?”  And in response one might say, “So What?   You stole my song, that’s ‘So What.’  Your success is due to infringing my copyright.  You’re only successful because of my creativity, my ideas, my expression, my copyright.  (My my my….my.)  I’ll see you in court!”  (Oh, but it is never that simple.)

Two more things before I get to fair use.

1.  We STEAL (copy) ACCIDENTALLY.  Let’s be kinder – let’s say it this way.  We inadvertently copy from other sources.  How can we NOT copy from other sources when we are bombarded by external stimuli?

2.  We STEAL (copy) on purpose.  We INTEND to STEAL (copy) and we do.  We copy because we like the sound of some preexisting sound, or the sound and effectiveness of some preexisting chord, chords, phrase of a melody, phrases of text or lyrics, individual words, certain instruments (a Coke bottle has been in the music copyright infringement news lately – that ubiquitous Blurred Lines by Robin Thicke, and its imitation of Marvin Gaye’s Got To Give It Up), combinations of instruments, sounds, combinations of sounds, etc.

There is a part of the Copyright Law that acknowledges and enunciates that we can make use of an original work of authorship – “original work of authorship” that is NOT our work, and WITHOUT permission – if we have a good reason for doing so.  This part of the Copyright Law is Section 107.  It is entitled, “Limitations on exclusive rights:  Fair use:”

§ 107. “Limitations on exclusive rights:  Fair use.

Copying someone else’s expression is allowed.  Perhaps it is more accurate to state it this way:  Copying someone else’s expression is possible.  Is permissible.  Can happen.  Can happen without negative consequences.  (Fair use can mean that one has the right to hire expensive attorneys to fight back against a plaintiff’s assertion that you have infringed her copyright.  The “without negative consequences” is initially a theory –  it often takes time, money, attorneys and experts to negate the “negative consequences.”)

As to why and how one can use someone else’s creations – their original work of authorship without their permission – the authors of the Copyright Law might have been careful and diligent in listing SOME of the reasons why it would be permissible to not seek permission:

“…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…”

“The fair use of a copyrighted work…is NOT an infringement of copyright.”  (I capitalized “NOT” in that sentence from Section 107 .)


I will delve into fair use today as well as the other related subject below.  My flow today will likely go this way:

1.  The definition of “original”

2.  With respect to music and copyright, examples of Bad Lawyering/Bad Lawyers in Bad Practice (there is not a kinder way of expressing this.)

3.   What is fair use?  Examples of fair use – copying music only, words only, words and music.

4.  What is “co-authorsip?”  What is a “joint work?”  The assessment of each writer’s expression in a joint work.

5.  The Worst Music Publishing Mistake Ever Made By Famous, Wealthy Musicians

6.  My most recent work for a plaintiff

7.  “…As the world turns….As copyright becomes irrelevant…”


I will play and discuss music from these composers/creators/authors/artists.  (As you might guess, many of these will be short excerpts.)


Atomic Kitten

B. S. G.

Baby Game

Burt Bacharach

Baha Men

Barrio Boyzz

Bela Bartok


Bon Jovi

Asha Bhosle & Kishore Kumar

Jimmy Boyd

Garth Brooks

Brooks & Dunn

Circle Of Success

LL Cool J

Jonathan Coulton


Creedence Clearwater Revival

Crime Boss

Crosby, Stills, Nash & Young

Culture Club

Joe Diffie

Hilary Duff

Dr. Dre

Bob Dylan


Fatback Band

Fifty Cent


The Game

George Gershwin

Isaac Hayes

Jimi Hendrix

Faith Hill

Buddy Holly

Hootie & The Blowfish

Mary Hopkin

Marques Houston

Jefferson Airplane

Elton John

George Jones

Montell Jordan

Wiz Khalifa

King Crimson

Krayzie Bone

k.d. lang

Lil Malcolm

Little River Band




Gustav Mahler

Mary Martin

Mistah F.A.B.

Sir Mix-A-Lot



The Orioles


Pearl Jam

Scoob Rock

Snoop Dogg (Snoop Lion)

Sonic Dream Collective

Britney Spears

Naomi Striemer


James Taylor


Lil iROCC Williams

Bill Withers


9 Milli Major


Happy Autumn!  I hope you enjoy the cover photograph.

Wishing everyone a surprising and happy Wednesday.