Who’s tripping down the streets of the city? Robin Thicke?


In my last post, I explained some of my reasoning, analysis and conclusions about the Black Crowes’ action against Gretchen Wilson.  The Black Crowes felt that their song, Jealous Again had been infringed by Gretchen Wilson’s song, Work Hard, Play Harder.  I strongly disagreed.

Both songs have a very similar 6-note melodic phrase in common.  The first 5 notes are the same, but the 6th is different.  The Black Crowes’ 6th note is scale degree “6.”  Gretchen Wilson’s 6th note is indeterminate.

My conclusions from the previous post:

1.  The short melodic phrase, 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.


Questions raised in the previous post now answered:

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

Answer:  NO

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

Answer:  NO

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

Answer:  YES

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

Answer:  NO

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

Answer:  NO

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?

Answer:  NO, particularly because this melodic phrase is so brief and unoriginal.

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

Answer:  POSSIBLY.  If the expression is original and substantial, it could be possible to 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?

Answer:  NO.  It is not original or substantial.


Other music that features 3-5-3-2-1-6

As mentioned, the Black Crowes were NOT the first to originate or create the 3-5-3-2-1-6 motive.  Other songs/compositions written before Jealous Again also use the 3-5-3-2-1-6 melody.  These include:

Stevie Wonder – I Wish

Technically, the melodic phrase Stevie Wonder sings is similar (not identical) to 3-5-3-2-1-6 and sung over two chords, not one.  This short melodic phrase also occupies a significant amount of I Wish.

I Wish is from Stevie Wonder’s Songs In The Key Of Life album and was released in 1976.

0.18   “Looking back on when I…”

0.20  “Was a little…”

0.27  “Then my only worry…”

0.29  “Was for…”

0.45  “Sneaking out the back door…”

0.47  “Hang out…”

0.54  “Greeted at the back door…”

0.56  “Thought I…”

1.39  “Brother says he’s tellin’…”

1.42  “Caught you…”

1.48  “Just don’t tell I’ll give you…”

1.50  “Anything…”

2.06  “Smoking cigarettes and…”

2.08  “Writing something…”

2.16  “Teacher sends you to the…”

2.18  “Principal’s office…”

The Association – Windy

In Windy, the 3-5-3-2-1-6 melody also occurs although with a slightly different rhythm.  Also, the final “6” of the phrase is up from the “1” and not down from the “1.”  The 3-5-3-2-1-6 melodic phrase is sung over three chords.  The 3-5-3-2-1-6 melodic phrase is extremely prominent throughout Windy.

Windy is from The Association’s Insight Out album and was released in 1967.

0.00  instrumental



0.14  “Who’s peeking…”

0.18  “Calling a name…”

0.21  “Who’s bending…”

0.31  “Who’s tripping…”

0.34  “Smiling at…”

0.37  “Who’s reaching…”

1.07  flute



1.42  “Who’s tripping…”

1.46  “Smiling at…”

1.50  “Who’s reaching…”

1.57  “Who’s tripping…”

2.01  “Smiling at…”

2.05  “Who’s reaching…”

2.12  “Who’s tripping…”

2.15  “Smiling at…”

2.19  “Who’s reaching…”

2.26  “Who’s tripping…”

2.30  “Smiling at…”

2.34  “Who’s reaching…”

2.40  “Who’s tripping…”

2.44  “Smiling at…”

2.48  “Who’s reaching…”

Windy is 174 seconds long (2 minutes and 54 seconds).

The 3-5-3-2-1-6 is heard in Windy between 0.00-0.09, 0.14-0.24, 0.31-0.40, 1.07-1.17, 1.42-1.53, 1.57-2.07. 2.12-2.21, 2.26-2.36 and 2.41-2.51.

The 3-5-3-2-1-6 is NOT heard in Windy between 0.10-0.13, 0.25-0.30, 0.41-1.06, 1.18-1.41, 1.54-1.56, 2.08-2.11, 2.22-2.25, 2.37-2.40 and 2.52-2.54.

*The Association’s 3-5-3-2-1-6 statements account for 49% of Windy.*


The melodic phrase, 3-5-3-2-1-6, also is heard in

Gustav Holst – Two Songs Without Words, Op. 22

Edward MacDowell – Piano Concerto No. 1, Op. 15


Sue some more?

A famous hit song written AFTER Jealous Again that uses the 3-5-3-2-1-6 melody is Robin Thicke’s mega-hit, Blurred Lines.  Why mention music written AFTER the plaintiff’s song?

1.  It could give the parties who initiated the legal action against Gretchen Wilson

something else to do


someone else to sue

2.  And suing Robin Thicke and associated parties would be BIG FISH to fry – they have made a lot of money from Blurred Lines.

3.  But realistically, and using better judgment, it also shows that the 3-5-3-2-1-6 expressed as it is in Jealous Again is NOT copyrightable and does not deserve copyright protection.

4.  The 3-5-3-2-1-6 melodic phrase is short and in the public domain – these notes have been and are being used by others.

Robin Thicke (featuring T.I. and Pharrell) – Blurred Lines

1.23  “What do they make dreams for”

1.28  “What do we need steam for”

Blurred Lines is from Robin Thicke’s Blurred Lines album and was released in 2013.

This and the previous two (2) posts are NOT expert witness reports.  They are merely initial findings presented informally.

H A P P Y   S U N D A Y   to everyone!