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



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.



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”



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.



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.


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

  1. I understand what you’re saying Dr. H., but the entire musical bed of the song (including the chords underneath the 3-5-3-2-1-6 melody are essentially same, and even in the same key. Gretchen is only 1/4 of the writers on her song. Surely one of the 4 writers has heard the Black Crowes song. I think 50% might be excessive, but it’s really only the lyrics that I find to be different and the musical half of the song was essentially already written in 1990 by The Black Crowes. They may not be the first to have used that piece of melody, but I find nothing wrong with them being the first to use the copyright laws that protect their intellectual property concerning their song. Maybe Nashville songwriters need to be a little less generic and more original. 🙂

  2. Thank you for your comments, Frank.

    There is only one (1) chord underneath the less-than-2-second melodic phrase, so I would discount any harmonic similarity.  It is only a major chord, an uncopyrightable entity when expressed in this manner.  It is hard to find any pop song/country song that does not have a single chord occurring under a melody at every moment.  I think harmony has no bearing as there is no “harmony” – there is only one (1) major chord underneath the melody, and no chord changes. (To me, harmony should have more than stasis – it needs at least a change. Otherwise it is more a drone or pedal.)

    The Black Crowes might think they were the first to write these six pitches (from the pentatonic scale, one of the most common musical ideas found in many countries throughout many centuries,) but they are not.  So, they are not the first to write those six pitches and the six only last for less than 2 seconds.  Relating this to other situations – should songwriters be able to sue later songwriters if they can find a less than 2-second similarity (remember that they are not identical – close, but not identical)

    The key of a song is not copyrightable and rarely significant in these matters.  had she done this in a different key, it would have no bearing on the outcome.  Conversely, if one simply changed a key, one shouldn’t be “off the hook” for copyright infringement.

    In my next post, I will show previous (and later songs) that have the same melody.  Some of these go back to the 19th century.  I will also leave out the very large body of Chinese folk songs that have the 3-5-3-2-1-6 melody as that is too easy.  🙂

  3. Very interesting. I agree with that The Black Crows certainly weren’t the first to write the riff, and I agree that a 2 second progression should not enjoy a copyright. I’m not sure of the percentages floating around though. If a band were to take an “original” bridge (is anything truly original?) from another band and use it for 3 or 4 verses of a song, the percentage of music infringed might be far less than the percentage created from the infringement.

  4. I think things, even in small doses, can be truly original – the first four chords of The Beach Boys’ “Warmth Of The Sun” (C A minor – Eb – C minor) the 8-chord sequence of the Gipsy Kings’ Moorea,” the melody and chords of just the words, “Stand By Your Man,” an many more are original.

    But what the Black Keys “wrote” (3-5-3-2-1-6) can be found in music from the 1800’s, for example. To me, if the melody stems from pre-1923, it is in the public domain and should never be owned or used as a means to bludgeon another musical artist.

    Thanks for your thoughts, Jody! They are much appreciated.

    I look forward to discussing this and other issues with you and your students.

  5. Yes I see that. Thank you. I’m trying to get an idea of and give my students an idea of what’s really happening in copyright Litigation today, not in the text books but in the court rooms or even better the interviews with the experts while deciding whether to go to court. It’s hard to find this kind of info I think. So thanks again for sharing it.
    Your last comment also makes me realize that in many ways it comes down to the experts not the law, the people who would know a pre-1923 melody, on sight so to speak, (How’s that for mixing some metaphors.)

  6. HI Jody

    I am fascinated by the differences between how various parties learn about copyright.

    Almost every musicians has learned about copyright orally – others tell them you can only copy 8 notes, or 6 notes, or sample only 4 seconds, or that a chord progression is not copyrightable or a bass line is not copyrightable, or that one needs to place one’s music in an envelope and mail it to oneself, all of which are false.

    What takes place from my point of view is fascinating. I am, correctly I believe, honing in on what I consider to be the most important word in the law – “original.” One can copy without permission if one is copying something that is in the public domain or lacks originality. I have always pursued originality. As a music theorist and composer, I’ve studied what makes music, from the nuts and bolts level, original and how new expression has developed the music of a specific culture as well as the culture itself. It is my job to keep doing that only now, law is a part of the equation for me. I measure originality is musical expression with an eye toward the legal protection that should be afforded it. It is an inexact science but the task is consistent with my approach to music from my early days.

    It is intriguing, exciting, inspiring and perplexing work!

    I am really happy that you value some of what I am doing with this blog. I really appreciate your comments!

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