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Are We Running Out of Notes?

March 18, 2020 · 3 Comments

In the mid-70s, a music scholar, maybe a professor, definitely someone we’d now call a ‘musicologist,’ wrote an alarming letter to Rolling Stone magazine. He stated that, by his estimation, within a few years the notes would run out. That is, musicians were about to exhaust all available music notes in every possible timing and context. He warned that soon there would be no more original songs. 

Beneath this letter was a response from John and Yoko. They were apparently enlisted by Rolling Stone to address this crisis. Their two-word reaction to song-pocalyspe: “Lighten up.“

I should point out that I can’t verify this happened. I saw the exchange printed somewhere many years ago, but I can’t find evidence online. Regardless, it’s no surprise that for decades music intellectuals have raised concerns about a limit on new songs. And that the songwriters have always reacted with a shrug.

The notes are only part of a song. Also critical: instrumentation, dynamics, performance texture, tempo, studio trickery — the list goes on. Those notes don’t seem as limited when we take these extra elements into consideration. But it’s still reasonable to imagine a few people coming up with similar melodies. And if some of those other elements align, then there might be a raised eyebrow or two. Is it plagiarism?

I’m not saying everyone is innocent of copying notes or lyrics or songs outright. But we’re led to believe it intentionally happens a lot less than it does. A dirty little secret is that songwriting isn’t all that difficult if you know what you’re doing. Having a ‘hit’ song is tough, but all of those elements I mentioned above — and some additional ones, like charisma and promotional budgets — contribute to making it a hit, too. When you think about all the potential downsides, it’s a lot easier to write a song than steal someone else’s.  

Minneapolis-based ‘record selector’ Mike 2600 has an amusing YouTube series called Songs That Sound The Same. Using two turntables (and I suspect some pitch manipulation), he goes beyond the ‘mash-up,’ drawing attention to songs that share an uncanny resemblance. This one‘s a lot of fun. As is this one and this one. 

A lot of Mike 2600’s comparisons rest on similarities in chord changes and sequences, a chord being a combination of usually three notes providing a bed for melody. Combinations of chords are a lot more limited than those of individual notes. There are a lot of similarities out there for Mike 2600 to choose from.

Mike 2600 could do one of these videos for “Stairway To Heaven” and Spirit’s “Taurus.” Maybe he has, but probably not — that resemblance is so well known it’s low-hanging fruit. Journalist Michael Skidmore thought he’d reach for that fruit when he filed a plagiarism suit on behalf of the late Spirit frontman Randy Wolfe. The two songs’ similarity elicited murmurings since the release of “Stairway To Heaven,” but the lawsuit didn’t appear until 2014. 

Yes, the iconic opening riff of “Stairway To Heaven” is bizarrely similar to “Taurus.” But so are a lot of things. The same descending chromatic chords, as noted in defense arguments, are found in the music of JS Bach and Henry Purcell, and also the song “Chim Chim Cher-ee” from Mary Poppins (which puts Led Zeppelin in an unlikely context). There are only so many chords used in so many ways.

Last week, judges agreed and cleared Led Zeppelin of wrong-doing. But the ruling added another twist — the court’s dismissal of ‘the inverse ratio rule.’ What’s that, and why is it interesting? Let’s dig in.

Understand that plagiarism doesn’t have to be intentional to warrant legal punishment. If it’s believed that you heard a song anytime and anywhere, then the plaintiff can argue it’s possible that plagiarism occurred, whether you meant to do it or not. The more famous a song is the easier it is to make this argument. George Harrison encountered this notion when “My Sweet Lord” was accused of copying The Chiffon’s “He’s So Fine.” The latter was a massive hit in 1963, at the same time The Beatles were making no secret of their admiration for American R&B. So the jury was convinced that Harrison, at the very least, unconsciously copied that song. 

This idea of access and sublimation came to its ridiculous conclusion in the recent case of Flame vs. Katy Perry. In my opinion, that case was already absurd, involving two somewhat similar and short melodic phrases representing modern pop’s zeitgeist. But Flame’s attorney argued that since his client’s song had 6 million online plays — spread out among platforms like YouTube and, yes, MySpace — it was undoubtedly, at some point, heard by the writers of Perry’s song. The jury ended up agreeing. 

Taken further, it seems the internet demolished the limitations of access. It’s now presumed that everything is available — how are 6 million streams on YouTube any different than an emerging artist appearing on an obscure but influential Spotify playlist? Arguably the potential for accidental thievery is the same. Almost all music is available by tapping the screen of a smartphone, so the idea of access is passé. The court in Led Zeppelin’s case recognized this change in our culture, and the ‘inverse ratio rule’ — which gave preference to the more widely distributed song — is toast.

There are other ways that technology alters our concepts of plagiarism. Let’s consider how companies like Splice are affecting musical ownership. Splice is a market-place for sounds, where recording artists can download loops and phrases to use in their own songs. After paying a subscription fee, the user is given these sounds as ‘royalty-free’ sonic building blocks. That means an artist can use these bits in a commercial recording without royalties or attribution to Splice, and claim the rights to the song as her own. No one owns Splice’s sounds — they can be used simultaneously in any number of songs. 

Of course, this model reached an inevitable outcome. A melodic loop from Splice was used in a song by — of all people — Justin Bieber. Within 24 hours of that song’s release, artist Asher Monroe accused Bieber of ripping off the instrumental hook from his song. But they both got the phrase from Splice. As did many other artists, including Korean hip-hop artist YUMDDA. According to The Verge, that leads to another 21st-century problem:

Because Monroe and YUMDDA’s songs have portions with the unaltered sample and nothing else, Shazam gets confused. The app sometimes identifies Monroe’s track as YUMDDA’s, and vice versa. But it has no trouble identifying Bieber’s song, likely because there are other percussive elements always layered on top of the sample.

And now here’s something else:

Damien Riehl — a lawyer, coder, and musician — and Noah Rubin pulled an impressive stunt. They wrote a program to generate every possible melodic combination of notes. The program then stored all 68.7 billion melodies to a hard drive. But rather than using up all the songs, as the Rolling Stone letter-writing musicologist feared, Damien and Noah put the contents of the hard drive in the public domain. All melodies are now free to use, they argued. From here forward, lawsuits for copyrighted note sequences are all frivolous. 

Of course, Damien and Noah’s effort is meant to make a statement and probably won’t change anything. The Led Zeppelin ruling will have more effect on songwriters (as will the appeal-in-progress on the Katy Perry suit). But it makes an interesting point. And it helps highlight the limited nature (and mathematics) of notes, and how subconscious plagiarism could become an outdated concept now that we’re subconsciously consuming everything. 

UPDATE: Soon after I wrote this post, Katy Perry and her co-writers won their appeal and the judge overturned the plagiarism ruling.

This post was adapted from Ringo Dreams of Lawn Care, a weekly newsletter loosely about music-making, music-listening, and how technology changes the culture around those things. Click here to check out the latest issue and subscribe.

Filed Under: Commentary, Featured, Publishing + Copyright Tagged With: Copyright, DJs, George Harrison, John Lennon, Justin Bieber, Katy Perry, Led Zeppelin, Legal Matters, Musicologists, Plagiarism, Public Domain, Rolling Stone, Songwriting, Spirit, Splice, Ted Talk

A Tale of Two Copyright Rulings

August 4, 2019 · 2 Comments

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This week saw a couple of big events in the world of music copyright. First off, resolution to the Kraftwerk “Metal On Metal” case in the EU courts, as mentioned previously. Here’s Complete Music Update:

The court said in a statement yesterday: “Phonogram producers have the exclusive right to authorise or prohibit reproduction in whole or in part of their phonograms. Consequently, the reproduction by a user of a sound sample, even if very short, taken from a phonogram must, in principle, be regarded as a reproduction ‘in part’ of that phonogram so that such a reproduction falls within the exclusive right granted to the phonogram producer”.

But what about the artistic freedom of the sampler that the German Constitutional Court was so concerned about? Well, the ECJ has put some constraints on its main ruling. […] In the words of the court: “Where a user, in exercising the freedom of the arts, takes a sound sample from a phonogram in order to embody it, in a modified form unrecognisable to the ear in another phonogram, that is not a ‘reproduction’”. That conclusion is necessary, the court then added, to properly balance the rights of an intellectual property owner with the rights of artistic freedom.

There’s been the myth of a time allowance on samples, that if one samples only two-seconds (or another arbitrary small amount) then, legally, everything is okay. This has never been true in the short history of sample litigation. The issue is identifiably and uniqueness. If, say, a jury can point to a phrase and agree that it’s an unauthorized appropriation of a master recording (a sample) then it’s likely deemed copyright infringement. The length doesn’t matter.

The confusion is probably due to the lack of precedent and definition in the US courts. There hasn’t been a high profile episode like the Kraftwerk complaint yet. So, while the ruling of the EU court doesn’t necessarily say anything new (and it doesn’t add any new limitations, despite what some clickbait headlines might lead one to believe) it is good to have the context fully explained by a legal body.

Then there’s the court’s additional opinion on the artist who artistically messes with a sample to the point of ambiguity. Of course, that artist is in the clear — thanks, EU court — but that’s not so much because it’s ‘artistic freedom.’ It’s that ideally, no one would identify the errant sample in the first place. In other words, sample away. Just be sure to muck that thing up beyond all recognition.

The other big copyright news concerns this Katy Perry vs. Flame outcome. Rolling Stone:

A jury unanimously ruled that Katy Perry’s 2013 hit single “Dark Horse” improperly copied Christian rapper Flame’s 2009 song “Joyful Noise.” The nine-member federal jury in a Los Angeles determined that Perry and her co-writers and producers will owe [$2.78 million in] damages for copyright infringement. […]

Perry, who was not present when the verdict was read, testified that she had never heard “Joyful Noise,” nor heard of Flame, before the lawsuit. Her co-writers testified similarly. Flame’s lawyers responded that the song was widely distributed, with millions of plays on YouTube and Spotify, and reminded the jury of Perry’s origins in the Christian music scene. His team argued that Perry and her team had ripped off the main beat and instrumental line of “Joyful Noise.”

One remarkable aspect is the quoting of YouTube and Spotify plays as evidence that obviously everyone’s heard the song. Umm … okay. Have Spotify plays been argued as evidence in court before?

My feelings, but dialed down a bit, echo those of YouTuber Adam Neely in this video (and kudos for pointing out the similarity of the phrase in question to a famous song by The Art of Noise, which I haven’t seen anyone else mention):

Additionally, Flame’s Marcus Gray added in his original complaint that “Joyful Noise” has been “irreparably tarnished by its association with the witchcraft, paganism, black magic, and Illuminati imagery evoked by the same music in ‘Dark Horse.‘” Of course, there are some kooky internet ‘theories’ out there about Katy Perry and the Illuminati. But I don’t know why people fear the Illuminati so much … if this all-powerful organization couldn’t help Katy Perry win this case then I doubt they’re competent enough to secretly run the world.1Though a hidden overload’s incompetency could explain the current state of affairs.

Filed Under: Commentary, Publishing + Copyright Tagged With: Copyright, European Union, Illuminati, Katy Perry, Kraftwerk, Legal Matters, Sampling

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8sided.blog is a digital zine about sound, culture, and what Andrew Weatherall once referred to as 'the punk rock dream'.

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