All posts by Brian McBrearty

Music Copyright may need to evolve a little faster.

This is not Music Copyright’s first rodeo.

On the one hand, one can say there’s nothing new under the sun. Minor disruptions arrive now and again, perhaps looking like a disruptive sea change at first, and then softening back into the gentle flow of evolution. Copyright has seen piano rolls, radio, vinyl, cassettes, Napster and mp3s, apple and Spotify, and with some minor adjustments, it’s been mostly a gentle flow.

On the other hand, loathed though I am to say it, since saying it never ever turns out well, but here we go anyway: this time it’s different.

Nitpicky thing #1 — Selection and Arrangement

Copyright can roll with the little things, however stupid. Selection and arrangement is one. Selection and arrangment is most often the last refuge of a plaintiff who has no claim on unprotectable ideas in Song A that they’ve observed in Song B. This is what happened in the Thinking Out Loud versus Let’s Get It On trial. The chord progression common to both works was not a protectable one original to Let’s Get It On, and the rhythm in which it was played was common and also not theirs to claim. So they asserted “Selection and arrangement,” which is a legitimate way to think of a creative work where the assets are chosen and assembled rather than created. Selection and arrangement is a tenet of copyright. But the application of it should be reined in. It’s impossible to render a chord progression in the absence of rhythm, so it’s convoluted to think of it as a pair of individual elections “arranged.” You might be able to argue “combined,” but you’re being pedantic. Selection and arrangement more readily applies to, say, a collage, be it of clay and cutlery, or of Shakespeare sonnet fragments, or of recordings of automobiles, babbling brooks, and Vitamix blenders. Musique concrete was a real thing. Rotten Tomatoes Top Ten Movies Of All Time is a real list, their creation, of movie titles that are not their creation. Not their movie titles but their selection and arrangement of movie titles. But most music is not selected and arranged unless you’re a glutton for semantics. Judge Stanton, who presided over the Sheeran case, said there was no bright line rule which said two elements selected and arranged couldn’t be sufficiently original to enjoy protection by copyright. And I’d imagine he was right about that. So there’s your problem. We wasted a lot of time and expense on a silly argument. We don’t need a bright line on the amount, we need to do away with the concept where it has only a corrupting application.

Nitpicky thing #2 — Filtering

Extrinsic filtering, the last refuge of a defendant from time to time, can go in the same bin. Just as we can’t disassemble a chord progression and the rhythm with which it’s played because the two are so intertwined, we also cannot forensically filter out all musical elements that are unprotectable and then evaluate the originality of what’s left over. What is left over is bound to be unmusical. Any melody worth litigating is going to have unoriginal fragments within it. It’s not forensically sensible to erase them from the analysis. They’re a part of the analysis even if they are unprotectable by themselves. Music is an art form where one thing happens in the context of whatever else is happening on one or another axis. By axis I mean, music happens in time, let’s say that’s the x axis, and unless the work is a solo on a monophonic instrument, there is polyphony, so that’s your y-axis, and the instrumentation might be your z-axis. All of these musical elements derive meaning from the way they relate to what happens before, after, and during. To filter those contexts away is harmful expediency. And when it’s applied as a tactic, it’s shameful. Protectable expression is what we’re looking for, not protectable elements. If we’ve anything nice to say about s election and arrangement, it’s this, the valid premise on which the mostly invalid application of Selection and Arrangement is based. Unprotectable expression is unprotectable, but the idea of filtering is confusing and obfuscating. But it’s not reasonably possible to render music that people will enjoy without unprotectable elements in the mix. It’s the interplay between elements that makes the music. Music is complex this way.

Those are little things, relatively speaking. They might even go away on their own. I’m at least reconsidering my stance on the so-called Inverse Ratio Rule. I used to rail against the Inverse Ratio Rule because it had a logical flaw in it — the ratio to which it refers is much more reasonable in one direction than in its inverse. The inverse ratio rule looked at the two prongs of infringement — access, and substantial similarity. And it reasoned that the more substantial similarity Song B exhibited, the less evidence of access we should require. The relationship makes sense in that direction. If you write a song that’s sufficiently similar to another, we can infer from that similarity that you must have had access to Song A. Fine. But the inverse? What if the two songs are not that similar, but you definitely had access to Song A? Can we infer copying because you had so much access? No, at some point that’s just silly. If the two songs are barely alike, it doesn’t matter how familiar the creator was with Song A. Song A could be Happy Birthday To You, in which case, access approaches infinity, and still doesn’t imply that Song B sounds any closer to Happy Birthday. We shouldn’t have a “rule” called the Inverse Ratio Rule. Rules oughta work more reliably than that. But still, is it nonsense? No. I was too harsh. If two songs sound a bit the same and Ed Sheeran wrote Song B the day after he saw Song A’s artist in concert, we might more readily infer that the similarity in Sheeran’s Song B is the result of copying. We’d be putting on a blindfold if we didn’t consider that forensically relevant. Again, therefore, the problem is in how the concept is applied, whether it’s used to support a frivolous case and whether the judge or jury can adequately evaluate it.

But artificial intelligence? Oh boy.

I started thinking, “this could get outta hand” when Yung Gravy impersonated Rick Astley for his Betty Get Money send-up of “Never Gonna Give You Up.” Parody is usually fair use, but people confuse parody with just plain leverage. If you’re not parodying the work you’re borrowing, then it’s your asset in another pursuit. And you should not be entitled to it. That includes Astley’s “appearance” on your song.

Astley can’t sue for copyright infringement because he doesn’t own the rights to the song, which Gravy licensed, and Astley also doesn’t own the recording, which Gravy didn’t sample. Everything in Betty Get Money that sounds like Gravy sampled it, was rerecorded to sound as though it was sampled. That’s all there is to it, copyright-wise. Copyright expressly allows that rerecording tactic, as long as you’ve licensed the underlying composition. So Astley has to sue for right of publicity which is long for “likeness.” And he probably won’t win that either, in my estimation. But nevermind that. Let’s return to the rerecording thing. Should you be able to do that?

It’s one thing for copyright law to have been written to say, “Okay Stan, you can record your own version of Hey Jude without having to worry that the owner of the recording is going to sue you for sounding too much like it, even if you use a Hofner bass on it. We’re not getting into that.” It’s another to say it should be able to appear in another work as though it’s making an appearance. There’s an awful lot of intellectual property in a recording. Should there not be any limit on how much of that you can borrow? In a world where samples need to be cleared, is that not damaging to the market for the original? Who is going to sample Never Gonna Give You Up after Yung Gravy has had his hit song? We are also, unfortunately, living through a time when interpolations are appearing in the Billboard charts more than I think ever. Are you not stealing a tremendous amount of value if you mock up a soundalike of a famous recording having licensed just the song, and duplicating the recording?

I can imagine a bunch of songs packing the top fifty with soundalike re-recordings of famous choruses that are disproportionately the springboard to the charts. Is that okay? It’s legal. But it’s weird, right?

And AI is going to be able to write songs that sound like Drake and The Weeknd collaborated to create and record a song. They are displaced as both creatives and as performers.

Sure, on some level, all music is derivative. But on another level, is that what we want? And “what we want” is copyright’s purpose, so it’s copyright’s problem to solve.

The “Death Of The Key Change.”

Often we don’t know where we are in history until hindsight tells us. We look back and, in my experience, regret spouting off on matter too soon.

The Death Of The Key Change was a recent article by Chris Dalla Riva. He put it out, I think, I on November 9, and I had read probably twenty discussions ABOUT his article before I got to read the article itself. And, I started forming my thoughts and writing this before I even read the piece. I began to foresee arguments and argue them presumptively. I got some right. Others not. And I wound up in some of the same places, and some of my own.

Here’s the article.

Riva looked at 60 years of Billboard hit songs and found trends. Between 1958 and 1990, for example, he noted that a lot of songs were in the key of G major. And this made sense to me, not because I happen to know where the majority of voices are most comfortable singing, although that would be nice to know, and I should investigate. It made sense intuitively because it’s one of the keys that’s relatively easy to handle on an acoustic guitar. The collection of chords most intermediate-level acoustic guitar players learn to play is confined to E, A, D, G, C, F, Am, Dm, Em, Bm, and F#m. And songwriters aren’t usually virtuosos. Those chords can get a good bit of work done in only a few different keys — D major, C major, and G major. So that’s what the songwriters wrote their songs in.

And indeed, Riva made the same point. So far, so good.

But then Riva pointed out that about 1/4 of the songs in that time frame also included key changes, which is to say, at some point, the song left one key and arrived in another. I immediately thought of all the Barry Manilow songs that jumped a whole step for their final chorus, Mandy, I Write The Songs, Even Now, Daybreak, Can’t Smile Without You. (Not “Could It Be The Magic” I’m guessing because he knew the underlying Chopin one way, as I do, in C minor.) He did these key changes like it was a requirement. That’s a certain sort of key change though, the sort that kicks things into another gear at the end of the song. And the gear metaphor is why that “up a step” sort of key change is called the “truck driver modulation.” But that’s just one, and probably the simplest type. “Key change” can also mean interwoven modulations that are more an integral part of the song, like the fact that the Beatles’ Penny Lane has verses in one key and choruses in another. It goes back and forth. And it occurs to me now though, McCartney goes with what might be considered the truck driver modulation at the end and gets that pre-Manilow boost, although really, it’s a bit craftier than that. Yes, it’s a whole step higher than the preceding choruses, but it’s a cuter turn than just that. I digress…

Then I noticed Riva’s timeframe for that trend ends in 1990, and I thought… “When did Digital Performer come out?” Hey! It was 1990. Digital Performer was one of the first Digital Audio Workstations. Perhaps you’ve heard of ProTools, the king of the Digital Audio Workstations (DAW). Or Apple’s GarageBand, the prince, I might argue. DAWs such as Digital Performer, Logic, Vision, and eventually Pro Tools brought about the home studio era. And that changed the way we wrote music, especially sample-based music. Everything from there goes mostly to hip-hop. 

Why don’t we have chord changes in hip-hop? For starters, Riva is not wrong when he says hip-hop is more about lyrics and rhythms than about melodies and harmonies. That’s certainly true, but it’s not a cause. Key changes are the stuff of “melodies and harmonies,” yes, but hip-hop doesn’t lack either of those things entirely.

Let’s talk about songwriting craft. Feather-rustling though it might be, key changes, apart from the truck driver type, are compositionally advanced. Modulation is not rocket science, but compared to just strumming through those basic chords it’s a next-level device. Here is where the cheap seats on social media ring out, “Does difficulty make music better, you snob?” And the absolute answer is NO! But it certainly can make music better. Does flowery vocabulary make poetry better? Not necessarily, but it certainly can. It depends! Can I tell more expressive stories with more words in my lexicon? Not necessarily, but, c’mon, you get my point, let’s not be silly about this. It’s a more advanced skill that has value and takes time to learn. And that investment in time requires both a motivation and some opportunity, or at least the absence of impassable obstacles.

Let’s get back now to the development of the most important genre of the past thirty years, hip hop. Why are there few key changes? I suggest that it’s not that they were undesirable because melody and harmony weren’t and aren’t what it’s about, but rather that modulation was unavailable; too many obstacles; impossible to justify. They’re too heavy a lift, technically.

One paragraph of music theory now: Key modulation is a transition from here to there — you start out here in your present key center, but you kinda want to go elsewhere, so one technique is to find a note or a chord that’s got one foot here in this key center and the other foot there in that new one, and you compose through it to form your transition. As simple an example as I can come up with is “Hey Jude.” Let’s say it’s in C. (It’s not really, but it makes no difference.) You’re in the key of C, and you’re gonna be playing the chord, C, when you sing “to make it better.” You want to modulate to F as you sing, “anytime you feel the pain.” And here’s how you’re gonna do it, Paul. You add a Bb note to your C chord, making it a C7, and voila the tension you’ve built into that C chord all but necessarily sends you to the key of F major. Mission accomplished. The chord C functions in both the key of C and the key of F, so it was a great pivot point, a smooth transition.

What if, instead of your facility with a guitar, your raw materials are samples from other recordings, how much can you do to manipulate them into changing keys? If you’re working with a sampled eight-bar phrase that doesn’t contain a key change, how hell-bent are you on implementing one? And what would it take if you were so determined. Maybe the song you sampled contains a modulation somewhere, but you’re not doing a cover; this is YOUR song, not theirs. You don’t want their composition, just their elements. You’re doing something transformational. Can you execute a key change using those elements? No, not without a TON of determination, and questionable reward for your effort. What about pitch shift, you say? The DAW’s ability to change the pitch of an audio file has come a long way but it wasn’t long ago that changing pitch meant substantially changing the way the music sounded, akin to speeding up or slowing down a vinyl record on a turntable. Who would do that to a groove? If, as we said, hip hop is a lot about groove, let’s make sure we groove. The genre evolved without that element of songwriting, I’d suggest, in part because it was impractical. And now, it’s not part of the aesthetic, but other things are, and if you won’t look to find enjoyment in it, you’re pretty much only hurting yourself.

Musicologist Services For Advertising

“An ounce of prevention is worth a pound of cure” is mathematically pretty close.

As the intellectual property world gets ever more litigious, creative and advertising agencies are getting musicologist analysis and clearance reports as a part of the process, the last step before launching a campaign.

When you put music to picture, as in an audio campaign, you incur some degree of intellectual property risks. First, there is the chance your music sounds, to somebody, like another work. Observable similarity is common, particularly in popular music. That doesn’t mean you are infringing, but it is a measurable amount of risk, even for specious claims.

Soundalikes introduce their own risks.

In advertising, in particular, often a piece of music is selected or created with another existing work in mind. Maybe it was selected from a production library or otherwise sourced because it reminds the music supervisor of a famous song, or the vibe of a famous song. Other times a composer is asked to write the song with the intention of capturing a bit of an existing song’s vibe, groove, energy, or some element. That doesn’t mean it’s infringing, either. But again, it does incur additional risks.

And when the campaign airs, the more successful the campaign and the greater its reach — both good problems to have — the more it compounds that risk. More ears, more spurious observations and claims.

So, creative and advertising agencies mitigate all of this by getting a forensic musicologist who will analyze the music for originality and susceptibility to an accusation, not merely a warranted one but any accusation, of plagiarism, similarity, and copying that might lead to a claim of infringement.

Where do you find a musicologist?

“Fair Use” Precedent Setters “2 Live Crew” are back in the news

A long time ago, 2 Live Crew sold the rights to some of their better known music. It was long enough ago, that they might now be able to get it back.

But that story is developing, and it’s not really a musicological matter anyway.

It’s a reminder of what an amazing story 2 Live Crew became a few decades back and that Luther Campbell and his trio of Nasty As They Wanna Be hip hop artists, challenged an infringement claim, went to the supreme court, won, and found themselves, “Campbell v Acuff-Rose” as legal precedent for evermore.

What’s “fair use?”

Music copyright infringement occurs when a person uses a copyrighted musical work without permission from the copyright owner. Fair use is a defense against a claim of copyright infringement. It’s a doctrine in U.S. copyright law that allows the use of copyrighted material without permission from the copyright owner but it requires certain circumstances. It’s noble by design. The purpose of fair use is to balance the interests of copyright holders with the public’s interest in using copyrighted works creatively and innovatively. That’s true of copyright in general, I think.

In determining whether a use of a copyrighted work is “fair,” courts consider four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the potential market for or value of the copyrighted work.

For example, a person who creates a remix of a song for their personal enjoyment or to share with friends may be considered to be engaging in fair use. On the other hand, using a copyrighted song in a commercial without permission from the copyright owner is less likely fair use because arguably, it is being used for commercial gain and may well harm the market value of the original work.

Whether a particular use is considered fair use is determined on a case-by-case basis and can be difficult to predict. Some well-worn potential justifications include uses for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research.

When it comes to music, some common examples of fair use may include using a short clip of a song in a review or critique, or using a song in a parody. But I intentionally left out a key wrinkle, which is that fair use wants your parody to be parodying the song you’re using and your critique to be a critique of the song. You can’t necessarily make a parody on any topic you want, use “White Christmas” to do it and call it fair use, but you might be able to do a send-up parody of “White Christmas.”

Simply stating that something is “fair use” does not make it so. Each case must be evaluated on its own merits and the four factors listed above must be considered.

Which brings us back to 2 Live Crew! The most famous case I can recall, in music at least, is the “Pretty Woman” lawsuit. (There’s a pretty big case going on in the art and photography world right now.)

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), was a case in which the Supreme Court of the United States held that a parody of a copyrighted work may be considered fair use. The case involved 2 Live Crew’s song “Pretty Woman,” which was a parody of the Roy Orbison song “Oh, Pretty Woman.”

The case arose when the owners of the copyright for the original song, Acuff-Rose Music, Inc., sued 2 Live Crew for copyright infringement. 2 Live Crew argued that their song was a parody and therefore qualified as fair use under copyright law. The District Court ruled in favor of Acuff-Rose, but the Court of Appeals reversed the decision.

The Supreme Court upheld the Court of Appeals’ decision. The Court noted that the purpose of copyright law is to promote the creation of new works, and that allowing parodies can serve this purpose by providing a way for authors to comment on or criticize existing works.

The Court also emphasized that the fair use determination must be made on a case-by-case basis, taking into account the specific facts and circumstances of each case. In this case, the Court found that 2 Live Crew’s song was a transformative work that added something new and different to the original, and did not simply copy the original for commercial gain.

But while fair use can sometimes allow for the use of copyrighted material without permission, it’s important to understand the limitations of the doctrine. Tread carefully before using someone else’s work without permission or license.

Taurus v Stairway remanded for new trial.

Led Zeppelin vs Spirit/Skidmore v.1: discarded.

It’s been about a year since a jury decided that Led Zeppelin’s Stairway To Heaven did not infringe upon the copyright of Taurus, by the band Spirit. That jury ruled that although Led Zeppelin had access to Taurus (meaning Zeppelin had probably heard it) the two songs were not substantially similar under the extrinsic test.

The plaintiff’s appealed arguing that the district court: (1) failed to instruct the jury that the selection and arrangement of otherwise unprotectable individual musical elements might be protectable by copyright; (2) improperly instructed about originality; and (3) didn’t give them an “inverse ratio” instruction.

And the Ninth Circuit pretty much agrees, and has vacated the district court jury’s decision and remanded for a new trial.

So what?

Well, whether you’re a lawyer, musician, or just rock and roll fan, so this first of all: While the appellate judgment upheld the ruling that the scope of the copyright in Taurus is limited to its deposit copy sheet music (and not its recording), it says the jury should have heard the recording of Taurus when Jimmy Page did, as part of the access argument. And correcting this supposed error is going to be a very big deal in the new trial.

“Wait,” you say, “they didn’t hear Taurus the first time?”

No. The first jury wasn’t allowed to hear the recording of Taurus, and it’s hard to overstate the importance of this. Taurus begins with a very (very!) Stairway-like guitar introduction. It would be much the whole point here.

This came up in the Blurred Lines trial too. The Copyright Act of 1909 says the protectable copyright is in the “deposit copy” — the thing you actually send to the U.S. Copyright Office. Nowadays the deposit copy is very often an mp3 recording, but it could also be sheet music, cassette (don’t giggle), vinyl; whatever serves best as the thing you want protected, you send that. Back in the early seventies, you sent sheet music, and the notes on the page are pretty much the extent of what’s protected. Most entertainingly in this case it so happens that neither Stairway’s nor Taurus’s guitar intros are in their respective sheet music deposit copies and therefore the recordings of those intros were disallowed. And since Taurus after its intro sounds and probably appears on sheet music not much at all like Stairway, this leaves a lot less for the plaintiffs to work with.

None of that changed really. It’s upheld that the deposit copy is the thing we’re comparing, but even though the 1909 act is still in effect, the jury may hear Taurus this time anyway. And it’s interesting going forward — a way to get your disallowed recording heard after all, just for a different purpose.

The Access Argument

Recall that copyright infringement is a bit of a three legged stool.

  1. You need protectable stuff to begin with.
  2. It has to be substantially similar to another’s stuff, created after your stuff. 
  3. The infringer needs to have somehow had access to the prior bit of stuff before infringing upon it.

Nobody imagines Page had access to the sheet music. The plaintiffs need to argue he’d heard the recording. It was decided in the first trial that since the jury was not to hear the recording, Page would need to go through the dance of heading off to another room, away from the jury, listen to Taurus, and return to be questioned about whether he’d heard Taurus before writing Stairway.

The Ninth believes that the jury should’ve been allowed to observe Page as he listened and I suppose check for physical signs of his recognition or perhaps guilty feelings? I can see that. But the remedy? They’re going to play that Taurus guitar intro and instruct the jury to not consider it when they decide on similarity? That I’d say is probably way far fetched.

The other misdirections.

Let’s get back now to the part where the plaintiffs were harmed because the jury wasn’t informed properly. First that selection and arrangement of otherwise unprotectable individual musical elements could itself be protectable. I can barely imagine what this even means in this context. Taurus isn’t a sound collage. All music is on some level an arrangement of unprotectable musical elements. A single note is an unprotectable musical element. A couple of them or a short series is possibly protectable, but it’s not very likely. It’s a bit pedantic to point out that a series or arrangement of unprotectable notes or groups of notes might be protectable. It’s possible, sure. But the precedents cited in the Ninth’s opinion are about computers and jellyfish sculptures. Putting sculpture aside a second, a computer is an assembly of parts that might enjoy their own respective patents or not, and the assembly, sure, might be protectable IP.  But it’s not that you get to string together a bunch of unprotectable stuff and that makes the stuff protectable; rather it’s your arrangement that becomes protectable. MAYBE! And that’s as far as it goes. Here if we’re probably talking about a series of notes in a bass line and the progression is the thing that’s well worn, then the progression is the arrangement, and well worn it remains. To be fair according to the Ninth’s opinion, “(The plaintiff’s) expert, Dr. (Alexander) Stewart, testified that there was extrinsic substantial similarity based on the combination of five elements—some of which were protectable and some of which were in the public domain.” I would love for Dr. Stewart to read this and tell me what these five were.

The jury was also misinformed as to “originality” in that they were told that “common musical elements, such as descending chromatic scales, arpeggios or short sequences of three notes” are not protectable. And I would agree that this is overly broad, technically inaccurate, and particularly since I suspect a five note chromatic scale was the heart of the plaintiff’s argument, prejudicial.

The opinion continues on the misinstructions around originality,  “Additionally, Jury Instruction No. 20 stated that “any elements from prior works or the public domain are not considered original parts and not protectable by copyright.” While this statement is not literally incorrect, it misleadingly suggests that public domain elements such as basic musical structures are not copyrightable even when they are arranged or modified in a creative, original way.” And here I disagree. I would argue that it doesn’t suggest the “selection and arrangement” thing, because that thing is, well,  weird, and not to be assumed.

Okay, “weird” might not be the most useful argument. But someone’s gonna need to show me this “five elements some of which are public domain (that’s somewhere from one to four of em I guess?) and some not” argument, before I’ll start accepting that any jury instructions that don’t bend over backward paving a path in that direction are prejudicial.

Ninth also notes that the “inverse ratio rule” was not spelled out, and want it at least considered next time. This is the concept that the more access you had, the less you need to have jacked to be a crook. (Whether you are a good and thorough crook achieving “unlawful appropriation,” is a separate matter.) But they don’t think the plaintiff was harmed by its omission.

Hate to be the bustle in your hedgerow but…

I wrote a bit about my opinion that Stairway doesn’t infringe upon Taurus, predicted that Zeppelin would prevail, did a victory lap when they in fact did. Now I may have to reconsider for next time. Nah. The jury got it right; Stairway doesn’t infringe upon Taurus even though they sound a lot alike. But along the way, an imperfect system may have led them to that correct verdict for some not so great reasons.

Worse, this new trial we can argue is as flawed from the outset as was the first. Since the jury never heard Taurus’s nor Stairway To Heaven’s introductions, the first one wasn’t the trial it was meant to have been at all. This next one isn’t shaping up to be much better.

Is Katy Perry’s Dark Horse lifted?

Katy Perry’s Dark Horse case appears to be going to court.

In 2015 an artist named Flame claimed Katy Perry’s “Dark Horse” was a copy of his own track “Joyful Noise.” That was a few years ago and unlike most three year old infringement cases, this one was neither settled nor otherwise made to go away, and according to latest reports is indeed going to trial.

Anything to see here?

Well, the judge evidently just called this “…an extremely close case,” and didn’t throw it out, so yeah, Katy has cause for concern! Infringement trials are a scary proposition for both sides.

“Dark Horse” was an awfully successful song for Perry; as the complaint says, “by any measure… a mega hit.” It went to #1 on Billboard, was nominated for a Grammy, and woulda sold more than any other single in 2014 if Pharrell hadn’t given us Happy. It’s a nice big fat target, no doubt.

Let’s compare and see if this should really be going to trial.

First here’s Dark Horse, though what with it being the runner up most popular song of the year a short while back, you’ve probably heard it plenty of times. But in case you were under a rock in 2014, here ya go.

Now have a listen to Joyful Noise, or at least a little bit of it. You needn’t listen to the whole track, the crux of the matter will be clear right away.

Obviously we get it, right? We’re looking at the very simple and catchy series of quarter notes that I’m a little surprised the complaint doesn’t refer to presumptuously as “the heart of the song!” (thank you for not doing that.)

The complaint goes on to say, “Plaintiffs never gave any of the Defendants permission, consent, or a license to use Joyful Noise for any purpose, including creation of a derivative work based on Joyful Noise.”

There’s no musicology work evident in the complaint whatsoever. It fails to mention any specific aspects of the song, like the similar synth hook — the only thing one should imagine they’re talking about. They went very broad. The complaint reads like “lock, stock and barrel;” as though Katy Perry literally recorded Joyful Noise,reached number one with it, got filthy rich, performed it at the Super Bowl, and all the while simply hoped nobody would notice.

But did Perry even “use”Joyful Noise at all?

It is possible, hard to disprove completely, but… I doubt it. It’s easier to believe the lawsuit was the first she’d heard of Joyful Noise, even though it does have some accolades to crow about. But before we get to why I think that, I’ll admit the obvious. There’s no question Joyful Noise’s synth line sounds like the idea from Dark Horse’s verse and pop drop, both significant parts of the song to be sure.

And we might as well get this in here now as well — Rapzilla posted

this article in which Flame DJ “Cho’zyn Boy” did a fine job of mashing them up for us. Here’s a link to that.

If this is even the second article of mine you’ve read, you likely already know how much I (don’t) love mashups as musicology. But I see why people do it, and understand that it sounds compelling to lots of people.

“Cho’zyn Boy”is quoted mid-article as saying, “it’s identical!” And he should know, right?

But, well, it just ain’t. Can’t go throwing around words like “identical.” You’ll get called on it.

Similar? Yes, I’ll give him similar for sure.

These are the actual notes.

Notation of Joyful Noise by Flame and Dark Horse by Katy Perry.        So they’re plainly waysimilar. 75% identical to anyone with eyes, and as a musicologist I’d argue that even the non-identical notes are close enough to be called similar. They’re fairly interchangeable such that if “Dark Horse” were rerecorded using preciselythe same sixteen note pattern, identicalto that of  “Joyful Noise,”nobody would blink. It would still be “Dark Horse.” 25% of the notes of the looping part are not identical nor quite equivalent, but something only a shade weaker than that. In other words, the differences just don’t matter that much. And this idea of relative equivalence can be a complex musical concept for laypersons. I’ll illustrate though.

Notes have impact, right? You hear a melody, and it impacts you in someway. It’s mellifluous, or it’s jarring, or it’s jagged, or it’s flowing; whatever. And each individual note in a melodic sequence works to steer that impact through it’s contextual purpose — how it relates to the notes that came before it and how it might lead to the notes that follow.

Each of the notes has purpose and composers have intent. With me so far?

Now suppose I am telling you a story about, I dunno, some water. I might tell you the water is “hot,” or “very warm,” or “the opposite of cold,” or “160 degrees.” Are these communicating precisely the same thing? No. But do these non-identical expressions have approximatelythe same impact? Sure they do.

Non-identical musicallanguage can have approximately the same impact too. Do you care especially which of those phrases I use to describe the water? You might. It depends. Very often though, you don’t.

Sounds like she’s in big trouble.

Shouldn’t be though. There’s something else going on here — the unprotectable quality of super simplicity. We are talking about a VERY simple line of music looped over and over and over.

So, how little creativity is enough to enjoy copyright protection? I’ve heard “a modicum.” And a modicum while in the eye of the beholder doesn’t sound like much at all. But such a purist’s argument can be, well, silly. In trap music, the simpler onto simplistic the bettermost of the time. As music goes, there’s scarcely any music in it. And don’t dismiss this as curmudgeonly longing for the days of Cole Porter. This is actually trap music’s charm.It’s the absence of music that makes it what it is. No judgement here. Compose what you like; listen to what you like. But that all creates a heck of a conundrum when you start trying to argue creativity and originality and modicums and “de minimis” in music and copyright. This contentious synth line is not really a melody and it’s barely even melodic.

So the prevalent argument is not that these sixteen notes are similar and interchangeable to and with each other. It’s that these sixteen notes don’t matter hardly at all to anything; not these specific notes anyway. They’re tantamount to a cowbell part — “TONK TONK TONK TONK” for four bars, looped. And you can’t copyright four bars of cowbell tonks, quarter notes, like a metronome. That would be like copyrighting the cowbell itself. Silly. There’s no reason to believe anybody would steal this particular musical idea, apart from the very broad idea of “absence of music in music.” And that idea is already out there. It’s what trap music is built upon.

Okay, never mind the actual notes, what about the soundof that synthesizer melody? It’s pretty much the same, isn’t it?

Yeah, let’s talk about that sound itself, because it matters to both the access argument AND the musicology argument. The sound in“Joyful Noise”is a synthesizer sound with “portamento,” which gives it its gliding pitch bending sound. This sort of synthesizer sound is a popular one in modern pop music. But it’s not super similar to Katy’s.

The sound in Dark Horseis almost certainly constructed from Katy’s own voice, sampled and manipulated into a synth patch. Nothing novel. Everybody does that with vocals nowadays. If we’re looking for an inspiration, we’d note that it’s reminiscent of the venerable Fairlight “Syn Vox” preset from the early eighties (Firelight was a crazy expensive piece of tech back then — one of the first sample based instruments.) That sound was on tons of recorded songs and inspired a hundred other “chaffy” “breathy” “flutey” voicelike sound presets on future synthesizers and those collectively were ubiquitous across pop and new wave music for a decade.

At the time it sounded soon cool; previous technology couldn’t make that timbre. But like anything else overused, once you were over it you were veryover it. I can actually rememberwatching Titanic, hearing that sound in James Horner’s soundtrack (“Take Her To Sea, Mr Murdoch”) and being unable to clear the annoyance from my mind for the rest of the movie. It’s still aggravating just thinking about and reliving it, but I digress.

Here’s perhaps the most classic example of the original Firelight Syn Vox. Art Of Noise’s Moments In Love.

Yeah, that’s kinda the same thing, right? What are we hearing over and over? This… 1-1-1-1-5-5-5-4-5-5-5-5-5-5-5-5

I expressed it this time as scale tone numbers. I might also have used solfége. #1 is “La,” in the world of Do, Re, Mi, Fa and so forth. 4 and 5 are “Re” and “Mi.” Anyway… kinda like our combatants, four measures of notes, sixteen in total, three pitches but mostly just one, all the same rhythmic value, in a minor key, playing throughout the tune, almost like percussion (pressing my cowbell analogy) but pitched just to follow the harmony. And thattrack by the way was employed all over the place, sampled for hip hop records left and right. WhoSampledshows over a hundred tracksthat used those four measures and put a beat under it. Lil Wayne, LL Cool J, J Dilla, Mya’s top ten hit It’s All About Me.from 1997 among them — it’s a pretty good list. This record was a known asset to music producers looking to put a pulse in their track. No offense to Art Of Noise, but there’s not much there. It’s quarter notes on a preset sound on an expensive synthesizer. More cowbell, albeit three differently pitched cowbells. It was cool in its simplicity. And it was widely used for its simplicity. Simplicity gave it versatility.

As for this sort of synth sound eventually becoming the most annoying thing you could put on a record, jump ahead thirty years and like so many things worn threadbare in the 80’s, it’s cool again today, especially if delivered with a touch of wit. Lady Gaga, reliably leading edge, opened Edge Of Glorywith it; put it right out there naked in the intro. Just quarter notes, heartbeat paced, simplistic.

I say again, cowbell. Tonk Tonk Tonk Tonk.

And just last night! 

Before bed last nightI was watching Billionson Showtime, which by the way is scored wonderfully by an L.A. composer named Eskmo. I heard this sort of thing a number of times during episode one of season three. I actually grabbed my phone off the nightstand, “Siri, remind me in the morning about the Billions cue.” And now, in my studio, in real time, I’m gonna call up Showtime Anytime on my Apple TV, find that cue, and see how relevant it is… will take only a few min… (always takes longer than I expect, it’s been about 8 minutes, and…) Okay… it’s relevant. Got myself a drum machine and a synthesizer, recreated it for you, and this is pretty much the idea. The cue in Billionswent…

Eskmo’s cue actually sounds a lot better than that, but I don’t have all morning to mock it up more impressively. You get the idea. If you have Showtime, and wanna go check it out for real. It happens 44 min and 50 seconds in. What’s the point? Am I throwing Eskmo under a bus? No!I’m saying, this idea is just out there.I heard this in a TV show on the SAME DAY as the news broke that Katy is going to court! It’s commonplace. It’s just some fairly static pitches, in a robotic static rhythm, played on a breathy sounding synthesizer; extremely available and well traveled territory for composers; cliché. Sure, clichés can be used creatively to great effect, no question. But you don’t then go sue the next guy who employs the same cliché, do you? Can Eskmo sue the next guy who writes four bars of consonant chord tone quarter notes over vi – IV and loops it? It has certainly been done plenty since Billions Season 3 came out. Heck I’ll do it right now. (yep, more real time, step away for minute stuff…)

Minute and a half, actually.

I labeled that “My Own Cue To Which I’ll Never Give Another Thought.” Eskimo, Katy, Flame, all y’ll, come at me.

No, that would be silly.

On access, could the producers of Dark Horsehave heard Joyful Noise? Sure.

Could they just as easily have heard any of the other examples cited here or one of the 100+ tracks that sampled Art Of Noise at some point, such that the general idea was an available musical widget in their creative arsenal and the notes happened to strike Flame and Co as similar to Joyful Noise?

What did I have to hear to make my “four bars I’ll never think about again ever” or whatever I called it? Did I have to hear Art of Noise? Lady Gaga? Katy Perry? That cue from Billions? Nah. I would need only to have had an idea of tonk tonk tonk tonk on a breathy synth.

More importantly, on the notes, I’ve shown you a bunch of similar phrases. Who owns that — the tonk tonk tonk tonk, sixteen times, or eight times, or just four times, or however long you want to present a musical pulse? Nobody. It’s more presentation than composition; more idea than melody. It’s some musical language; a few words of a sentence, not a storyline. A “modicum” of originality? How small is a modicum? And originality in what form?

Is it even melody? Barely. It’s melod-ic,but in both Dark Horseand Joyful Noise, especiallyNoise, it’s at least as much accompaniment as melody. The melody of Dark Horseis what she sings overthis line in the verses. And an argument over specifics like the notes that are or aren’t identical is petty.

Copyright doesn’t protect ideas. And this is a tiny idea musically speaking — “de minims.” A trifle. But that said…

Will any of this save her from the vagaries of juries in a trial??

It ought to, but as simple as I try to make it, I realize this stuff is not simple. Gonna be interesting. Exposure? Yep, definitely exposure.

Highlights of Jimmy Page Testimony: Stairway v Taurus

Rolling Stone Magazine has published the entire transcript from Jimmy Page’s testimony during the trial in June 2016  in which Led Zeppelin was sued  for copyright infringement of the song “Taurus” by the band, Spirit, in Zeppelin’s iconic “Stairway To Heaven.”

Spirit were contemporaries of Zeppelin’s. The two bands appeared in concert together (on the same bill, that is) prior to the publishing of “Stairway To Heaven.” And as you can hear in these two short excerpts, the similarity between the two songs is obvious.

During the trial I posted my own analysis of this matter where you might be surprised to find that, while the two tracks sound alike in many ways, I found that Stairway does not plagiarize Taurus, nor does it infringe upon Taurus’s copyright.

Here I just want to share my favorite bits from Jimmy Page’s testimony on direct examination from the trial. The complete transcript will be interesting to anyone who either really loves litigation or really loves Led Zeppelin. Certainly there’s intrigue just because it’s Jimmy Page — blue chip rockstar. But be warned that it’s lengthy and gets bogged down at times — the questioning of Page went on for such a long time that the judge warned plaintiff’s attorney Francis Malofiy repeatedly that his total questioning time was limited and that he might want to move things along a bit or risk being timed out.

Also understand that in large part Spirit lost this case before trial even began when Zeppelin was granted a motion in limine that barred certain evidence from being introduced at trial. The jury never heard the two recordings themselves as you just did. The case was narrowly limited to the question of “Did “Stairway,” within the time statute of limitations, infringe upon the deposit copy of “Taurus,” filed with the U.S. Copyright Office. This “deposit copy” is the handwritten sheet music version of Taurus submitted with the copyright application, not the recording. This registered deposit copy of “Taurus” doesn’t include the guitar introduction that obviously links the two songs. It was all excluded.

By the way, the deposit copy of “Stairway” begins at “There’s a lady who’s sure…” There’s no famous guitar intro on Stairway’s copyright document either!

Reading the transcript is like riding along as the almost completely handcuffed plaintiff attorney Malofiy, can’t play the recording of “Taurus” for the jury, nor can he even talk about such recording hardly at all, tries to get Page to admit, first, that he might’ve heard Taurus somehow before he wrote Stairway, which he won’t admit, and secondly that the two sound similar, which he also won’t admit! Fun stuff.

Despite the motion in limine though, a remarkable thing happened that nobody else seems to have found remarkable. I’m reading along and all of the sudden I said aloud to myself, “he said what?!”

It happens when Page is recalling being shown a comparison of the two tracks from an internet site, just like any of us have. This he says was the first he’d heard of the controversy at all. He tells of how it was brought to his attention and so he listened. Malofiy quickly then tried to clarify just how much of Taurus was heard by Page in that internet recording. Malofiy needs to establish this right away because the guitar part in Taurus that you heard above doesn’t occur until 45 seconds in! But Page, evidently well coached and maybe realizing he’s about to misstep, frustrates Malofiy by referring to the irrelevant orchestral sounding stuff that begins Taurus. So Malofiy quickly pivots and asks…

Malofiy: “Now, once the acoustic guitar came in, isn’t it true the two songs are similar in that section?”

And there are objections and rulings ringing out from Page’s attorney and the judge but despite that… HOLY COW, Page answers!

Page: “Oh, I don’t think so.”

This for me may have very quietly been the highlight of the whole shebang, though I’ve never heard anyone mention it.

Jimmy Page said he doesn’t think the songs are similar in that section.

Seriously?! He might as well have flipped Malofiy the bird.

Thereafter Malofiy is on a short leash. He doesn’t get another clean shot. A lot of time is spent on the matter of “access” with Page denying that he has any recollection of ever having heard Taurus, nor of Zeppelin every being in concert alongside Spirit, which meanwhile is a documented fact. It’s all fun and makes you wish you could’ve been there.

As a musicologist the most interesting piece was this…

Page was asked about the structure of the famous guitar intro to Stairway. This seemed to forecast and set up a planned argument that Stairway has a peculiar similarity to Taurus in that Stairway’s  intro descends chromatically from A to F (which it does) and then, Malofiy insists…

  • “avoids the fifth chord, the E?”
  • “does not go to the fifth?”
  • “skips over the fifth and goes back?”

Malofiy said it in each of those ways, asking Page to affirm. Page hems and haws perhaps being careful not to answer anything that wasn’t precisely asked. So Malofiy continued more insistently.

Malofiy: Okay. Does it ever go to the E before it resolves back to the A?

Page: The E chord or the E note?

Malofiy: E.

Page: E note?

Malofiy: Right.

(there’s some debate then among the attorneys and judge as to procedure)

Malofiy: Okay. Is it your testimony that “Stairway to Heaven” does not descend the five pitches and avoid the fifth chord, the E?

It seems that Malofiy doesn’t quite understand what he’s asking, but is determined to get this in. He flips, as Page asks for clarification, back and forth between asking about the fifth degree of the scale ( a note) and a chord built upon the fifth degree of the scale.

Who told Malofiy that there was a foothold there and to press it?  It appears he was counseled that, as is the case with Taurus, Stairway’s lowest voice descends chromatically from A down to F but then, significantly, ‘avoids’ the fifth,” and that this is such a good argument, Malofiy should go it himself and ask Page during direct and perhaps set up a gotcha moment later?

And I’m surprised at this because it’s weak at best.

To argue that Stairway “avoided” the fifth (whether the chord or the note but he seems to have meant chord) is to tenuously assume that the fifth is the default cadence. Stairway “avoided” a bunch of other notes and chords as well, every possibility that it did not employ. But let’s admit for a moment that the fifth, “E” might reasonably be expected. There’s still no gotcha here. The G that’s used there instead is, I’d argue, the next closest thing. They are functionally almost interchangeable. If I played Stairway for you, but swapped out those two notes, chords, both, you wouldn’t flinch. They’re very interchangeable.

What the plaintiff is calling attention to is something he should avoid like the plague. It seems like a case where musicologists saw something, seized upon it, and led their client astray.

Taurus meanwhile certainly does avoid the fifth, and I might add, does it awkwardly as all hell. Taurus diverges from from Stairway at this moment! Why on earth bring it up?! The plaintiff’s musicologist might myopically disagree and evidently did, but a jury would hear it my way plainly.

Musicology geeky explanation thing coming now… Taurus makes its way down to F, a subdominant function, and then doubles down on the “subdominant-ness” moving down to D, going considerably out of its way to employ an ethereally vague, not quite plagal  but certainly NON-dominant to tonic cadence.

Stairway doesn’t employ the most dominant note available, but chooses a very similar substitute for it, and as I said, you wouldn’t even notice if I switched them out. It’s a dominant to tonic cadence. They’re just wrong.

Look for this too.  At some point Page evidently admitted that “Chim Chim Cheree” from Mary Poppins contains similarities with Stairway, which it certainly does, but he couldn’t quite manage to see where Taurus is similar. Not on the stand anyway.

James Arthur (X Factor winner) v. The Script

UPDATE: It took a while but a song theft lawsuit over “Say You Won’t Let Go” was evidently filed today (May 21, 2018) and look out,  it’s Richard Busch for the plaintiffs. I’m going to take a close look at this one right away and give you the prediction.

X Factor comeback kid James Arthur could be hit with copyright lawsuit over chart-topping hit Say You Won’t Let Go

Evidently The Script’s publishing company is deciding whether to bring an action here that would really rain on Arthur’s parade.

Arthur’s #1 hit song, “Say You Won’t Let Go” does indeed sound a lot like The Scripts #2 hit song, “The Man Who Can’t Be Moved.”

Reports say the publishing company that owns some of the rights to “The Man Who Can’t Be Moved,” has a consultant (someone like me) working on whether or not to sue. Guess we’ll see how that goes!

I haven’t followed James Arthur’s career, but by all accounts he needs a break, so I’m pleased to say that while I can certainly see the argument, on this matter he appears to me to be safe.

There will be a thoughtful and (sorry) likely technical explanation here soon. In the meantime the web is chockablock with mashups followed by comments and tweets about how they sound both exactly or nothing alike, how there are “only 12 notes,” how “you can’t copyright a chord progression,” how Adele’s “Someone Like You,” sounds exactly and nothing like both of these, and so forth.

All of that is half true, which is perhaps what The Script’s consultant is telling them right now. But the argument that’s on the nose will keep James Arthur’s #1 hit song safe. And I’ll share it as soon as I have time to lay it out. Maybe tomorrow. Certainly by mid-week. Or, if the Script’s guys wanna call, I’ll just spell it out for them. See if it matches what they’ve been told.

One Direction sued. “Night Changes” and “Story of My Life” involved.

It’s been reported that the soon to be reuniting “One Direction” has been hit with a lawsuit and their tracks “Night Changes” and “Story of My Life” are named in the complaint. Unfortunately, more details are hard to get. The suit was filed in Ireland and is not public yet.

As soon as more is known about the plaintiff and their allegedly infringed upon tracks, I will get right to the task of analyzing whether One Direction stole one or both of these big hit songs.

Sorry v. Ring The Bell | Musicology says Bieber Not Guilty.

On May 25, 2016 Justin Bieber and his co-conspirators got hit with a copyright lawsuit alleging that his mega-hit “Sorry” infringes upon White Hinterland’s track, “Ring The Bell.” You only have to listen to the first 10 seconds of each track to hear what the fuss is about.

As my eight-year old just succinctly put it, “They sound like the same thing.” What tiny measure of “Belieber” that remained in my daughter has just left the building. “Good for you, Girl. You sue him!” she just yelled, as she exited the room. She isn’t wrong. They do sound a lot like the same thing. The second biggest pop star in the world may well decide to pay and settle this quietly. But forensic musicology says, he shouldn’t.

Popular Musicology Opinion: Not guilty.

We’re going to explore this in great detail. The filed complaint is right in front of me and we’ll begin by looking at its claims one by one. The plaintiff’s arguments are in bold, and my comments follow in italics.

Getting right to it, they begin with…

Plaintiff’s “Ring the Bell” opens up with the signature and unique vocal riff, which provides the introduction and primary musical motive for the structure of the song. This vocal riff – also referred to as a loop, chant, or hook – is crucial to the sound recording and composition of “Ring the Bell,” creating the backbone for the composition and the song’s initial hook. After opening the song, the vocal riff repeats throughout, serving as a unifying thread for “Ring the Bell.”

That’s a whole series of claims and even though they’re talking about their OWN track, “Ring The Bell” it would be lazy to accept it all wholesale. Some of it though is simple fact. The riff in question is indeed the first thing you hear in both “Ring the Bell,” and “Sorry.” It would be hard to argue that the riff isn’t “the introduction” and “the song’s initial hook.” 

Thereafter, they ask us to accept a lot. They call this riff the primary motive,  the backbone, and the unifying thread, crucial to the record and the song. (The record and the song are different things, btw. See sidebar.) Is it?

On the one hand the veracity of these claims is partly linked to the composer’s intent. She alone knows for sure her own creative process. She knows what’s the chicken and what’s the egg. But we’re not in court, and we can speculate, and I say the riff is the egg, not the chicken. (The chicken really did come first you know.) It is very hard to imagine this introductory riff even came along early much less first in the creative process. The riff is most easily understood as an elaborate reflection of a recurring supporting element than as a basis itself. 

I can foresee their larger argument and toward that, the most I would say is that yes, the track begins with it as an intro; then the rhythm the intro conveys is carried on in the accompanying rhythm section as the track continues and that this rhythmic figure is indeed core to the accompaniment and since it’s a somewhat uncommon rhythmic figure, it’s core to the character of much of the song. They’ve used the terms “backbone” and “unifying thread,” and rhythmically this is a defensible stretch. But is the melody of the intro a backbone or a unifying thread? No, that’s a reach. The intro figure doesn’t appear in the melody anywhere. It’s an accompanying role player. If we’re being very charitable, the shape and function of the intro’s melody is consistent with and enhances its rhythmic function. They should argue this. But the melody itself doesn’t figure throughout the song. It’s no more prominent than a counter melody in the accompaniment.

Bieber’s ostinato and White Hinterland’s are more melodically similar than rhythmically similar. So if we were to agree with the plaintiffs about the grand role that they are ascribing to this riff, all of that value is vested in the rhythmic information, not in the melodic information. That just directs our attention to the rhythm of the intro and away from the melody. It just points out how different they are. Let’s say for a moment that it IS the backbone, and the unifying thread, crucial to the record and the “Ring The Bell.”

Rhythmically it can be none of that in “Sorry.” It’s entirely dissimilar in its rhythmic function. The “Sorry” riff, rhythmically, is a much simpler riff. Indeed “Sorry” is a much simpler song. Every interesting rhythmic quality that “Ring The Bell” possesses, allegedly attributable to this riff, “Sorry” completely lacks.  “Sorry” could not even accommodate the “Ring The Bell” riff’s without completely altering its intended rhythmic function, much less have it be an important component throughout.

The public has streamed “Ring the Bell” approximately 800,000 times on various platforms since the song’s release.

This is the “access” piece of the complaint. It’s standard. If you want to prove plagiarism, you must always show that the infringer had access to the infringed work. Is 800k is a lot.

By the way, while 800k streams is impressive, that sucker is as of this writing at nearly three and a half MILLION views on youtube alone. This copyright lawsuit has probably already benefitted White Hinterland quite a lot. None of which means she’s not entitled to more. But I’m just saying. 

Here comes another similar access claim…

The April 10, 2014 edition of Rolling Stone magazine featured a print- review of Plaintiff’s album Baby. In that same edition, and only a few pages before the review of Baby, Defendant Skrillex’s album received a prominent review.

They had to have be ecstatic when they discovered this. But c’mon! Do I believe Skrillex got a copy of this Rolling Stone issue? Yes. But did he listen to all the other tracks mentioned in that same issue? Or any of them? I doubt it. They go on to make other “access” arguments, because they must. And I touch upon all of this because it’s interesting. But I digress at this point. It’s not musicology’s role to conclude that they likely did or didn’t hear “Ring The Bell” before they produced “Sorry.” Decide for yourself.

Prior to the creation of the music for “Sorry,” Skrillex, Diplo, and Blood all had access to, and upon information and belief, were familiar with Plaintiff’s “Ring the Bell” due to the widespread commercial release of “Ring the Bell,” the music press’s coverage and reviews of Plaintiff’s “Ring the Bell,” Diplo’s database of songs kept on his hard drive, Diplo’s and Plaintiff’s shared label family, and Rolling Stone magazine’s coverage of Plaintiff and Skrillex in the same issue on two separate occasions.

This is more of that same insistence that the defendants were familiar with the “Ring the Bell,” and that therefore this isn’t just a coincidental infringement. Apple Music and Spotify give everybody access to every song in the universe for 10 bucks a month. We’ve all got access to everything. Yes, Skrillex, Diplo, and Blood had access to “Ring the Bell.”  

So legally it’s a minor point, but is it probable they heard it?

  • “Ring the Bell” was released, got some press and reviews.
  • The Rolling Stone magazine thing a few paragraphs ago
  • Diplo, is one of around 50 artists or bands connected to a particular record label. This label and four others like it are all under a parent label. White Hinterland is on one of those other four. This one is kinda funny. Let’s take a napkin and… 50 artists x 4 labels x 2 records each x 10 tracks per record, we’re just spitballing here… that’s 4000 tracks with which he maybe has a “shared label family”? Who cares?! This is tedious beyond the pale. It is at best neither likely nor unlikely that Skrillex, Diplo, or Justin Bieber had heard “Ring the Bell.” But sure, they had access.

Plaintiff owns a protectable copyright interest, both in the musical composition and the sound recording, to her original and unique song “Ring the Bell,” which includes the unique and original vocal sample and riff that appears throughout “Ring the Bell.” 


The notes of the “Ring the Bell” vocal riff correspond with the tonic of the song without overstating its progression. The notes of the vocal riff foreshadow and set up the mood and feeling of the song. The vocal riff moves upward, giving the chant a certain open, uplifting freshness.


Voices are original and difficult to imitate. Plaintiff’s voice is a unique instrument. The timbre of Plaintiff’s voice is inextricably linked to her writing, especially in “Ring the Bell.”

Yes, to all three.

Plaintiff’s vocal riff in “Ring the Bell” is specific in terms of pitch, register, orchestration, and overall use, …

Yes, agreed. You’ll be sorry.

and it is the defining “hook” of the song and the seed from which the entire song grows.

No. It’s the intro, yes, but that doesn’t make it “the seed from which the song grows. As I’ve already said, this is an implausible claim.

Plaintiff positioned the signature vocal riff of “Ring the Bell” to introduce her song because she wanted to set the tone immediately and swiftly for what follows. The vocal riff grabs the listener and allows the listener to identify her song. It functions as a hook and a complement to the chorus. After the introduction, the vocal riff and sample repeat throughout “Ring the Bell.”


To write, create, produce, and record the song “Sorry,” the Defendants knowingly and unlawfully copied original, protectable elements of the musical composition of “Ring the Bell” and unlawfully sampled Plaintiff’s protectable sound recording of “Ring the Bell.” 


Defendants manipulated and/or altered Plaintiff’s sound recording by adding additional effects.


Defendants failed to secure a license to sample and exploit Plaintiff’s “Ring the Bell.”

The parts I’ve struck-through are presumably still in the complaint but they’re the parts that Skrillex specifically swatted away with this 30 second video…

Plaintiff’s protectable vocal riff is crucial to both “Ring the Bell” and “Sorry.”

Not crucial to “Ring the Bell.” It’s a bit part. It is the introduction and I’ll grant that its due significance, but it neither dictates the melody, nor likely even informs it. It matters very little to the rest of the track. Were one to make a list, this would be among the less crucial elements of the track.

The same however cannot be said of “Sorry.” It’s the intro and it’s half of the hook. It’s pretty critical. Here’s just a couple measures of the chorus.

The identical and/or striking similarity between “Sorry” and the protectable elements of “Ring the Bell” is obvious, such that an ordinary lay listener would instantly recognize the sample and similarity between the songs.

Remember, at this point, White Hinterland is under the impression that the actual recording was sampled and manipulated. So making the distinction that “lay listeners” would instantly recognize the sample and similarity is sorta funny. Sample aside, we still have similarity to deal with.

That’s the last of the interesting claims in the complaint.

Since the plaintiff’s dug a hole for themselves by falsely accusing Bieber and Skrillex of sampling “Ring the Bell,” we get to throw out a bunch of their poorly premised claims. The two intros do sound darned similar to the lay listener though. As my kid said, “They sound like the same thing.” The composition can still have been infringed upon.

Did they steal the musical idea? And is it protectable?

One theory the plaintiffs could float is that Skrillex, Diplo and Bieber  admired “Ring the Bell,” so they lifted the idea for the high pitched voice and then adding insult to injury also used the same notes that she did, essentially making a sound-alike instead of clearing the sample. That’s done all the time, by the way, often by this guy, Ken Lewis. He’s awesome, and “sample recreation” (or “sample replays”) is an interesting area.

But it certainly doesn’t appear to be anything like that. As Skrillex demonstrated, making this high pitched vocal sound was a just few clicks for him. He’s using an app called Ableton Live, but any modern music software would let you change the pitch of a music segment and add some echo. There’s nothing proprietary or even clever about any of that. Every music producer in the world is copying audio phrases from within tracks, chopping the phrases into bits, rearranging the bits to make new phrases and using effects way more interestingly than this.

Here’s Calvin Harris’s and Rihanna’s huge hit, “This is What You Came For.” Hugely popular hit song with the hook that goes, “But she’s looking at you ou ou ou, you ou ou ou.”

Rihanna might never have sung anything like that in the studio. That line was put together in a computer. Every “ou” is the same recorded snippet. This is what’s in style now. We’ve moved beyond using computers-to-fix-imperfetions. “This I What You Came For” is made extra choppy and artificial sounding on purpose!

What the heck is Kiiara supposed to be singing in “Gold?” This is taking it a little far, but really, it’s just very common.

Most likely Skrillex was listening to the a cappella demo, looking around for bits and pieces of a female vocal that he could put to use in his production. She provided an interstitial non-lyrical phrase that she sang in the chorus after “Is it to late to say ‘Sorry?'”  Again I would assert my guess that she probably meant to outline and imply the intended harmony (it does that) while adding a little vocal ornament to build toward the answering phrase, “Cuz i’m missing more than just your body.”

In Skrillex’s Twitter takedown, he showed us that he pitched her voice down four semitones and then up twelve semitones. Why not just pitch it up eight in the first place? Because it’s a short version of the story. She sang her demo in G major. But Justin’s track is in Eb. So the first thing Skrillex probably did is pitch down her whole demo by four semitones to get it all into Eb major. Then he went looking for things to chop to bits, found this appealing snippet and recalled, “Justin loved the production technique I did on ‘Where R U now?’ I could do something kinda similar here.”  So he pitched up her vocal and turned up the echo and used it as a musical element in Justin’s track.

Let’s sidestep now, explain what that “Where R U Now” effect was, to make the relevant fundamental argument that nothing about White Hinterland’s echoey high pitched vocal treatment is protectable in the first place.

Justin reportedly couldn’t believe it when his voice got turned into a shakuhachi part by Skrillex for “Where R U Now?” It was a huge hit  song, and the NY Times did a “making of” video  that got shared around the music production world immediately. The part sounds like this:

The big philosophical argument would be that if Skrillex can turn Justin’s voice into a japanese wind instrument, he could probably have transformed him into an echoey high pitched female singer. Suppose he had, and similarly finds himself sued by White Hinterland because it sounds too much like her. That would be silly. It’s his own voice with all it’s unique characteristics. Suppose the intro to “Ring the Bell” was not her voice at all, but a flute playing those same four notes – high pitched, echoey, playing that same musical figure. And then suppose “Sorry’s” intro was a flute as well. Could she then say, “You copied my use of a flute!” Again, silly. It’s just a sound. Bieber would probably say, “I got my own live flute player here, and all flute tones are as unique as snowflakes.” Flute, shakuhachi, male voice, female voice, in an echo chamber or not — these are orchestration decisions and not protectable. In other words, Bieber is entitled to use any female voice not named “White Hinterland” and turn up the echo all he wants. White Hinterland can protect her own recording (irrelevant here because it wasn’t sampled) but she can’t conflate this with defending her composition. These are different concepts. They didn’t sample her record. And she doesn’t own echoey female vocal sounds.

That out of the way, all we have left is to look at the notes, on paper, and see if Bieber is stealing her song.

Going back to the plaintiff’s words…

The four notes of the sampled female vocal riff of both “Ring the Bell” and the infringing “Sorry” are Bb-C-Eb-F. The four pitches are of equal duration and are sung in a rapid succession by Plaintiff’s voice. The temporal spacing of the notes of the female vocal riff in both “Ring the Bell” and the infringing “Sorry” are the same. In both “Ring the Bell” and the infringing “Sorry,” these pitches function as a 5-6-1-2 pitch sequence in the key of Eb.

Essentially yes. They’re correct about the notes and their melodic function.

I have to keep reminding my readers to forget that although it’s a similar female vocal sound, that’s irrelevant here. We’re just looking at the notes, the pitches, Bb-C-Eb-F,  an allegedly plagiarized musical phrase that would be no less plagiarized were it played on a  kazoo.

Musical phrases have qualities —  melody, rhythm and harmonic function. Triers of plagiarism cases assess similarities in these qualities. And then separately decide if the piece of material enjoys copyright protection under the law in the first place. Or conversely, they often find that it’s a common musical device, too broadly applicable to be the unique property of White Hinterland or anybody else?

First, the melody itself. A post I read on Pitchfork quotes another musicologist as saying:

“The opening phrase is similar, but Justin Bieber’s ends on a different note every time,” says Jeff Peretz, professor of music theory at NYU’s Clive Davis Institute of Recorded Music. “They are not the same melody. They are very similar, they have similar notes and a similar arc, but they are fundamentally not the exact same melody.”

Perhaps he was misquoted or misinterpreted, but the notes in question aren’t “similar,” they’re exactly the four notes the plaintiff’s say they are. And the opening phrase in “Sorry” ends on the same note as Ring The Bell’s every time. That note is “F.”

The differences lie elsewhere.

Skrillex apparently clipped his whole phrase verbatim from the chorus of the a cappella demo and decided it would work as an intro and a hook. The snippet is indeed comprised of the four notes the plaintiff’s say, Bb-C-Eb-F. And “Ring the Bell” uses it’s own sampled phrase, those same four notes, in that order, over and over. But Skrillex’s sample part from the “Sorry” demo is not a four note phrase. It’s a five note phrase, every time! It’s Bb-C-Eb-F and then another ‘F,’ — four sixteenth notes followed by a quarter note.

This is no minor detail.

SIDEBAR: Very quick rhythm lesson now. Music notation is mathematical. Most often music is in 4/4 time. 4/4 time is so prevalent in fact that it’s actually referred to as “common” time. If you find yourself tapping your foot and counting along with a song and thinking “1-2-3-4  1-2-3-4  1-2-3-4…,” that’s 4/4 time. Music is divided into “measures” – the vertical lines in sheet music. The numberator in 4/4 time means we’ve broken each measure into 4 beats and the denominator means each beat is represented by a quarter-note. Four quarters thus make a whole measure. It all kinda adds up.

The first four notes of “Sorry,” four sixteenth notes, begin on beat two (a “weak” beat as we’ll explain in a sec) leading up to the fifth note on the “strong” beat three, then the sample immediately repeats on the fourth leading to the strongest beat, beat one of the second measure. The real musical purpose of the phrase is to forecast and lead up to the last and most important note. The phrase has velocity and momentum. It begins on a weak beat and its momentum drives to a resolution as it lands on a strong beat. Let me describe what we mean by weak and strong beats and explain how they are like velocity and momentum.

SIDEBAR: Music has energy, momentum, velocity, direction. The manipulation of these is largely what gives music its purpose and intent.

So consider… the downbeats are the stronger beats and the upbeats are the weaker less emphasized ones. If I ask you to tap your foot as you count 1-2-3-4 you’ll tap your foot four times I expect, unless you’re a drummer. Then you’ll tap your foot on 1 and 3, the strong beats. So now you’re a drummer. Think like one. Bob your head, as you count 1-2-3-4, bob your head down on 1, up on 2, down on 3, up on four. Repeat. Now you understand down beats and up beats.

Now while you’re bobbing your head, imagine beats going by twice as fast, and four times as fast. You’re imagining eight notes and sixteenth notes. You still feel stronger downs and weaker ups. That’s the nature of music. The downs are emphasized, the ups have to lead to downs, like with gravity. This gives music direction, and therefore momentum.

Back to our example. “Sorry’s” phrase is four sixteenths, rhythmically down up down up, followed by a fifth note, the target note, down. Consider how unsatisfying the phrase would be if you took the last note away. There was momentum, and it was arrested.

The notes themselves matter too. Notes have meaning and function. Most analogous to rhythm’s “downbeat and upbeat” are notes that are “stable and unstable.”  Some notes are more stable — notes you land on contentedly. Some are unstable, notes that feel as though teetering and beckon you to move elsewhere to more stable one.

In the world of “Do, a deer, a female deer,” the most stable notes are Do, Mi, and Sol. The least stable are Re, Fa and Ti. If I ask you to sing Do, Re, Mi, you’ll land contentedly. Likewise, up to Sol. If I ask you to sing Do, Re, and stop there, you’ll feel interrupted. And if I ask you to sing all the way to Ti and stop there, you’ll probably be so frustrated you’ll start to shake a little.

I’ll illustrate, playing a scale on a piano and denying you the last note that you expect.

The phrase ended on a weak beat and an unstable note, so it sounds very incomplete.

The entire musical thought is not just those four or five notes. The second repetition brings us into the second measure, and then an “answering” melody on a synthesizer completes the idea.  I’ll play it on a piano for you with a hi hat tapping out the time for context. It’s this:

In the accompaniment the intro employs the same chords used throughout the song, both in the chorus and the verses. The chord progression is IV-vi-V. In the Key of Eb Major, those three chords are Ab Major, C minor, and Bb Major.  Bb Major is defined as the notes Bb-D-F sounded together. And so, as the “Sorry”phrase plays it’s four sixteenth notes that lead up to the “F,” so too does the accompaniment lead to the Bb major chord with with that “F” will be consonant. (As one of the three pillars of the Bb Major chord, the “F” in the melody will sound harmonious.)

Let’s bear this in mind while we look at the very different usage from “Ring The Bell.”

First here’s “Ring The Bell’s” Intro.

You hear the four note sample repeated a few times, but not consistently placed. It’s hard to know exactly when it’s going to repeat. Try to hum along. It’s pretty futile. She purposely obscured the rhythm for the first couple of measures, an interesting creative decision. When other instruments enter, she extends the use of the sample to the form it will take throughout the song. Just as in “Sorry,” where the real phrase wasn’t the five notes, but ten.

The REAL phrase isn’t four notes, but eleven. Four notes, followed by the same four notes, followed by the first three. Often throughout the song it’s a longer phrase where the last three notes appear only every other measure.

It can be tricky to discern this rhythmic function. One way I thought I might clarify it was to add a drum part of my own design that emphasizes the rhythmic role of the vocals.

Then I’ll show you how this same rhythmic idea is carried throughout the track. Here, listen for just the snare drum, and try to ignore her vocal.

So while there are four notes in sequence in common, the phrases’ melodic rhythms are completely different.
Would you like to see how many times the two line up on paper?
Out of the eleven notes in the Ring The Bell figure, you could argue three are in sync. The three I’ve highlighted. Sixteens landing on beat four of the first measure. If I were more adversarial, I would show the just as common “Ring the Bell” circumstance in the song where the last three notes only occur in the second measure. Then there would be ZERO common notes.
That notation could be clearer. I’ll look to replace it with one that lines up the beats more obviously. It will do for now.
The key is this… When you look at the whole phrases, their melodic rhythms, the harmonies that support them and the function of the notes in the context of those harmonies, these phrases are very different.
We have spent a lot of time analyzing the similarities and dissimilarities. But really, once the wrongful accusation of sampling went out the window, you were left with four notes. Four notes isn’t much at all. And these four notes are not protectable. To illustrate, I will now make up a tune using the same four notes in the same order. And then at the very end I’ll overlay the vocal sample from “Ring The Bell” to remind you what the four notes sound like in her voice.

How long did it take me to write that song? That isn’t a song. That’s just an idea. And it was conceived in its entirety in less time than it took to play it, 30 seconds. I thought to myself, “I’m going to change the chords to this other “stock” thing, play a simple baseline and add drums to make it sound like something, and as a composer I already know the figure I’m trying to employ is going to work nicely throughout. That’s how unprotectable building blocks work.

 Three and half million views for Ring The Bell on youtube.