Most of the time, forensic musicology is preventative. Composers and songwriters, creative and advertising agencies, and film and tv studios all hire musicologists to consult on original music before release to ensure against the possibility of infringing on existing works. It’s a sort of screening process.
Other times forensic musicologists are involved in actual or potential infringement litigation, making or defending against the case for copying and substantial similarity between two works.

In either case, the forensic musicologist applies their expertise in music (current, historical, music theory), music production, and copyright law to help identify, explain, show, and teach the musical facts relevant in matters of music copyright.

Here, forensic musicologist Brian McBrearty, who runs Musicologize, a musicological services company, explains the essential parts of his process.

What inspired you to become a forensic musicologist?
Lots of things, but I do remember watching an episode of The Good Wife about a lawyer who had been hired to defend a songwriter in an infringement case. It showed music experts testifying in a courtroom setting and the characterization was that expert witnesses will oppose each other, implying they’re bought and biased, and worse still, in the end, the judge doesn’t find their testimony very helpful in illuminating any objective truths. And in real life, that would be the most important failure. Nothing outweighs the job of giving the finders of fact, judges. juries, mediators, or arbiters, an understanding that enables them to make a well-informed decision, whatever that decision may be. I’ve always enjoyed explaining music to people, even beginning or non-musicians, and I could certainly clarify significant and insignificant similarities for a judge or a jury regardless of their musical sophistication. It sounded like great fun to me. It is.

How do you approach the task of analyzing a piece of music for similarity or originality? What are some of the tools and techniques you use?
It varies of course, but there are certain processes I go through almost every time. I listen to the two works, sometimes over and over — they’re usually two — and I find the sections that are most relevant to the question of similarity. Eventually, I focus on those and start looking at their details, working in software that lets me transpose and transcribe both works among other things.

The first part, transposing, is about getting both songs into the same key. It’s like finding the common denominator when you’re comparing fractions. A melody like “Do, a deer a female deer,” is the same melody regardless of what note you begin on. If I ask you to sing it, you’ll probably pick a random pitch for “do” and you’ll take it from there. It’s like that math metaphor again; all the notes are proportionate to the first one you chose. And because we’re talking about “Do, A Deer” and “Do Re Mi’s,” whatever first note you pulled out of the air is “Do,” and that’s the key you selected to sing it in. Musicologists put the two songs into the same key, like finding the common denominator, to make the comparisons clear.

The other part, transcribing. is about identifying the notes from the recording and writing them down, generating a bit of sheet music for those important sections. It might involve other ways too of getting the “data” of the music into the computer so that you can better analyze it. I’m a pianist, so I will often “play the parts” into the computer from a piano keyboard, for example. The analysis I was looking at today barely involved notes at all, so sometimes you need different approaches, but most of the time transposition and transcription is the first step in the analysis.

Next nearly always comes similarity analysis and prior art research and consideration. This is about identifying the similarities and considering their significance with regard to whether they are likely to be the result of copying or coincidence, and this is somewhat a function of prior art, works that came before. Prior art is one lens through which we consider the originality or commonality of a musical element. If it, or something very much like it, has appeared in songs throughout music history, then it’s not very protectable by the writer of song A. It’s not original to them. Additionally, it’s less likely copied FROM song A by the writer of song B, who might’ve heard it anywhere, everywhere, or nowhere in particular. It might be a very common element.

Melody and lyrics tend to be more “valuable” in terms of similarity than other aspects, followed by supporting harmony, and while melody and harmony involve rhythm, rhythm itself is less protectable. That said an element such as “flow” in hip-hop music for example while not tonal can often warrant consideration. There are lots of musical elements that music copyright mostly doesn’t protect. Scales, chords, simple rhythms, brief melodies, short lyrical phrases, and song titles are all considered basic building blocks of music creation, owned by everyone; public domain stuff. Ideas are not protected, so you and I can both write lyrics about how much we love our car or our horse, even if we touch upon similar ideas. And even where we might touch upon identical ones, there’s a concept called Scenes A Faire, that acknowledges that once you’re writing a song about how much you love your car, you’re bound to touch upon the roar of the engine and the softness of the leather seats, and so similarities like that will be unremarkable.

www.brianmcbrearty.com

www.musicologize.com

Anthropic, like artificial intelligence itself, is just inevitable, right? They’re one of the most well-funded AI’s out there, with a billion plus from Amazon, Google, and even Sam Bankman-Fried. Amazingly, while SBF himself is on trial, it may turn out that FTX and Alameda are actually solvent as a result of investments in Anthropic! On the other hand, $150,000 in statutory damages per infringement multiplied by virtually every song in existence would equal a gazillion or so. Universal Music Group is joined by Concord and ABKCO: they’re three of the biggest music publishers. This suit is huge.
There’s also the Sarah Silverman-led case against Chat GPT and Meta, brought because the LLM models may have trained on copyright-protected books scraped from the internet. Getty Images is going after Stability AI which makes image and music generating tools. But as wrong as it may sound the first time you hear of it, using copyright-protected material to train a bot that might later write a story or music that’s in some way based on what the bot learned from all that input is not clearly illegal.
I mean, the complaint begs to differ, but it’s a big question. And while it’s still a question, these companies are doing it as fast as they can and the rationale probably ranges from, “Google Books v. Authors Guild went a long way toward making us believe this is all fair use” to “Screw it, whatever penalties we ever get hit with, it’s worth it. Forgiveness is way better than permission. The ship has sailed. Et cetera.”
Whether it’s Silverman, Anthropic, or the Ghostwriter guy wearing the bedsheet with the sunglasses making fake Drake tracks and trying to get them nominated for Grammys, there’s nothing clearly wrong, yet, about the training part. So any argument that begins with “it’s illegal to make a copy, and when you make a token for your LLM, that’s a copy, so it’s all infringement,” is a begging one. And is training your large language model on copyright-protected music an “unauthorized use” for which you need a license? Mabye. And derivative works are the exclusive right of a copyright holder but every piece of music I’ve ever written is in some measure influenced by every piece I’ve ever studied or even known, and I’m risking absurdity by calling it all derivative. This is just obviously a lot more immediate: If a tool like Antropic’s “Claude” is asked to “write me a song about the day Buddy Holly died, with guitar chords and everything, and its output shows that it was clearly considering Don McLean’s “American Pie” as it composed a new-ish song, isn’t that necessarily infringement? (I got that example from the complaint btw.)
Infringement is about access, copying, and similarity of protectable elements. Access seems done and dusted. Let’s move on to copying. When I asked Claude to write that song a few times, Claude wrote mostly original but not very good lyrics (still super impressive, you understand). The thing was, it sure had a hard time getting completely away from the idea that “February made me shiver” and that this was the “day the music died.” These couple of phrases made it into Claude’s lyrics each of the four times I asked it to write a song. But had it not, I wouldn’t have immediately mapped anything else musicologically relevant about it to “American Pie.” As for unlawful appropriation of protectable elements, one could argue that while the “day the music died,” and “February made me shiver” both point to a very famous song, it’s not at all clear that either of those phrases are protectable. I asked it to write chords too, but it didn’t choose anything from “American Pie.” The complaint provides several other examples: “A Change Is Gonna Come,” “God Only Knows,” “What a Wonderful World,” “Gimme Shelter,” “American Pie,” “Sweet Home Alabama,” “Every Breath You Take,” (Sting’s not litigious, don’t worry about it.) “Life Is a Highway,” “Somewhere Only We Know,” “Halo,” “Moves Like Jagger,” and “Uptown Funk,” all made the list but I haven’t looked beyond the Don McLean. (He was the first concert I ever saw by the way. My first idol.)
Not all uses are infringing. I mentioned “fair use” earlier. That’s a doctrine that allows some uses of copyright material without the permission of the copyright holder. Fair use factors are brief and simple but open to plenty of interpretation. Uses for purposes such as criticism, comment, news reporting, teaching, scholarship, or research are all allowable. As to what other uses may qualify, we consider these factors:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Claude will print the lyrics to popular songs upon request whereas Chat GPT I’ve found either refuses or is extremely reluctant, though it’s fun to try to trick it into giving away things it knows but has been told not to share.
If I ask Claude to “Tell me the words to Freebird,” it obliges: “These are the complete lyrics to ‘Freebird’ by Lynryd Skynrd.” And at the end, it offers, “The iconic southern rock ballad is about being free, restless and unable to commit to settling down. The soaring guitar solo at the end cemented “Free Bird” as one of Lynryd Skynrd’s most popular and enduring songs.” Is that criticism, commentary, or teaching? I’m guessing Anthropic has decided, yes.
They also seem to have taken an anti oxford comma position though. I ain’t crazy about that.

Brian McBrearty is a forensic musicologist and music copyright expert at Musicologize, a music services company specializing in music copyright consulting.

Musicologize is the most visited forensic musicology site in the world, and its main contributor, highly respected forensic musicologist, Brian McBrearty, intends to grow and nurture leading edge discussion about music copyright from the musical, human, economic and legal angles Musicologize always has.

It simply grew large enough to be its own thing — a news and commentary platform. And so, to clarify and distinguish the forensic musicology practice, and music services offerings, Brian has launched a forensic musicology services site at brianmcbrearty.com.

Preventative musicology services are foremost. It’s far better to avoid litigation than to engage in it. Preventative musicology has become a standard procedure among major broadcasters and advertisers. And it makes sense, given the litigious climate we’re in. We’ve been observing the increase in copyright litigation and claims of plagiarism and infringement for so many years we might begin to accept that it’s a function of the modern world. Thousands of small studios enable thousands of creators to publish music every day, and the reach of modern media — tik tok, snap, Instagram, on top of broadcast and streaming — more music, more eyeballs, more observations of perceived copying and stealing music. It has become something around which it’s rational to mitigate risk and, in some measure, insure against it.

Of course, Brian is happy to continue his work with clients who feel their work has been misappropriated and others who’ve been accused of misappropriation. McBrearty hopes preventative musicology will become his most popular offering. Forensic musicology is more rewarding when it helps clients avoid conflict, rest easier and concentrate on more creating. Above all, McBrearty’s new site hopes to streamline that process, bring down the costs, raise the standard. There’s a not yet open clients-only area, password protected, that will improve the whole process for everyone. It’s in development and should launch by the time Brian’s kids go to school.

In the meantime, Brian can be reached at (212) 217-9512 and at brianmcbrearty@gmail.com and is pleased to accept new clients.

He has appeared on a few podcasts this summer, including this most recent one from Courthouse News Service, Give Me A Beat. And is pleased to accept invites and inquiries from reporters and podcasts to discuss the most interesting cases in music copyright news. There are certainly enough of them.

AI presents all kinds of challenges for music copyright, and intellectual property legality and morality in general. But 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.

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.

Mathematically, “an ounce of prevention is worth a pound of cure” is probably about right.

BrianMcBrearty | Forensic Musicologist
Forensic Music Services and Fees.

Reports, Clearances, Consulting

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?

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.

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.

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.

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.

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.”

These are the actual notes.

        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.