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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.

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. https://rapzilla.com/2014-07-flames-explains-joyful-noise-katy-perry-dark-horse/

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.