[ABSTRACT] Appropriation and Copyrightability in Music Copyright

I Hate These Blurred Lines: Wrongful Appropriation and Copyrightability in Music Copyright

Academic/copyright post: here’s an abstract (pdf) of a paper that I’ll be presenting with Prof Wendy Gordon next week at Boston University Law School.

James Newton

Flautist and composer James Newton, whose work ‘Choir’ was sampled by the Beastie Boys in’ ‘Pass The Mic’.

This is based in part on an earlier paper that we presented at the Art of Record Production Conference in Aalborg, Denmark in December 2016, a draft of which is embedded below with voiceover and music examples. As this is an academic paper about music copyright, it contains musical excerpts from the original audio recording. My first attempt to embed the video resulted in an automatic takedown (academic fair use YouTube dispute is in progress), so I’m trying again with a Screencast embed. Because the video represents commentary and (not for profit) academic research, I’m continuing to claim fair use. Let’s see how long the audio survives!

Abstract: We have two concerns with music infringement trials: The first concern is the process by which juries decide questions of whether a defendant copied too much from a plaintiff’s work. (This is the inquiry sometimes known as “wrongful appropriation” or “substantial similarity”.) This paper discusses the challenges of methodology in forensic musicology, and the musical and psychological difficulties of applying the ‘substantial similarity’ test fairly and objectively. (Bonadio, 2016; Gordon, 2015). We present an analysis of three disputes, with comparative audio examples – The Isley Brothers/Michael Bolton (2001); Robin Thicke & Pharrell Williams/Marvin Gaye (2015); and Randy California/Led Zeppelin (2016).
Our second concern addresses copyright classifications, in particular, the contested relationship between the creative decisions that give rise to copyrights in “musical works” (compositions) and the creative decisions that give rise to “sound recordings” (sounds as rendered). We suggest that overlap between the two is common and should be better recognized. To illustrate the potential compositional contributions of performers and sound engineers, we utilize audio examples from Newton v. Diamond and other disputes.

[Read more…]

Berklee’s Fair Music report

music20in20the20digital20ageMy first full session today at the CMS conference is presented by Berklee faculty members Peter Alhadeff and Luiz Augusto Buff. They are, today, analysing and critiquing Berklee’s Fair Music Report.

Peter begins with some caveats; he comments that the report deals particularly with the recording industry (and does not cover other music industries – e.g. live music and music education).  Second, he notes the support from Kobalt Music, whom he notes are a very particular type of publisher, with a particular interest in digital and many very large-scale song catalogues in their portfolios. [Read more…]

What exactly did ‘Stairway to Heaven’ copy from ‘Taurus’?

And my Spirit is crying…

As mentioned in a previous post, the question of whether Led Zeppelin’s Stairway To Heaven (1971) copies a part of Spirit’s Taurus (1968) may soon be settled.

Representatives of the late Randy Wolfe (aka Randy California) are claiming that the four-bar introduction section of Stairway To Heaven copies a substantial part of his 1968 instrumental composition Taurus.

Judge Gary Klausner stated that a jury should be used, because the matter in question is necessarily subjective: “while it is true that a descending chromatic four-chord progression is a common convention that abounds in the music industry, the similarities here transcend this core structure […] What remains is a subjective assessment of the ‘concept and feel’ of two works”.

So let’s compare the works – how similar are they?  [Read more…]

Sometimes all of our thoughts are misgiven

Led ZeppelinSo the Stairway to Heaven / Taurus controversy was back in the news yesterday, due to the fact that the dispute is to go to a jury in the US in May this year. I participated in a panel discussion about this a couple of years back for a Russian radio station.

In the next couple of days I’ll post proper transcriptions of the two with audio and some discussion points. For now, here’s an interview I did yesterday with BBC Radio 5 live, discussing the songs with presenters Sarah Brett and Ore Oduba.

Did Sam Smith copy ‘Earth Song’ in ‘Writing’s On The Wall’?

Sam SmithI was interviewed this week by the UK’s Daily Telegraph newspaper about the alleged similarities between Sam Smith’s new James Bond movie theme song ‘Writing’s On The Wall’ and Michael Jackson’s Earth Song. This blog post is a more detailed version of that analysis.

[If you’re wondering why The Carpenters appear in the above playlist, all will be explained shortly].

Lots of people around the web have been pointing out that the end of WOTW’s verse makes them want to go straight into the chorus of MJ’s ‘Earth Song’, and on listening to the tracks it’s easy to hear what they mean. It’s interesting, though, that although the ‘feeling’ of the end of WOTW’s verse is reminiscent of Earth Song for some listeners, there are only actually three notes that have the exact same pitch – and these notes are not placed at the same point in the bar.

The songs are in different keys – Earth Song is in Ab minor and WOTW is in F minor. When comparing melodies, it’s helpful to ‘normalise’ this difference by notating both songs in the same key, so that any similarities or differences are more visually apparent. Here’s the comparative/normalised transcription.

Earth Song (top) vs Writing's On The Wall (bottom), normalised to Ab minor for comparison purposes. No two notes line up perfectly, and yet the similarity is apparent to many people.

Earth Song (top) vs Writing’s On The Wall (bottom), normalised to Ab minor for comparison purposes. No two notes line up perfectly, and yet the similarity is apparent to many people (click image for a larger version).

So, if there are no notes that are exactly the same (in terms of pitch, rhythmic placement and harmonic context), why are so many listeners crying foul?

There are two areas of apparent similarity. The phrases in the penultimate bar of each song’s verse, highlighted in the red rectangle above, both have 8 syllables and have similar rhythmic scansion (and there’s no more use in runnin’ / did you ever stop to notice). But the section that everyone is talking about is the rising phrase ending on a B flat note (this is something I gotta face / this crying Earth this weeping shore?). These respective phrases, although they have only three pitches in common (with different rhythmic placement), give an impression of similarity because of the way the phrase ascends to the strong Bb note, with the same underlying dominant chord (in the normalised key of Abm, Eb major).

The songs also feature what we might call ‘surface similarities’ – that is, aspects of the arrangement or performance that appear in many other songs, but are combined in each work in the same way. They are both sung in the higher register of the male voice; they are performed at a similar tempo (Earth Song is around 6BPM and Writing’s On The Wall is around 65BPM). They are also both have a sweeping, epic quality and a lyric where the protagonist expresses some form of regret. There are of course many songs that feature these elements, but in combination they contribute to a subjective impression of similarity.

There is one other fragment of similarity, and interestingly listeners don’t seem to have picked this up to the same extent, despite the notes lining up exactly. WOTW’s chorus drops down dynamically at [01:28] and at this point the phrase ‘how do I breathe’ has the equivalent notes, syllable count and rhythmic scansion as bar 2 of Earth Song’s verse ‘what about rain’ [0:51 in the full length version]. The rhythms for this four-note section are identical, with identical pitches of Eb, Db, Cb and Db. The underlying chord on beat 3 is different, but the melodic similarity, for a brief moment, may be apparent to the listener. Here’s the relevant section, key-normalised as before.

Earth Song (excerpt from verse 1 at [0:51] shares a four-note melodic phrase with Writing's On The Wall (chorus 1, from [01:28]), albeit with different harmonic context on the half-bar.

Earth Song (excerpt from verse 1 at [0:51] shares a four-note melodic phrase with Writing’s On The Wall (chorus 1, from [01:28]), albeit with different harmonic context on the half-bar.

But methodology is all in comparative music analysis, and it can be abused. If you look hard enough, and work with small enough fragments, you can find similarity everywhere. In the Spotify playlist above, listen to the strings intro in WOTW followed by the first verse of Superstar by the Carpenters. Three notes of G, F and C below, in an F minor tonality. Coincidence? Er, yes.

Music analysis can only highlight the similarities and differences; it’s impossible to see inside the mind of a songwriter, and any accusation of melodic plagiarism usually has to demonstrate quite a high level of similarity between the works. There are melody similarities between WoTW and ES but there are also many differences; these melodic fragments and production/arrangement choices will certainly have appeared in other songs. Which leads us to the really interesting question – if no musical elements are identical, but the combinations of elements are similar enough to invoke allusion to an earlier work, might we describe the act of combining those elements as creative? Can composing consist simply of bringing together pre-existing ideas? Might we characterise all creativity in this way? (Arthur Koestler thought so).

Were Sam Smith and Jimmy Napes influenced by Michael Jackson? Quite probably – many great pop songwriters are. Would they have been familiar with Earth Song? Almost certainly – it was a worldwide hit and remains a classic. But is this an example of deliberate plagiarism? I’m not so sure. It depends on what you mean by ‘original’.

And what you mean by ‘composing’.

And what you mean by ‘copying’.


Copyright note for transcription excerpts: I claim fair dealing exceptions for the purposes of research, criticism, review and news reporting. 

Sam Smith and Tom Petty – coincidental similarity or accidental copying?

Tom Petty, one-fifth of the co-writing team behind Sam Smith’s ‘Stay With Me’.

This is a blog post about 5 bars of music. As reported in Rolling Stone and The Sun recently, the melodic similarity between Sam Smith’s 2014 song Stay With Me and Tom Petty’s I Won’t Back Down (1989) resulted in an amicable settlement between the writers and publishers sometime in 2014, resulting in Petty and Jeff Lynne, who originally wrote I Won’t Back Down, receiving a 12.5% share of the royalties. The PRS database in the UK confirms the share (members only access).

And subjectively, the songs are pretty similar, as bloggers had been pointing out since mid-2014.

But everyone was relaxed about the settlement, and Petty issued a  statement to this effect:

About the Sam Smith thing. Let me say I have never had any hard feelings toward Sam.  All my years of songwriting have shown me these things can happen.  Most times you catch it before it gets out the studio door but in this case it got by.  Sam’s people were very understanding of our predicament and we easily came to an agreement.  The word lawsuit was never even said and was never my intention.  And no more was to be said about it. How it got out to the press is beyond Sam or myself.  Sam did the right thing and I have thought no more about this.  A musical accident no more no less. In these times we live in this is hardly news. I wish Sam all the best for his ongoing career. Peace and love to all. (Petty, 2015)

Here’s the thing. Petty used the term ‘accident’, which one might interpret as meaning the copying of the melody was inadvertent. Sam Smith’s representatives claimed that the similarity was the result of a ‘coincidence’: [Read more…]

Authenticity and the role of live musicians in hip hop production #arpOslo2014

Alex Stevenson, Leeds Metropolitan University

Author keywords:      ­Hip hop, Authenticity, Live, Sampling

EMU SP12/1200

EMU SP12/1200

Authenticity and the role of live musicians in hip hop production

ABSTRACT: Despite hip hop music’s origins as a live performance-based art form, utilising turntables and sound systems, the incorporation of digital sampling technologies gave rise to a sample-based aesthetic within hip hop production which traditionally rejected the use of live musicians. In his ethnographical study of hip hop production, Schloss goes as far as stating that as a hip hop producer ‘…it is the lack of samples – the use of live instrumentation – that must be justified’ (Schloss, 2004, p.67).

This sample-based aesthetic is strongly linked to the notion of authenticity within hip hop production (Schloss, 2004; Williams, 2010), however use of live musicians has been evident throughout the history of hip hop; from live hip hop band The Roots , the use of session musicians to re-play samples in Dr. Dre’s Chronic 2001 (1999) to the self-sampling approach of Portishead’s self titled album (1997). More recently in the UK, the formation of bands such as Introducing Live whose debut project in 2009 was to recreate note for note the entirety of DJ Shadow’s exclusively sample-based album Endtroducing (1996) with a 10-piece live band and the Abstract Hip Hop Orchestra who, inspired by Miguel Atwood-Ferguson orchestral tribute to J-Dilla (2010), perform live versions of classic hip hop tracks with a 16 piece ensemble, demonstrate the integral role that live musicians can occupy within hip hop performances that were once the reserve of the DJ and MC.

[Read more…]