Katy Perry's Dark Horse Lawsuit Makes Waves in Music Industry
cbc.ca
cbc.ca
A bit on the melodramatic side, but explores the same general point.
So many of the compositions along that tract are made up of three to five notes in a limited variety of voicings and arrangements.
I - III - V - IV
Try Johnny Be Goode. Chuck Berry has his reputation but he could have pulled a move like this a large number of times by now [and somehow hasn't! (don't quote me on that, though)
I (4 Bars) - III (2 Bars) - I (2Bars) - V (2 Bars) - I (4 Bars)
Or something like that. But there's 90% of the song, repeated over.
But definitely. Especially modern pop country (gag) as even all the themes are the same! Red truck, light beer, America. Am I missing anything?
Anyway yeah—all the way back to Hank Williams you could form the basis of a case that any song that progresses Gmaj - Amaj - Dmaj on an acoustic guitar with a mournful vocal tone and downtrodden lyric content is a "rip off".
To add to that, if you haven't seen it yet: https://youtu.be/YWUQg0bqhVw
https://en.wikipedia.org/wiki/Amen_break
By using it you can play safe and not be accused of accidental copying, even though copying is exactly what is being done by using the 'Amen Break'. Sing over the top of it and you are good to go, nobody can accuse you of being insufficiently creative.
As a consequence of this there are similarities between the thousands of songs using the 'Amen Break'. If you were a DJ you could play the longest set ever mixing them in.
This question gets at the crux of the problem; its answer depends entirely on "what are the atomic constituents of a musical work?"
With consensus around a legal catalog of sounds, you could use reasonable assumptions to estimate a year by which all musicians have a 99.999% chance of being dirty-dirty infringing criminals.
Courts should also be more fair in awarding damages and follow-up royalties. All of the restrictions on copyright for sampled music really stifle the possibilities when it comes to music making.
What driving all of this at the end of the day is that big money wins... Big labels and artists get to sample whoever they want and just pay out a small percentage of the proceeds later on and tunes are even made more popular by sample controversies like this one, while the little people not only get ignored by radio, magazines, and music outlets, but then you won't even hear them because flagged samples in their work prevent them from even posting their music anywhere.
I did a remix of Beautiful Girls by Sean Kingston and can't post it anywhere because of copyright flags when I try to upload it and give proper credits... The original came out long ago and now is probably past the sales hump. Played it out once on a club night and it was a hit there... It's just sitting on my Hard Drive forever... Never to be heard.
I was listening to a recent album and the opening/closing riff of one of the songs was identical to something I used to play in my room between studying 30 years ago.
I remember my own discovery process. I had been playing the acoustic part of "Welcome Home - Sanitarium" with it's two finger chords and was messing around with similar chords higher up the neck and found a few that sounded really cool. Did I copy that song? No, but definitely inspired, the other guys probably discovered the riff in a similar way - just noodling around until they heard something they liked.
> [...] in Dark Horse it's just the background texture for one of the verses. It has the same musical function as a chord progression or a drum groove: it serves to highlight the melody but it's not the song itself. Up until this point it seemed like only melodies could be copyrighted in the composition of song, however the recent court decisions surrounding Robin Thicke's Blurred Lines and Marvin Gaye's Got To Give You Up has thrown all of this into question.
> This is why the lawsuit demanded a trial by jury: because they wanted to confuse non-musician non expert jurors with fancy music theory jargon.
He also specifically calls out the expert witness, saying:
> You're doing it in a fairly intellectually dishonest manner because I sincerely doubt you would make the arguments that you made in court at [an] academic conference for example, or you wouldn't write them down in a scholarly article, because your academic peers would absolutely eviscerate you for saying some of those things -- and yet in front of a jury of your peers you said them.
[1] https://criminal.findlaw.com/criminal-procedure/what-is-a-ju...
Because the defendant was a musician in this case.
Leonard French—a YouTuber and actual copyright attorney—does a good job covering the legal standards and issues here: https://youtu.be/t-tsw6Z4eHc.
A jury of random people can be confused and then convinced by lawyers. That's the way they like it, and that's the problem with jury selection - they chose people specifically because they are not knowledgeable.
To start: Not removing jurors simply because they're knowledgeable or have critical thinking skills.
Ummmm..... the Magna Carta was not about protecting the commoners from the king. It was about protecting the peerage from the king. "Jury of peers" is a jury of other members of the peerage trying a peer. Commoners were not part of the program.
Today nobody else does this, England for example only really uses jury trial to decide serious criminal cases (for minor stuff there isn't a professional judge at all, a panel of lay magistrates decides, they mostly seem disappointed rather than angry - like parents whose teenager was caught smoking).
The "prior art" from 1984 he mentions is radically different in the note pattern used which alone defeats that entire line of argument. Similarly, reaching back to classical music to talk about modern synth beats is a red herring. All he succeeded in doing here was showing that there wasn't actually prior art.
He does a bit on how the pagan aspects of the lyrics and video are irrelevant, but proving harm is crucial to a legal case. If the music is indeed copyrighted, then he could easily be harmed by the associations that would negatively affect his own song (and most in the US would recognize pagan themes as decidedly at odds with Christian ones).
The final blow is recognition and feel. A huge number of people would recognize Dark Horse exclusively by the playing of that short set of notes much as they could instantly recognize Billie Jean by its opening rift (or any number of other songs). This alone indicates that the notes in question are more than superficial.
Likewise, would the song have been successful without their support? It's doubtful as they try to add a crucial layer of sound over the otherwise very drab and forgettable (if not outright distasteful) melody.
If the notes are derivative and add substantially to the new work, then there is a case here.
EDIT: I say this as someone who doesn't like the current copyright system (either its interpretation or length)
It's not radically different at all. I'm a musician, but even for a lay person, this is as close as it gets without it being 100% the same.
>Similarly, reaching back to classical music to talk about modern synth beats is a red herring.
This doesn't even make sense. It's like saying that referring to a 18th century invention to invalidate a 2019 patent is a red herring. Music is music.
>The final blow is recognition and feel. A huge number of people would recognize Dark Horse exclusively by the playing of that short set of notes much as they could instantly recognize Billie Jean by its opening rift (or any number of other songs). This alone indicates that the notes in question are more than superficial.
No, it only indicates that these persons have a limited repertoire.
> This doesn't even make sense. It's like saying that referring to a 18th century invention to invalidate a 2019 patent is a red herring. Music is music.
Point out even one classical music piece were any instrument is used even remotely similarly to how this piece ties together the song. It does not exist. Trimming out a few similar notes used in an entirely different manner for an entirely different effect is like saying Picasso and Rembrandt are similar because they use similar lines and curves.
> No, it only indicates that these persons have a limited repertoire.
Copyright exists for the general public (as stated in the US constitution). If you need an expert to tell you two pieces of music seem to be similar, but actually are not, then there's probably something wrong.
Actually tons of classical pieces depend on a key motif by a particular instrument...
>Copyright exists for the general public (as stated in the US constitution).
The US constitution is wrong: copyright as it stands exists for fat company executives.
The whole channel really. If you ever felt like taking something apart to see how it works, in some of his videos he does that with songs. I didn't know people had access to stems of popular songs. And then there's music theory. It's like neuroscience. You push some piano keys (or what have you) and certain feelings appear. It's like programming but your whole work is presented to the user and there are no security issues. Really fun stuff.
I like Adam Neely, but Leonard French is an actual copyright attorney. He meanders a bit, but does a good job explaining the law here, including why this decision is narrower and more defensible than a lot of musicians might think.
I dread where this ends up.
I could be wrong but I vaguely remember something along those lines
But patent trolls are smart enough to have blazed a trail where you sue small time record labels that can't afford to fight you in court and are willing to settle. Any fight that goes to court, you just dismiss the suit to avoid losing and setting a precedent.
Maybe if you keep a low profile and insisted on NDA's for settlements, you wouldn't get sued as much for "stealing" from every piece of music made prior to your [Mega Album] dropping. I'd also recommend getting the copyright registered, but remaining out of every music database you possibly could, to enhance the obscurity of it all.
Also, if you know someone is infringing on your work and you don't actively pursue it, you could lose your rights to the copyright, so you need to find a cabin in the woods to lay low for awhile until you're ready to sue everyone in existence.
Patent trolls have a higher bar since they at least need a patent which is somewhat difficult to get. You actually have to prosecute, that's the legal term, your patent application through the patent system and nowadays survive an inevitable IPR challenge from the FAANG companies. It takes a year or two and a bit of money.
A copyright by comparison is utterly effortless, meaning that this sort of suit is also utterly trivial. Not good.
The songs don't even need to have lyrics or be enjoyable. They just need to cover enough possible sounds that can be made with modern electronic music tools.
https://variety.com/2019/biz/news/conan-obrien-jokes-lawsuit...
One day we received in the mail a cassette tape and a letter from a law firm representing a composer or publisher (I can't remember which) of a famous Broadway soundtrack from the 1960s. The letter accused the KLF of infringement. The cassette contained one of the songs on the Broadway soundtrack, an instrumental section of which repeated a three note riff that sounded a lot like the same three-note sequence from one of the KLFs biggest hits. The rhythms and song structures were otherwise nothing alike.
It didn't seem like an obvious example of copying, and it was quite possible it was a coincidence or some obscure influence on The KLF or their core musical collaborators, who would have been youths when the Broadway soundtrack was released.
"Are you going to fight this?" I asked the label's president.
The answer: "No."
From The KLF's perspective, it wasn't worth a long, expensive legal fight they might lose. The KLF had been burned before for rampant unauthorized sampling in a previous incarnation of the band called The JAMMs, as described here: https://en.wikipedia.org/wiki/1987_(What_the_Fuck_Is_Going_O...
Also, the label president didn't say it, but potential bad press could have also been on her mind. At the time, the KLF had the British music press eating out of their hands, and a public legal fight could change the narrative of the KLF as being brilliant pop iconoclasts to something less favorable.
I don't like where this is going. Those songs have key differences in percussion and partly in melody too, as explained in the graphic. This sets an interesting precedent, to say the least.
Honestly, there is nothing the same, and only a couple similarities such that one may be reminded of the other song. Remarkably, Pery added a ton of her own expression. These tunes are just not very similar.
Prior to this decision, I would have said no way to infringement.
Basically, the flood gates from hell were just opened. Music is about to get devalued (again), attorneys will make a killing, and the scope of new music will be reduced away from anything even remotely close to what major artists have released.
The latter may actually bring some new ideas forward, but I fear appetite for risk will prove more limiting than the new ideas may be potentially compelling.
What I'm curious about are the cases where it is extremely obvious that one song is based on another, and no one says anything.
Case in point: "Jolly Roger" by Adam and the Ants [1], from 1980. This is extremely similar to "The March of the MacGregors" by Ennio Morricone, from the 1966 film "Seven Guns for the MacGregors" [2].
It's not only the same melody, "Jolly Roger" is also largely the same arrangement.
Joyful Noise: https://youtu.be/jTLeHuvHXuk
Dark horse: https://youtu.be/0KSOMA3QBU0
Those songs aren't that similar (the jury didn't even hear both songs if I remember correctly), and after the verdict wasn't corrected on appeal the stage was set for more of these. The "easy money" angle of results (5 million to the estate of a singer for a 70s song.... just get lawyers).
It seems likely we are going to see more and more of these lawsuits. Sort of a sad state.
"Pirates" have been held-up as being publishers' enemies. I think this decision will serve to make independent creators a bigger target. Machine learning-based analysis of music along w/ this decision will create a distopia where independent musicians are hit with automatically-generated copyright infringement extortion letters. It'll be similar to the letters "downloaders" received a few years ago, except that the infringement will be the act of creation rather than "consumption".
My hope is the lunacy of this decision will spark more conversation about reigning United States copyright back into some semblance of its original form. I've been pining for that conversation since the creation of the DMCA, though, and it shows no sign of coming. The litigation wasteland that this decision will create might make that happen, but, then again, it might just serve to cement the idea that you can't be a legitimate content creator w/o going thru the traditional publishing system (and all the rent-seeking that comes with it).
Of course a purely functional improvement to governance is a political nonstarter in today’s environment.
Leaving justice outcome to chance is rather weak way to 'benefit the society'.
Loads of professionals think that this (and similar suits) are not only bogus but dangerous.
Remember that independent discovery is a valid defense a against a copyright infringement claim. Katy Perry's legal defense was that nobody had ever heard Flame's music. The CBC article doesn't seem to indicate how the jury was convinced that Katy Perry's team knew of the other song, except that "obviously they heard it because it was awarded a Grammy". Huh? Is that all it took?
Also, reminds me of the Silicon Valley where Richard was able to disproof Patent troll by using his music/search app.
[1] - https://en.wikipedia.org/wiki/Acoustic_fingerprint [2] - https://github.com/worldveil/dejavu
For an easy intro to how Shazam works, see this: https://www.toptal.com/algorithms/shazam-it-music-processing...
I'm all for creative freedom, but massively profitable pop music labels shouldn't be able to just crib the essence a catchy melody and make it the whole basis of their song just because the person who wrote the original version wasn't that popular. If it really was a coincidence in this case, then it's unfortunate, but it isn't life-changing to someone as well-off as her. If the original composer really was copied from though, actually being credited and received recognition as deserved, could be life-changing, so I don't blame him for suing.
Ultimately this will strengthen a labels position as signed artists will be "allowed" to be influenced by songs the record label already owns.
Anyone else will be stuck in court.
There's a fantastic documentary on this called Copyright Criminals that breaks down this area and just how intertwined the entire music industry is as artists are naturally inspired by each other. The conclusion from this film was that innovation and creation will then come from places where these laws do not exist.
Under pressure likely features the most recognizable bass line of the 20th century. So even claiming new art would be deeply influenced by the former
What happens when all the pleasing ways are copyrighted and owned by some sort of Pantone for music?
Good grief what are we becoming?
Technically, it's enormous, maybe 8^15 possible melodies.
But what about good-sounding melodies? That drastically reduces the space.
What about memorable, good-sounding melodies? Most melodies aren't catchy, so that limits the space some more.
What about culturally-appropriate, memorable, good-sounding melodies? It likely wouldn't make sense to use a Turkish opera melody in a pop song. Genres typically encompass a small space of melodies (e.g. Blues, Boogie Woogie).
What about such melodies that follow a particular rhythm, or match the vocalist's range, or that follow a desired chord progression?
After all this is considered, you're probably down to only a million combinations. But there are a billion songs out there...
or rather https://en.wikipedia.org/wiki/Poe's_law applies