Thinking out Loud

It doesn’t take a law degree to understand that one cannot have the exclusive right to use and distribute music, or words, or any other basic tool critical to the creative process. One may have the sole right to exploit individual works created with these tools for a limited time, but the tools themselves are “public domain”, they belong to everyone.

girl with pink guitar, standing on street, singing from the top of her lungs

Photo by Felix Koutchinski on Unsplash. (modified)

I had just published The Copyright Protection Disaster, when I happened upon the report of a strange copyright lawsuit and some even stranger interpretations of this regulation — to wit: Structured Asset Sales vs Edward Christopher Sheeran.

I am not going to tell anyone what to think about certain pieces of art, or the people who created them, or whether I think Ed Sheeran’s Thinking out Loud is a “carbon copy” of Marvin Gaye’s Let’s Get it On. Rather, I am telling you this: Listen carefully, think thoroughly, and then make your own, unbiased decision.

Fancy a Quick Self–Assessment of Your Artistic Capabilities?

If you are so inclined, listen to a number of songs you have most likely never heard before. Finding those is easier than one may think. Most of us know certain genres they are not attracted to — sworn Alternative Rock fans are likely to try their best to avoid Jazz, Folk aficionados won’t dig too deep into Hip–Hop, Classic connoisseurs will stay away from “Candy Pop”, etc.

If all fails (like, when you have no favourite or “best hated” genre), go out of your way to listen to music from different cultures or eras. The lyrics don’t matter; if they tend to distract you, go particularly for instrumental versions. Just play the songs and try to hum along (imagine you were one of the background singers, if that helps).

Here’s what I predict: More often than not, you will, after a few seconds of listening, find it rather easy to guess how a song will continue. And, with a bit of practice, you will also be able to find its key (or at least narrow down your quest to one of two notes).

The earlier you reach this point, the more likely you are to have a natural feeling for music. Unless, of course, you had some sort of training. Then, you will “just know” what’s going on and what’s going to come next.

Despite the wealth of music released year after year, the underlying patterns (e.g., rhythm, harmony, tempo) that help us identify individual genres and positively respond to certain songs (and despise others) are rather limited and have been used for decades (often enough, long before the individual audience was even born).

Helpful is that the vast majority of us has a natural sense of timing and the ability to identify the centre of a given set of notes (the one note all the others in a certain key revolve around).

The average consumer will recognise these, without knowing music theory or realising what’s going on. Nevertheless, the average observer will (probably) not consciously experience the similarities between individual pieces of music. Simply because we observe them as homogeneous entities rather than compositions of individual parts — similar to how we read (once we are beyond the stage of spelling out each letter to build words, phrases, clauses, sentences, paragraphs, etc.)

“To be or not to be” will always be understood as a “question”, even by those who are not accomplished writers or Shakespeare scholars. For what else could it be, seeing that one faces two opposite options?

And once you have reached the point where you deem pondering options of such gravity worthwhile, debating whether you should accept your fate or rebel against it is only a small, logical step ahead.

Of course, I am not trying to imply that everyone could write this wonderful scene so eloquently or beautifully, make the audience feel the intensity and drama of Hamlet’s quest as strongly as Shakespeare did, but the “underlying patterns” are obvious to (and known by) everyone.

A Long Time No Hear

When I first heard A Site for Sore Eyes, a perhaps not commonly familiar ballad by Tom Waits, I instantly recognised the intro (it was easy enough, being a quite popular traditional folk tune, called Auld Lange Syne), but even as the song actually started, I did know how it would progress.

To be honest, I used to suspect Waits had “remodelled” some nursery tune (obviously, I’m no expert when it comes to songs sung to babies, but I had had a notion that these usually don’t deal with Baseball players of bygone days, people who die in car accidents, and drunk good–for–nothings who spend their days in bars).

It wasn’t until years later that someone told me that the tune is a traditional Christmas carol, really. Once I had that piece of information, I instantly recognised the original whenever it was played during the holiday season. Being also no expert for that genre, I had heard The First Noel before, but I never made the connection. There are so many different arrangements of the carol in popular use that one would have to hear an instrumental rendition of it and the Waits song (without the intro) back–to–back, to realise that they share the melody.

I do confess that I sometimes deliberately try to piss people off by singing the Sore Eyes lyrics when The First Noel is played (simply because I suspect that they deliberately try to piss me off by playing Christmas carols in my presence), but I honestly doubt that such random acts of subversion will deter people from listening to (or singing along with) Christmas carols (or trying to convince me of the merits of listening to boring music).

That said, I personally think that Sore Eyes is actually meant to be a “modern — sad but rather realistic — Christmas carol”. After all, it starts with the opening phrase of Auld Lange Syne, which indirectly ties it to the season. And when one does actually consider the lyrics, it becomes obvious that the song deals with a lonely person who has no one to talk to but a bar tender, and nothing but a nicely filled glass to drown memories of better days.

Dylan’s Fear of Plagiarising Himself

I once read somewhere that Bob Dylan never listens to his own music. He was quoted as being “afraid I might copy myself”. Personally, I think it was meant to be one of his quirky jokes. Nevertheless, there is a grain of truth in the sentiment. Even if we hear one of his songs for the first time, we almost instantly recognise it as a Dylan song (or at least have a notion it might be one of his), whether it’s performed with our without lyrics.

It appears impossible for even the most accomplished musicians to “own” his songs. Yet, in terms of music theory, there is nothing “out of this world” in them, nothing that was “unheard of” — even on the day they were originally released. Everyone who was familiar with the Blues and Folk “heroes” of old, knew the patterns. Nevertheless, he made music that is truly unique — whether or not the individual observer approves of him or his work is irrelevant, enough people do.

The Infinite Monkey Theorem Is Applicable to Music, Too

As a kid, I learned to play accordion. We had neither the budget nor the space for a piano, so I decided that an accordion was the next best thing. All went well, and people (other than my parents) agreed that there was hope. Little did they know how hard it is to study sheet music and how much I hated that part of my daily exercises. Knowing to read from sheet can be important (if one is supposed to play pieces exactly the way they were intended), but it also tremendously limits our experience and creativity.

So I practised sheet music on weekends (when my parents were around, but also to make some progress and so soothe my teacher’s temper) and freely experimented with music the rest of the week, trying to play phrases by ear and changing them to taste.

Our neighbours were either deaf as the proverbial post or they actually enjoyed the experience. The sound of an accordion carries far and can melt stone — particularly so, when the instrument is played in a building from the 1970s — but no one ever complained. They kept treating me like a prince — even the grumpy would–be tyrant living one floor above us appeared to approve of my musical adventures.

Yet around came the day when a silly accident stopped my efforts for twelve weeks. A torsion fracture of my left elbow forced me to wear a cast that reached from the shoulder all the way down to the fingertips. When it eventually came off, it turned out that three fingers were completely paralysed and numb. I could neither properly open my hand nor make a fist. So, for another nine months, I was limited to do everything with my right hand exclusively and subjected to electroconvulsive therapy sessions twice a week.

Resuming exercise was an ordeal, both mentally and physically. After having been able to do everything with either hand effortlessly for all of eight years, the muscles that controlled my left hand would simply quit contracting and relaxing after twenty minutes of pressing and releasing small buttons rhythmically. Playing an instrument with only one hand is in general an awkward experience, but with the accordion it is literally impossible to simply “reach over” to play bass notes. I even tried to flip it over to play bass notes with the right hand and melodies with the left. Yet for that to work properly, it would haven taken a custom–made instrument — I was desperate but not enough of a junkie to try and convince my parents to go to such lengths.

Consequently, I could only play melodies for the rest of each practice session. Doing so, I soon figured out that it was possible to create certain moods by employing some of the “rarer keys” and syncopation (nothing you would ever learn from traditional sheet music). I didn’t need a single lesson in composition to learn that music doesn’t have to be “flat” and boring just because the bass notes are missing.

Of course, I’m not trying to say that a complicated fracture cost the world a renown motion picture composer, or that musicians like Ed Sheeran are monkeys who simply play around until they eventually come up with nice pieces. Nothing of that. What I’m saying is, even a kid with one hand and a bit of experience (and the mind to actually give it a try) can create three minutes and five seconds of decent music (whether or not this piece of music is going to be a “hit” is a different story altogether).

Let’s take that notion to a higher level: An accomplished musician with a lot of experience and skill is certainly able to compose original music that makes some instantly think of other popular pieces. Yet why would one do that? Laziness? Lack of talent? Certainly not.

Modifying a well–known piece of music just enough that not everyone is suspecting plagiarism is not a funny “finger exercise”. Depending on how popular the “source” is, it may require more effort, knowledge, and skills than actually composing an original song (especially, if the result is not considered “unique” by some).

A while ago, a completely different case caused a minor, rather local scandal. A popular German Pop singer released an insanely successful song that was allegedly composed by a fellow singer of her genre. Even I, a man who avoids the subgenre I would call “German Housewife Pop” like the plague, couldn’t escape its “influence”. That’s to say, it was played on several stations alternatively all day long, for weeks.

Even at first hearing, it is fairly obvious that a ballad had been (forcefully) “dressed for Pop success”. It’s the wet dream of desperate, middle–aged housewives (hence my nickname for that “subgenre”) and coming–of–age would–be vamps; heavily made up, a bit pushy, with a hint of false lasciviousness. The actual success criterion is not the melody or the insistent beat, but the singer’s performance (and her lovely voice).

How Many Original Pieces of Music Are even Possible?

I think, unless we agree to depart from the boundaries of sound music theory altogether, we have long since passed the point of true originality. And unless we thoroughly reconsider the concept of copyright protection, according policies will only confuse matters further.

One could certainly hold that it is reasonably possible to create just so many different melodies within a single key, but then one would also have to agree that there are just so many beats, and rhythms, and chords. This notion would not instantly render most copyright suits pointless, though.

When it comes to recognising a piece of music, the melodic elements are certainly the most obvious indicators. If you hear “dee–dee–dee dumm, daa–daa–daa domm”, especially when played in octaves, you will immediately suspect that someone briefly “rolled over Beethoven”, no matter how harmonically embedded in any one song this succession of tones might be.

Some melodies simply work in (almost) all arrangements. Think of Over the Rainbow. Arlen and Harburg undoubtedly did create a piece of music worth of protection. They truly earned their royalties, so to speak. Regardless of the genre or form of interpretation individual artists choose, it always remains “the same song”. The melody itself makes the song practically “theft–proof”.

If, on the other hand, you tried to sell 53rd & 3rd by Dee Dee Ramone (to name a random example) as a romantic ballad, you’d most certainly have wasted your time. You simply would not get a single Punk Rock fan to ever listen to it — and to almost everyone else, the result of your efforts would (probably) be unbearable.

Most certainly did and do the Ramones (or whoever may hold the copyright to their songs today) also deserve protection of this creation, but no RnB/Soul, or Singer/Songwriter, or Country and Western, or [whatever genre may come to mind] artist would be able to make a red cent out of it. There is no “signature” element that in and of itself makes the song unique or even fairly recognisable to the average observer. Every “copycat” would have to stick rather closely to the original arrangement for the rendition to work.

What’s the Effect and Why Does It Matter?

So why bother with bean counters and waste time nitpicking over every single pause? There is no ultimately reliable way of determining whether or not a piece of music is an “original” or a “copy” — even if two versions should be identical down to the last quaver rest. Without a witness who was present when the accused composed his song, there is no substantial proof.

In the above mentioned case (German Housewife Pop), it is said that three music experts analysed the songs in question, only to arrive at three different results. One advised to sue, the second was undecided, and the third doubted the complainant’s success in a lawsuit (at least that’s what I heard). Eventually, nothing came of it. The case was never brought to court.

There is not even a hard–and–fast rule as to how many identical consecutive tones it takes to consider any one song a copy. The “eight bars” are a rule of thumb, at best. In the end, it usually depends on what a judge really perceives when listening to recorded versions of both songs — but what do we expect from a layman, when even trained music analysts fail to agree? Nevertheless, (at least in German copyright law) “inadvertent copies” (when two composers actually do employ the same elements the same way, without intent of “borrowing” from each other) are still considered an infringement of copyright.

It certainly is a complex matter, but perhaps we are just asking the wrong questions.

Will average listeners (which is arguably the definition for the majority of the prospective audience) recognise that Song B is a copy a Song A? And if they do, how do they detect the similarities?

Will they even care? And, if they happen to not care, why is the creator of the original convinced that they would care for his own version? If they had already bought a copy from him, why would they buy another copy from someone else? Or, if they haven’t (bought a copy from the creator of the original) yet, why would they buy a copy of the “copy” instead?

Do you see where I’m going with this? We always consider the copyright to be a protection system against fraud to the disadvantage of the creator. Yet shouldn’t it also be a system to protect the customer, the only party who would suffer a countable loss? After all, the creator’s or copyright holder’s loss from copyright infringements is always only a projected (estimated) loss. No one can seriously state that they would have made (more) money from the original without the copy ever being released.

Let’s Pretend to Be Reasonable, Honest Adults

I suppose everyone — with the exception of those who get filthy rich, “hogging” music they have no objective right to claim — will agree that copyright regulations that fail to actually regulate anything are not particularly helpful. I guess that there is — at least to some extent — consent that in this day and age, when literally everything that leaves a desk, factory, or server in the remotest of places may be available anywhere else in the world within milliseconds, locally different directives as to how (and for how long) works of art may be exploited, are ridiculous. And finally, I do assume that the majority of artists couldn’t care less whether “they” have the right to exclusively exploit their creations for more than a century after the first release.

So why don’t we just act like reasonable adults and employ our own experience to find a tenable solution for this mess?

Provided the precious reader is not one who exclusively “lives” in a bygone era, how many songs or books have you bought in the past 365 days that were originally released more than a generation ago? Now take that figure and divide it by the number of songs or books that have been released in the past twenty years. Even without knowing you in person, I would estimate the quotient to be a very small number.

What’s the point of protecting works of art for decades after the creator’s death again? Wait a minute: I should use the plural here, for if the work in question was created by more than one person (like, a composer and a lyricist, or even an entire band), the death of the last of the group of creators is the date when the countdown really starts.

Say, we have a one–hit wonder, Johnny Doe and the Errand Boys (just for the heck of it), and they were young adults when they emerged with their summer hit, Dum Dum Do Be Do Dum Dum. (“Any resemblance to persons, living or dead, …” Well, you know: coincidental, not intended, and all that.)

Of course, they were overwhelmed by their unexpected success. One drowned himself in a bottle, another thought he could actually fly, and yet another fell victim to whatever fate may an immature shooting star befall. One of the Errand Boys, however, managed to survive. He died in bed (even his own) at the ripe age of 94, seventy years after he had had his “15 minutes of fame”.

Just as his fellow band members, he was long forgotten by the audience — and so was his actual part in the conception of the song (even by himself). For all we know, he may have just been around when the song was written.

Nevertheless, Dum Dum Do Be Do Dum Dum (and any significant part thereof) will be off limits for any other artist until a certain date 140 years after its original release, just because the creators are not individually mentioned in the original recording. If you honestly see the point of this regulation, you are either considerably smarter than me or the copyright holder of that song.

How many 140–year–old pieces of music will the precious reader know? I mean, off the cut. (Hint: At the time of writing, this would be a tune or lyrics released in 1879.) And don’t you give me that “no one’s willing to listen to such old crap anyway”.

The Star–Spangled Banner (Lyrics: Francis Scott Key, 1814; Music: John Stafford Smith, ca. 1773) was already “old crap” when it was eventually adopted as the national anthem of the United States in 1931. And it’s still performed at every formal function today. Now, who would have thought that, after having listened to Jimi Hendrix’ rendition for the first time?

Another fine example is Germany’s national anthem (since 1922, and 1952, and again 1990), Das Lied der Deutschen (Music: Joseph Haydn, 1797; Lyrics: August Heinrich Hoffmann von Fallersleben, 1841).

The music was originally composed for the Austrian Emperor, Franz II, and later adopted as the national anthem of not only Austria, but several other countries (including Germany to date). One would think a people with a population in excess of 80 million had enough accomplished composers (and poets) to write a more “contemporary” anthem, right?

And of course, this is even more true for God Save the Queen (or King, depending on who holds the position at any given time), the anthem of the United Kingdom. The tune is reported to have been used by 140 accomplished composers on various occasions over time (also including several national anthems to date).

While the origin of both music and lyrics are still disputable, certain phrases (of the lyrics) appear to be “copied” from the King James Bible (that would be 1611, if I’m not mistaken), and the tune is alternatively said to be inspired by Church music or attributed to John Bull (who lived 1562/63–1628). So what have Sir Elton John or Sir Cliff Richard been up to all the while?

(The music of Austria’s current anthem, by the way, is commonly attributed to W.A. Mozart, who is abroad probably better known for even more popular tunes, like the rather famous Serenade No. 13 in G major. The melody to Twinkle Twinkle Little Star, however, is considerably older than the man himself.)

What am I trying to tell you with all this? Basically, I’m trying to expand the context so certain details can be put in their rightful place. Isn’t it utterly ridiculous that we frequently get all revved up because someone thinks someone else has used and modified (or not) four, or eight, or sixteen bars of a piece of music that might well be forgotten twenty years down the road, and which the majority of consumers today couldn’t whistle on command to save their lives, while we are perfectly fine displaying our respective “national identity” with music and lyrics that were written long before any of us was born, and which were not even meant to describe mentioned national (or cultural) identity in the first place?

Why don’t we just limit the period of protection of all “protectable” works of art to twenty years from the original release? That should give the creator enough time to collect royalties. If not, those who really count, the consumers, did likely not consider it worth the money — regardless of how popular the song or book used to be at the time of release.

It is probably safe to assume that there is not a single tone that’s not been played yet and not a word that’s never been written. It’s no shame to be inspired by others. The shameful act is to pretend that one’s work is an original, when it really isn’t.

Yet it is in fact becoming increasingly difficult to even realise that one was inspired by someone else — fairness demands that this is not omitted in the discussion. All the more, it is important, I think, to focus on signature elements of concepts rather than random (or even logical) details.

You Dont’t Have to Be an Expert, Just Listen

Sports cars tend to be painted red, because most people do (for some reason) perceive red cars as moving faster than vehicles of other colours (irrespective of the actual speed). As irrelevant as the colour of a car actually is, it’s a key (and may sometimes even be a signature) element, if you will.

I do know people who repeatedly mistake red Lamborghinis for Ferraris. And, merely by listening to their sound, the majority of drivers will fail to tell a Ferrari and a Lamborghini engine apart.

Does that make every red Lamborghini a copy of a Ferrari, because the “Prancing Horse” existed before the “Miura Bull”?

You don’t have to be an expert to comprehend the motivation of both the claimant and the defendant in a copyright infringement case. (You are absolutely right, humming Money Makes the World Go Round now.)

For some people the “roar” of a fine motor is actually as enjoyable as music. Yet even the most accomplished of musicians won’t be able to achieve 9250 beats per minute. So the sports car metaphor is not really made to solve copyright infringement issues … perhaps.

Play the pieces of music in question to a random, unsuspecting audience (i.e., don’t tell them what they are about to hear), and take care to hide respective signature elements from them (that’s relatively easy today). Will they recognise similarities? Yes, some probably will. But will they also be able to say what they are hearing (i.e., name title or creator of individual songs)? Most likely not.

Then conduct a cross–check, playing only the respective signature elements (those parts that make each song instantly recognisable) to them. Changes are that they will hear three or four (out of two available) songs, but there might still be a majority who is able to identify them correctly.

There you have it, your honest answer (whatever it may be). If you are not happy with it, go invent a new wheel.