Writing Songs in the Time of Lawsuits for Fun and Profit

Rick Beato discusses the recent copyright infringement lawsuit where the Marvin Gaye estate won over Ed Sheeran.   Using the a/b technique where the two recordings are played section for section side by side, he highlights where they are identical and where they are similar but different.   He comes down on the side of Sheeran and the usual huzzahs follow in the comments.

Compare it to George Harrison's problems with My Sweet Lord or the Led Zeppelin loss over Stairway to Heaven. This sort of derivative work has been a problem for a while. Pop is narrow and what sells is what has been selling lately. (the love of the ear is to hear what it heard before - neuroscience 101). Neither side gets me worked up that much. It's the risk of being obsessively style-oriented in production and possibly a good thing in breaking up the monotony of the Nashville song factories even if dodgy with respect to what should constitute a copyright.    As long as one set of curators demands "authenticity" while the money managers demand speed of production, the risk of getting sued is always waiting outside the songwriter cube of the publisher.

I think he is missing an opportunity here.

Beato puts a heavy emphasis on theory in his instructional videos and that is a reason for folks like myself, principally songwriters and not instrumental virtuosos, to attend. Lennon and McCartney are said to have warned Harrison about the dangers of derivatives, that one has to do that extra bit of work to change it up. This is when such things as chord substitutions, alternative modes, reharmonization, yadda yadda pay off big.  This danger of the Swamp Lawyers is also why a songwriter should be leary of the Nashville Chord Police and the Muscle Shoals It Must Be Blues or It Isn't A Hit producers. The Money Mold is a sweet temptation but a terrible mistress.   The writers assume the risks of belonging to the current trend clubs.    Chuck Berry could have and should have taken Brian Wilson to the cleaners.   There was more money to be made in rock then and publishers were less prone to sue.  That gentleman's agreement to hold fire when times are good falls apart when there is less scratch to split.

These leagal decisions are as some complain made by people who do not have enough music knowledge to distinguish derivation from outright copying.    Most assume as has been historically true that if the melody is different and the lyrics are distinct, a progression cannot be copyright.  That isn't quite true as precedent shows.   In the case of Stairway to Heaven, the progression is called a line progression, essentially a single voice in the harmony ascends or descends while the others are static.   That particular minor progression is a staple of composition and has been for centuries.   The a/b comparison was not revealing.  The facts that the plaintiff was touring with Zep and that Page had a prior history of infringement possibly weighed heavily in the decision.  So prior knowledge was established.  

Arrangements can be distinctive and the plaintiff can still win.   In the case of Sheeran, though the melody is different and the progression of  the chorus is different, the arrangement is very very derivative.   Where styles are applied without much distinction, an a/b comparison may not be a friend of the defense.   In the end, it does come down to the ears of the judge or jury.

In the case of Harrison vs the Chiffons, the melody was close and the progression was exact.  The arrangements were very different.   The history of how the song came to be in a jam session with Billy Preston could have been considered but I'm not sure Harrison or his defense team brought that up as it might have weakened their case.  In the end, similarities were strong enough to go against Harrison. It is enough to make one give up on pop songwriting or as some in the movie industry have, buy up every catalog affordable and rest in the fact that one cannot sue oneself.  Money is the best defense and without it, anonymity is the best offense or was until the current age of algorithmic sleuthing and snitching came.  YouTube giveth and YouTube taketh away.

The other extreme is to give up copyright and embrace the cult of "information wants to be free" which has decimated songwriters or pursue ever more abstract sounds and production that are alien to the ear. Few steal from the poor. The vows of poverty work only as long as the supplicant lives in a poorer monastery,  If the label is profiting bigly on the masters, the fact that the songwriter is not receiving much as is rapidly becoming the case with today's new streaming collection agencies is no protection.   There is still money in lawsuits if the lawyers target the right pots of money.

Artists have to choose if they want to surrender to the monotony of pop art or live impoverished in the wild lands of abstract expressionism. What remains for the centrists is politics. Keep a lawyer on retainer. Lady Antebellum and Chris Stapleton manage cloning and a legal defense.

Or work harder at individualism using techniques Rick Beato is making a career out of teaching. Lennon and McCartney set the example: don't write the same song twice, Contrast that with James Taylor's statement that a songwriter writes the same song over and over. I think that is the very high wall of the formula. A comfortable prison is still a prison.

Or... steal from the dead.   Beethoven's lawyers decomposed faster than his music.

Forever is Never

Musical acts don't seem to have the staying power they had in previous generations. That could be because there are so many, because music doesn't have the emotional stickyness, that there is too much technology and too little reality, that music is more virtual (say streamed - Best Buy just announced it is no longer selling CDs and is returning the ones it has in stock), all or some. But anyway you look at it, the best a recording act that writes and records original can do is get it out there anyway they can and pray those server system versions are still around in the future or that music will disappear as if it never existed.

The bad news here is from their inception and into the foreseeable future, those will be compressed versions with high and low end stripped. So if you as the producer are paying extra for the high fidelity high end studios and recording engineers provide, you are doing that for ego and vanity unless you do have CDs or other high end storage versions created. T-Bone Burnett pointed this out: a whole generation of music is going to vanish except for some lower fidelity cuts popular enough to get stored elsewhere.  One tactic is to allow downloads instead of streams so at the very least there are more copies somewhere.   The song in the video above is regularly streamed in countries all over the world.  While that is cool for my ego and hopefully it means a diverse group of people enjoys it, unless they can download it, it disappears if and when Alphabet/YouTube decides to prune selections just as they stopped paying us if we had a fan base of less than a thousand.

On a friend's Facebook page we discussed the dilemma that mediocrity tends to be promoted over the best musicians, or virtuosos. There are reasons for this but when you look at the technology, not only will the music vanish, what remains may be the least worthy. From the perspective of a musical historian, the younger generation will appear to be musical imbeciles. This also means current popularity past what a live act puts in the bank from ticket sales, merchandise sales and over the transom CD sales is worth less than it ever has been. Get it while you can but keep your expectations realistic.

I have to hope that technologists will step up to the challenges here and they usually do by ensuring good music is rehosted to new media as they come along. In that case, the best master you can make may have real value later although as we discovered with analog tape, that may be an arduous process and a little bit of a crap shoot. As for the original composer's intentions, some of that may be lost to the person who remasters it. Even classical music scores lose information because the performance marks are reinterpreted by performers. Beethoven really did intend some of his later compositions to be played much faster than is common today.

Do your best but forever is never.

American Love Song

I post this video on the Fourth of July, American Independence Day for reasons both obvious and personal.  Like the country, it is a collage of pieces made up in real time by ordinary people some of whom did and do extraordinary things.   It is itself, imperfect with production flaws the occasional bum notes that inevitably happen but which smooth out over the run time.  Bits are borrowed such as the photos, melody and the lyrics, some recent and some traditional, origins unknown, the voices of the past still resonating in imagination, truthful, tender and evocative, some known and hopefully treated with due respect and affection. 

There is a moody slow pace like summer in the South, an old dog sleeping in the master's chair waiting for the family he is part of to wake up and take him outside before the thundering fireworks send him scurrying back to the porch.  But here at dawn, only the birds are singing, some close, some distant, some insistent, all searching for the morning meal.

Of the productions I've done of late, this is my personal favorite.  I recorded it for a friend in a different part of the country who asked me to write a protest song for a group called The Hoping Machine, a group that goes to activist events and sings to stir the passions of those aggrieved by current events.   I found at that moment that I did not wish to agitate, not that I did not share their grievances but that I believe at this time it is more important to remember what we share, what we care about in concert, what we love about the American experience, what a gift and a responsibility this land is and to whom it truly belongs.

So I sat at my piano and spread before me the lyrics of a traditional American folk ballad, a more recent but much loved song by an American icon of activism whose family I count as distant but much loved and respected friends, and a pop song from a poetess now past but whose song has itself become part of the American folk legacy.  I improvised the piano part and in real time chose and sang each verse as my hands tentatively traveled the keys like a lone hitchiker hoping that at the end of recording, it would make sense, not have too many bad notes, and would express my deep abiding love for my homeland.   There is nothing false in this.  It is as authentic as my emotions and average skills can make a performance.  That is to say, it is real.

So is the American experience,  It is a love song, a hymn to our republic and our shared if sometimes tumultuous lives.   May we continue to receive and merit the blessings this common but splendid love makes possible and share them as possible in common purpose.  God bless America,.  This land is our land.

A Healthy Democracy Requires a Healthy Economy

This is long. I apologize for that.

So we must vote out the Republican Party, yes"  In this cycle, I agree, and as a Democrat I usually do. But rather than being a single loop thinker, we might assess the goals relative to costs and adjust as necessary (double loop thinking). This is important because we are faced with candidacies that claim to be Democrat but are fringe or independents who camp out under the Democratic tent. To those who voted for Bernie Sanders, the fact that he was a Democratic Socialist by label and actively a spoiler for Hillary Clinton did not bother them. The danger of Donald Trump seemed distant. From the perspective of those of us who live in majority Republican Evangelical states, the danger was very real.

So socialism or capitalism?   Or is that a false dilemma?

It's not a good practice to get caught up in labels particularly those used by people who camp in one party to the detriment of their candidate.

Sometimes it is tough to know who is what or which. This is important because we are at the point where the other party has our range, that is, they know which active groups are capable of mobilizing voters and continued resistance. They will use means fair or foul to disrupt those groups and will have inserted disruptors into those camps to destabilize them.

My test is simple: if a conversation started by one party results in someone saying they just aren't going to vote, those who agree with that are not working to elect the party candidate. Every voter for a party that stays home voted for the other party.

This is politics. The first rule is you must win. Somewhat like SEC football.

An argument coming at us since the Sanders candidacy is our form of government is wrong or antiquated or that our economic system is wrong. This has surface merit if one only looks at these two ideas in isolation. However good systems analysis does not rely on the conditions of a single subsystem in a system of interacting subsystems except to assess maintenance conditions relative to repair and replace. Logistics 101. So let me posit this:

A healthy democracy constrains the excesses possible with unhealthy capitalism. Healthy capitalism creates the resources required to sustain a healthy democracy.

Don't let labels confuse you. Look to behaviors and outcomes. If the wealth of the nation is not being applied to maintain the health of the systems that sustain our democracy, it is being misapplied. Look to behaviors and goals, not labels, to make good voting decisions.