another David & Goliath story
Posted: Tue Jul 17, 2012 11:39 pm
Hi there,
I’m so glad I found this forum, just looking through the responses the quality of advice is fantastic. I’ve barely been on a forum before actually but have just been asked to help with one being set up for sleep apnoea – basically the neurological kind, because there’s no help out there right now...
Where do I begin? I’ve got myself in a spot of bother with a multi-million selling name artist after I approached him very openly and honestly, probably very naively as well, showing him evidence of what I thought must be a breach of copyright on my material. I specifically said I wasn’t after a credit or percentage of copyright, just an explanation. I even came up with some really positive suggestions for a spin on this story to help the artist (whom I admire) on the basis that there’s no such thing as bad publicity. I was stone-walled by his security so I said I’d have no option but to go public with it if I didn’t get a response from the artist. There was nothing back, so I posted a mash-up of his and my songs and videos on YouTube.
I was greeted with a very aggressive cease and desist from the artist’s solicitors telling me I was in breach of his moral rights and copyright and that I had been defamatory in my post because they could infer that I was saying he was in breach of my copyright (which I didn’t actually say), which he denies. Legal action was threatened (injunction, damages, costs etc.) unless I removed it, and so I did. One might infer they are afraid I have a point.
And so I need some advice on what to do...
It all started last year when a musician friend at work pointed out the lead single sounded like one of mine. To simplify things, I’m going to give these songs letters:
My first song, written 1990 = song A
My second song, written 1994 = song B
The artist’s song, released 2011 (brought to the studio 6 years ago according to the producer’s manager) = song C
There’s also my hybrid demos – the artist’s melody over my 20+ chords and vice-versa, together with 9 or 10 scenes from both videos that are similar or almost identical, amounting to some 2 minutes’ of the artist’s video.
It was song B my mate meant – and although I couldn’t really hear it, it got me thinking because:
1) I had tried to pitch song B to the artist in 2000 via a cousin in the Caribbean who I knew was a drummer, radio DJ and also worked as a voice-over man on radio and TV. I was hopeful because he had jammed with various name artists including the one in question, and was personal friends with one name artist. Sadly he died a few months before the artist released this single – despite having recorded his album some 5-6 years prior. I’ll never know whether my cousin actually got my song to the artist – but I’ve found an extremely strong connection via a third party (a session musician) who is almost certainly the missing link – although to be fair this song may have changed hands within the industry a few times (indeed I’ve even found a personal link via which the co-writer/producer of the track might have heard it, though there is no substance in this).
2) The 5-note melody of song C’s chorus was the same as that used in my song A, and both A and C use the same harmony too. This confused me until I remembered that A and B use the same chords at that point. When I wrote song B I wanted to use harmony – but the one I went for most obviously was basically song A’s tune, and so I left it out and found an alternative line. All three songs use the same word ending at the same point in the hook – a clear link illustrating B is derivative of A and a clue that B influenced C.
At home that evening I dug deeper and found the tempos of B and C were exactly the same. The chords and key were the same – and the genre/style was obviously the same anyway. When listening to C on YouTube I more than raised an eyebrow at the video similarities – yet it was the music that was noticed first. Could all this be coincidence?
I doubted the artist could have heard song A because I hadn’t recorded it. Song B was the one pitched and furthermore it had been on the internet along with the video since 2002. Yet because of the personal connection and video similarities, I tenaciously looked further into similarities between B and C.
Pretty soon I realised that the whole of the verse/bridge structure was more or less the same, though again there was no real chain of notes in common – it came close at one point but it was only a passing phrase and not a substantial hook, and the harmonic setting was different.
Essentially what I mean is that with very little manipulation (necessary because of different key areas that arise when certain chord substitutions were made by the artist’s re-write) the respective melodies overlay the other’s music if you play my chord changes at half speed, i.e. changing chords every four instead of 2 beats – no mean feat when you consider the artist’s 15-odd chords are generally somewhat different to my 20+.
It was a eureka moment, but there was more: there were lyrical similarities as well, some of the rhyme to be precise (as well as the hook line being similar in A B and C). B and C both use the same word to end a line in the verse, and then they re-use that very same word. It’s very unusual to repeat a word like this because writers hate it – it shows a lack of imagination, after all it’s meant to be a couplet.
And so I became convinced this must amount to evidence of copying and therefore a breach – and I thought the melodic chain in common with song A would strengthen my position: my song B was clearly derived from my first song A and song B contains A’s (and C’s) chorus melody as the implied harmony.
I realise now that in fact unless there’s a chain of notes in common between the melodies there can be no infringement of copyright at all – even if a song has obviously been used as inspiration as in this case. As I understand it you can’t copyright ideas, presumably like chord sequences and images used in a video. The similarities between B and C, although numerous, may well fall on the ideas rather than the expression side of the line.
Now, I don’t want to sue and can’t afford to in the High Court in any case, but I’m very disappointed at the artist’s response, and so just want to be able to tell this story without the fear of litigation or intimidation – I want the right to free speech, essentially. I’m not setting out to sully his reputation: after all he has done nothing wrong by being influenced by my song. I’m flattered in fact, and I love his song (even though I do say so myself;), which is different, though similar-sounding to mine.
I had also told the artist a friend of mine who has a music degree from Cambridge and is head of his law firm (together with other classically trained musos)agrees this is far beyond coincidence – so there is weight and credibility behind what I’m saying: I’m not just some crazed fantasist. Legal advice was to commission a report by a ‘forensic musicologist’ – however no-one will comment; some have even said they are afraid to take the job on because it would mean getting on the wrong side of the artist’s legal team. Just what sort of a world are we living in!
There’s a twist, however. I’ve found legal precedent – UK case law stating that you don’t have to have seen a work (song A in my case) to be in infringement of it if information from it (the 5-note chorus melody in my case) is contained within an intermediate work (the implied harmony in song B in my case).
Personally I’m prepared to overlook that because I don’t want a legal case – and because I don’t think anyone should be able to ‘own’ 5 notes over 3 chords, let’s face it: it was probably used before by someone anyway so it would be churlish to complain about that.
What irks me is the way the artist seems to have taken an unpublished song and sought to re-write it and its video for his own gain. If he liked it he ought to have contacted me and offered me a deal or something. My song has made the finals of an international song contest, I’ve released it as part of a charity single so it has an MCPS licence, thousands pressed, and it’s done the rounds in the industry – I’ve been offered minor deals recently but nothing of any use, so it’s obviously a good song. It’s one of my jewels but there are plenty more (all protected by poor man’s copyright: cassette in an unopened jiffi bag with stamps and franks across the seal). It doesn’t seem fair that it’s not a meritocracy – it’s who you know not what you know. Unfortunately for me I tried the ‘who you know’ route and it backfired.
My question is – what can and can’t I say and show such that I’m within copyright law and don’t invoke the wrath of the artist? For instance can I post my story naming him, compare the songs in a musicological way, use stills from his video alongside mine – does that fall under Fair Use if I credit him? His video isn’t available to purchase but is streaming on YouTube. Surely I wouldn’t be taking a substantial part of his video by doing this, nor causing him loss of revenue – my use would just be for a critique. I appreciate I can’t badly mash-up his tune but if a chord progression can’t be copyrighted could I keep the hybrid where I sing my tune over his chord progression? Or could I in fact perform a cover of his tune using my chords after all (make it my own, to coin a phrase) – it would be tastefully done. Or would that need permission? How close-sounding is the production allowed to be? I guess sound-alikes are fine if the melody’s different?
I’ve actually written yet another song which is a kind of hybrid, influenced by his song too – just to illustrate how easy it is to achieve. I deliberately took his chords, altered a few of them, wrote a new tune, but deliberately used some harmony he didn’t express and took it as my own for the melody. I even copied the rhyming system and phonetic sounds to simulate what he appeared to have done at similar points. Could I record that and post it with my song B video footage mashed up so the scenes appear in the same order he used them?
I’d be fooling myself if I said I wouldn’t mind the copying if I had more power in the relationship and the artist’s song had been a massive hit, but as it stands I have to be pragmatic.
It’s all very weird but interesting. Any thoughts on what to do about this – I can’t just ignore it, it’ll eat me up. I need some resolution. To me, if all these similarities between B and C have been noticed it might even be they amount to substantial copying... that’s not for me to judge. But if the gold standard is the chain of notes then I guess not.
People always ask me what I want out of it. Just a bit of fairness and recognition would do I think. A bit of exposure wouldn’t go amiss and a record deal would be nice. But mainly I just want to get it off my chest. Sometimes I wish I’d never noticed. I can’t undo that now, but I guess with the videos being similar I would have in the end anyway.
My guess, confirmed by some other posts here, is that this sort of thing happens all the time. In fact my uncle says something similar happened to him in the 60s. He and his writing partner used to send pieces to their publisher in Tin Pan Alley. The next thing they knew their tune was on the radio, a massive hit and a classic, nothing they could do. I wasn’t sure whether it was a made-up story he could never live down until this happened...
Thanks in advance - Kris
I’m so glad I found this forum, just looking through the responses the quality of advice is fantastic. I’ve barely been on a forum before actually but have just been asked to help with one being set up for sleep apnoea – basically the neurological kind, because there’s no help out there right now...
Where do I begin? I’ve got myself in a spot of bother with a multi-million selling name artist after I approached him very openly and honestly, probably very naively as well, showing him evidence of what I thought must be a breach of copyright on my material. I specifically said I wasn’t after a credit or percentage of copyright, just an explanation. I even came up with some really positive suggestions for a spin on this story to help the artist (whom I admire) on the basis that there’s no such thing as bad publicity. I was stone-walled by his security so I said I’d have no option but to go public with it if I didn’t get a response from the artist. There was nothing back, so I posted a mash-up of his and my songs and videos on YouTube.
I was greeted with a very aggressive cease and desist from the artist’s solicitors telling me I was in breach of his moral rights and copyright and that I had been defamatory in my post because they could infer that I was saying he was in breach of my copyright (which I didn’t actually say), which he denies. Legal action was threatened (injunction, damages, costs etc.) unless I removed it, and so I did. One might infer they are afraid I have a point.
And so I need some advice on what to do...
It all started last year when a musician friend at work pointed out the lead single sounded like one of mine. To simplify things, I’m going to give these songs letters:
My first song, written 1990 = song A
My second song, written 1994 = song B
The artist’s song, released 2011 (brought to the studio 6 years ago according to the producer’s manager) = song C
There’s also my hybrid demos – the artist’s melody over my 20+ chords and vice-versa, together with 9 or 10 scenes from both videos that are similar or almost identical, amounting to some 2 minutes’ of the artist’s video.
It was song B my mate meant – and although I couldn’t really hear it, it got me thinking because:
1) I had tried to pitch song B to the artist in 2000 via a cousin in the Caribbean who I knew was a drummer, radio DJ and also worked as a voice-over man on radio and TV. I was hopeful because he had jammed with various name artists including the one in question, and was personal friends with one name artist. Sadly he died a few months before the artist released this single – despite having recorded his album some 5-6 years prior. I’ll never know whether my cousin actually got my song to the artist – but I’ve found an extremely strong connection via a third party (a session musician) who is almost certainly the missing link – although to be fair this song may have changed hands within the industry a few times (indeed I’ve even found a personal link via which the co-writer/producer of the track might have heard it, though there is no substance in this).
2) The 5-note melody of song C’s chorus was the same as that used in my song A, and both A and C use the same harmony too. This confused me until I remembered that A and B use the same chords at that point. When I wrote song B I wanted to use harmony – but the one I went for most obviously was basically song A’s tune, and so I left it out and found an alternative line. All three songs use the same word ending at the same point in the hook – a clear link illustrating B is derivative of A and a clue that B influenced C.
At home that evening I dug deeper and found the tempos of B and C were exactly the same. The chords and key were the same – and the genre/style was obviously the same anyway. When listening to C on YouTube I more than raised an eyebrow at the video similarities – yet it was the music that was noticed first. Could all this be coincidence?
I doubted the artist could have heard song A because I hadn’t recorded it. Song B was the one pitched and furthermore it had been on the internet along with the video since 2002. Yet because of the personal connection and video similarities, I tenaciously looked further into similarities between B and C.
Pretty soon I realised that the whole of the verse/bridge structure was more or less the same, though again there was no real chain of notes in common – it came close at one point but it was only a passing phrase and not a substantial hook, and the harmonic setting was different.
Essentially what I mean is that with very little manipulation (necessary because of different key areas that arise when certain chord substitutions were made by the artist’s re-write) the respective melodies overlay the other’s music if you play my chord changes at half speed, i.e. changing chords every four instead of 2 beats – no mean feat when you consider the artist’s 15-odd chords are generally somewhat different to my 20+.
It was a eureka moment, but there was more: there were lyrical similarities as well, some of the rhyme to be precise (as well as the hook line being similar in A B and C). B and C both use the same word to end a line in the verse, and then they re-use that very same word. It’s very unusual to repeat a word like this because writers hate it – it shows a lack of imagination, after all it’s meant to be a couplet.
And so I became convinced this must amount to evidence of copying and therefore a breach – and I thought the melodic chain in common with song A would strengthen my position: my song B was clearly derived from my first song A and song B contains A’s (and C’s) chorus melody as the implied harmony.
I realise now that in fact unless there’s a chain of notes in common between the melodies there can be no infringement of copyright at all – even if a song has obviously been used as inspiration as in this case. As I understand it you can’t copyright ideas, presumably like chord sequences and images used in a video. The similarities between B and C, although numerous, may well fall on the ideas rather than the expression side of the line.
Now, I don’t want to sue and can’t afford to in the High Court in any case, but I’m very disappointed at the artist’s response, and so just want to be able to tell this story without the fear of litigation or intimidation – I want the right to free speech, essentially. I’m not setting out to sully his reputation: after all he has done nothing wrong by being influenced by my song. I’m flattered in fact, and I love his song (even though I do say so myself;), which is different, though similar-sounding to mine.
I had also told the artist a friend of mine who has a music degree from Cambridge and is head of his law firm (together with other classically trained musos)agrees this is far beyond coincidence – so there is weight and credibility behind what I’m saying: I’m not just some crazed fantasist. Legal advice was to commission a report by a ‘forensic musicologist’ – however no-one will comment; some have even said they are afraid to take the job on because it would mean getting on the wrong side of the artist’s legal team. Just what sort of a world are we living in!
There’s a twist, however. I’ve found legal precedent – UK case law stating that you don’t have to have seen a work (song A in my case) to be in infringement of it if information from it (the 5-note chorus melody in my case) is contained within an intermediate work (the implied harmony in song B in my case).
Personally I’m prepared to overlook that because I don’t want a legal case – and because I don’t think anyone should be able to ‘own’ 5 notes over 3 chords, let’s face it: it was probably used before by someone anyway so it would be churlish to complain about that.
What irks me is the way the artist seems to have taken an unpublished song and sought to re-write it and its video for his own gain. If he liked it he ought to have contacted me and offered me a deal or something. My song has made the finals of an international song contest, I’ve released it as part of a charity single so it has an MCPS licence, thousands pressed, and it’s done the rounds in the industry – I’ve been offered minor deals recently but nothing of any use, so it’s obviously a good song. It’s one of my jewels but there are plenty more (all protected by poor man’s copyright: cassette in an unopened jiffi bag with stamps and franks across the seal). It doesn’t seem fair that it’s not a meritocracy – it’s who you know not what you know. Unfortunately for me I tried the ‘who you know’ route and it backfired.
My question is – what can and can’t I say and show such that I’m within copyright law and don’t invoke the wrath of the artist? For instance can I post my story naming him, compare the songs in a musicological way, use stills from his video alongside mine – does that fall under Fair Use if I credit him? His video isn’t available to purchase but is streaming on YouTube. Surely I wouldn’t be taking a substantial part of his video by doing this, nor causing him loss of revenue – my use would just be for a critique. I appreciate I can’t badly mash-up his tune but if a chord progression can’t be copyrighted could I keep the hybrid where I sing my tune over his chord progression? Or could I in fact perform a cover of his tune using my chords after all (make it my own, to coin a phrase) – it would be tastefully done. Or would that need permission? How close-sounding is the production allowed to be? I guess sound-alikes are fine if the melody’s different?
I’ve actually written yet another song which is a kind of hybrid, influenced by his song too – just to illustrate how easy it is to achieve. I deliberately took his chords, altered a few of them, wrote a new tune, but deliberately used some harmony he didn’t express and took it as my own for the melody. I even copied the rhyming system and phonetic sounds to simulate what he appeared to have done at similar points. Could I record that and post it with my song B video footage mashed up so the scenes appear in the same order he used them?
I’d be fooling myself if I said I wouldn’t mind the copying if I had more power in the relationship and the artist’s song had been a massive hit, but as it stands I have to be pragmatic.
It’s all very weird but interesting. Any thoughts on what to do about this – I can’t just ignore it, it’ll eat me up. I need some resolution. To me, if all these similarities between B and C have been noticed it might even be they amount to substantial copying... that’s not for me to judge. But if the gold standard is the chain of notes then I guess not.
People always ask me what I want out of it. Just a bit of fairness and recognition would do I think. A bit of exposure wouldn’t go amiss and a record deal would be nice. But mainly I just want to get it off my chest. Sometimes I wish I’d never noticed. I can’t undo that now, but I guess with the videos being similar I would have in the end anyway.
My guess, confirmed by some other posts here, is that this sort of thing happens all the time. In fact my uncle says something similar happened to him in the 60s. He and his writing partner used to send pieces to their publisher in Tin Pan Alley. The next thing they knew their tune was on the radio, a massive hit and a classic, nothing they could do. I wasn’t sure whether it was a made-up story he could never live down until this happened...
Thanks in advance - Kris
I think it would be wise to get the nice German lawyer I spoke with on board. I will let you know how we progress when anything of significance happens. thanks again for all of your helpful words.