Hi, David. I essentially agree with your position (though I give myself and the Mona Lisa photographer a little more credit.)
For purposes of this discussion, I look at the issue as a kind of puzzle (as opposed to an actual legal or ethical dilemma.) The "solution" being: you get to publish a new piece and take author credit. How would you do that, here, what else would you need to change?
Right now, the derivation is too direct. A plaintiff's lawyer would create charts showing the vertical mirroring and show them to the jury. So, you need to change things around, either creatively or algorithmically.
Encrypt the original piece, so to speak, where the cyphermusic is itself rendered as music.
Thinking about so-called "designer drugs", it's a similar puzzle: What do you need to do to this illegal molecule to be able to sell it in gas stations? Which of course has on its flip side the "law and order" puzzle: How do you define what you're banning in such a way as to cover all these tricky molecular variations without also banning sugar?
That legal challenge is the challenge of defining what philosophy calls "essence": that which cannot be changed about a thing without it ceasing to exist as that thing.
So, what is the "essence" of "You Won't See Me"?
I think it ultimately has less to do with musical structure than it does with natural causation, but I should stop.
Now here's the real experiment. Use the same process and REVERT it back. See what all the digital manipulation may have done to it.
Ha, I'd been thinking of doing that! So this is my final MIDI arrangement, inverted a second time (Logic calls this function "reverse pitch".) Decrypted, as it were. The song is loudly and clearly the song that it is.
Now here's the real experiment. Use the same process and REVERT it back. See what all the digital manipulation may have done to it.
Ha, I'd been thinking of doing that! So this is my final MIDI arrangement, inverted a second time (Logic calls this function "reverse pitch".) Decrypted, as it were. The song is loudly and clearly the song that it is.
This is a technique that's been used for creating music for centuries. The most famous creation I know is Rachmaninoff's 18th variation on a theme by Paganinni.
The theory behind how this was created using negative melody is below.
While Paganinni inspired Rachmaninoff's creation, he didn't write it. The melody and harmony are quite different.
If you want legal advice, seek out a lawyer...but remember there are always two sides to be argued in court. Since neither David nor I are lawyers, I'll pretend to take the defense in your aintevernevergonnahappen lawsuit.
Definition of melody
1 : a sweet or agreeable succession or arrangement of sounds. 2 : a rhythmic succession of single tones organized as an aesthetic whole a hummable melody
If you did not write the melody for your piece, then who did?
Is your melody substantially similar to the melody recognized from the Lennon-McCartney song? I'd argue strongly that not only is it not substantially similar to that melody, it is by design as substantially UNsimilar as was possible with the method by which it was derived.
Is it copied? Again, such elements that may be similar to the Lennon-McCartney song are not by definition melody at all.
Does the prosecution wish to claim that the lengths of melodic notes were created by his clients who now owns them for life plus 70 years? Henceforth is nobody allowed to use the same sequence of note durations as he/they did?
Since the Mssrs Lennon and/or McCartney did not and cannot claim to have written the melody, any portion of the melody, or any "melodious" (by definition) aspect of your piece, the arguments of the Plaintiff are unsupported and unsupportable. Ipso facto, corpus delecti.
Side note to the defendant. This is a technical, not a legal or moral or philosophical question. How were the chords derived by your software, if indeed they were? Negative harmony? Harmonization of the new melody? Something else?
Now...philosophically, you face the same sort of conundrum I face when people ask me if I wrote the music for a BIAB-based piece. My answers, in ascending level of detail required to get the deer-in-the-headlights look or a faux-understanding nod are:
1. I programmed the music. 2. I made up the chord arrangement. 3. I made up the chord arrangement and a few other things and used software to create the various parts. 4. I made up the chord arrangement and a few other things and used a program call Band in a box and a DAW to create (most) of what you hear. 5. Come over and I'll show you how I do it. But, remember, I'm married.
I don't tell anybody I "wrote" the music, though I do take credit for the end results. Since neither publishing nor intellectual property "laws" have kept pace, I fill in the forms as required. Without explanation.
As your fake attorney, I'm fine with any explanation you give. As Noel so well pointed out, you used a software short-cut to eliminate the relative drudgery of a time-honored and noble pursuit of melody. There's no shame in it. Most people still think "we" are scratching down notes on staff paper. Let them be as ignorant as they choose to be. Just don't mislead them should they ask.
In Logic, at least, the inverse harmonies result from flipping all notes of all parts around a specified pitch. If you set C3 as the axis pitch, every note below C3 moves to the corresponding point above it, and vice versa. It would be interesting to learn more about what happens to keys and chord progressions when you flip them around different notes; I'm sure Learned Men have had this all figured out for centuries.
I have similar philosophical issues as those you mention, when describing the pieces I come up with using BIAB. What words to use, how to credit who for what. The software tech is too confusing; I just say what it does and ask people to think of me as the conductor of a band of very talented musicians who have the skill and artistry to turn my general directions into actual performances.
Another area in which I wonder who is writing my stuff, sort of the opposite of turning the Beatles upside-down:
There's this musicoid material I make using pitch recognition on natural sounds and rendering the results with virtual instruments. Take a canary and turn him into a soprano recorder, take a bunch of chickens and turn them into a guitar, take Ted Cruz and a debate questioner and turn them into a saxophone being asked questions by a piano. Start with MIDI material like this and see what happens. But in the end, what am I holding? Is this really a collaboration between me and a canary, as I have said? If I "songified" the pitch track of Ted Cruz's answer on waterboarding, does that make Ted the author of the resulting melody?
"If I "songified" the pitch track of Ted Cruz's answer on waterboarding, does that make Ted the author of the resulting melody?"
FWIW I have paid (licensed) JFK speeches for just this reason; his pitch and cadence fit the song, same with Nixon (though for more comical use on the same song). This was 20+ yrs ago, hope I don't have to find the licensing now
Point is, I get it; hearing a rhythm/cadence in life is fun. A couple of weeks ago I carried my golf clubs across the parking lot and I heard the rhythm of the clubs clinking in 7/4 .. my first thought was 'I wish I could record that'!
Make your sound your own! .. I do not work here, but the benefits are still awesome
FWIW I have paid (licensed) JFK speeches for just this reason; his pitch and cadence fit the song, same with Nixon (though for more comical use on the same song). This was 20+ yrs ago, hope I don't have to find the licensing now
Point is, I get it; hearing a rhythm/cadence in life is fun.
A couple of weeks ago I carried my golf clubs across the parking lot and I heard the rhythm of the clubs clinking in 7/4 .. my first thought was 'I wish I could record that'!
Cool stuff, thanks!
My own thing is less original and much less pleasant. Featuring Senator Cruz in 2016.
1 : a sweet or agreeable succession or arrangement of sounds. 2 : a rhythmic succession of single tones organized as an aesthetic whole a hummable melody
Legally, there is no necessity that a melody be "sweet" or "agreeable", nor must it be "hummable".
And the second definition defines a melody as being a... "melody", which isn't much of a definition.
Copyright infringement is what's called a "strict liability tort," which means the defendant doesn't have to have intended to infringe to be found guilty. To prove guilt, the plaintiff must only demonstrate that the defendant had access to the allegedly infringed song, and that the two songs in question have substantial similarity.
Substantial similarity is a question of whether or not the average listener can tell that one song has been copied from the other. This is the "ordinary observer test," what Fakler calls "the hallmark of copyright infringement." The more elements two works have in common, the more likely they are to be ruled substantially similar. Proving substantial similarity in music cases is complicated by the fact that all songs carry two kinds of copyright, for composition and sound recording, that have to be evaluated independently.
The standard isn't that the songs "sound similar", but that "the average listener can tell that one song has been copied from the other."
Once an "average listener" is shown what elements to look for, they would be able to tell that one was "copied from the other". As an inexact copy, it would be considered a derived work:
Originally Posted By: Wikipedia
In copyright law, a derivative work is an expressive creation that includes major copyrightable elements of an original, previously created first work (the underlying work). The derivative work becomes a second, separate work independent in form from the first. The transformation, modification or adaptation of the work must be substantial and bear its author's personality sufficiently to be original and thus protected by copyright. Translations, cinematic adaptations and musical arrangements are common types of derivative works.
Originally Posted By: Tangmo
If you did not write the melody for your piece, then who did?
From a legal perspective, the question is whether the ownership of the derivative work remains with the author the work was derived from.
And the law says: yes, it does.
Originally Posted By: Tangmo
Is your melody substantially similar to the melody recognized from the Lennon-McCartney song?
Is it recognizable as having been copied from the Lennon-McCartney song?
I'd bet a jury would say yes.
Originally Posted By: Tangmo
Is it copied? Again, such elements that may be similar to the Lennon-McCartney song are not by definition melody at all.
Actually, they are "by definition" melody.
There is a legal loophole here, though. The "fair use doctrine" allows the use of copyrighted material if the resulting work is "transformative":
Originally Posted By: Wikipedia
For copyright protection to attach to a later, allegedly derivative work, it must display some originality of its own. It cannot be a rote, uncreative variation on the earlier, underlying work. The latter work must contain sufficient new expression, over and above that embodied in the earlier work for the latter work to satisfy copyright law's requirement of originality.
So it is actually transformative, or is it just a "rote process?"
By definition, exact melodic inversion is a "rote, uncreative variation" (to borrow the term), as anyone performing exact melodic inversion correctly will arrive at the same result.
Originally Posted By: Tangmo
Does the prosecution wish to claim that the lengths of melodic notes were created by his clients who now owns them for life plus 70 years? Henceforth is nobody allowed to use the same sequence of note durations as he/they did?
I'll let someone better versed in law answer that.
Recent (and significantly less scrutinized) district court decisions have held that copyright protection could extend to a piece's rhythm, percussion, or instrumental riffs. The Sixth Circuit has upheld an infringement verdict based on copying vocal refrains of a particular rhythm and timbre. Dicta from the Ninth Circuit likewise suggest that one could infringe a musical work by copying some permutation of "chord progression, key, tempo, rhythm, and genre."
Originally Posted By: Tangmo
Since the Mssrs Lennon and/or McCartney did not and cannot claim to have written the melody, any portion of the melody, or any "melodious" (by definition) aspect of your piece, the arguments of the Plaintiff are unsupported and unsupportable. Ipso facto, corpus delecti.
McCartney and Lennon do claim to have written the melody from which the inverted melody is derived via a "rote, uncreative variation", which makes it derivative of their copyright work, and therefore, under their copyright.
Suppose I define a "creation algorithm" where you take a piece and subject it to a battery of complex transformations that themselves transform over time. It really would be a kind of musical encryption, and it would be very easy to make sure no human could discern the source material just by listening.
Now, if a piece is composed in the normal fashion, but some wit decides to make a name for himself by devising some such algorithm by which the newly written piece could be derived from an old one, there would still be no question of it being derivative, even though the means of derivation is presented. It wouldn't sound anything like the old piece, and we're assuming it appeared in the musical mind of its putative composer in a "mentally creative" way. The mere existence of a mathematical derivation process is not relevant. There is no natural causal connection between the first piece and the second piece.
However, if you can view the logs from the application that ran the creation algorithm, where each step and element of the transformation is executed, you will quickly come to: yes, THIS piece was hereby turned into THIS piece in a "computationally uncreative" way. The natural causal connections are there to be seen in the program execution. Presumably that's the kind of "yes" that awards full royalties.
This is related to but not exactly the same as the concept of "access". It's access in action.
Say Jack writes a song, puts it in a safe, and gives Jill the key. Then Jill publishes a song that's note-for-note identical to Jack's. She certainly had access, but if a microscopic examination of the lock shows it has never been opened, that basis for an infringement claim is moot. She may have had access, but she did use that access in a way that allowed the information inside the safe to flow outside.
When I was able and willing to follow this discussion I found it interesting. I did find the musical material to be unique and novel and therefore I did not consider this an infringement on that which may have been considered its origins. Inspiration can come from anywhere! The path that one takes to make music is far less important than the final music which is made.
However, based on the examples provided, I concluded that this pathway did not result in music which were likeable. But please have at it, don't let me be the final word.
I couldn't have named it off the top of my head, but I did somehow recognize it, probably rhythm of the melody. I could hum the original, but not name it, that may be a better way of saying it.
/Like I said previously; if it was a song I had written, then yeah, I could have named it. Therein lies the catch.
Make your sound your own! .. I do not work here, but the benefits are still awesome
At this point in time if you just reverse a melody and want to know who wrote it, I'd have to say you and the at least 100,000 other people who did the same thing. So I'd guess the one who reversed first could technically sue the other 99,999+ of you. Ralph Murphy used to talk about this as one of his "tips" all the time.
David, you may actually have the stronger argument. That doesn't keep me from stomping my feet and representing the defense.
The use of "melody" in that second definition is not part of the definition. It's an example of the word in usage. Minor point, but noted. There are surely better definitions than those, but those suffice for the average listener.
A jury, or a judge, who either are or can, from life experience represent the "average listener" has only one sense as a LISTENER. While he/she may be able to be educated as to how this melody was arrived at, the average LISTENER only has their sense of hearing to go by.
There are apparently people who can smell music, but they are hardly AVERAGE. There are more who have a very highly developed sense of relative or absolute pitch who can mentally work out this series of inverted intervals. But with that degree of natural or developed "listening", they are very likely to notice innumerable examples between various songs. There are, after all, only 11 notes (or is it tones?) in "standard" western European music and 12TET. Regardless, they are hardly AVERAGE.
The question ultimately hangs on whether the work was copied. In an arrangement, sticking with music, enough of the characteristics of the primary work remain to make the arrangement a derivative work. It would hardly be a good arrangement (or really strong jazz) if these elements were not copied.
I don't know what the law says about ownership and royalties pursuant--except that the arranger does not now own the primary, and the primary holder does not now own the arrangement.
In the videos Noel posted. In Rachmaninoff's 18th variation on a theme by Paganinni, the composer used only a few notes--a motif?--and substantially changed many elements--most notably tempo. He also clearly stated in the title that this was a "variation on a theme"--one of twenty-four, I think. (Worth noting though that Paganinni's piece was not laid out like a modern pop song form with repeating verses and choruses).
His was not a copy and not an arrangement. His was an original work begun with a rote process.
Had this Beatle's inversion not had so many elements in common with the original, there'd be no case at all. There may be enough elements actually copied in the Beatle's inversion to convince a jury that infringement took place. I just don't think that "melody" is one of them. How can something that does not resemble another thing be said to be a copy of it? Added to the pile? Perhaps, in establishing intent. But alone? I don't think so, and neither would an average listener.
I'd argue that inverting a melody is not copying. It's a method of arriving at a completely (or at least hugely variant) new melody. The "new" no longer resembles the old in most (if not all) ways that matter to the average listener. And if said average listener is the arbiter of copyright infringement, I wouldn't want to argue for the plaintiff, in the interest of music as an art.
Is it recognizable as having been copied from the Lennon-McCartney song?
Small sample size here, but how many of us recognized the song until he said what it was? I did not.
No, it was not recognizable...not even after I knew what the song was.
At first I thought it might be "We Can Work it Out", just from a few intervals that kinda sorta reminded me. But then I read the comments about the rhythm and I didn't hear the change to 3/4.
I've heard more "Beatle-esque" songs in the showcase here. And there are name-brand recording and performing acts that have that "in the style of" down. The inversion did not sound like ANY Beatle's song, much less any particular one to me.
In a court of law, jurors are not allowed to do their own investigations. They are expected to rely entirely on expert witnesses for any sort of expertise.
The standard doesn't say they would have to be able to tell it was a copy without someone pointing the elements were copied.
Sherlock Holmes declared his method "Elementary", and it was, no matter how obscure the clues - once you know what to look for.
I believe a competent "musical expert" could convince a jury that they could tell that a piece of music was copied from a song... mostly because it actually was copied, so the elements are there to be found.
Would an average listener come to that conclusion on their own? I seriously doubt it.
And I'm certainly not arguing that any of this is beneficial to the making of music. It seems to me that many of the recent rulings are likely to have a chilling effect on music making.
I'm just suggesting that the "legal perspective" can be much different than what we might consider a more "common sense" approach would look like.
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