Leaving behind the Tin Pan Alley era of Hein v. Harris (1923), let us consider whether digital notation software and related MIDI technology might have greater, lesser or similar probative value for determining similarity in music infringement cases involving popular music from the 1960s on.

For this exercise, let us use the manipulative digital notation and MIDI files of song excerpts from the Bee Gees and Fogerty cases (1984 and 1994 respectively).

Ronald Selle, "Let it End" View Video Clip

Gibb Brothers, "How Deep is Your Love" View Video Clip

John Fogerty, "Run Through the Jungle" View Video Clip

John Fogerty, "The Old Man Down the Road" View Video Clip

It was rumored that Fantasy Records sued John Fogerty for infringement after relations soured on other grounds between the record company and this performer. But the court did not dismiss the case out of hand; what did Fantasy personnel hear between "Run Through the Jungle" and "The Old Man Down the Road" that excited them to pursue this protracted litigation? Having juxtaposed the melodies of the digital music files associated with this case (above) it is worth considering the significance of Fogerty's performance style despite the fact that the case was ostensibly about infringement of music.

 

Something to ponder…

 

Is it likely that Fantasy Records would have brought an infringement suit against a singer other than Fogerty who had written and recorded "Old Man"? Or, for that matter, would Fogerty (assuming he had a valid copyright interest in "Jungle") have claimed infringement if another singer wrote and recorded "Old Man"?

If not, was Fantasy's claim against Fogerty specious, or could it be that, in fact, the economic value in Fogerty's songs lies not in their music per se, but rather apart from those musical components that can be reduced to graphic representation (scores), and that Fogerty's later song derives most of its economic value from something less tractable to symbolic representation?

 

Let us turn to the Bee Gees for a moment. During their infringement trial the plaintiff's attorney played a recording of a performance of the melody of plaintiff's number "Let It End" for Maurice Gibb, who was under oath. Maurice Gibb erroneously identified this music as taken from the Bee Gees' song, and the plaintiff rested his case. (One wonders how warmly the other Gibbs received their brother Maurice back at the hotel that evening…) The slip must have impressed the jury, who found the Bee Gees liable for infringement, although the judge ultimately disregarded their verdict. Juxtaposition and manipulation of the two melodies contained in the digital files linked above suggest Maurice Gibb's error was less egregious than one might imagine; the melodies are clearly similar.

 

Something to ponder…

 

If the raw musical material of Ronald Selle's "Let It End" was strikingly similar to the Bee Gees' later hit, why did Selle's song never make it out of the garage while the Bee Gees' number delighted millions of teenagers worldwide? Does it all boil down to marketing and the purportedly craven business practices of major record companies as commonly claimed by not-so-photogenic pop star wannabes?

Or, are there other factors that more powerfully affect the success of a rock number than its musical essence as distilled in the notated skeletons on which music plagiarism cases turn? What are these attributes of successful popular numbers, and should they be protected as a form of property, and by copyright?

If, as implied here, non-musical aspects of popular songs today, and their performances in particular, are more important to their commercial success than musical elements, how does one explain the fact that usually one or two numbers on a popular album may be wildly popular while the others languish in obscurity and are skipped over, if possible, by those listening to the album?

Can you conjure a mental image of the physiognomies of Cole Porter (Arnstein v. Porter), Jerome Kern (Fisher v. Dillingham) or Jeri Sullivan (Baron v. Feist)? Perhaps not, but what about those of Ella Fitzgerald, Fred Astaire or the Andrew Sisters, who performed and recorded these songwriters' numbers? And what about images of the Bee Gees, John Fogerty, Michael Jackson or the Beatles? -- even if one never willingly listens to their songs, one knows what these songwriter/performers look like. Is that only due to the fact that their popularity was more recent than that of Porter and Kern, and happened in an era saturated with television and other cultural atrocities like “music videos”? Or does this also reflect changes since the middle of the 20th century in the ways popular music is created, performed, marketed and consumed?

Along these lines, consider the fact that in the first half of the 20th century sheet music publishing and piano manufacturing were vibrant industries in the U.S. What significance should one ascribe to the remarkable constriction of these industries in the latter half of the 20th century, and to the woeful state of formal education in music, to the ways popular music is now produced and consumed?

 

 

The cover art of sheet music published in the early decades of the 20th Century typically features a fanciful drawing of a scene related to the subject matter of the song, sometimes with an inset photograph of the songwriter or performer.

Front Cover of the Sheet Music "Walkin' My Baby Back Home" from 1930 

 

 

 

Let us compare this image to the non-musical information one commonly finds in sheet music publications of rock songs. In John Fogerty's song collection "Centerfield" (that contains "The Old Man Down the Road", the number at issue in Fantasy v. Fogerty) one finds five photographs of Fogerty -- three in full-page color glossies no less; drawings and photos of gimcrackery one associates with clichéd images of a wholesome 1950s American boyhood that Fogerty wants consumers to associate with him (baseball caps, a little radio, a penknife, figurines of ballplayers, cowboys and Indians, a baseball glove); and finally a four-page transcript of an "interview" with Fogerty to resonate with the narcissistic hokum of Fogerty's lyrics directed at what was at the time the work was promoted a large and profitable market of mid-brow white American men born in the 50s and 60s:

[M]y country was the Grand Canyon, Niagara Falls, Montana,
Elvis, Chicago blues and Patrick Henry…"

…A-'roundin' third and headed for home
It's a brown-eyed handsome man
Anyone can understand the way I feel…

  

Something to ponder…

 

What were Fogerty and his publishers selling, and is this product overall any different from what songwriters and publishers were selling in Tin Pan Alley's heyday in the 1920s and 30s? In other words, have changes in the creation, performance, marketing and consumption of popular music since the 1920s and 30s affected the locus of commercial value in these works? If so, where has the shift occurred, and how should this shift in value away from purely musical elements bear on the equitable resolution of music copyright infringement claims? Will digital music notation software and searchable graphic and audio theme databases be useful, or increasingly irrelevant in these determinations?

If, as copyright minimalists hope and predict, the mercurial nature of digital renderings of works (popular songs in particular) signals a new era in the music industry and the decline or even demise of major record labels, how might these changes play out in the area of music copyright infringement? In a restructured, decentralized music industry should one anticipate a greater or lesser number of infringement suits than under the current regime?

 

 

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