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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, we will use the manipulative digital notation and MIDI
files of song excerpts from the Bee
Gees and Fogerty
cases (1984 and 1994 respectively). Experiment with these excerpts as we did
in the preceding section with the material for the Hein
case to try to underscore either the similarities or the differences between
the works in question depending upon which party you would choose to represent.
To quickly review these works and alter their keys, you can use Coda
Music's MusicViewer or the files listed immediately below.
Ronald Selle, "Let it End"
Gibb Brothers, "How Deep is Your Love"
John Fogerty, "Run Through the Jungle"
John Fogerty, "The Old Man Down the Road"
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.
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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 the
economic value in Fogerty's songs lies 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?
[ Your Reply ]
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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 erroneously identified this music as taken from the Bee Gees' song,
and the plaintiff rested their 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.
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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?
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? 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? 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 we ascribe to the remarkable constriction of these
industries in the latter half of the 20th century, and to the woeful state of
public education in music in the United States, to the ways popular music is
now produced and consumed?
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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.
[ Image of the front cover of the sheet music for "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") we find five photographs of Fogerty -- three
in full-page color glossies; 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 hokum of Fogerty's lyrics directed at 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…"
The narcissism in the lyrics of the title number is irresistible:
…A-'roundin' third and headed for home
It's a brown-eyed handsome man
Anyone can understand the way I feel…
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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 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 the major record labels,
how might these changes play out in the area of music copyright infringement?
In a restructured, decentralized music industry should we anticipate a greater
or lesser number of infringement suits than under the current regime?
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