EPISODE 4: "Mere Mechanics"

SHOW NOTES

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Don’t mess with my melody! What happens when arrangers end up in court.

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In Episode 2 of Rearranged, we found stunning originality in the derivative music that is the arrangement. Nevertheless, arrangers have often found themselves in court defending the artistic choices they made as they remade the music of others. So often, in fact, that musicians and the industry that supports them have become artistically defensive and timid. In Episode 4, we’ll examine the history of arranging in the courts and consider solutions that might balance the creator’s right to profit with our collective interest in the reinterpretation of musical culture.

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Guests:

Kembrew McLeod is a professor of communication studies at University of Iowa. McLeod co-produced the documentary Copyright Criminals, and with Peter DiCola, he wrote Creative License: The Law and Culture of Digital Sampling, Duke University Press, 2011.

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Charles Cronin is a lawyer, musician, and historical musicologist in Los Angeles. He has taught at Claremont Graduate University and George Washington University, and he helped build GWU's extremely handy Music Copyright Infringement Resource.

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Salvatore Pappalardo is a professor of English in the English Department of Towson University in Maryland.

 

Thanks to:

Kembrew McLeod

Charles Cronin

Salvatore Pappalardo

Please check out Joanna Demers's book Steal This Music: How Intellectual Property Law Affects Musical Creativity, University of Georgia Press, 2006.

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The theme music and other scoring music for Rearranged was written and recorded by Lawrence Lanahan.

 

Music discussed:

“Satin Doll,” Duke Ellington

“I Got Rhythm,” George Gershwin

“Rhythm-A-Ning,” Thelonious Monk

“Ornithology,” Charlie Parker

“Donna Lee,” Miles Davis

Go!, Dexter Gordon, Blue Note, 1962.

“Choir,” James Newton

“Pass the Mic,” Beastie Boys

“D.O.G. in Me,” Public Announcement
“Atomic Dog,” George Clinton

“Love Break,” Salsoul Orchestra

“Vogue,” Madonna

“Blurred Lines,” Robin Thicke

“Fish Market,” Steely and Clevie

“Dem Bow,” Shabba Ranks

“Despacito,” Daddy Yankee/Luis Fonsa

“Happy Together,” The Turtles

“Thinking Out Loud,” Ed Sheeran

“Let’s Get it On,” Marvin Gaye

 

Research notes:

 

"an 1832 article from a German music journal": Heinrich Dorn, "Ueber musikalischen Nachdruck," Allegemeine Musikalische Zeitung, No. 19, May 9,. 1832, pp. 305-313.

 

"As late as 1891, an American could just up and publish, say, a Wagner score, and if Wagner didn’t like it, well, tough schist": Charles Cronin, "I Hear America Suing: Music Copyright Infringement in the Era of Electronic Sound," Hastings Law Journal, Volume 66, Issue 5, 2015, pp. 1200-1201.

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"copyright law didn’t apply to music 200 years ago": U.S. Copyright Act of 1831, noted in Joseph P. Fishman, "Music as a Matter of Law," Harvard Law Review, Volume 131, Number 7, May 2018, p. 1870. 1842 Victoria Statutes in Britain, noted in Ronald P. Smith, "Arrangements and Editions of Public Domain Music: Originally in a Finite System," Case Western Reserve University Law Review, Volume 34, Issue 1, 1983, pp. 105-106.

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"the Austrian government quote 'regarded piracy as a local industry well into the late 1700s, and different German states had different copyright laws in the early 1800s": Joel Sachs, "Hummel and the Pirates: The Struggle for Musical Copyright," The Musical Quarterly, Volume 59, Number 1, January 1973, pp. 31-60  p. 32.

 

Hummel detested the music pirates: he called them “unholy…note-thieves": Sachs, p. 39.

 

“They organized a boycott…and is only based on mechanical workmanship.” Friedemann Kawohl, "Commentary on the Leipzig music publishers' union against piracy (1830)," in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, 2008, Available: https://www.copyrighthistory.org/cam/tools/request/showRecord.php?id=commentary_d_1830a; Cronin, 1248; Sachs, 55; David Trippett, Wagner's Melodies: Aesthetics and Materialism in German Musical Identity, Cambridge University Press, 2013, p. 137.

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"They commissioned a prestigious German music journal to publish a long article on the difference between a ‘mechanical’ arrangement and a ‘creative’ arrangement": Dorn.

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Entire section on the 1832 article on originality is from Dorn.

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"a music publisher wound up in court over some dance music—quadrilles, waltzes—that an arranger had adapted from the arias in a recent opera": D'Almaine v. Boosey; see Fishman, 1877; Ronald S. Rosen, Music and Copyright, Oxford University Press, 2008, p. 202.

 

"The court wrote...": Fishman, p. 1879.

 

"Fifteen years later, some American lawyers butted heads over a piano arrangement of a polka": Jollie v. Jacques (1850); Charles Cronin, comment on case, at Music Copyright Infringement Resource, George Washington University Law School. Available: https://blogs.law.gwu.edu/mcir/case/jollie-v-jacques/

 

"The court used the same language the British court had": Fishman, p. 1879.

 

"About 20 years later, however...there is enough invention in an arrangement to qualify it as a separate composition": Wood v. Boosey (1868), Smith, p. 108.

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"A couple decades later in America...'melodies and their accompaniments'”: Carte v. Duff (1885), in Smith, p. 106.

 

"...one of his trombonists is said to have told him to his face": Terry Teachout, "(Over)praising Duke Ellington," Commentary, September 1996. Available:

https://www.commentary.org/articles/terry-teachout/overpraising-duke-ellington/.

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Ellington/Strayhorn suit: Tempo Music Inc. v. Famous Music Corp, in Fishman, pp. 1887-1888; John R. Zoesch, III, "'Discontented Blues': Jazz Arrangements and the Case for Improvements in Copyright Law," Catholic University Law Review, Volume 55, Issue 3, Spring 2006, pp. 885-886.

 

"you had to shell out for a license to cover the tune": Fishman, p. 1911.

 

"Contrafacts": Fishman, pp. 1911-1917

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"Chuck D told him that his model for his artistic ambition": Kembrew McLeod, Creative License: The Law and Culture of Digital Sampling, Duke University Press, 2011, p. 23.

 

"Volman told the Los Angeles Times": Steve Hochman, "Judge Raps Practice of ‘Sampling’ : Pop music: He issues an injunction against a song that uses ‘Alone Again (Naturally).’ Criminal prosecution is possible," Los Angeles Times, Dec. 18, 1991. Available: https://www.latimes.com/archives/la-xpm-1991-12-18-ca-617-story.html

 

"Longer term for theft": "Sampling Wars," Los Angeles Times, July 23, 1989. Available: https://www.latimes.com/archives/la-xpm-1989-07-23-ca-392-story.html

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"Referred Markie to federal prosecutors": Carl A. Falstrom, "Thou Shalt Not Steal: Grand Upright Music Ltd. v. Warner Bros. Records, Inc. and the Future of Digital Sound Sampling in Popular Music," Hastings Law Journal, Volume 45, 1994. Available: https://repository.uclawsf.edu/cgi/viewcontent.cgi?article=3134&context=hastings_law_journal.

 

"Collages that according to Chuck D would include dozens of artists in one song": Peter K. Yu, "How Copyright Law May Affect Pop Music without Our Knowing It," University of Missouri Kansas City Law Review, Volume 83, Issue 2, 2014, p. 365.

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"Public Enemy’s manager said, quote, 'From now on, no samples'": Willful Infringement, documentary, dir. Greg Hittleman, Flat Lucre LLC, 2003; Joanna Demers, Steal This Music: How Intellectual Property Law Affects Musical Creativity, University of Georgia Press, 2006, p. 119.

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“Dr. Dre, recorded musicians in the studio and then sampled those recordings”: Amanda Sewell, "How Copyright Affected the Musical Style and Critical Reception of Sample-Based Hip-Hop," Journal of Popular Music Studies, Volume 26, Issue 2–3, p. 298.

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"According to Newton, the Beasties used the sample 42 times": Newton v. Diamond et al., First Amended Complaint, U.S. District Court, 2001, at Music Copyright Infringement Resource, George Washington University Law School. Available: https://bpb-us-w2.wpmucdn.com/blogs.law.gwu.edu/dist/a/4/files/2018/12/Newton-v.-Diamond-COMPLAINT.pdf

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"But the judge didn’t even bother...were not quote 'substantially similar'": Newton v. Diamond, Opinion, Judge Shroeder, 2003, at Music Copyright Infringement Resource, George Washington University Law School. Available: https://blogs.law.gwu.edu/mcir/case/newton-v-diamond/

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"Bridgeport just happened to file hundreds of copyright suits": Tim Wu, Jay-Z Versus the Sample Troll, Slate, November 16. 2006. Available: https://slate.com/culture/2006/11/the-shady-one-man-corporation-that-s-destroying-hip-hop.html

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"A district court said...'It is a physical taking, not an intellectual one,' the judge wrote": Bridgeport Music v. Dimension Films, et al., Opinion, Judge Guy, 2005, at Music Copyright Infringement Resource, George Washington University Law School. Available: https://blogs.law.gwu.edu/mcir/case/bridgeport-music-v-dimension-films-et-al/

 

"Bridgeport ended up in the Sixth Circuit again four years later...sampled frequently in the past,” Bridgeport Music, Inc. v. UMG Recordings, Inc., in John S, Pelletier, "Sampling the Circuits: The Case for a New Comprehensive Scheme for Determining Copyright Infringement as a Result of Music Sampling," Washington University Law Review, Volume 89, Issue 5, 2012,  pp. 1181-1182.

 

“'We find Bridgeport’s reasoning unpersuasive'...could indeed excuse a sample of a sound recording": VMG Salsoul, LLC v. Madonna Louise Ciccone, et al., Opinion, Judge Graber, 2016. Available: https://blogs.law.gwu.edu/mcir/case/vmg-salsoul-llc-v-madonna-louise-ciccone-et-al/, https://bpb-us-w2.wpmucdn.com/blogs.law.gwu.edu/dist/a/4/files/2018/12/VMG_Ciccone_6th_Cir_OPINION.pdf

 

“Profoundly negative effect on creativity"..."exact opposite of the declared purpose of copyright law": Pelletier, p. 1188.

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"The suit was over the composition, not the sound recording": Ben Sisario and Noah Smith, "‘Blurred Lines’ Infringed on Marvin Gaye Copyright, Jury Rules," New York Times, March 10, 2015, Available: https://www.nytimes.com/2015/03/11/business/media/blurred-lines-infringed-on-marvin-gaye-copyright-jury-rules.html

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"A Ninth Circuit judge found against Thicke...copyright a musical style or 'groove'": Williams v. Gaye, Order and Amended Opinion, Judge Smith, 2018, at Music Copyright Infringement Resource, George Washington University Law School. Available: https://bpb-us-w2.wpmucdn.com/blogs.law.gwu.edu/dist/a/4/files/2018/12/BridgeportAmendOp-vf76ys.pdf

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"In May 2022, two Jamaican artists sued the biggest names in the entire music world over a rhythm": Browne et al v. Ayala Rodriguez et al., available https://www.pacermonitor.com/public/case/44558041/Browne_et_al_v_Ayala_Rodriguez_et_al; Saxon Baird: "Can you copyright a rhythm? Inside the reggaeton lawsuit that could shake the pop world," The Guardian, March 22, 2023, available: https://www.theguardian.com/music/2023/mar/22/can-you-copyright-a-rhythm-inside-the-reggaeton-lawsuit-that-could-shake-the-pop-world

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"one billion people who have streamed Daddy Yankee": Miriam, "Daddy Yankee Reaches 1 Billion Streams on Spotify With 'Con Calma',” Out Now Magazine, August 29, 2021.  https://outnowmagazine.com/daddy-yankee-1-billion/

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"one of the eight billion who have streamed the Daddy Yankee/Luis Fonsi hit 'Despacito'”: YouTube, https://www.youtube.com/watch?v=kJQP7kiw5Fk

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"56 songs that use the dembow rhythm": Baird

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"The case is in a California federal court right now": Browne et al v. Ayala Rodriguez et al., available https://www.pacermonitor.com/public/case/44558041/Browne_et_al_v_Ayala_Rodriguez_et_al

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"It’s been called the fingerprint of a song": Fishman, p .1863.

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“The world’s most used musical sequence": Spinning on Air, July 5, 2015, WNYC. Available: https://www.wnyc.org/story/worlds-most-used-musical-sequence/.

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"The estates of R&B artists Ed Townsend and Marvin Gaye sued Sheeran over a song": Griffin v. Sheeran, at Music Copyright Infringement Resource, George Washington University Law School. Available: https://blogs.law.gwu.edu/mcir/case/inplay-griffin-v-sheeran-et-al/.

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"Complaint in federal court": Griffin v. Sheeran, Complaint. Available: https://bpb-us-w2.wpmucdn.com/blogs.law.gwu.edu/dist/a/4/files/2018/12/Structured-Assets-v.-Sheeran_COMPLAINT.pdf