# Melody



## Narval (Jul 20, 2010)

As far as I know, of all musical elements, one can only claim authorship and intellectual property on melody.

If that is not true, please correct me.

But if it's true, that means that each and every other element in a piece of music is up for grabs, right?

For example: chord sequences, drum patterns, guitar riffs, bass lines, orchestral combinations - none of them are copyright protected. That means one can just take them and use them and recombine them in every way they want. And then sell the results with no restrictions and without owing anyone one penny. Right?

More concrete: say I make a Hey Joe "karaoke cover" and sell it with a different name on iTunes. Will the Jimi Hendrix estate be able to claim part of my earnings? On which basis, since I didn't use the melody?

Discuss.


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## David Story (Jul 20, 2010)

This is a deep legal issue that has different answers in different states, nations and eras.
There have been US court decisions that agree with the "melody only" standard, they have been overturned in part. 

As I understand it, the key is a so called "golden nugget" of expression. Something that is not in public domain, or shared by other works, and is uniquely identifiable. This portion of a work is often quite brief, and expert testimony is employed to identify it.

Please forgive me if this is unclear, or wrong, but it's interesting to me to see how music is analyzed in other fields.


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## rJames (Jul 20, 2010)

The wildcard is this. If someone sues you and entices a "jury of your peers," to agree that it was your intent to rip their creativity, that's all that matters.


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## noiseboyuk (Jul 20, 2010)

No, there is more to it than this.

Any song / cue has 2 elements - the publishing side (the melody) and the master side (the recording). Then there is the principle of "passing off" - deliberately making something sound like something else, which in theory can include both melody and the arrangement or sounds.

The makers of an advert were successfully sued a couple of years ago by Tom Waits just for using a similar vocal style from the singer. The band Elastica settled out of court for recreating a guitar riff (among other thefts!) In most cases there seem to be other circumstances - Tom Waits refused the advert in question permission to use his music so they ripped him off as far as they could. But in terms of broad principles... no, it's far more complex than just the melody. Even the name of the track is important - if you've deliberately made a track sound like another and give it a similar / parody title, then that's also asking for trouble.

Final thought on this - just reversing two notes of a melody etc isn't enough to be legally distinct either. A few years ago a large amount of library music was pulled as it was deemed too similar.


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## gsilbers (Jul 20, 2010)

get the passman book.


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## Narval (Jul 20, 2010)

Another concrete example: since the chord progression in Fragile by Sting is not his property, then anyone can use it without owing Sting one cent, right? I mean, you cannot steal something that is nobody's property. When something is nobody's property, then there is nobody to restrict its usage or to collect money for using it. Right?

Or, the orchestral riff in Superman opening - it's just a rhythmical pattern, and, as such, it is no one's property as well. Only the melody coming on top of it is copyright protected. Actually, remove the melody on every piece of music and what remains is to be used freely by anyone who so wishes. 

I'm talking about a basic principle here: when authorship and intellectual property don't apply to a particular _something,_ then that particular _something_ is to be used freely.

And when this principle applies, then it applies to all its concrete expressions: drum patterns, bass lines, accompaniments, textures, orchestration, actually to everything save the melody. And it's good that only the melody is protected, because extending this restriction to the other elements will actually block music production.


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## Hannes_F (Jul 21, 2010)

Narval @ Wed Jul 21 said:


> Or, the orchestral riff in Superman opening - it's just a rhythmical pattern, and, as such, it is no one's property as well. Only the melody coming on top of it is copyright protected. Actually, remove the melody on every piece of music and what remains is to be used freely by anyone who so wishes.



Hmmm ... I thought noiseboyuk already said that it does not work like that by writing



> Any song / cue has 2 elements - the publishing side (the melody) and the master side (the recording). Then there is the principle of "passing off" - deliberately making something sound like something else, which in theory can include both melody and the arrangement or sounds.


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## Narval (Jul 21, 2010)

What do you mean? What does not work and why? I don't see how the second quote contradicts the first one, as you seem to imply.


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## Mike Connelly (Jul 21, 2010)

I don't think it's easy to draw a line specifically what is allowed, but it definitely seems like more than just melody is protected.

A bass line or guitar riff is essentially a melody, as long as it has enough to it to be distinctive and original, I don't see why it couldn't be protected.

Full arrangements can definitely be protected, although smaller elements of them may be legal to reuse (especially things that are similar to lots of other pieces).

It really is a situational thing - while a chord progression or rhythm or drum pattern generally can't be copyrighted, if you record something that has the same chords AND rhythm AND drum pattern AND arrangement, I'd expect the possibility of a lawsuit.


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## Mike Connelly (Jul 22, 2010)

Here's a good example - the Mars rhythm by Holst. It's still under copyright and his estate has sued over it, and for uses that weren't even identical. I assume if someone used the exact rhythm, it would be an easy win for them.


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## Narval (Jul 22, 2010)

As far as I know, they have lost.

And, in my humble opinion, suing for that was a very stupid call. You can't copyright time signatures and accompaniments. That will be the end of music as we know it.


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## bluejay (Jul 22, 2010)

I believe Mike Batt was sued by John Cage for the silence thing.

Holst's estate sued Zimmer over the Gladiator opening battle track being very similar to Mars but lost. 

... and how did none of you correct this egregious error: 

Hey Joe wasn't written by Jimi Hendrix! http://en.wikipedia.org/wiki/Hey_Joe


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## Mike Connelly (Jul 22, 2010)

In that particular case, I couldn't find the bit that was supposed to sound like Mars, I assume it was different enough to win the suit.

But if someone were to use the identical rhythm, I can't imagine they wouldn't lose a lawsuit. Of course you can't copyright a time signature, but if a part is distinctive enough, I don't see why it couldn't be copyrighted and defended.

Speaking of Gladiator, it is funny how one of the themes got reused with slight tweaks in Pirates.


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## Narval (Jul 22, 2010)

bluejay @ Thu Jul 22 said:


> ... and how did none of you correct this egregious error:
> 
> Hey Joe wasn't written by Jimi Hendrix! http://en.wikipedia.org/wiki/Hey_Joe


Egregious indeed. I stand corrected. :oops: 




Mike Connelly @ Thu Jul 22 said:


> Of course you can't copyright a time signature


... and accompaniments. :wink:


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## clarkcontrol (Jul 22, 2010)

bluejay @ Thu Jul 22 said:


> Holst's estate sued Zimmer over the Gladiator opening battle track being very similar to Mars but lost.



holy moly that was a TOTAL rip. I guess it goes to show that you can win if you can afford it. Or that orchestral stuff is really tough to enforce...

Clark


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## noiseboyuk (Jul 23, 2010)

Narval - try mocking up the legendary intro to Star Wars, note for note and instrument for instrument, but when the "melody" comes in, write something different. Sell it, and see what happens.

It's the only way to be sure...


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## bluejay (Jul 23, 2010)

Chris, I was under the impression that Holst had kept copious notes of the pieces that had inspired and influenced his composition of the Planets and of course these original pieces were now in the public domain. 

I had been told that the lawyers simply explained that Gladiator referenced these original pieces in the same way that Mars did. i.e. Gladiator didn't copy from Mars, Gladiator and Mars both copied from the same third source.

This is just hearsay so it could be wrong.


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## ChrisAxia (Jul 23, 2010)

Interesting. I guess I was misinformed! 

~c


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## EthanStoller (Jul 23, 2010)

noiseboyuk @ Fri Jul 23 said:


> Narval - try mocking up the legendary intro to Star Wars, note for note and instrument for instrument, but when the "melody" comes in, write something different. Sell it, and see what happens.



That's a curious example considering that the melody of the Star Wars theme is so similar to Korngold's theme for "King's Row." I read that Williams has freely acknowledged this debt to Korngold, but I wonder how a lawsuit concerning that piece of music would pan out.


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## Mike Connelly (Jul 23, 2010)

bluejay @ Fri Jul 23 said:


> Chris, I was under the impression that Holst had kept copious notes of the pieces that had inspired and influenced his composition of the Planets and of course these original pieces were now in the public domain.
> 
> I had been told that the lawyers simply explained that Gladiator referenced these original pieces in the same way that Mars did. i.e. Gladiator didn't copy from Mars, Gladiator and Mars both copied from the same third source.
> 
> This is just hearsay so it could be wrong.



If there was an earlier piece with that same 5/4 ostinato, I'd love to hear it.



EthanStoller @ Fri Jul 23 said:


> noiseboyuk @ Fri Jul 23 said:
> 
> 
> > Narval - try mocking up the legendary intro to Star Wars, note for note and instrument for instrument, but when the "melody" comes in, write something different. Sell it, and see what happens.
> ...



Curious or not, I think the difference is between doing something similar and copying something note for note. The Korngold and Williams share about eight notes (some same rhythm, some not), then go in different directions.

If everything other than the melody couldn't be copyrighted, then you would be able to take existing music and copy it minus the melody, note for note. I'm not a lawyer, but that seems like it would be totally asking for a lawsuit.


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## EthanStoller (Jul 23, 2010)

Mike Connelly @ Fri Jul 23 said:


> Curious or not, I think the difference is between doing something similar and copying something note for note. The Korngold and Williams share about eight notes (some same rhythm, some not), then go in different directions.


I agree with you, and I didn't mean to say that Williams deserved to be sued. But in the wake of the Men At Work verdict that I wouldn't think eight notes would be too short a phrase to be concerned about.


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## bluejay (Jul 23, 2010)

Mike,

I'll go and see what I can find out for you on Holst. Given that he actually taught in Reading back in the 1920s and I know at least one Holst scholar I might be able to get some real info here. There's even a chance that the Reading University library contains some original manuscripts in their rare books section.


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## Narval (Jul 23, 2010)

noiseboyuk @ Fri Jul 23 said:


> Narval - try mocking up the legendary intro to Star Wars, note for note and instrument for instrument, but when the "melody" comes in, write something different. Sell it, and see what happens.


noiseboyuk, this is a discussion. It's not about doing things but about thinking and, well, discussing things. No need to be dismissive.

Yes, if only the melody is copyrighted, then I could redo the Star Wars orchestral arrangement, or any other arrangement, instrument for instrument and note for note (except for the melody), and nothing will happen. You think it will? What would be the legal basis for anything to happen?

To be more clear, I am making the assumption that no musical element other than the melody can be copyrighted. If that is correct, then all musical borrowing (except for the melody) is legal. But if that is not correct, then I would like to learn what other musical elements, or combination of them, can be copyrighted.

My theory is that, when other musical elements will become copyrightable, that will be the end of music as we know it. Deny composers the right to borrow from each other, and only cacophonies will be allowed as new musical productions - everything else will end in court. Be anal about protecting uniqueness from being copied, and the results will be so f-king unique that you won't want to hear it.


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## Dan Mott (Jul 23, 2010)

Why worry about this when it's not even happening!

Chill out make music and go nuts while you can.

Everybody has a similar melody in their songs that were done by others, but no one really cares because it's all done in their on way. It's kind of endless if you ask me.


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## Mike Connelly (Jul 23, 2010)

Narval @ Fri Jul 23 said:


> Yes, if only the melody is copyrighted...



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## Mike Connelly (Jul 23, 2010)

This discussion seems like an author asking if only the plot of a book is copyrighted..."If I change the plot, I can borrow character names/descriptions, settings, and anything else, right?"


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## Guy Bacos (Jul 23, 2010)

Mike Connelly @ Fri Jul 23 said:


> Narval @ Fri Jul 23 said:
> 
> 
> > Yes, if only the melody is copyrighted...
> ...



The counter arguments makes sense. It's also common sense, besides I'm sure any judge would not be that stupid.


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## lux (Jul 23, 2010)

i think noiseboyuk first post here mostly describes it.


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## Narval (Jul 23, 2010)

So, all musical elements are copyrighted, and it's up a judge/jury to decide whether or not the borrowing goes against the publisher's claim for intellectual ownership over all the elements present in their musical piece. Is that it? If so, thank you for addressing the second line in my first post: the melody is NOT the only musical element copyrighted - each and every musical element in a piece of music is copyrighted. And, sometimes, the court decides to let borrowing to pass unsanctioned. In other words, when we use something musical that's been used before in a copyrighted piece, we are offenders, but the court is most times merciful. Right?


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## ChrisAxia (Jul 23, 2010)

As has been said many times, it is NOT just melody. Context, harmony etc all play a part. It's not just the number of notes. I'm sure John Williams could sue for just 4 consecutive notes, or even just 2 in the case of Jaws if the orchestration and feel were exactly the same!

It will apparently be the judge that decides which is why many times there is an out of court settlement because neither side wants to risk everything being decided by one man who may have no musical knowledge!

I was looking at taking legal action against Alan Menken many years ago for his Hercules theme. Several people mentioned the similarity to a BBC theme I had composed years earlier which had been and continues to be shown in the USA so he could have heard it. I contacted a respected Musicologist who told me I had a very strong case. About 10 notes - same chords and feel. A copyright lawyer told me that this wasn't the main evidence! I was surprised that his answer was "If you play the two pieces side by side and 90% of listeners say that one has copied the other. That's your case!"

We tried it out with members of staff at PRS and had about 70% say that they were effectively the same piece. I decided not to pursue it. At the time, I was talking to a world famous song writer who was being sued for a very well known song performed by an International star. The case never went to court and was eventually dismissed, but not before costing him $250,000 in legal expenses!

Anyway, I still remember his words to me (though easy to say when you have $50 Million in the bank!). He said "Chris, it'll be like you're dragging a ball and chain around with you for 5 years. Just forget it and write more music!" He then told me how he could have sued an interntional star for a song but chose not to, and a few years later, said star recorded one of his songs anyway.

~Chris


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## noiseboyuk (Jul 23, 2010)

Having to do something as specific as Star Wars is the worst thing in the world, eh? Sounds like a very wise approach you took, Guy, and really interesting to hear how just the accompaniment might still cause issues.

I was asked to do an Indiana Jones thing. I ended up being really pleased with the end result. Rather than just try and flop a few notes - which even if you get away with legally just always sounds like a poor man's imitation - I tried to just evoke the same feel. Ironically I realised just how similar Indiana Jones is to the old Westerns, and the end result I think sounds more like them than Indiana Jones, but imho worked really well in context.

If anyone is interested, I called it "Saving The Day" on my website. I'm very nervous about drawing attention to this kind of thing - I don't think for a millisecond that what I did is too similar to Indiana Jones, but I'm terrified that I unintentionally ripped someone else off! THAT's my big copyright fear... some tune lodged into my subconscious that I don't even know is there. Wish there was a Shazam for just melodies... the only thing I know of is to ask a few mates "does this sound familiar to you?"


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## EthanStoller (Jul 23, 2010)

noiseboyuk @ Sat Jul 24 said:


> Wish there was a Shazam for just melodies...


There is one-- it's called SoundHound. You can hum or sing a melody and it identifies the tune a la Shazam. Of course, you are limited to their database which likely excludes things like film scores. I have tried it though, and when it works it is pretty amazing. And like you, I have a fear of unintentionally committing copyright infringement and I have used the app for this purpose with a few of my pop tunes. Happily, the "unable to identify this song" screen came up on those attempts (that should stand up in a court of law, right? :wink: )


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## noiseboyuk (Jul 24, 2010)

EthanStoller @ Sat Jul 24 said:


> noiseboyuk @ Sat Jul 24 said:
> 
> 
> > Wish there was a Shazam for just melodies...
> ...



Oh wow, thanks for this!!!


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## Narval (Jul 24, 2010)

Yes but can that thing identify accompaniments? Chord progressions? Bass lines? Percussion patterns? Instrumental textures? As the general consensus here has agreed, these are all copyrightable. 

Or are they?


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## Mike Connelly (Jul 26, 2010)

ChrisAxia @ Fri Jul 23 said:


> As has been said many times, it is NOT just melody. Context, harmony etc all play a part. It's not just the number of notes. I'm sure John Williams could sue for just 4 consecutive notes, or even just 2 in the case of Jaws if the orchestration and feel were exactly the same!



And in the case of just those two notes, you'd probably be safe since there is "prior art" in Dvorak etc.


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## Narval (Jul 26, 2010)

I think appropriate research will show that there is "prior art" for most everything, especially in pop and film music.

And that's precisely the reason why I think only melody should be copyrighted: everything else either has already been said, or, if it hasn't, then chances are that it's not very likable.


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## noiseboyuk (Jul 26, 2010)

Mike Connelly @ Mon Jul 26 said:


> And in the case of just those two notes, you'd probably be safe since there is "prior art" in Dvorak etc.



It's the word "probably" that keeps me conservative in these matters... it's about as reassuring to me as being told by the mechanic at the garage that my car "probably" won't explode nails in my face on the way home...


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## Guy Bacos (Jul 26, 2010)

noiseboyuk @ Mon Jul 26 said:


> it's about as reassuring to me as being told by the mechanic at the garage that my car "probably" won't explode nails in my face on the way home...



lol


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