Here is the full transcript of musician Damien Riehl’s talk titled “Copyrighting All The Melodies To Avoid Accidental Infringement” at TEDxMinneapolis 2020 conference.
Listen to the audio version here:
TRANSCRIPT:
The George Harrison Copyright Case
I’m going to tell you a true story, but instead of the name of the protagonist, I’m going to make you think about your favorite artist. Think about your favorite musician, and think about your favorite song by that musician. Think about them bringing that song from nothing to something into your ears and bringing you so much joy.
Now think about your favorite musician getting sued, and that lawyer saying, “I represent this group. I think you heard their song, and then you wrote your song. You violated their copyright.” Imagine your musician saying, “No, that’s not true. I don’t think I’ve ever heard that song, but even if I did, I certainly wasn’t thinking about them when I made my song.”
Imagine the case going to trial and a judge saying, “You know, I think I believe you, musician. I don’t think you consciously copied that group, but what I think did happen is you subconsciously copied them. You violated the copyright, and you have to pay them a lot of money.“
Think about whether that’s fair. Think about whether that’s just. This actually happened to George Harrison, the lead guitarist of the Beatles, and the group was the Chiffons, who had a song, “He’s So Fine,” “Oh, so fine.” George Harrison had a song, “My Sweet Lord,” “Oh, sweet Lord.”
The Finite Number of Melodies
But what neither George Harrison nor the Chiffons nor the judge really nor anybody else had considered is maybe since the beginning of time, the number of melodies is remarkably finite. Maybe there are only so many melodies in this world, and the Chiffons, when they picked their melody, plucked it from that already existing finite melodic data set. George Harrison happened to have plucked the same melody from that same finite melodic data set.
This is a different way of thinking about music in a way that judges and lawyers haven’t thought about nor have musicians. When those groups have thought about musicians, they think about them drawing from their own creative offspring, bringing from nothing something into the world. They have a blank page upon which they can put their creativity.
That’s actually not true. As George Harrison realized, you have to avoid every song that’s ever been written. If you don’t avoid those songs, you get sued.
If you’re lucky, you pluck one of those already existing melodies that hasn’t been taken. If you’re unlucky, you pluck a melody that’s already been taken. Whether you’ve heard that song or not, maybe you’ve never heard it before.
Accidentally Infringing Copyrights
Now if that happens, if you’re lucky, you have a co-songwriter. Somebody else says, “You know that new song? It sounds a lot like that old song.” You say, “Oh, gosh, thank goodness,” and you change it before it goes out the door.
Now if you’re unlucky, you don’t have somebody telling you that. You release it out in the world, the group hears your song, and they sue you for a song maybe that you’ve never heard before in your life. You’ve just stepped on a melodic landmine.
The thing is, this is the world before my colleague, Noam Rubin, and I have started our project. The world now looks like this. We’ve filled in every melody that’s ever existed and ever can exist.
Every step is going to be a melodic landmine. And ironically, this is actually trying to help songwriters. Let me tell you how.
The Author’s Background
I’m a lawyer, and I’m trying, I’ve been a lawyer since 2002. I’ve litigated copyright cases. I’ve taught law school copyright cases.
I’m also a musician. I have a bachelor’s degree in music. I’m a performer. I’m a recording artist, and I also produce records.
I’m also a technologist. I’ve been coding since 1985, for the web since 95. I’ve done cybersecurity, and I also currently design software.
So that puts me right in the middle of a Venn diagram that gives me a few insights that if I were in any one of those areas, I might not have had. My colleague, Noam Rubin, who is my colleague on this project, he’s in addition to being one of the smartest people I’ve ever known. He’s also a musician, and he’s also one of the most brilliant programmers I’ve known.
The Realization about Melodies
Between our work, we came to a realization that you may have had, saying, “You know that new song? That sounds a lot like this other old song.” There’s a reason for that.
We’ve discovered that there is only so many melodies. There are only so many notes that can be arranged in so many ways. That’s different than, say, visual art, where there are an infinite number of brushstrokes and an infinite number of colors and an infinite number of subjects that to accidentally do them is very difficult.
Similarly, with language, the English language has 117,000 words in it. So the odds of accidentally writing the same paragraph are next to zero. In contrast, music doesn’t have 117,000 words.
Music has eight notes. Do, re, mi, fa, so, la, ti, do, one, two, three, four, five, six, seven, eight. Every popular melody that’s ever existed and ever can exist is those eight notes. Now it’s remarkably small.
Brute-Forcing Melodies
I worked in cybersecurity, and I know if I wanted to attack your password and hack your password, one way to do it is to use a computer to really quickly say A-A-A, no, A-A-B, A-A-C, and to keep running until it hits your password. That’s called brute-forcing a password. So I thought, you know, what if you could brute-force melodies?
What if you could say do-do-do-do, do-do-do-re, do-do-do-mi, do-do-do-fa, and then exhaust every melody that’s ever been? The way the computers read music is called MIDI. In MIDI, it looks like this, do-do-do-do, do-do-do-re, do-do-do-mi.
So I approached my colleague, Noah, I said, “Noah, can you write an algorithm to be able to march through every melody that’s ever existed and ever can exist?” He said, “Yeah, I can do that.” So at a rate of 300,000 melodies per second, he wrote a program to write to disk every melody that’s ever existed and ever can exist.
In my hand right now is every melody that’s ever existed and ever can exist.
To be copyrighted, you don’t have to do anything formal. As soon as it’s written to a fixed, tangible medium, this hard drive, it’s copyrighted automatically. Now, this leaves copyright law with a very interesting question.
Have We Infringed Every Melody?
Because if you think about the world before, and songwriters had to avoid every song that’s ever been written and read, Noah and I have exhausted the entire melodic copyright. So if you superimpose the songs that have been written and read with the songs that haven’t yet been written, you have an interesting question. Have we infringed every melody that’s ever been?
In the future, every songwriter that writes in the green spots, have they infringed us? Now you might think at this point, are you some sort of copyright troll that’s trying to take over the world? I would say, no, I am not. Absolutely not.
In fact, the opposite is true. Noah and I are songwriters ourselves. We want to make the world better for songwriters.
So what we’ve done is we’re taking everything and putting it in the public domain. We’re trying to keep space open for songwriters to be able to make music. The thing is, we’re not focused on lyrics, we’re not focused on recordings, we’re focused on melodies and the thing is we’re running out of melodies that we can use.
The copyright system is broken and it needs updating. Some of the insight that we’ve received as part of our work is that melodies to a computer are just numbers, because those melodies have existed since the beginning of time and we’re only just discovering them. So the melody, do, re, mi, re, do, to a computer is literally one, two, three, two, one.
Are Melodies Just Math?
So really the number one, two, three, two, one is just a number. It’s just math that’s been existing since the beginning of time. Under the copyright laws, numbers are facts.
Under copyright law, facts either have thin copyright, almost no copyright, or no copyright at all. So maybe if these numbers have existed since the beginning of time or we’re just plucking them out, maybe melodies are just math, which is just facts, which maybe are not copyrightable. Maybe if somebody is suing over a melody alone, not lyrics, not recordings, but just the melody alone, maybe those cases go away, maybe they get dismissed.
Now you might say, “Well, what constitutes a melody?” We were initially going to take the entire piano keyboard and be able to do the entire keyboard, but we thought, you know, let’s focus on the vocal range, which is actually two octaves. Then we thought, no, actually, we’re thinking about pop music, which is the only thing that makes money that people sue over.
Pop music doesn’t go two octaves, it goes a single octave. So that’s what we landed on, eight notes, do, re, mi, fa, so, la, ti, do. On the minor side, do, re, mi, fa, so, la, ti, do, in the natural minor.
Written in MIDI, it looks like this, both on the major side and the minor side. So now we have our eight up. Now you might say, “OK, how many notes constitutes a melody?”
How Many Notes Constitute a Melody?
So we looked at musicologists, and musicologists have debated what is a motif, a short melody, versus a longer melody. The number we landed on was 12, 12 notes. Then we superimposed that number with songs that have either been litigated or threatened to be litigated.
So for example, the Chavans had, “He’s so fine, oh, so fine,” versus, “My sweet Lord, oh, sweet Lord,” eight notes. Do, do, do, do, do, do, do, do, do, do, do, do, do, do, do, do, do, do, do, do, do, do. That’s so close.
“Oh, I won’t back down, no, I won’t back down,” versus, “Won’t you stay with me, because you’re all I need,” 10 notes. Do, do, do, do, do, do, do, do, do, do, do, do, do, do, do, do, do, do. Versus Katy Perry’s, do, do, do, do, do, do, do, do, do, do.
Last two notes are different. The jury didn’t care. $2.8 million. So every song within that is within our parameters of eight notes up, major and minor, and 12 notes across.
So what you see in red is every melody, every popular melody that’s ever existed and ever can exist. All Noah and I had to do is to be able to exhaust that remarkably finite, remarkably small data set. There aren’t that many of them.
Eight up, 12 across. So you might say, “Damien, songs are more than just melodies. There’s chords, too.”
The Problem of Finite Melodies
I would totally agree with you. Because it turns out that that’s even easier. In 2017, Peter Berkmanshire exhausted every chord.
You can download it today in GitHub. We’re instead focused on not on lyrics, not on recordings. We’re focused on melodies. The thing is, we’re running out.
Because a song isn’t just a single melody, but there are many parts to a song. Each part of that song can have many motifs and many melodies within it. So each song can have up to 10 melodies and motifs.
SoundCloud, which is a way that musicians can upload to this website and distribute their work, SoundCloud currently has 200 million songs. They’re adding it at 50 million songs per year. So in five years, that’s going to be 300 million songs.
If there’s 10 melodies per song, that’s 3 billion, with a B, songs that are keep increasing. Exponentially. The number of open spaces is shrinking exponentially.
Because every basement musician is recording, and they’re recording and they’re uploading it to YouTube. They’re uploading it to Spotify. They’re uploading it to SoundCloud.
More so than ever in human history, they are exhausting the entire mathematical data set. They are exhausting the open spaces until there’s not going to be any more left.
Preserving Open Spots for Future Musicians
What Noah and I have done is we’re trying to preserve those spots that are left. We’re trying to be able to take those green spots, put them in the public domain, so that other people can be able to make them. Because we’re running out.
Now, the thing is, we’re just getting started. If you go to our website, allthemusic.info, you can not only download all the music we’ve made, which is a lot, you can also download the program that we used. We’re giving away the code for free, so you can expand upon our work.
Something I didn’t tell you is that those eight notes that we did, as we speak right now, we’ve expanded that to 12 notes. So instead of just the white notes, now we’ve got the black notes, too. We’re covering jazz, we’re covering classical music.
We think it’s only a matter of time before somebody’s going to expand that to do the entire piano keyboard. Take our 12 notes and expand it to 100. With every rhythmic variation and every chordal variation, until our remarkably finite mathematical data set gets further exhausted.
How Will the Law Respond?
This is going to happen. The thing is, how is the law going to respond? Because the thing is, we’re not focused on somebody copying a previous person’s melody.
We’re focused instead on somebody accidentally copying a song that they either have heard and forgotten about or have never heard before in their lives. The chance of landing in an open spot is remarkably small, and it’s shrinking every day. The thing is, the odds of you as a songwriter getting sued are remarkably high.
If you get sued, you’re going to want to think about what a judge or a jury is going to think about. The judge or jury is going to think about two questions. The first question a judge or jury is going to think about is, is that previous songwriter’s copyright valid?
Do they even have a copyright in that previous song? Second question is, did they infringe? Did you infringe their copyright?
Is the Previous Songwriter’s Copyright Valid?
So to the first question, maybe the answer to that is no. If they’re suing just over the melody, maybe that melody has existed since the beginning of time. Maybe there are only so many notes that are math that are not copyrightable.
To that second question, did you infringe, there are two sub-questions. The first question is, did you access, did you hear that previous song? If so, are those two songs substantially similar?
Now, that first question, did you access or hear that previous song, that’s got a lot of problems. It’s really problematic. The reason for that is there are only a few cases where access is crystal clear.
For example, John Fogarty was alleged to have infringed John Fogarty when he was part of Credence. So clearly John Fogarty had access to John Fogarty’s songs. On the opposite end of the spectrum, on Nova Access, what if a baby were to sing into their toy?
Clear Cases of Access and No Access
Again, as soon as the toy recorder happens, it’s copyrighted automatically, it’s a fixed tangible medium. So if a baby starts singing, da-da-da-da-da, da-da-da-da-da, and a year later Taylor Swift thinks, “I say it too late, got nothing in my brain,” clearly Taylor Swift has not infringed that baby. Taylor Swift has not heard that baby’s recording, okay?
Clear case of no access. But the thing is, almost none of the cases are that clear. What if there’s a question mark as to whether the second person heard it or not?
Maybe they heard it, maybe they didn’t. Maybe they heard it and forgot it. Maybe they subconsciously infringed.
These are all what the law calls fact questions. The thing is, almost every copyright case that comes out is a fact question. Almost never is it as clear as John Fogerty or as clear as Taylor Swift.
The Difficulty of Resolving Fact Questions
Almost every case is that middle section, that fact question. The hard part about fact questions is they’re notoriously hard to resolve at an early stage in the case. When you think about a lifespan of a lawsuit, it starts out in cease and desist letter.
“You need to pay me or I’ll sue you.” If you don’t pay, I sue you. It goes forward and it’s going to take years.
The thing about fact questions, they don’t get resolved until the end of that process. That’s what happened to George Harrison. At the end, after trial, the judge said, “I think you subconsciously infringed.”
That happened after trial. These days, to be able to go to trial costs up to $2 million in legal fees. That’s lawyer fees that you have to pay whether you win or lose.
You have to pay those $2 million. Then on top of that, you’re faced with the prospect of rolling the dice and thinking that maybe you have to pay millions of dollars on top of that to the other songwriter. So if you’re a songwriter who has never heard a melody before, but you are approached by somebody saying, “Hey, I think you stole my song,” what are you going to do?
Examples of Alleged Infringement
Sam Smith was approached by Tom Petty. Tom Petty said, “Hey, your song, my song won’t back down. It sounds like your, stay with me.”
Sam Smith reportedly responded, “Hey, man, I’ve never heard your song before. That was written before I was born.” But I, if I was in Sam Smith’s position, I would look at this long row ahead of me.
The prospect at the end of a judge saying, “You know, I think you subliminally infringed.” So what are you going to do? It’s not surprising that Sam Smith made Tom Petty a co-songwriter, giving Tom Petty a lot of his songwriting royalties.
Radiohead had a song, “And I’m a creep, I’m a weirdo.” The Hollies said, “Hey, that sounds like our song.” They made them co-songwriters. Lana Del Rey, ironically, had a song that sounds like “Creep.”
Offered to make them co-songwriters, reportedly. Katy Perry had a song that she testified, and all of her co-songwriters testified, “I’ve never heard that previous song before in my life.” The other side didn’t dispute it.
They say, “You know, we have no evidence that they actually heard the song. But we did have 3 point some million YouTube views, so they must have heard it.” A jury agreed with them, and Katy Perry was on the hook for $2.8 million.
The Untenable Position for Accused Songwriters
Now if you are an accused songwriter who’s never heard the song before, that is an untenable position. How are you going to avoid getting shaken down for something that you may have never heard? Shouldn’t there be an easier way?
Shouldn’t there be a way that early on in that process for a judge or a jury, or a judge or a lawyer, to be able to have an early evidentiary hearing to say, maybe melodies are math, which are facts, which are not copyrightable. Or maybe there’s no evidence showing that this person, later person, has heard the earlier person’s song. Maybe the idea of subconscious infringement goes away.
Now if you are a songwriter, you should really care about this. Each day you are walking in a minefield that you didn’t even know was there. You’re trying to avoid every song, whether you’ve heard that song or not.
Noah and I, we’re trying to preserve those open spaces so that you can be able to make the music in the public domain in a way that you’ve always thought it. The question is not, have I made this new song or not. No song is new.
Is Your Song Green or Red?
Noah and I have exhausted the data set. The real question is, is my song a green song, or is my song a red song? Or perhaps the real question is, should you have the blank page that everybody thinks is there in the first place?
If you’re a judge or a lawyer, think about having an early evidentiary hearing, to be able to take the evidentiary burden from the defendant to prove negative, that they’ve never heard that song, and bring it back to the plaintiff, where it belongs. They have to prove that the other side heard the song, and they have to prove that that melody is more than just a fact. If you are a song lover, you should really care about this.
The current state is a chilling effect on songwriters. Something that I haven’t told you is that George Harrison, after the trial, he stopped writing music for a while. He told Rolling Stone that, “You know, after the trial, it’s hard to start writing again, because every song I hear sounds like something else.”
The Finite Number of Melodies
There’s a reason for that, George. There are only so many notes, there are only so many melodies, and the open spaces are running out exponentially. Now ironically, Noah and I have made all the melodies and put them into the public domain in an effort to try to give songwriters more freedom and more to be able to make more and more music, and less fear of accidentally stepping on musical landmines.
Noah and I have made all the music to be able to allow future songwriters to make all of their music. Thank you.