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How Dry I Was, in 1798

August 9, 2019

With no due respect, Los Angeles federal juries should be barred from hearing music copyright lawsuits. Send the cases to Iowa or South Dakota, where people don’t have to pretend to be hip.

Robert Kahn

By Robert Kahn

Deputy editor emeritus, Courthouse News

With no due respect, Los Angeles federal juries should be barred from hearing music copyright lawsuits. Send the cases to Iowa or South Dakota, where people don’t have to pretend to be hip.

Los Angeles federal juries have delivered a string of idiotic, multimillion-dollar judgments against musicians, the latest a $2.8 million punch in the nose to Katy Perry, for her 2013 song “Dark Horse,” which allegedly copied the “beat” of the 2009 song “Joyful Noise,” by Marcus Gray, pka Flame, a supposedly Christian rock band, which, if they were truly Christian, I wouldn’t expect to sue for something like that.

We’ll look more closely at “beat,” but not Christianity, later in this column.

A quick recap: Robin Thicke and Pharrell Williams lost $7.3 million to Marvin Gaye’s estate in 2015 in another L.A. federal jury judgment: that “Blurred Lines,” the best-selling song of 2013, violated copyright on Marvin Gaye’s 1977 hit “Got to Give It Up.”

I understand the idiotic legal doctrine that says juries should be composed of common folk — not of specialists in the fields at issue. But do you really think we should base our national laws about music on the opinions of people who can’t tell a B-flat from an F-sharp? Would we allow such a thing in any other field?

Why do our laws allow musicians to be punished, severely, for doing what musicians always have done: listen to other musicians, learn their tunes, and try to improve them — in the song itself or in a new tune — to transform them, which is a fair use of vibrations in air.

Even before it had been written and published, the first four notes of Irving Berlin’s tune “How Dry I Am” (1919), had served as themes for more than 100 Baroque and Classical compositions. Those four notes begin the Finale of Beethoven’s Pathétique Sonata in C Minor, Opus 13.

So if Beethoven had any living descendants, I suppose they could sue Irving Berlin. And if the case were heard by a Los Angeles jury, Berlin’s estate would be in big trouble.

Sebastian Bach wrote variations on a theme by Goldberg. Beethoven wrote variations on a theme by Diabelli. Brahms wrote Variations on a Theme by Haydn.

So I guess all of those guys are in big trouble.

Look, a “beat” — whatever that is — cannot be copyrighted.

Nor can a chord progression: That’s established law. If it could be, whoever won the rush to the copyright office for I-IV-I-I-IV-IV-I-I-V-V-I-I would hold the copyright to more than half of the blues tunes ever recorded.

And a chord progression is way more complex and developed than a “beat” — whatever a beat is. As it’s used in these idiotic lawsuits, it could mean practically anything but what a musical beat is: a quarter note in 4/4 time.

It can’t mean a drum beat, because a drum beat cannot be copyrighted. If a jazz drummer can learn all of Philly Joe Jones’ “beats,” then god bless him. Where’s he playing? I’d like to hear him.

I’ve been told by aficionados of hip-hop that a beat means the bass line. Well, you can’t copyright that either. (C-E-G-Bb / F-A-C-Eb — Get outta here.)

In the absurd, $7.3 million Gaye Estate v. Thicke and Williams charade, the jury was told that Thicke and Williams copied the “groove” of Gaye’s song, and/or the “feel” of it. And the judge — whom I must assume is also musically illiterate — let the plaintiffs’ lawyers get away with that.

Can you imagine J.D. Salinger’s estate suing a writer today for copying the “feel” of “The Catcher in the Rye”? And getting away with it? And not getting sanctioned and fined?

Virtually every pop musician today — Drake, Taylor Swift, Beyoncé, Lady Gaga, Jay-Z, Led Zeppelin, and on and on — have faced or still face similar copyright lawsuits.

May it please the court, speaking as a professional musician (retired): I don’t care how smart the lawyers are, these “copyright infringement” lawsuits are bullshit. And the jury judgments are bullshit times millions of dollars.

If you want to use technical musical language, the Gayes and Flame, et al., should have sued the other bands for copying their “licks.”

Had they done that — and that’s all that these lawsuits are about — then maybe the complaints would have received the treatment they deserved: being laughed out of court.

 (Courthouse News columnist Robert Kahn has a Master’s degree in performance with a minor in theory from the Manhattan School of Music.)

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