Prosecutors seek ignorant jurors with tin ears

There are far worse problems in our legal system than this boneheaded aspect of voir dire, but as a musician I want to speak up for other musicians who have suffered unfair trials.

The theory behind the juror-exclusion process is that an expert might sway the other jurors to go with him, or her, rather than rely on the evidence presented at trial.

An arguable argument, I suppose.

But would a judge allow an illiterate person to sit on a jury in a plagiarism case involving an encyclopedia?

Should a judge welcome such a juror? Because how could the unlettered fellow be prejudiced about what was going on, being incompetent?

Talk about neutral. Sounds like an ideal juror.

Nonsense.

Few of us know or care about musical copyright, but bogus rulings from musically illiterate juries, and judges, have cost honest musicians millions of dollars.

Consider Bridgeport Music v. Pharrell Williams (2015), in which Marvin Gaye’s estate was awarded $5 million in damages, plus future earnings, on the claim that Williams’ 2013 song “Blurred Lines” copied the “feel” of Gaye’s 1977 tune “Got to Give It Up.”

The jury found that “Blurred Lines” infringed on Gaye’s “signature phrase,” “hooks,” “bass lines” and “chords.”

Excuse me, your honor, but “Chords? Hooks? Bass lines? Phrase? Feel?”

No one can copyright a chord, or a chord progression, or a bass line, or a hook, whatever that is. (“I claim the dominant seventh! And the subdominant!”)

Hundreds of jazz tunes use the chord progression of George Gershwin’s “I Got Rhythm.” So can Gershwin’s estate sue the estates of Charlie Parker and Miles Davis posthumously? And the estate of every other jazzman who ever lived?

Probably not. Not to mention the Blues: I-IV-V. Who owns that one? First to file?

The ruling in Got to Give It Up v. Blurred Lines was not only ridiculous; it was ignorant.

Bass lines, chords, short musical phrases (aka hooks) are not subject to copyright.

No one can copyright a musical phrase, or a chord progression. The four-note phrase we know as “How Dry I Am,” was used by dozens of Classical composers, including Beethoven, in the third movement of his PathetiqueSonata, Opus 13.

So who could Beethoven sue, and who wants to sue Beethoven? And why?

Bridgeport Music prevailed over Pharrell Williams because the jurors, and the judge, were musically illiterate.

Musical illiteracy also prevailed in the ruling that George Harrison’s tune “My Sweet Lord” violated copyright on the Shirelles’ “He’s So Fine,” because of the similarity of their opening phrases. (Bright Tunes Music v. George Harrison, 1976)

The similarity of their opening phrases? Are you out of your mind?

No one can copyright a musical phrase. Johannes Brahms tested his own musical chops by writing Variations on a Theme by Haydn, to prepare himself to write his first symphony. Haydn was dead then, but don’t you get it?

Artists thrive off of one another. It’s always been that way, and it always should.

A recent report from Courthouse News reporter Eunseo Hong showed that European courts are more intelligent than our own in matters of music copyright.

The Court of Justice of the European Union ruled that “sampling” — borrowing a lick — is protected if a music producer clearly transforms the original work and enters into a recognizable creative dialogue.

Good for you, Court of Justice of the European Union!

And as for our own court system, based upon money rather than art: What are they going to let someone copyright next? E-flat?