Ask a (Frontier) Psychiatrist

Dear Frontier Psychiatrist,

What can you copyright in music, anyway? There are only so many notes and so many chords one can use in Western Music. You can’t copyright the 12-bar blues. Or a I-IV-V progression. Or can you? What about artists like Sufjan Stevens who “borrow” lyrics? Or hip-hop artists who use samples?

-Need an Attorney for This Journey

Dear Need,

Properly speaking, this is not a question for a physician; I gave my best effort to research the topic as thoroughly as possible. Sadly, as I combed through reams of copyright law, I found myself mystified, frustrated, and ultimately asleep. I was, however, able to come up with some fairly satisfying answers to your questions; I hope that the many legal scholars who frequent this website will add their own thoughts on the topic.

1) Your opening question can be answered in two ways. First of all, when speaking of “copyrighting music,” one must distinguish between two potential copyrights: that of the song itself and that of the recording. Some of your follow-up questions apply to the former, some to the latter.

2) When a song itself is copyrighted, the copyright applies to only two elements of the song: the lyrics and the melodies. This means that chord progressions (I-IV-V, 12-bar blues, what have you) cannot be copyrighted. This is of course intuitive; were such protections not in place, The Rolling Stones would long ago have sued Guns N’ Roses:

The Rolling Stones – “Sympathy for the Devil”

Guns ‘n Roses – “Paradise City”

And The Clash would have bankrupted The White Stripes:

The Clash – “Garageland”

The White Stripes – “Hotel Yorba”

3) As for the copyrighting of melody…well, one might wonder how it is possible to avoid copying previously penned melodies. The answer: easier than you might think. If one assumes 12 available notes and a 12 note melody, for example, the potential combinations (12^12) exceed 8 trillion; this doesn’t even account for potential differences in note duration, etc. (full disclosure: I like numbers). Still, this issue has risen to the courts before, most famously in Bright Tunes Music v. Harrisongs Music, in which George Harrison was forced to give up a large percentage of the royalties earned for his hit “My Sweet Lord” due to his having “subconsciously” plagiarized the melody from The Chiffons’ “He’s So Fine:”

George Harrison – “My Sweet Lord”

The Chiffons – “He’s So Fine”

A similar issue arose between the authors of the melody for “Under Pressure” (Freddy Mercury and David Bowie) and someone named Robert Van Winkle:

Robert Van Winkle

Thankfully, this one ended without legal action, as Van Winkle gave songwriting credit and lots of cash to the great British androgynes.

[vodpod id=Video.4054995&w=425&h=350&fv=width%3D320%26amp%3Bheight%3D273]

4) You are of course referring to the new Sufjan Stevens tune “All Delighted People,” which borrows lyrics from Paul Simon’s “The Sound of Silence:”

Sufjan Stevens – “All Delighted People (Classic Rock Version)”

Simon and Garfunkel – “The Sound of Silence”

I cannot say whether this is properly legal or whether Paul Simon stands to benefit financially from the song, but I am fairly confident that, should a lawsuit ever emerge, its validity would hinge on the concept of “fair use.” Fair use is essentially a legal term that specifies which uses of copyrighted work do not constitute infringement and are thus legal. If a purported thief claims “fair use,” the courts must consider 4 things when determining if the claim is justified: the purpose of use (profit or not); the nature of the copyrighted work (whatever that means); the amount of the work which was pilfered; and the effect on the potential market value of the copyrighted work (i.e. should the victim be raking in the royalties). Of course, none of this double-talk tells you how a court will decide; it just tells you what will be considered. Given that Stevens is unlikely to rake in big bucks from his $5 digital-only EP, it’s unlikely that the question will ever be addressed in his case.

5) Sampling. Note that this is a violation of the copyright of a recording, not of a song itself. This is pretty much always illegal. Unless of course royalties are paid:

If one is sued for sampling, they will likely claim fair use, and they will likely lose. “The internet,” that apatean temptress, has led may to believe that any sampling of less than 4 notes constitutes “fair use,” a claim that is sadly nonsense (see this case, which would have been much cooler if called “P-Funk vs. Ice Cube,” for confirmation).

However, the winds of change may be blowing on this issue. Many in the hip-hop and electronic communities have openly pondered why Greg Gillis, aka Girl Talk, has not been sued despite creating records that consist exclusively of samples of copyrighted material (if you want to see exactly how many samples, check out this breakdown). The consensus opinion seems to be that Gillis has transformed the sampled works to such a degree that he would win any suit against him by claiming fair use, in the process setting a dangerous precedent for the already moribund record industry. For now, the RIAA is picking its battles.

I hope that provides a thorough (but not too thorough) answer to your question. Barristers, please comment below. In the meantime, all of this law talk has left me lethargic. Time to prescribe myself something mind-altering: