George Harrison claimed he had never even heard Ronnie Mack’s “He’s So Fine”, let alone consciously thought about it, when he was writing “My Sweet Lord” in 1969. “My Sweet Lord” went on to be the highest selling single of 1971 and saw Harrison become the first of The Beatles to secure a Number 1 on the Billboard chart as a solo artist.
However, Mack’s publishing company successfully sued Harrison in the US for copyright infringement. The court found that Harrison had “subconsciously” copied the melody of “My Sweet Lord” from “He’s So Fine”. Subsequent damages of over 1.6 million US dollars were awarded.
In its judgment the court stated that, whilst it did not believe that Harrison had deliberately used the melody from “He’s So Fine”, “it is clear that 'My Sweet Lord' is the very same song as 'He's So Fine' with different words, and Harrison had access to 'He's So Fine.' This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished".
In the intervening years, there have been a number of high profile music copyright infringement claims in the US relating to alleged “subconscious copying” of melodies present in earlier recorded compositions (a recent example being the claim against Katy Perry in relation to her song “Dark Horse”). But two programmers have recently sought to protect songwriters from this type of copyright infringement claim. This article briefly discusses what the programmers have sought to achieve.
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By virtue of the finite nature of melodies, it is not uncommon for melodies in new compositions to sound very similar, if not identical, to melodies present in earlier compositions. This can occur even in circumstances where the individuals or bands who wrote the later song were completely unaware of the existence of the earlier melody and even where the style of the songs as a whole are different; for example, “My Sweet Lord” is a gospel song whereas “He’s So Fine” is a doo-wop song.
Copyright infringement claims based upon “subconscious copying” may be difficult to defend if the claimant can point to clear evidence showing that the defendant had “reasonable access” to the earlier work. For example, if the claimant is able to show that their earlier recording was well known to a large number of people (perhaps by providing evidence of high numbers of, say, Spotify plays or YouTube views) then a court may infer from this that there was reasonable access, even if the defendant maintains they have never heard the composition in question. This point will weigh more heavily on musicians today, as the presence of earlier compositions can be ubiquitous in various online formats.
Against this backdrop, infringement claims based on song melodies are considered by many to be particularly unfair and to stifle creativity. That said, they are not straightforward claims to bring because the comparison exercise must be made between the two stripped-down compositions and not the overall sound recording (often many of the similarities actually relate to the latter).
Seeking to address this problem for musicians, two programmers in the US recently created an algorithm that apparently recorded every possible 8-note, 12-beat melody combination as midi files. They saved these melodies to a hard drive and released them to the public under, what is called, a creative commons licence with a view to allowing free distribution and use of the melodies. Their intention was to create space for musicians to compose new music without fear of being sued in relation to the underlying melody.
In order for copyright to subsist, a work (in this case the melody) must, amongst other things, be recorded in some form. A large number of the melodies generated by the algorithm had apparently never been recorded in any format before (it is not clear how the programmers would have established this). Therefore, the programmers claim ownership of the copyright in these “new” melodies and by releasing them under a creative commons licence have sought to preserve them for future use by musicians. The programmers argue alternatively that if melodies are finite, they are essentially just numbers and therefore nothing more than facts and so should not be protected by copyright at all, or should enjoy a lower level of copyright protection than other creative works. This is an interesting argument which is likely to be supported by a number of musicians.
However, the algorithms will inevitably have generated many melodies which already enjoy copyright protection (i.e. they are original works already recorded in some form). So the initiative will not be as comprehensive and reassuring to musicians as the programmers had envisaged (but perhaps it does not raise an infringement risk in relation to the pre-existing melodies since the software appears to have generated the melodies independently?).
Provided the programmers can demonstrate subsistence and ownership of copyright in the “new” melodies (it would be interesting to see how a court would approach these issues), the creative commons licence may assist with a future infringement claim based solely on a melody in a composition. However, it would not assist if other aspects of a song are in dispute (e.g. the lyrics and the overall sound recording).
The programmers’ approach and reasoning are interesting and intriguing. Supporting artistic endeavour is to be encouraged, but in claiming copyright ownership in every “new” 8-note, 12-beat melody combination, it could be argued that the programmers may end up stifling creativity more than encouraging it.
Vicky and Graeme are members of Marks & Clerk’s Creative Industries Team