When is music borrowing against the law? The case against “Stairway to Heaven”

Has the copyright case against “Blurred Lines” opened a floodgate of bands wanting monetary rewards for supposedly borrowed work? Take for example the case of the band Spirit suing Led Zeppelin over “Stairway to Heaven.” Read about it on NPR.

To summarize the NPR article, it takes a lot to prove that one song is stealing from another song. For example, they have to prove that the accused had access to the original song and probably listened to it (this is true in the "Stairway" case). In the end, though, song copyright infringement is really a theoretical question. What are the vital part of a song that makes it unique? Certainly melody, harmony, and rhythm. Yet, while rhythm and melody can be more distinct, many songs have similar harmonies. Also, similar types of melodies (such as arpeggiation) or rhythms are used over and over again. Yet despite the technical nature of the question (and the blurred lines between similar and a copy), it is interesting that expert witnesses or judges often don't make the final decisions, but juries.

But what about fair use? Parts of a copyrighted work can be included in a new work as long as the new work is transformative, meaning that it adds something new, with a different character, expression, meaning or message, or function. Artists recombine little bits of older material all the time. After listening to Spirit’s “Taurus,” I can only pick out one little guitar lick that is really similar—only part of a phrase. There is a striking similarity, yes, and there is an argument that this phrase has a similar aesthetic function, but the portion is so small and the surrounding music so different that I think there is very strong fair use case here.

My favorite part in the article was the last paragraph by Spirit’s lawyer:

"This lawsuit, it's in large part about having to re-educate the public that there was an individual called Randy California, and he was a phenomenal guitarist," Malofiy says. "And part of this is about re-educating the public [about] this relatively unknown song called 'Taurus.'"

First, why is this lawsuit about the public at all? The public doesn't argue the case, but lawyers, judges, juries, and musical experts. I don't think "juries" and "public" are the same thing. Also, now that I’ve been re-educated about “Taurus,” I’m pretty sure that they don’t have a case and that this lawsuit is a shameless money-grab.

Actually, “Stairway to Heaven” is so much more engaging than “Taurus,” I’m just going to put it right here. Notice that by minute 3, when most pop songs are ending (including “Taurus”), “Stairway" is just getting started—and still leaving you wanting to hear more.

If this does turn into a flood of lawsuits, perhaps the saddest thing is that Marvin Gaye’s estate didn’t sue Thicke and Williams—it was the other way around. Thicke and Williams issued a pre-emptive lawsuit, which already sounds guilty. Gaye’s estate would have probably done nothing by themselves. But we already knew from watching the video that these guys are creeps. At least they inspired one of Weird Al’s best songs. Let’s hope a failed “Stairway” suit will dam the possible flow.

Update 6/23/2016
Reason prevails and the jury clears "Stairway to Heaven" of plagiarism:
http://www.npr.org/sections/thetwo-way/2016/06/23/483263154/jury-clears-led-zeppelin-in-stairway-to-heaven-plagiarism-suit

Noteworthy Instruments: the theremin

I've been wanting to do a noteworthy instruments on the theremin for a while, but this week Felicia Day beat me to it. I'll just let her explain. If you want to skip ahead, the theremin lesson starts at about the 4 minute mark.

Here's another type of theremin, in arguably the most famous use of it (though I'm not convinced that this audio actually goes with this video). Enjoy!

Post on MMM: Alternative Sacrament Hymns

For all you Mormons who read this blog, this week I posted on the Modern Mormon Men blog about thinking outside the box for the sacrament hymn, the second song in the LDS Sunday service. You might catch some of my other pet peeves about choosing the music for this religious meeting. Enjoy.

Running a symphony orchestra like a museum

Last week, I wrote about how modern art music is hard to practice and perform, and that in order to get symphony orchestras to program more of it, they would need to rethink their performance model. My solution for this is to have symphony orchestras act more like museums—in other words, the organization’s goal should be to present the art in an educational way, with curated, themed collections and exhibitions mixed with bits of history, context, and interpretation. And as with art, museums don’t have to just program past, as Alex Ross’s article indicated in last week’s post. Pretending that a concert is akin to a religious ceremony, as most symphonies do, is unproductive for having audiences understand avant-garde musical art and possibly even older music, too. However, orchestras don’t want to say that they are presenting relics for fear of being labeled relics themselves.

I don’t think, however, that symphony orchestras should shy away from being museums, which have a prominent place and social function in our society. Why do people go to museums? To see famous things that change the world, or to promote thought, or to learn about expressing emotion. They probably don’t do it be soothed or simply entertained, for the most part. Symphony orchestras should promote themselves similarly.

Much of the symphony orchestra’s music is not from this time period, meaning that today we don’t have the context to understand what is going on—the past is a foreign country (not to mention much of its repertoire is from a foreign country) and even if the music is contemporary, it may not be understandable to today's average concert-goers, especially a the absent young crowd. Why not, along with the music, tell people how audiences reacted to this music when it was presented and give permission for them to do it? How about letting people encore a movement of a Beethoven Sonata, letting them clap between movements, putting girls behind a soloist playing Liszt, or letting people play cards during a Mozart opera? Sometimes the new music, as with modern art, can only be understood with connection to older music, too, so why not play both older and newer? Does art just get displayed in modern art museum? No, the audience is given context or the author’s intent.

Another strategy that symphony orchestra’s can adopt is curated, themed collections and special exhibitions of one artist or a particular topic. By collection, I don’t just mean one concert, but a concert series. How about a  series of musical concerts themed with logical arguments or progression on the same theme? How about a series not just about “the baroque,” or “the 3 Bs,” but built around a theme that matters to modern—global warming, or crimes of passion, or slavery, or prejudice? Symphonies can still keep playing their old workhorses they know, their “permanent collection”, but what if they used Beethoven’s 3rd as the centerpiece of a concert series about deafness, or about overcoming obstacles, or about Europe during the time of Napoleon? And the symphony orchestra could get other smaller musical ensembles or soloists involved, either from the group itself or from the community, like an opera company or chamber music ensemble. And why not have modern ensembles like modern museums of art, that specialize in new music and history?

We need more long-term curation in classical music. This would require a lot more planning, which may not be possible with the current system of hot-shot artistic director/conductors that spend little time in one town. But planning is less expensive than rehearsal time and could have some great results—a musical establishment that has more of a social function than simply to entertain people in suits and ties, but to educate about history, to place art in context, and to be a forum of social issues.

Maybe if my local symphony orchestra did a series like this, I would be more interested in going.

Response to Ross's “Why do we hate modern classical music?”—well, it's hard

Not everyone wants to do this with their grand piano. From Flickr with a Creative Commons License.

One of my Facebook friends recently shared an old Alex Ross article from November 2010 called “Why do we hate modern classical music?” I hadn’t read it before, and I think it is still a question that many people are asking. So, I’d like to respond to it here. If you haven't read it, you can find it here.
 
Ross’s basic argument is that while other avant-garde arts (painting, literature, theater, architecture) from the previous 100 years has become famous and valuable, most classical concert goers would rather hear music from at least 100 years ago. He brings up several theories about why people don’t like avant-garde art music, and then discounts them. Instead, Ross blames the institutions that promote classical music—unlike art museums, orchestras are not willing to be champions of the new. If everyone were exposed to the new stuff more often so they acquire the taste, he argues, it would be different. He uses himself as an example of someone who used to love the music of 100 years ago, but now likes the new stuff, too. Further, audiences need someone to 1) explain the new music and 2) banish the idea that all music is meant to be soothing.

Modern classical music is hard

While I think that Ross undermines his argument by picking specific examples instead of giving a big picture, he is probably right—avant-garde art music from the last 100 years isn’t well understood because it isn’t played enough.

I think Ross fails to mention a major reason about why art music is not performed more, though—not just because musical institutions and critics worship the past, but because new music is much harder. Not only is it harder to listen to and understand, but it is harder to practice and put on, taking more work and more coordination. While avant-garde art, literature, and architecture are also difficult to make, they are pretty much ready to consume after they are made. People can peruse them as much as they like and get used to them. It is easier for non-music art to be seen and become part of the art landscape. The hurdle is higher for new avant-garde art music because you have to practice, produce, and perform it, instead of just exhibit or read it, and practicing, producing, and performing new avant-garde art music is way more difficult than with older art music.

What about recorded music, though? It is consumed as easily as literature and art, right? Well, it still takes time to sit and listen to the music, which is especially hard when there is so much well-known, easily graspable music out there. Also, releasing recording music into the void takes away the control of the tastemakers, and as Ross insinuates, as with visual art, unless the musical institutions program it, people will just listen to something easier, because listening to new music is hard. While it takes time to sit through a book, also, music is inherently more abstract than literature, especially when the music doesn’t have words. When the music has been made less abstract—with a lecture, or added words, or added pictures (as in the case of the movies)—people have something more they can hold on to as they try to make sense of the abstractness. All of these extra needed layers means that the acceptance of the musical avant-garde comes around later the acceptance of the other arts. New music was also hard to put on 100 years ago, for those people—even more so, without recordings—so this explains why people 100 years ago also preferred music of the past.

So, we shouldn’t tell musical institutions simply to preform more new music, because it doesn’t acknowledge a very real challenge in musical programming. Instead, we should take from a different approach—that audiences need to hear new music because it is important, not just new music for new music’s sake.

Because it’s just easier to put on Messiah and Carmina Burana again—everyone knows the parts already and people will come and hum bits to themselves when they leave (see?).

Next week, I’ll propose a way for music institutions to do just that—show new music as part of something bigger and an important part of a whole. Sneak peak: it involves musical institutions like symphony orchestras acting more like museums.