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Apr 8, 2022
Advertisement “There’s only so many notes and very few chords used in pop music,” Ed Sheeran said after a judge ruled in his favour in a copyright infringement case in London this week. Noting that 60,000 songs are released on Spotify every day, he added “coincidence is bound to happen” because “there’s only 12 notes that are available”. Is he right? Is the Top 40 well about to run dry? Is it open season for songwriters to crib from others, and for lawyers to pursue them for doing so? Well, it depends on how you do the numbers. Writing in 1939, Russian composer Sergei Prokofiev calculated there were at least 6 billion possible combinations available to a composer in a tune of just eight notes. “That does not mean that one can make 6000 million tunes out of these eight notes,” he added in the essay Can There Be an End to Melody? “But there exist 6000 million combinations out of which the composer might choose that would be melodious.” Taking the maths to the next level, London-based musician Oli Freke in 2014 developed a formula according to which “a mere 10-note melody will produce over 75 billion potential melodies of 13 notes within the octave”. Factoring in variations in note length and rhythm he came up with an impossibly large number – 825 followed by 17 zeroes – of possible melodies that are 10 notes long. “A very rough approximation shows it’s over 2.6 trillion years worth of material,” he wrote. The Russian composer Sergei Prokofiev, circa 1918. Credit:Wikimedia Commons Or as Prokofiev concluded, “we need not be afraid that there will come a time when all melody will have been exhausted and we shall be obliged to repeat old tunes”. And yet, if the recent proliferation of copyright infringement cases is any indication, that’s precisely where we have landed. Advertisement Could it be that the combination of notes we like to listen to is far more limited than Prokofiev and Freke imagined? In an amusing exercise for Wired in 2015, Rhett Allain – whose area of expertise is physics, not music – used a reductive model in a bid to prove there can be only 343 different songs, ever. “Here is my plan,” he wrote. “I am going to write one song. This one song will have every possible three-note sequence. If this song then makes it to the top of the charts, every following song will be based on my One Song and thus owe me royalties.” It was deliberately provocative and silly, but the notion that lots of popular music is built around a small subset of musical components certainly has its adherents, and not just the Ramones (the New York punk act who perfected the art of the three-chord, sub-two-minute song in the 1970s and ’80s). The idea was parodied by the Australian comedy trio Axis of Awesome in their song 4 Chords , first performed circa 2009. A decade earlier, fellow Aussie musical comedy trio Tripod had likewise pointed out the limited palette with which Oasis painted their songs. But Oasis don’t just sound like themselves; they sound a lot like The Beatles, and their 1994 song Shakermaker sounded a lot like the New Seekers’ 1971 song I’d Like to Teach the World to Sing, a similarity that was exploited by parody/tribute act No Way Sis in their 1996 cover of the earlier song. Of course riffs have been ripped off since long before Jimmy Page (the Led Zeppelin guitarist whose genius on the fretboard was matched only by his forgetfulness over source material) was in short pants. Call it influence, call it paying respect, but it’s been happening forever, including in classical music. Recent high-profile infringement cases include Robin Thicke and Pharrell Williams being sued by the estate of Marvin Gaye for similarities between their 2013 hit Blurred Lines and Gaye’s 1977 single Got to Give It Up (a US court granted Gaye joint songwriting credit and awarded his children $US5.3 million in damages); Nicki Minaj paying Tracy Chapman $US450,000 as compensation for use of elements of Chapman’s Baby Can I Hold You in the 2018 track Sorry; and the ongoing saga of Dua Lipa’s hit Levitating, which has been the subject of two separate and as yet unresolved infringement claims. There has perhaps been no more famous case than that of George Harrison having to cede the bulk of the royalties from his 1971 song My Sweet Lord to the owners of the rights to The Chiffons’ 1963 hit He’s So Fine. The sting was made worse by the fact that by the time the case was settled, Allen Klein – who had been Harrison’s manager when the case began – had bought the rights to the publisher of the Chiffons’ song, written by Ronald Mack, and so Harrison was shelling out to him. Ouch. Led Zeppelin won, then lost, then won again a case brought by the estate of Randy Wolfe, the late frontman of US band Spirit, in which it was alleged the opening chords of Stairway to Heaven had been ripped more or less straight from the song Taurus. Zeppelin frontman Robert Plant had seen the band play live in 1970, but claimed he had no recollection of either the gig or the song due to his involvement in a serious car crash later that night. He did, however, have a copy of the band’s album, as did bandmate and co-writer Jimmy Page. Go figure. The most famous Australian case is that of Men at Work’s Down Under and the children’s song Kookaburra, written in 1932 by Marion Sinclair. The similarity between Greg Ham’s flute solo and the melody of the children’s song was first pointed out on the ABC music quiz show Spicks and Specks in 2007, and two years later – 28 years after Down Under topped the charts worldwide – Kookaburra publisher Larrikin sued for copyright infringement. A year later, it won, and was granted 5 per cent of all royalties from the song dating back to 2002 (it had sought between 40 and 60 per cent). Under Australian copyright law, there’s no set formula for determining the amount of a creator’s contribution to a song. The Arts Law Centre of Australia advises : “The test of what is substantial is qualitative, rather than quantitative. In other words, there’s no rule that copying 5 per cent of a work is OK. It depends on the quality of what is being copied, rather than the quantity.” Of course, not every act of copying is deliberate. “It’s equally possible for plagiarism to occur, or for people to have picked up ideas, unknowingly, or to have come up with the same idea spontaneously,” observes professional musician and music teacher Amy Valent Curlis. “I don’t think it’s realistic for an artist to know everything that’s come before them.” Music is an “iterative process”, she adds – that is, it depends on learning by doing – “and we all like the sound of things that are familiar, so it makes sense that people are inspired by what’s around them, both consciously and unconsciously”. The trouble is, the courts don’t much care whether the copying was conscious or not. If a hit song is built around a hook that is recognisably, in the eyes (or ears) of a judge, similar to another, then copyright will need to be split. “It is up to the defence to argue that it was not copied from this particular work, or it is not a taking of a substantial part sufficient to constitute infringement,” says Kathy Bowrey, professor of law at the University of Sydney and author of Copyright, Creativity, Big Media and Cultural Value. “Whether the court accepts the explanation usually depends on [competing] expert witness opinions that inform the judge’s decision.” Increasingly, she adds, AI detection is being used to scour digital music services in search of similarities, with the aim of extracting micropayments from one copyright owner to another. “This is not applying a legal test but a pragmatic one, which dislodges any consideration of creative freedom or common heritages in music altogether, potentially turning every cultural communication into a transaction,” she says. Loading Whether or not the range of possibilities in music is infinite, any similarities are increasingly likely to be spotted, and to be acted upon. “Copyright law is not really interested in creativity,” says Bowrey. “It’s designed for profit making.” Email the author at firstname.lastname@example.org , or follow him on Facebook at karlquinnjournalist and on Twitter @karlkwin Find out the next TV, streaming series and movies to add to your must-sees. Get The Watchlist delivered every Thursday . Save
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Men At Work's headquarters is located at Brescia.
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Men At Work's latest funding round is Management Buyout.
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Investors of Men At Work include ProA Capital.
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