Actually, while the recording is separate from the song, the music and lyrics are both under the same copyright, unless one was published before the other.
If I were to plagiarise the lyrics to God Only Knows, which were written by Tony Asher, Brian Wilson, who wrote the music, would get half of any settlement, and Asher would get half if I stole the music.
The classic decision on this is the Melancholy Baby case, where someone wrote a song with a lyricist, and without his permission the publisher put new lyrics to his tune. The court ruled (IIRC , IANAL , YKWIM etc) that *all three* writers - the composer, the original lyricist, and the new lyricist, had a share in the finished song...
Yeah, I read that whole case list too, a while back. Yes, the access threshold is very low, but still, that's only a tiny proportion of the number of songs published.
I doubt major music publishers have established pools like that. Unlike the record industry, where only five companies are even worth considering, there are literally thousands of music publishers, and a substantial number, perhaps even a majority, of successful songwriters publish themselves. While big companies like Warner-Chappel or Sony Music have huge catalogues, and some areas of music are dominated by writers working for big companies, the majority of songwriters - especially writer-performers - keep their own publishing now.
I can't see a nuisance lawsuit taking place unless you *have* the funds for a lawyer and musicologist - what would they hope to get out of it? Generally, if you look through that list, there's a recurring pattern of 'has-been or total unknown sues megastar'. If you're the megastar you can afford a defence. There are *very* few examples there of 'Nobby Nobody is sued by the Beatles because he did a song with the word Yesterday' in it, and far more 'Nobby Nobody sues the Beatles because he wrote a song called Yesterday in 1932 and hopes to make a few quid' - although I accept that the first type is more likely to be settled out-of-court.
I really don't think this is a problem for any artist who isn't at least having the occasional Top 40 hit, but I admit I can't answer those three questions, and I would be happier if I could. If you find an answer, could you let me know?;)
My misconception, if such it was, was taken from 'All You Need To Know About The Music Business' by Donald S Passman, which despite its rather stupid title is actually a very reasonable guide to intellectual property law - specifically as regards music but also more generally - written by a highly respected music business lawyer. So if I was wrong (and I would see the ban on derivative works as being still a ban on the implementation, as opposed to the idea, but I would accept that they are a grey area) then it wasn't because I didn't check my facts.
One reason I am extremely dubious about the idea of software patents is precisely because an algorithm to my mind falls into a very grey area between idea and implementation...
Hmm... looks about right - an 86% chance of coming up with something original based on a very loose definition of simillarity, which would be about a 1 in 6 chance of having a song simillar to the other 9 million published. I was using the chance of coming up with a totally identical melody, as opposed to a merely simillar one.
Even so, the number of those 9 million songs to which someone can have had proven access is far smaller - you are unlikely to get sued if your melody is quite simillar to that of 'No More Hot Dogs' by Hasil Adkins, because you are unlikely to have even *heard* No More Hot Dogs. On the other hand if, like Harrison, you are known to have heard a record on numerous occasions and then come up with what is essentially an identical melody, you are unlikely *not* to get sued, especially if your song is a worldwide number 1 hit, as his was.
I will admit that in actuality the chances of coming up with something simillar to someone else's melody are about those Yerricide says (1 in 6), simply because it has happened to me.
A song I wrote on my band's first album, Sandman, has almost the exact same verse melody and basic guitar figure as Five String Serenade by Arthur Lee & Love, and no jury in the world would believe the truth, that I only heard the Love song five years after writing my own, given that I'm a fan of Love's (the song in question was hard to track down though).
But that is as much as anything else because many songwriters have a regrettable tendency to resort to cliches - both songs have a simple I-V-I-V chord pattern throughout the verse, probably the simplest chord change in the world. When the songs go off into the bridge, and depart from the cliches into slightly more original ground, they sound nothing alike.
In fact so cliched is the verse chord change that there is even a third song - My Beloved Monster by the Eels, which I also heard after writing and recording my song - which bears a passing simillarity to the verse melody of both songs.
So in my experience the best way to avoid accidentally writing someone else's song is to avoid the cliched and obvious, and try for originality - if your chord changes are going from Bb to Ddim7 to Am6 your melody line is very unlikely to follow the same basic contours as someone else's.
The main thing to remember though is that lawsuits only get won if the plaintiff can prove that the defendant had access to the music. A lawsuit against Mick Jagger by a little-known reggae artist was thrown out in the 80s despite both songs having the exact same chorus melody and lyrics, because Jagger was unlikely to have heard the original song. Simillar lawsuits have also been thrown out against Andrew Lloyd-Webber.
To put it simply, look how many songs get written and recorded every year - large music magazines review up to 200 new albums every month. Assume say 10 new songs per album, that's in the region of 24,000 new songs that get some kind of significant audience - significant enough to attract lawsuits anyway. Now, if it was really impossible to come up with many new melodies without being sued, we could expect maybe 2 lawsuits per album.
Even being reasonable and expecting only a tiny fraction of that, how many lawsuits of this type can you think of that have actually taken place? The one that gets trotted out time and again is My Sweet Lord, over 30 years ago, a song which even Harrison's friends admit was probably deliberately plagiarised. I hardly think songwriters are under threat from a tidal wave of lawsuits, somehow...
The story has an interesting idea, but fortunately in the case of music at least the number of possible melodies is so extremely huge that it's never going to happen - the number is so staggeringly huge, even if one makes stupid restrictions like the melodies have to be eight bars long, in 4/4 time, and within one octave, that if everyone on the planet were to write a new melody once every second it would take somewhere in the region of a googol years before one could expect an exact duplication. Of course, given that most melodies are inspired by previous ideas, and that most people have unimaginative minds, it happens occasionally, but the number of new good melodies is not going to appreciably diminish within the lifespan of the human race.
As for the My Sweet Lord/He's So Fine case, even John Lennon didn't believe George Harrison. The two songs have identical melodies and simillar arrangements, and He's So Fine was a favourite of Harrison's in the 60s. He knew what he was doing, and he got caught.
EMI have never given permission for any other artists' use of the Beatles' work in this way, and under the terms of their contract with the Beatles never will do so.
The only time any other artists have been allowed to mess with Beatles' recordings legally was when Paul McCartney himself comissioned some remixes for 'Liverpool Sound Collage'. Even then, the artists in question (Youth and Super Furry Animals) never got a penny...
Actually that was Dick James and Charles Silver, the music publishers who owned more shares than Lennon/McCartney in Northern. Once they sold their shares to ATV, Lennon & McCartney were in a near-impossible position...
There's a difference between an idea and the implementation of that idea - IP laws were created to protect *implementations*. If I have an idea, my own implementation of it is almost certainly going to differ, more than likely in non-trivial ways, from someone else's implementation, and I should have the right for some reasonable length to have enough control over that implementation to make some money off it, so long as I don't harm anyone else by doing so.
That doesn't mean it's always right to *use* that right - but that right should be there.
It's all part of his 'Trust me, I'm a regular guy' schtick. He did exactly the same at mp3.scum as well (and indeed also had his 'Michael's Minute' with the 'industry insider gossip'). The man's a conman, pure and simple...
I think Robertson is as bad as Gates. As a musician, looking at the way mp3.scum has treated the independent music community I knew from the day I first heard of Lindows that it would follow Robertson's pattern - irritating businesses that are too big for him to fight and then screwing the people who are supposed to be on his side (in this case by being 'forced' to hand over e-mail addresses, knowing Robertson's past behaviour I consider this unlikely in the extreme - the man's probably cutting a deal with Microsoft).
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If I were to plagiarise the lyrics to God Only Knows, which were written by Tony Asher, Brian Wilson, who wrote the music, would get half of any settlement, and Asher would get half if I stole the music.
The classic decision on this is the Melancholy Baby case, where someone wrote a song with a lyricist, and without his permission the publisher put new lyrics to his tune. The court ruled (IIRC , IANAL , YKWIM etc) that *all three* writers - the composer, the original lyricist, and the new lyricist, had a share in the finished song...
I doubt major music publishers have established pools like that. Unlike the record industry, where only five companies are even worth considering, there are literally thousands of music publishers, and a substantial number, perhaps even a majority, of successful songwriters publish themselves. While big companies like Warner-Chappel or Sony Music have huge catalogues, and some areas of music are dominated by writers working for big companies, the majority of songwriters - especially writer-performers - keep their own publishing now.
I can't see a nuisance lawsuit taking place unless you *have* the funds for a lawyer and musicologist - what would they hope to get out of it? Generally, if you look through that list, there's a recurring pattern of 'has-been or total unknown sues megastar'. If you're the megastar you can afford a defence. There are *very* few examples there of 'Nobby Nobody is sued by the Beatles because he did a song with the word Yesterday' in it, and far more 'Nobby Nobody sues the Beatles because he wrote a song called Yesterday in 1932 and hopes to make a few quid' - although I accept that the first type is more likely to be settled out-of-court.
I really don't think this is a problem for any artist who isn't at least having the occasional Top 40 hit, but I admit I can't answer those three questions, and I would be happier if I could. If you find an answer, could you let me know? ;)
One reason I am extremely dubious about the idea of software patents is precisely because an algorithm to my mind falls into a very grey area between idea and implementation...
Even so, the number of those 9 million songs to which someone can have had proven access is far smaller - you are unlikely to get sued if your melody is quite simillar to that of 'No More Hot Dogs' by Hasil Adkins, because you are unlikely to have even *heard* No More Hot Dogs. On the other hand if, like Harrison, you are known to have heard a record on numerous occasions and then come up with what is essentially an identical melody, you are unlikely *not* to get sued, especially if your song is a worldwide number 1 hit, as his was.
I will admit that in actuality the chances of coming up with something simillar to someone else's melody are about those Yerricide says (1 in 6), simply because it has happened to me.
A song I wrote on my band's first album, Sandman, has almost the exact same verse melody and basic guitar figure as Five String Serenade by Arthur Lee & Love, and no jury in the world would believe the truth, that I only heard the Love song five years after writing my own, given that I'm a fan of Love's (the song in question was hard to track down though).
But that is as much as anything else because many songwriters have a regrettable tendency to resort to cliches - both songs have a simple I-V-I-V chord pattern throughout the verse, probably the simplest chord change in the world. When the songs go off into the bridge, and depart from the cliches into slightly more original ground, they sound nothing alike.
In fact so cliched is the verse chord change that there is even a third song - My Beloved Monster by the Eels, which I also heard after writing and recording my song - which bears a passing simillarity to the verse melody of both songs.
So in my experience the best way to avoid accidentally writing someone else's song is to avoid the cliched and obvious, and try for originality - if your chord changes are going from Bb to Ddim7 to Am6 your melody line is very unlikely to follow the same basic contours as someone else's.
The main thing to remember though is that lawsuits only get won if the plaintiff can prove that the defendant had access to the music. A lawsuit against Mick Jagger by a little-known reggae artist was thrown out in the 80s despite both songs having the exact same chorus melody and lyrics, because Jagger was unlikely to have heard the original song. Simillar lawsuits have also been thrown out against Andrew Lloyd-Webber.
To put it simply, look how many songs get written and recorded every year - large music magazines review up to 200 new albums every month. Assume say 10 new songs per album, that's in the region of 24,000 new songs that get some kind of significant audience - significant enough to attract lawsuits anyway. Now, if it was really impossible to come up with many new melodies without being sued, we could expect maybe 2 lawsuits per album.
Even being reasonable and expecting only a tiny fraction of that, how many lawsuits of this type can you think of that have actually taken place? The one that gets trotted out time and again is My Sweet Lord, over 30 years ago, a song which even Harrison's friends admit was probably deliberately plagiarised. I hardly think songwriters are under threat from a tidal wave of lawsuits, somehow...
As for the My Sweet Lord/He's So Fine case, even John Lennon didn't believe George Harrison. The two songs have identical melodies and simillar arrangements, and He's So Fine was a favourite of Harrison's in the 60s. He knew what he was doing, and he got caught.
The only time any other artists have been allowed to mess with Beatles' recordings legally was when Paul McCartney himself comissioned some remixes for 'Liverpool Sound Collage'. Even then, the artists in question (Youth and Super Furry Animals) never got a penny...
Actually that was Dick James and Charles Silver, the music publishers who owned more shares than Lennon/McCartney in Northern. Once they sold their shares to ATV, Lennon & McCartney were in a near-impossible position...
There's a difference between an idea and the implementation of that idea - IP laws were created to protect *implementations*. If I have an idea, my own implementation of it is almost certainly going to differ, more than likely in non-trivial ways, from someone else's implementation, and I should have the right for some reasonable length to have enough control over that implementation to make some money off it, so long as I don't harm anyone else by doing so. That doesn't mean it's always right to *use* that right - but that right should be there.
It's all part of his 'Trust me, I'm a regular guy' schtick. He did exactly the same at mp3.scum as well (and indeed also had his 'Michael's Minute' with the 'industry insider gossip'). The man's a conman, pure and simple...
I think Robertson is as bad as Gates. As a musician, looking at the way mp3.scum has treated the independent music community I knew from the day I first heard of Lindows that it would follow Robertson's pattern - irritating businesses that are too big for him to fight and then screwing the people who are supposed to be on his side (in this case by being 'forced' to hand over e-mail addresses, knowing Robertson's past behaviour I consider this unlikely in the extreme - the man's probably cutting a deal with Microsoft).