April 20, 2023 Musicology No Comments

A forensic musicologist explains!

And does it in about three minutes, hopefully. Super quick on the draw with this one. I’ve only spent about three minutes considering the matter and started right up trying to get this out on day one.

I’ll think it through as I type. Always the chance I’ll have to rethink something or other. But here goes:

First, the headlines are blaring things like”GloRilla accused of sampling…” and to be fair, that’s what the complaint says, several times, but it’s not a sample. Samples are snippets of audio. I don’t think we’ll find audio from the plaintiff’s track in “Tomorrow” or “Tomorrow 2.”

Let’s just look at the centerpiece of this claim — a piano sample. This record came out in 1994. I think I still had a 12-bit Akai sampler at that point. And the piano in “Street of the Westbank” is characteristically thin sounding. It’s part of its charm. But the four-note piano part in Tomorrow is thick, and played in octaves. “Street of the Westbank” is a half-step higher in key. It begins on F where as Tomorrow begins on E. “Street of the Westbank” is at a faster tempo. And finally the last note in the “Street of the Westbank” ostinato is not isolated — the vocals enter on that fourth note and they standing are standing between you and your sampler for ever after.

To even imagine that despite sounding very different, that Tomorrow is somehow a maniulated sample from “Street of the Westbank,” you need to believe producer Macaroni Toni and GloRilla clipped the piano figure, chopped off the last note, replaced it with a duplicate of the second note that isn’t obscured by a vocal, adjusted that fourth note in time and smoothed over the transition from the third note, inexplicably tuned it all down a mere half step though the track is rap and not pitched singing, slowed the whole thing down, beefed it up a ton somehow, duplicated and pitched a second version up an octave without making a mess. And then played a bunch of other tracks around it because you evidently have a keyboard. It’s odd you didn’t use it to play four piano notes. You seem to have played all the doubled parts (exact same notes) just fine.

Or you can believe they played in the piano part in the first place.

More? Suppose you’re not that great a keyboard player. There is only one place on the keyboard where these notes happen on all white keys. You start on “E” as Tomorrow does.

When you hear hooves, do you imagine it’s probably horses? Or do you jump to thinking zebras? Or unicorns?

But these two works do share a compositional similarity, and perhaps a few other, I might say, “less compositional” ones — the stuff from which musicologists might concoct “constellations” of elements. The complaint calls these “recognizable and key protected elements.”

And upon hearing the two works, I immediately tweeted that this is “Dark Horse 2” and I’ll explain why. Got two and a half minutes left.

In Katy Perry’s Dark Horse trial, we talked a lot about the “ostinatos” in “Dark Horse” and in “Joyful Noise.” An “ostinato” is a series of notes played over and over. It might appear anywhere in an arrangement, as a bassline, or a high woodwinds figure.

In “Dark Horse,” the ostinato is the figure that comes right after the Sphinx bellows, “There’s no going back.” I cued it up for you:

And in these two works, you’ll spot the ostinato of importance right away. It’s pretty much the entirety of the track.

Here are the two tracks. I need you to get in, and get out. We’re on the clock.

Here’s GloRilla’s Tomorrow.

And here’s “Street Of The Westbank,” by Dog House Posse.

So it’s obvious what this is about, an ostinato — the melodic figure in the piano in both works that gets doubled by strings or bass sounds here and there in both works.

It’s really just four notes, over and over.

This is a common device, especially in this style of music. Repetition. Stark. Simple. Low-fi. It’s a vibe.

But there’s a problem that we are grappling with. It’s this simplicity that makes observable similarity more probable. It’s just math, like when you played the game in fifth grade where everybody one at a time announces their birthdays until two people have the same one. If there are 23 kids in that classroom, the chances are 50-50 two will have the same birthday.

Now, how many four-note ostinatos are there? Well, plenty. But how many sound good? Fewer. And that sort of principle guides a lot of what we consider to be substantial similarity. In departments where there is a scarcity of compositional options, we tend to regard those departments as less protectable, e.g., chord progressions.

Does that mean she didn’t copy it? No. But it makes it harder to infer she necessarily did. And if she didn’t, if she arrived at the same idea by coincidence, then it won’t be infringement.

A few more things quickly…

Sometimes it’s interesting to ask, “If we KNEW FOR A FACT that GloRilla knows and loves “Street of the Westbank, then would we infer from that fact and the notes that this was a copy?” I think the answer to that is probably yes. Does that matter? To copying it does. As for unlawful appropriation though?…

It matters that this is not melody, not really anyway. This is the accompaniment. It’s less “how the song goes.” In my opinion, melody and lyrics remain the real blue chips of substantial similarity in popular music. Neither of these works puts lyrics to those notes.

Probably my last point before quitting for the day… In the Dark Horse trial, we talked about “thin copyright,” referring to just this sort of thing. Elements that tend to be not very original and therefore not protectable. The ostinatos in Dark Horse, and in Joyful Noise, and in the two works here, are fairly brief and simple, as ostinatos tend to be. In the Dark Horse trial, all eight notes of each ostinato were played with the same consistent rhythmic value. Here it’s not much more complex at all, just a dotted half note followed by a quarter note; a simple two-note rhythmic figure employed twice by the scant four notes. By the way, let’s call those notes “mi-sol-fa-sol” because that’s how I hear them most readily. Any theorist out there who comes at me with (Sol-Te-Le-Te) gets a lollipop.

But the notes in the Dark Horse trial were not identical, and the idea of “thin copyright” is that if it affords protection at all to these not very protectable elements, it requires that the allegedly similar element be identical or fairly close to it.

The Dark Horse ostinatos were not identical. These are.

I promised to tell you how this would go. It’s gonna go thusly…

This very simple four-note ostinato is going to be described by some forensic musicologist as a bunch of separate things, pitch series, rhythms, durations, placements, orchestrations, and so forth, and while each of those things will be conceded to be common and unprotectable, the question will be put forth, “is the combination of those many elements itself sufficiently original to enjoy protection,” and if so, “does that protectable combination exist in both works?”

It is not so easily dismissed as it might at first appear. I’m a forensic musicologist. The constellation is developing in my head whether I like it or not.

Written by Brian McBrearty