In the comedy world, jokes are sacred. If you tell another comic’s joke and fail to give attribution, woe unto you. Accused joke thieves get slaughtered — Carlos Mencia and Amy Schumer spring immediately to mind. But what if an irony is just out there and observable by more than one comic? Maybe it’s coincidence? Independent creation? Parallel thinking? What goes into our evaluation? We consider the depth, breadth, specificity, obscurity, and then after some point a lot of coincidences strung together become increasingly implausible, right?
A short while ago I discovered the beautifully efficient comedy of the late Mitch Hedberg. Helberg was an observational comic who would deliver succinct gems one after another, like, “Every book is a children’s book, if the kid can read,” and similarly, “All vitamins are chewable, they just taste bad.”
I enjoy Helberg’s humor in no small part I think because of impatience. The ability to be succinct? There’s a virtue! Let me now try to get to my point.
I’m thinking there’s a problem that brevity and simplicity simply run counter to originality; particularly the adjudication of its validity. Is Mitch really the only comedian to think to himself, “All vitamins are chewable?” It’s a pretty basic structure, is it not? I can easily imagine another comedian hearing Hedberg’s joke and thinking, “he stole my crappy jokes about all cars being self driving, and about all cream cheese being spreadable!
There’s an example in the news now. Marshmello, perhaps the top DJ in the world right now, is being sued by another popular EDM artist named Arty, who says Marshmello’s hit song “Happier” is a ripoff of his remix of New Directions “I Lived.” And there’s no question that the melodies are very similar. I mean, very similar. I examined it a bit. One tempo is slower than the other and the underlying chords are a bit different, but they’re very much the same idea — “Do Re Mi. Do Sol Mi.” Those six notes over and over.
If you know one or both of these tunes, my saying that might seem overly reductive, and it is and it isn’t. One the one hand, this is a very simple musical thought. On the other hand it’s not easy to write economically, whether you’re a composer or a comedian. A quote often attributed (probably wrongly) to Mark Twain, goes, “I’m sorry for this long letter, I didn’t have time to write a shorter one.”
Simplicity is valued highly in modern songwriting and production. Think about the stark minimal approach on tracks like “Love Yourself,” by Justin Bieber or “Shape Of You” by Ed Sheeran and their recent collab, “I Don’t Care.” These are zero fluff productions, distilled to their essentials so that each element and really the underlying song itself can shine through. That takes time, work, talent, and sensibility.
But what if being succinct makes the ip less protectable by copyright? Every so often the question gets put to me, “How many notes in a row before it’s infringement? Could you copyright just two notes?” And of course my evasive sounding answer is always, “It depends.” And it does! But while it depends, it’s very true that the more notes you involve, the simpler it can be to evaluate. It’s just a matter of mathematical probability. Let’s say for example that you and I are simultaneously and independently composing. We both select “G” as our first note; that’s a coincidence. Fine. We might also both then select “E” as our second notes. Not a big deal maybe, but the two coincidences together are really pretty unlikely and from there successive coincidences exponentially less likely. Back to our real life example, Marshmallo and Arty played the same six note melody? What are the chances? Well there are twelve notes, so the simplest probability equation I can conjure for that would be 1/12 which is 0.0833 to the power of 6, which is the likelihood of Arty’s melody happening by chance and we multiply that by that same amount for the likelihood of Marshmallo duplicating it by chance. When you multiply exponents you add them, right? So that’s 0.083 to the twelfth? And then 0.000000000000107 is what I got. What’s that, 1 in 107 trillion? I can’t even read that number. I could be wrong. Anyway…
So Marshmallo had to have copied Arty, right? No! Keep your thinking cap on for another minute.
Everything I said up there was nonsense. And now we get into some musicology. There aren’t really twelve possible notes to begin with! The first note is meaningless and key center (the key you’re in) is arguably meaningless too, so you’re not really picking a “G” from twelve possible notes, you’re picking a degree of the scale you’re going to write in — “Do” or “Sol” or “Ti.” There are only seven possible scale tones.
Did you pick “Ti?” Of course you didn’t. Nobody starts a song on “Ti.” It’s unheard of! But starting out on “Do,” and then moving on to “Re” and then to “Mi” the way these two songs do? That’s sure been known to happen.
Due to western tonality and pop music writing conventions you’re way more likely to choose some notes than others. Then each note influences the various likelihoods of what might follow. And if your melody involves a lot of high likelihoods, we are bound to attribute less originality.
Quick story: I used to do a bit of studio work as a keyboard player. Some artist/songwriter would have a few songs of theirs to record and they or the studio would hire me and a few other musicians to play on the recording. We’d get in the studio and learn the song in just a few minutes. Then we would play through it a few times and figure out exactly what we were going to play. I’d be considering the song’s structure and melody, and inventing little catchy musical figures that would enhance the song. If the composer nodded happily, then the little musical nugget got developed and became a part of the piano part. I’d done my job. I didn’t then ask for a songwriting credit! It was NOTHING. Or so I thought. Then.
But those little nothings are the dozen or so notes from Tommy Coster’s harpsichord hook on Eminem’s “The Real Slim Shady” (Coster did co-write it) and they’re the pop drops in today’s top 100. They emerge from the accompaniment, step out front, get repeated to hell and become the infectious hooks of the biggest and most successful hit tunes.
Six notes in Marshmello’s melody. Made a lot of money. What do we do when someone else’s melody is 83% identical. That’s only five notes!
I’m going to think about it a bit longer, but it’s definitely a problem.
