Mr. 305 had a hit with “I Feel Good” a few years ago and y’know what, “a few years” happens to be the duration we associate with the statute of limitations for the most part. So, if you were the plaintiff, All Surface Publishing, it was time to get a move on. All Surface says Pitbull’s “I Feel Good” infringes a 2006 track, “Samir’s Theme.” So let’s take a quick look…
A couple of interesting technicals here. First, Pitbull himself isn’t a defendant, yet. And the apparent creator of Samir’s Theme isn’t a plaintiff! This is a publishing company suing a record company and one of the featured performers on Pitbull’s track, DJ White Shadow! The complaint does explain that the plaintiff company was assigned the song rights; no mention of percentage. And the complaint refers to Mr. 305 as a wholly owned subsidiary of defendant Universal, which, is that correct??
I always appreciate it when a complaint is at all specific with its musicological claims so we don’t need to guess what they’re hearing. I did need to guess what the plaintiff’s work even was. This sure seems to be it, by DJ Debonair Samir.
And here’s Pitbull’s “I Feel Good.”
Well, I can’t say I don’t hear what they’re talking about.
The complaint says we should find, and I’ll paraphrase, significant similarities including but not limited to melody, harmony, melodic structure, tempo, musical arrangement, and percussion; tempos that are essentially identical; similar arrangements of both works which can be found in both works (whatever that means); similar instrumentation; repeating synth lines occuring at 14 seconds in both works; and unspecified similarities in the percussion tracks.
A lot of that is kinda fluffy, but there are also these specific claims:
The complaint says, melodically they both begin with a three-note phrase; three descending stepwise notes that land on tonic, F# to F to E, in Samir’s case, and G to F# to E in Pitbull’s case.
The plaintiffs also point to the 17 second mark in both works where an ostinato begins and persists throughout both songs, both on E (tonic). And the rhythmic figures, of those E’s are in their view “practically identical” — four eighth-notes followed by syncopated eighths and sixteenths. They’re talking about one bar of E’s that repeat throughout both works.
And lastly, though none of this purports to be identical, the last claim is that “The Infringement is an exact copy of a discernable portion of Plaintiff’s Musical Work that was copied and made available by Defendants for public performance.” I guess “exact” is murkier than I thought.
Musicologize readers understand that one cannot copy music they’ve never heard. They might write the same music by coincidence, but coincidences aren’t infringing. Infringement requires copying, which requires access. The plaintiff has an access story which is that they sent their song to DJ White Shadow in 2011. Low and behold, ten years or so later, “I Feel Good” comes out.
In general, I’d say plaintiff has a tough row to hoe. They’re correct in that those two three-note figures are what they say, to a point. But, let’s quibble. First, it’s just three notes, not many, and they’re not identical notes. One might argue the difference is negligible. They’d be wrong. F#-F-E is not the same as nor equivalent to G-F#-E. They don’t even necessarily imply the same tonic, E, as the complaint alleges. “I Feel Good” is in E, we agree. The plaintiff’s work though is more easily viewed as being in B. It begins with a drone on B, and returns to it at 0:45 or so, and since I hold that view I regard none of those notes as the same. Letter names are secondary to relation to tonic. In the key of E, the note E is tonic, or “DO,” as in “do a deer,” while in the key of B, the note “E” is “FA,” as in “a long long way to run.”
(Anybody who comes at me with minor key solfege, I will reach right through this screen and ring their neck.)
Then there’s their rhythm, which is not especially similar and meaningfully different. The first five eighth-notes are the same in both works, but they’re just STRAIGHT eighth notes (read: not remotely special or proprietary or compelling) and the last two beats of the measure are as different as they are similar.
Lastly and bigly, so often the most important question to ask is not whether two works sound similar, but whether the similar element is original to and protectable by the plaintiff. So how hard would it be for someone like me to find ten other works that are a lot like these?
Hey, are those just repeating E’s?! Even that fifth note, the high note? That’s an E too, just an octave up? Five straight eighth-notes followed by a couple more beats of E’s here and there on a sixteenth-note grid? Aw, that’s way weird, Man!
It’s Friday. That’s all the time I have for this. Have a good weekend.
