March 24, 2023 Musicology No Comments

The internet is right once in a while. Observers noticed that Toshifumi Hinata’s “Reflections” is sampled in TikTok standout Trefuego’s 90Mh. And after issuing takedowns back in August (to apparently limited effect) Sony has now sued Trefuego.

“Reflections,” according to the complaint is Hinata’s most popular work and has over 53 million streams on Spotify alone. Access isn’t especially questionable here.

Access and copying are basic requirements in infringement. You can’t copy something you’ve never heard.

You might produce something very similar by coincidence, but that’s not copying.

Back to the matter at hand, unless someone misplaced a license agreement somewhere, not much about this seems especially questionable.

90mh is a popular soundtrack in TikTok videos. According to the complaint, the alleged infringing work has been streamed over 100 million times on Spotify, appears in 155,000 TikTok videos, and has 10 million views on YouTube.

Dinnertime research at my kitchen table revealed that my kids know both of these songs like the back of their hands. My son sang word for word as 90Mh played on my phone. Moreover, I got a lot of this sort of thing: “DUH, Dad, everybody knows 90mh is a remake!” But then, since they’re my kids, they moved on to, “WAIT, they didn’t get permission for it?!” And then their eyes widened, incredulous; I suppose because of the scale involved that they understood better than I did. These songs are everywhere. “Reflections,” any music supervisor or tween could tell us, has a well-understood role as underscore on TikTok. When underscoring a certain type of video, if my research team is correct, you use that track.

Of course, my reflex is to consider the alternatives: “I wonder if they reperformed the sample,” or any other plausible “they can’t really have done something so flagrant” types of hypotheses, so I looked. But this is as simple as it at first appears and there’s probably no way out of this for Trefuegos.

Eight measures of Reflections, sped up, pitched up, and looping throughout “90Mh.”

Here’s 90Mh on YouTube:

And here is Reflections by Toshifumi Hinata:

It’s a rather interesting use of the sample. And I should add, even if this were not a sample andTrefuego had rerecorded the violin and piano himself, this would still be an unlicensed use of the composition. Those are two different copyrights.

But it is a sample. For anyone with their AirPods in, here is a few seconds of “90mh” in one ear and the relevant part of “Reflections,” which I sped up, pitched up, and looped, in the other ear. No need for a spectrograph; on our first blush quick post timetable, critical detailed listening will suffice. The performance in “Reflections” is expressive, the waltz is pushed and pulled by the piano and violin parts. It’s subtle, but you might listen for the little moments of slowing down or speeding up, hesitation, and recovery. They’re its tell-tale heart.

Reflections in your left ear; 90Mh in your right.

There’s not much more that I can make of this. This track is at least half Hinata’s, probably more. We can quibble. The track obviously contains elements that aren’t Hinata’s but Sony will reasonably argue (they already are) that Hinata’s parts are doing the heavy lifting. And this whole thing looks pricey. The complaint, unless I missed it, didn’t even mention “statutory” damages. And despite takedown notices from Sony that according to the complaint were issued last August, the “actual” damages continue to pile up.

UPDATE 2024: At some point there was a takedown. The YouTube link I posted is broken. I don’t know when that happened.

Music Business Worldwide in January said the track was still on Spotify and of course TikTok.

According to ChartMetric data analyzed by MBW, just the Top 1,000 TikTok videos featuring Trefuego’s 90mh have collectively been played more than 354 million times on the ByteDance platform.

They include still-available videos with multiple millions of plays, including this one (37 million views to date), this one (29 million), and this one (17 million).

Stay tuned.

Written by Brian McBrearty