September 1, 2020 Musicology No Comments

Albums — which were more of a thing then.

1968 — Spirit (by Spirit)

“Taurus” appears in the middle of side one. It’s a 2min 37sec instrumental characterized mostly by its acoustic guitar introduction.

1971 — Led Zeppelin IV

  • Sold 10x versus Led Zeppelin I, II, or III. 20M+ copies.
  • Worlds biggest rock band first half of the 70’s
  • “Stairway To Heaven” was the last song on Side A. (8 min long, not released as a single. Never a Billboard charting hit.)
  • Widely considered the “Greatest Rock n Roll Song of All Time”

ACCESS/SIMILARITY/ORIGINALITY

Access: Is it reasonable to believe Jimmy Page heard Taurus before writing Stairway?

  • Spirit wasn’t unknown. “I Got A Line On You” had reached 25 on the charts in 1968.
  • Led Zeppelin warmed up for Spirit at least once in 1968
  • Both were performers at two music festivals in 1969.
  • Guitarist/Composer Jimmy Page has the album in his enormous record collection 40 years later.

Let’s jump ahead and say, the jury accepted the access argument.

And while there are lots of bands at music festivals, and a warm up band may or may not stick around to hear the headliner, and he had so many albums in his collection that he may not have listened to them all, I agree that it’s certainly plausible he heard Taurus. Is it probable? No. It’s no better than 50-50, in my mind. which is plenty.

A couple of guitar intros.

And as is usually the case with intros, this material will persist somewhat into the rest of the composition. More true of Stairway, but then Stairway is a longer song.

What does a musicologist do first when handed this?

  • Listen
  • Dissect and Distill
  • Transpose and Transcribe
  • Compare for similarity.

Compare what sort of stuff?

  • Relevant Melody – Pitche s occurring over time.
  • Lyric – N/A. None in Taurus.
  • Harmony – Pitches occurring together. Gives context to the melody.
  • Everything else: harmony apart from melody, rhythms, instrumentation, form (song sections), style, groove, tempo, key, et cetera, diminishing importance.

Someone sketched out the first three bars for us:

[​IMG]
I grabbed this ages ago from a forum, SteveHoffman.TV

The notes in red are where identical pitches occur at identical points in time. There are twenty-seven or so notes per melody each song, 9 are actually the same.

Even if you don’t read music, just looking at it, both are a series of 24 mostly equidistant dots with the first and lowest notes of each grouping in common. That’s a bass line.

Going through my head right away:

  • 9 circles. What’s 9/27?
  • More thoughtfully, what about the relative importance of certain notes over others?
  • Which are the notes that most give these melodies their character?
  • Are all twenty-four of these notes “melody” in the first place? Maybe just some? Consider the sixth and seventh notes in the first two measures.

Are the similarities significant in terms of copyright infringement? Ideas aren’t protected by copyright. Only the expression of an idea is.

And then where perhaps there IS similarity. Are the relevant portions of work “A” (Taurus) original?

  1. “Building Blocks,” — They’re not really the design or the architecture; they’re the pillars, arches and chimneys.

What’s not copyrightable in music? First thing on the list?

Common property musical scales and arpeggios (Section 802.5(A).

Copyright.gov website

Those identical lowest notes in every grouping form a bassline of five consecutive adjacent notes (half-steps), appearing equidistant time intervals. It is for five notes, scalar.

Decending Chromatic Bass Line as in our two works.

The other notes in Taurus?

2. Line Cliches: A Scale going up or going down against a stationary chord.

Line cliches are a songwriting device or technique. Neither cliches nor techniques sound like the stuff of copyright. So if that’s what we have here, that’s a problem for Taurus’s originality.

Line Cliche’s sound like this:

Listen for one note that changes while the others at least mostly stay the same. Picture my right hand static. Left hand changing.

Line Cliche against a minor triad. Chromatic. Descending.
Line Cliche against a minor triad. Scalar Descend.
Line Cliche. Inner voice. Scalar Ascend.

Line Cliches, of various sorts, again a “device,” appear in countless famous songs.

First other works that occured to me were My Funny Valentine, This Masquerade, Time In A Bottle.

My Funny Valentine: 1937
This Maquerade: 1976 So, not prior art, but…

In court I remember they mentioned Chim Chim Cher-ee from Sound Of Music as well. Same line. Same five notes.

Chim Chim

I hear The Beatles “Michele” too, but it’s less prominent than the other examples. I suppose anytime you can say “The Beatles Did It,” you do say it.

But if I play Stairway, my right hand isn’t as static as in my examples.

Alternative approach: Distill the melody notes from the harmonies.

If arpeggios are chords, and chords are harmony/accompaniment, then where’s the melody? Here’s Taurus followed by Stairway. Stairway is stripped of most of the line cliche and Taurus, if so stripped would disappear entirely. Stairway is still kinda Stairway.

Taurus, then Stairway stripped of Line Cliche.

Aside: I’m showing these examples on piano, but I play guitar.

And I’ve been able to play Stairway since I was 10. But I’m playing examples using anything but an acoustic guitar because I’m emphasizing the underlying composition as distinct from the presentation of it — the recording.

This helps to clarify the issue of originality OF THE UNDERLYING COMPOSITION. Which is what copyright is concerned with.

But back in the real world, we’re wondering if Led Zeppelin copied Taurus. perhaps AS FAR AS THEY THEMSELVES KNEW, and produced the greatest rock song of all time.

It’s not as if they’d never appropriated other peoples work before. About half the songs on their first three albums and two more on this one were arguably lifted, or “nicked” as they themselves would put it.

LINK: Other inspired Led Zeppelin songs

My originality argument applies to both songs, but is focused logically on Taurus. The notes played in the respective intros are not especially novel.

But I do think they’re “similar” and they’re presented very similarly.

Plagiarism versus Infringement

Morality and Ethics versus Illegality? Infringement is money.

Plagiarism DOES include ideas!

You steal the premise of a joke? A stand up will want your head.

Both are “wrong,” in some measure.

So plagiarism includes copying the sorts of things I’ve described if you don’t give any sort of attribution. It might not be exclusively Randy California’s guitar-specific idea to start at that A minor fingering and work down the guitar neck, or you might argue it is, but that doesn’t necessarily matter.

Then suppose you knew more unknowable facts:

You know Page listened to Taurus intently during those concerts. Does Page know “My Funny Valentine?” Maybe/maybe not? Does it matter?

If Page admired Taurus and used it as the core idea to create Stairway, is that plagiarism even while there might be 17th century works that use the same line cliche?

Suppose he intended to steal Taurus, but could only kinda remember it?

If I help a client UN-infringe their too alike “soundalike” for a commercial, am I helping them plagiarize? If so, it’s that “wrong?” Should I not?

A THRESHOLD TO NAVIGATE

We bother because society benefits from encouraging creativity through a balancing of protecting rights holders while enabling new music that doesn’t sound like nails on a chalkboard for the sake of being completely unlike what’s come before.

That’s a threshold full of nuance and complexity. Is there a better system than the one we’ve got; lawyers and musicologists arguing whether the threshold is crossed?

Immorality or Plagiarism may get you shunned. But we don’t sue over it. Copyright infringement hurts somebody monetarily and it’s illegal.

Even if you think Stairway is plagiarism, does it infringe?

INFRINGEMENT

I really expected this to settle.

Recall that friend of mine who heard Taurus for the first time and said, “That’s “Stairway To Heaven” and nothing you say will change my mind.”

Once these two works are heard by a jury, the response could be similar.

SO, as the plaintiff, you’re playing these recordings for the jury early and often probably?

No.

Copyright, the “right to copy,” gives its holder the exclusive right to publish, sell, perform, and reproduce the protected work.

What was the protected work?

Prevailing law was Copyright Act of 1909 which essentially predates recordings and recognizes only the deposit copy registered with the copyright office. Defense motions and the recording of Taurus is not going to be heard by the jury in any context.

By the way, this happened in Blurred Lines too and the plaintiffs miraculously overcame it.

The deposit copy looks like this.

And the recording is out, so the sheet music will sound something like this.

What’s the Protected By Copyright Taurus Deposit Copy Sound Like?

Even if they could’ve played the recording. This is the section that got transcribed for the deposit copy. Beginning at 1:37.

Still it’s long way from those similar-sounding guitar intros.

If the “four corners” is the deposit copy, there’s not much left to argue. You could get out your red pen and circle notes, but that upper clef in the deposit copy and in the recording is a melody, and it’s not the Stairway melody.

So they argued access and the basslines.

How do you argue the bassline when the bass line is a scale? The plaintiffs argued the similarity that neither song continues beyond the five consecutive scale tones to a sixth one. Jimmy Page was asked if it’s true that his progression, like Taurus, “avoids the E.”

They argued the heck out of access, presumably because they were invested in the inverse ratio rule.

At some point they argued “selection and arrangement,” the case law for which is computers and fish statues. You can select and arrange elements that are not your own, and the arrangement of those unprotectable elements becomes protectable. As with the particular way you might build a computer. But unless the music is a collage? That’s tough.

Still the jury was inadequately instructed on “selection and arrangement” and the not guilty verdict was initially thrown out on appeal. Then that was thrown out and replaced by an en banc hearing by the ninth circuit.

Sympathy/Takeaways

I would’ve liked a different trial, here and in Blurred Lines.

Roughly, the Copyright Act of 1909 defined what a published song looked like at the time, and it wasn’t a recording. The Copyright Act of 1976 went into effect in 1978, and in sum, songs written before 1978 could only be submitted as sheet music.

Record players have been around since the 1940’s. That’s a lot of recorded music.

Why are finders of truth handcuffed by an inadequate law from over 100 years ago, interpreted here to mean that Randy California only owned the music that he included in the deposit copy of Taurus — the written notation plus what little else a musicologist might testify is implied by it — But not on the additional musical events and qualities on the recording of Taurus.

The law asks, “Where do we draw the line?! If you’d written it down, we’d have protected it!”

Lazy.

Vernon Silver wrote an article for Bloomberg showing that by this logic, there’s lots of music; famous and instantly sing-along-able stuff that’s not protected by copyright.

https://www.bloomberg.com/features/2019-classic-rock-riffs-loophole/

The deposit copy of Stairway To Heaven does NOT appear in the deposit copy.

Essentially the entirety of Jazz History — improvised, recorded, lots of takes of the same song, none the same, recorded. Evidently not protectable.

I don’t think Stairway infringes on Taurus regardless.

I don’t have a strong opinion regarding whether Jimmy Page knowingly or unknowingly copied any or a lot of a song he heard by Spirit.

I do know that not much was settled here.

Meanwhile, let’s acknowledge that the defense can play the examples I did earlier on piano, emphasizing the “underlying composition” distinction away from the sound of Stairway To Heaven, but then bust out this, as Dr Ferrara did…

Stairway In The Hotel California

Written by Brian McBrearty