Four Notes

I was reading the following post on the class site, and it reminded me of how technically complicated musical copyright could be at times.

An issue that often comes is what makes music original enough to qualify for copyright protection?

In the US, I found a case that does not give an exact answer, but rather describe a case where there is no infringement. In Granite Music Corporation v. United Artists Corporation, the United States Court of Appeals, Ninth Circuit, held that a sequence of four notes is not original. The plaintiff owned the rights to the song Tiny Bubbles, and argued that the defendant’s song Hiding the Wine was a copy. The first four notes of each piece of music were A, G, F, C. The songs are not all that similar otherwise, and the case depended on those first four notes. The Ninth Circuit held that Hiding did not copy Bubbles because the notes of A, G, F, C were not original in Bubbles, but instead were common in music.

The defendants produced evidence that the sequence of four notes (A, G, F, C) can be found in at least seven musical compositions which pre-date “Bubbles” and “Hiding”. One defense witness demonstrated how, by minor changes, he could elicit “Bubbles” using the notes of another song, “Pauahi O Kalani”. This latter example was intended to show that “Bubbles” itself was a coincidental production which contained the same four-note “building block”.[1]

Listen for yourself:

Tiny Bubbles

Hiding the Wine

The legal battle over four notes in this case reminds me of the most famous four notes in western music. I am sure that you have all heard these four notes before in some way, because they are inescapable. They are first four the notes from the Gregorian Chant Dies Irae.

What, you don’t know what I am talking about? You don’t listen to Gregorian Chants? Are you trying to tell me that they have fallen out of style several centuries ago? Well, maybe the piece from Berlioz’s Symphonie Fantastique.

No, not a fan of classical music? I am starting to have serious doubts about your musical tastes. Okay, then maybe you remember the opening theme from the Shining.

If you have not seen this movie, well that’s okay (no it’s not actually okay, but that’s a different argument for a different day). Even so, I am sure, for real this time, that you have seen at least one movie where the four Dies Irae notes makes an appearance. They pop up everywhere.

Of course, Dies Irae is about 900 years old, so I have a funny feeling that the copyright might have run up by now. Brother Bartholomew isn’t suing anyone from the grave (I sure hope not). I bring this up to demonstrate how certain musical themes are prevalent in music history, that being able to copyright such a small arrangement of notes becomes absurd. That is essentially the point the the American courts were making in Granite Music.

Well, how about something more than four notes? How about eight notes? The arrangement of eight notes was the cause of action in the American case Gray v. Hudson. The musician Flame (legal name Marcus Gray) sued Katy Perry (Katheryn Elizabeth Hudson), claiming that her song Dark Horse infringed on his song Joyful Noise. Flame argued that Perry copied an eight-note ostinato section. The following is a video describing the musical theory behind the lawsuit, and how it is absurd. Initially, Flame won in a jury trial (as the video mentions), but that verdict was later overturned by a judge for being unreasonable, and this was confirmed on appeal (the video does not mention this) [2].

This video is less of a legal analysis, but more a musical one. I include this video because a better understanding of the music provides for a better legal analysis. Good law comes a proper interpretation of the facts, and the facts here include music theory and music history.

Overall, I submit that when it comes to musical copyright, lawyers may have a limited ability to apply the law because a they lack that music background. I am no musician, and I am sure than many of you are not either. However, we might find ourselves in a position where we may have to make a copyright argument on musical issues. One paper, sure, these four or eight notes are the same as those four or eight notes. We can quote the Copyright Act as and case law as much as we want. However, is that musical similarity equal to a legal copyright infringement?

Sources:

[1] Granite Music Corp. v. United Artists Corp., 532 F. 2d 718 – Court of Appeals, 9th Circuit 1976

[2] Gray v. Hudson, 28 F. 4th 87 – Court of Appeals, 9th Circuit 2022