Midweek Mix: Songs Remain the Same

Plus: Oscar's a grouch; antitrust scrutiny grows for media & tech companies

Here was an interesting thought experiment.

In a recent TED talk, attorney and recording artist Damien Riehl describes a project in which he and a technology partner took the eight notes of a major scale (do-re-mi-fa-so-la-ti-do), plus the natural minor third note, expressed them numerically (1-2-3-4-5-6-7-8-9), then fed them into an algorithm that generated every possible 12-bar permutation of those notes.

That resulting catalog of permutations, he maintains, comprises every possible melody that can ever exist within popular music, mathematically speaking (assuming the melodies of popular songs generally stay within a single octave).

He then stored the entire catalog on a portable hard drive. By thus “fixing” them in a tangible medium, he claimed to now hold the copyright on any melody that could ever be composed and that has not already been copyrighted. He then declared he was conveying those melodies to the public domain whereby copying on of them, whether intentionally or otherwise, would not be grounds for an infringement lawsuit.

His copyright claim is almost certainly not valid, of course. Generating a random combination of 9 digits is unlikely to be viewed by the U.S. Copyright Office to be meet the requisite threshold of creativity and originality to register a valid claim. Nor would it be possible, absent valid registration, for Riehl to assign his purported copyrights to the public domain or anywhere else.

His purpose, I think, is to raise a question as to whether the current rash of copyright infringement suits against popular songs, from “Blurred Lines” to “Stairway to Heaven” to “Dark Horse,” and our current costly system for adjudicating those claims, can be justified given the musical/mathematical constraints in which popular music operates.

Given the gazillions of songs that have been written and are being written, and the limited melodic vocabulary available songwriters, the probability of composing a melody that is incidentally similar to another is rapidly approaching 1.

Is it reasonable, therefore, to impose potentially ruinous liability on songwriters for using the same 3 or 4 note phrase as another song? Should, in fact, a melody on its own, apart from lyrics or accompanying chord changes, be copyrightable at all?

Worth the 15 minutes if you’re a copyright geek.

Oscar’s a Grouch

The best picture Oscar going to Bong Joon Ho’s “Parasite” may have broken ground by becoming the first non-English language film to take the top prize, but Sunday’s awards broadcast also broke the record for the least watched Oscars on record.

Does that say something about the declining cultural relevance of feature films, declining overall linear TV viewing, or our declining patience for sitting through a 3-hour show?

You make the call.

Short Cuts

Screen time

Speaking of viewership, Nielsen’s latest Total Audience Report finds there were 646,000 “unique program titles” available to U.S. viewers in 2019, up 10% from 2018. Maybe that’s why no one was watching the Oscars. Eighty-one percent of the total were on conventional TV, while 19% were on streaming platforms.

Trust busting

The Federal Trade Commission on Tuesday ordered Amazon, Apple, Facebook, Alphabet (Google) and Microsoft to turn over all documents relating to every acquisition they have made since 2000 that was not required to be reported to antitrust regulators under the law. According to the announcement, the information “will help the FTC deepen its understanding of large technology firms’ acquisition activity, including how these firms report their transactions to the federal antitrust agencies, and whether large tech companies are making potentially anticompetitive acquisitions of nascent or potential competitors.” Look out.

Man with a plan

Speaking of antitrust, The Hollywood Reporter is out with a lengthy profile of Makan Delrahim, the head of the Justice Department’s antitrust division and the nation’s top antitrust cop. The piece digs into Delrahim’s views on the tech industry and the ongoing consolidation of the media and entertainment industry. Well worth a read.