No more Fights over Melodies?

Pop music often uses short musical motifs. People can only sing a limited range, so pop music creators must avoid copying existing works. This is true for both long passages and short melodies. Legal disputes over plagiarism are increasing. (Note: the term ‘plagiarism’ is not legally precise, as not all plagiarism is copyright infringement.)

The self-censorship of songwriters

The sometimes-drastic court rulings may fuel the fear of composers of being sued. This can lead to them preferring to not publish a song or being overly cautious when writing.

There is some truth to this fear: The possible melodies are limited mathematically because of the number of tones and short tone sequences. Every day, more and more of them are “occupied” worldwide, i.e. recorded, published, and thus protected by copyright.

According to lawyer and musician Damien Riehl in his TED Talk, this means that the supply of “available” (popular) melodies is slowly but surely running out.

Riehl and fellow developer Rubin are preserving the freedom of melodic expression using software that has generated 69 billion melodies available to the public in the public domain. By doing this, they are aiming to protect musicians from being sued for copyright infringement due to the unintentional use of snippets of melodies.

From Riehl and Rubin’s perspective, their approach works on two legal levels. Firstly, melodies are ultimately just sequences of numbers, and copyright law does not protect them. Therefore, even short melodies can be categorised as copyright-free.

Secondly, making the almost 69 billion melodies freely available in an open database means that anyone who is accused of plagiarism can now respond to the complainants by saying: “Look in the database — the melody already exists. Now prove that you didn’t find it there and that you are therefore the claimed ‘creators’.”

The question now is: What truth lies behind these considerations?

Is this the end of music plagiarism?

Let’s assume that the database contains all reasonably conceivable song melodies, including those that already exist and those that have not yet been used. Although Riehl and Rubin’s hack does not offer this level of certainty (and cannot be evaluated here), it does simplify the thought experiment.

How would this affect a plagiarism dispute?

In the typical scenario of a dispute involving songwriters or labels accusing each other of plagiarism, the situation is as follows:

• Songwriter No. 1 creates a copyrighted musical work (the original song).
• Songwriter No. 2 has taken elements from it for their own song (the “takeover” song), such as an unchanged or partially altered melody sequence. In any case, the “takeover” constitutes an “adaptation” of the original song.
• Songwriter No. 2 should have asked for or received permission from Songwriter 1 to create an “adaptation”. However, they did not, so Songwriter 1 should receive a share of the royalties. If they do not agree to this, a lawsuit is filed.

However, Songwriter No. 2 can defend themselves against this claim.

• The original song may be protected as a whole. However, the melody sequence in question, which Songwriter No. 1 considers to be protected, does not reach the “threshold of originality”. This means that the melody sequence in question is not sufficiently original, but rather consists of everyday musical vocabulary. Therefore, there is no copyright protection for it and it cannot be infringed.
• Even if the sequence were protected, the adopted work is sufficiently different from the supposed original song that the latter “fades” behind the former, especially since the adopted work only enjoys a ‘low level of protection’ (German copyright law recognizes “free use” here, but applies a strict standard to melodies; see Section 24(2) of the German Copyright Act*).
• Irrespective of the initial considerations: Songwriter No. 2 had never heard the original song and was therefore unaware of it (and can substantiate this).

The question of where free inspiration ends and unfree plagiarism begins, and how to prove it, has long been discussed.

So, let’s take things one step at a time.

A musical work is more than sheet music.

It requires a certain level of personal intellectual creation for copyright protection – the so-called threshold of originality. This creation must be asked for permission to be used in a new work.

Find our more about the Threshold of Originality here:

Defining 'Work': The Threshold of Originality in German Copyright Law Explained

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The threshold of originality is the linchpin for determining whether an intellectual achievement is considered a work and therefore enjoys copyright protection. Several myths are surrounding this concept, and its application depends on the individual case. However, there are clear criteria and examples to help with this. » mehr

For musical works, the melody is often the most important point of reference for assessing the degree of protection, while other elements are freer. Melodies don’t have to be long or individual to achieve the necessary level of creation. However, the shorter the melody, the less room it offers for individuality.

There are impressive examples of “peculiar” melodies with just a few notes: the first three (identical!) chords of AC/DC’s ‘Highway to Hell’ or the first four notes of Beethoven’s fifth symphony. But that doesn’t mean these tone sequences are not recognizable in any context.

What is legally defined as an illegal takeover is not necessarily just the melody. Rather, it is the interplay of instrumentation, rhythm, stylistic devices, sound effects, tempo and intonation.

Together with the melody, these components form the overall work, leading to the “overall aesthetic impression”. This impression, this decisive auditory-psychological effect, cannot often simply be expressed in notes.

In short, a musical work is more than just its melody — it’s not just the cold mathematics of tone combinations.

Arrangements and sound offer scope for creation.

What does this mean for the hack by Riehl and Rubin, who complain that composers are running out of unfilled melodies?

Firstly, the possible number of notes is limited. When using a melody, it is important for musicians to see all the components as a whole and utilize the creative scope beyond the melody, which is infinite!

Decisions of the courts show that it‘s not just the melody that matters. Gary Moore’s catchy guitar solo from “Still Got The Blues” was already found in the Baroque period. The same melody doesn’t sound as catchy elsewhere, but it does in the plagiarized version by “Jud’s Gallery”. The melody is in the public domain, but the overall listening experience was granted protection by the Munich Regional Court. Moore was defeated. Even if everyone agrees that a melody is in the public domain, the combination with other musical components can achieve its own level of creation and thus justify copyright protection.

Sometimes the melody plays almost no role at all, e.g. when adopting the groove and feel of a track, as in the much discussed track “Blurred Lines”.

Plagiarism in music should not be limited to melodies. Riehl and Rubin’s hack shows this, but it’s important to emphasize how much it depends on what counts as original.

Can you use “liberated” melodies without hesitation?

The question of whether music creators need to fear legal disputes following the hack and whether the melody database is safe to use depends on whether anyone can have rights to the melodies in the database.

Riehl/Rubin had the melodies “calculated” by software as possible combinations on a limited range with a limited number of notes. According to German law, computer-generated melodies are not copyright protected because they aren’t created by people (“personal intellectual creation”).

The software was given instructions to produce billions of melodies with abstract parameters, but this does not create a creative connection to the generated melodies (It would be possible to protect the database of all the melodies as a whole).

Riehl/Rubin make the melodies freely available applying a public domain mark to indicate that they don’t claim copyright. From this perspective, the melodies can be used without any problems.

However, this does not mean that other authors do not already have rights to individual melodies in the database.

Caution with existing music

Two people can write the same melody independently. This is a double creation, where two copyrights are created that do not get in each other’s way, according to Riehl.

If a newer song is claimed to infringe an older one’s copyright, the defender must refute the evidence of either ignorance or use of a public domain source, which is hard when the songs are similar and well known. Even unconsciously recollecting a song from 20 years ago and turning it into one’s own could infringe copyright.

As judges cannot see into people’s heads, they work with rules of evidence, circumstantial evidence and credibility. It is easier to refute the accusation for short, simple and little-known melodies that may also appear elsewhere than for longer and more complex melodies.

Riehl/Rubin’s database is now a public domain source for evidence. As its popularity grows, users may be able to claim the snippet as their own in future. This also applies: if a song’s arrangement or tonal characteristics are adopted, the public domain claim of the melody could come to nothing.

The database reverses the burden of proof.

What about unused melodies?

In a matrix of all 69 billion melodies, they would be the blank spaces. “We preserve blank spaces”, Damian Riehl says in his TED Talk. It might be possible to cite the public domain melody from the database. Songwriter No. 2 could use the melody from songwriter No. 1.

In the evidence exchange about independent double creation or illegal copying, it’s the overall impression that counts.

Humans can create works that computers can create

The fact a computer has generated a melody does not mean a human cannot create the same melody without knowing it. However, the argument that the melody is ultimately a sequence of numbers should be taken very seriously, because every work can be represented by a number. This brings us back to the overall aesthetic impression, where the “numbers” appear, with all their musical components. No matter how defenseless the melody, the concrete form as a musical work can still be sufficiently individual.

Conclusion: an important impulse

The hack does not stop plagiarism or change copyright practices because music has more than melody. Registered works are protected.

The impact of the hack on the legally enforced enforcement of copyright is unclear. It may shift disputes from melody to vibe. But it is already providing at least one important impulse.

The risk of being wrong in plagiarism and inspiration needs to be addressed, especially for smaller snippets of copying.

The bigger the self-plagiarism in the minds of music creators, the more one of copyright law’s legitimizing arguments is in crisis: namely that strict property rights should provide an incentive to create – and not primarily an incentive to chase songs through legal departments.

Editor’s note: This is a translation of an article from 2020 and describes a current event at that time. Links from the original text that have expired have been removed from this version. Find the German version here.

*Note: Section 24 of the German Copyright Act has meanwhile expired.

Fabian Rack ist Anwalt bei iRights.Law und wissenschaftlicher Mitarbeiter bei FIZ Karlsruhe – Leibniz-Institut für Informationsinfrastruktur. Er befasst sich vor allem mit dem Urheber- und Datenschutzrecht und macht selbst Musik. Foto: Jenny Fitz