The Hard Drive With 68 Billion Melodies

Written by Alexis C. Madrigal — In an era when millions of songwriters upload music to the internet—and just about any song can be plucked from obscurity by TikTok teens—it seems inevitable that the same melodies end up in different songs. There have been a number of high-profile music copyright-infringement cases, including a multimillion-dollar decision against Katy Perry for her song “Dark Horse.” A jury found that she’d infringed upon the copyright of Flame, a Christian rapper who’d posted a song with the same melody to YouTube, even though Perry insisted that she’d never heard of the song or the rapper. For some musicians, musicologists, and lawyers, the verdict felt scary; after all, large numbers of songs now live on SoundCloud and YouTube. It became thinkable to ask: Could the world run out of original melodies?

Damien Riehl and Noah Rubin were two of those worried musicians. Riehl is a lawyer who has worked on copyright. Rubin is a coder. They were hanging out after a long day at work when a “a lark, a thought experiment” occurred to Riehl: Maybe they could exhaust all possible melodies—and in so doing, protect musicians from being sued for copying songs they don’t remember hearing.

On the one hand, they can’t really create them all. A melody, simply put, is a sequence of notes. If you’re talking about all the notes and all the traditions of music around the world, the combinatorics yields functionally infinite possibilities for the melodies that result. Take just the 88 notes on a piano and, for instance, 12-note sequences. You get 216 sextillion melodies. And of course, that’s only within the Western tradition, in which these particular frequency ranges are considered notes.

On the other hand, if we’re talking practically about Western popular music in the range in which hit songs are made, that is already a radically restricted domain. And within it, the number of melodies is in a more comprehensible part of finitude. Popular music tends to use a more limited range of notes than an entire piano. And Riehl and Rubin figured that most pop melodies run fewer than 12 notes. If you generated every possible melody with just the eight notes of the C scale, that’d be 8^12 melodies, which is 68,719,476,736. That’s a big but thinkable number, considering that SoundCloud receives tens of millions of uploads a year.

Riehl and Rubin hatched a plot to create software that would write every melody, at least within this popular range. It wouldn’t be unlike dialing every possible telephone number: 111-111-1111, 111-111-1112, 111-111-1113, and so on: do-do-do-do-do-do-do-do-do-do-do-do, do-do-do-do-do-do-do-do-do-do-do-re.

As it turns out, there were considerable complications to even writing 68 billion melodies within the team’s existing hardware, which amounted to Rubin’s computer. “It is true that the set of all melodies is finite. But finite is still large,” Rubin told me. “It’s quite large, with the current computing technology that we had access to. We’re not Amazon.”

The duo built a simple system working with MIDI, the computer music framework, and started outputting melodies. They’d wanted to generate all possible melodies on the piano, but after some prototyping, settled for 12-note melodies in a popular range that Riehl had seen implicated in copyright litigation: the octave ascending from middle C. Even to complete this set, Rubin had to switch programming languages (from Python to Rust), he said, “and that gave us the speed increase we needed.” Soon, they had a hard drive filled with almost 69 billion melodies. In a conversation with Adam Neely, a YouTuber who helped spread the word about the project, Riehl alluded to previous copyright thought experiments. “This has been a concept that has been discussed,” he said. “But no one has ever brute-forced [it] in this way.”

Now Riehl and Rubin want to release the fruits of that brute-forcing into the public domain. They figure that in a future suit where a musician is hit with copyright infringement, she could point back to the melody on that hard drive as her uncopyrighted inspiration. Their point, ultimately, is that melodies could be seen as math, which is to say facts, and facts cannot be copyrighted. This is not to say that songs cannot be copyrighted, but that each possible series of notes is not a creation so much as a selection from a fairly limited set. (Information theorists might add that selection from a set of possibilities is the very nature of all information—but that’s beyond the theoretical scope of the melody project.)

Riehl and Rubin’s work is provocative on several levels. One, it raises some of the same issues about originality that haunt many discussions of creativity. A recent 99 Percent Invisible podcast episode about the song “Who Let the Dogs Out” provided an especially evocative example of the possibility of unintentional duplication. Ben Sisto, an artist who spent a decade tracing the origins of the woof-woof-woof hook, found variation after variation of that horrible song throughout musical history, some seemingly connected by a chain of transmission, others not at all. “One of the big myths we tell ourselves about art is that it is made by individuals, and that myth is what the art market is propped up on,” Sisto told the show’s hosts. He’s come to believe instead that it is impossible to reliably distinguish what people invent from what they borrow. “I think that all these ideas apply to every piece of creative work ever made,” Sisto concluded in the episode. “It’s just about the very nature of art and life.”

On another level, the melody project asks some interesting questions about machine creation. Is writing some software to output MIDI melodies to a hard drive the same as if you’d created the song, played it on your xylophone, and uploaded it to SoundCloud? Did Riehl and Rubin free music from restriction, or did they infringe on millions of copyrights?

At the very least, the work highlights the long-standing flaws of the current music-copyright system. But legal experts were decidedly less enthusiastic about whether it would actually help musicians in a live-fire copyright case.

“I just don’t get it,” Lawrence Lessig, an eminent copyright scholar at Harvard Law School, told me in an email. “Whether or not melodies can be represented in math, they are not just math. So that seems like a dead end.”

Lessig did agree that it’s unfair that anyone can be dinged for “copying” work even if they could not be shown to have consciously done so. “The whole doctrine of subconscious copying is absurd. So I get the motivation,” he said.

Kristelia García, a law professor at the University of Colorado, saw things in mostly the same way. “It’s an interesting thought experiment,” she told me in an email. “And I think it does a good job of exposing the absurd point we’ve reached in music copyright infringement.” But she didn’t think the project could prevent copyright-infringement suits over melodies. “I am not at all convinced it does what they hope it will do (i.e., give artists a free pass out of infringement suits) since so many of their melodies are almost certainly already ‘owned’ by someone else,” she said.

Undaunted by the somewhat chilly responses from copyright lawyers, Riehl and Rubin are expanding their range of notes and starting to account for rhythm. Ultimately, Riehl hopes that legislation, not coding projects, can reform how copyright works in the United States. He would not want to see their melody project adjudicated in court. “A better place to do it is in Congress, to modify the copyright law in a way that makes sense,” he said.

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Songwriters and artists call on US court to uphold Copyright Royalty Board’s streaming rate increase

Written by Chris Cooke — Organisations representing songwriters and artists in the US have submitted an amicus brief to the DC Circuit Court Of Appeals urging them to uphold the most recent Copyright Royalty Board ruling on the compulsory licence covering mechanical rights Stateside. The rate increase for songwriters in that ruling, the organisations say, is not only “deserved” but also “critical” for many songwriters struggling to stay afloat in the streaming age.

The compulsory licence means that a company exploiting the mechanical rights in any one song does not need specific permission from any songwriter or publisher that has a stake in that song. They just have to pay the rights owners royalties at a rate set by the CRB.

Earlier this year, after a long review, the CRB confirmed it was increasing the rate to be paid by streaming services, so that – ultimately – those services would have to allocate 15.1% instead of 10.5% of their revenues to the song rights.

This would bring the rate due under the US compulsory licence more or less in line with the rate music publishers have negotiated on the open market in countries where there is no compulsory licence to interfere in the deal making process.

It’s also a total rate. A stream exploits both the performing and mechanical rights in a song, which are often licensed separately. Although the compulsory licence only covers mechanical rights, any monies paid for performing rights – usually via collecting societies like BMI and ASCAP – are basically deducted from the 15.1% figure.

The increase was, unsurprisingly, welcomed by songwriters and publishers. But then most of the streaming firms, with the notable exception of Apple, announced that they were appealing the CRB ruling. Spotify has subsequently insisted that it doesn’t oppose the rate increase in principle, but has issues with some other technicalities in the revised compulsory licence. Songwriters and publishers, in the main, have not been impressed by such claims.

Those unimpressed include the Songwriters Of North America organisation and the recently formed Music Artists Coalition. Arguing that songwriters are already unusually disadvantaged by the mere existence of the compulsory licence, they say that the rate rise on digital income is desperately needed by the songwriting community. And especially those songwriters who are not also artists, who cannot rely on other revenues like touring and merch.

“For over a century, songwriters have been subject to a compulsory license, now embodied in section 115 of the Copyright Act, that determines the price to be paid for reproduction and distribution of the musical works they create”, the two groups say in their court submission. “There is no comparable example of a profession where the government sets the price for one’s labours”.

It goes on: “After carefully weighing all of the evidence, the [judges that form the Copyright Royalty Board] determined that songwriters should be paid more, and increased the rate for interactive streaming under section 115. Songwriters deserved that raise. Indeed, for some, the added income will be a critical factor in their ability to continue in their careers as professional songwriters”.

In an accompanying press statement SONA and MAC members expanded on why they felt the CRB rate rise was “critical” for allowing many songwriters to stay in business.

Among them SONA board member Shelly Peiken, who said: “If I were trying to make it as a songwriter today dependent on digital royalties, I wouldn’t be able to sustain a livelihood the way I once did from the income of physical sales. Without sharing in master royalties, merchandising or touring revenue, most songwriters now have to consider holding down a second job. I sincerely hope the DC Circuit Court Of Appeals reaffirms the CRJs’ decision and takes the industry in the direction it desperately needs to go. Songwriters are counting on it”.

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How Music Copyright Lawsuits Are Scaring Away New Hits

Written by Amy X. Wang — Most of the world knows Robin Thicke, Pharrell Williams, and T.I.’s “Blurred Lines” as a half-forgotten hit song from 2013. The music industry remembers it as its worst nightmare.

In the five years since a court ruled that “Blurred Lines” infringed on Marvin Gaye’s 1977 “Got to Give It Up,” demanding that Thicke and Williams fork over $5 million to the Gaye estate for straying too close to the older song’s “vibe,” the once-sleepy realm of music copyright law has turned into a minefield. Chart-topping musicians have been slapped with infringement lawsuits like never before, and stars like Ed Sheeran and Katy Perry are being asked to pay millions in cases that have many experts scratching their heads. Across genres, artists are putting out new music with the same question in the backs of their minds: Will this song get me sued?

“There is a lot of confusion about what’s permissible and what’s not,” says Sandy Wilbur, a forensic musicologist who served as an expert witness for the defense in the “Blurred Lines” case. Because cases are decided by “the average listener, who is not an educated musicologist or musician,” she notes, “labels are very afraid.” Since that game-changing ruling in 2015, Wilbur says, she’s received triple the number of requests from music companies to double-check new songs before they are even considered for release.

How did this culture of fear drift into the recording studio? The answer is twofold. While copyright laws used to protect only lyrics and melodies (a prime example is the Chiffons’ successful suit against George Harrison in 1976 for the strong compositional similarities between his “My Sweet Lord” and their “He’s So Fine”), the “Blurred Lines” case raised the stakes by suggesting that the far more abstract qualities of rhythm, tempo, and even the general feel of a song are also eligible for protection — and thus that a song can be sued for feeling like an earlier one. Sure enough, a jury in 2019 ruled that Katy Perry owed millions for ostensibly copying the beat of her hit “Dark Horse” from a little-known song by Christian rapper Flame, stunning both the music business and the legal community. “They’re trying to own basic building blocks of music, the alphabet of music that should be available to everyone,” Perry’s lawyer Christine Lepera warned in the case’s closing arguments.

That case, which Perry’s team is currently in the process of appealing, suggests a second point: Plaintiffs in copycat cases are largely targeting megahit songs because they’ve seen where the money is, and the increasing frequency of those court battles in headlines is causing an avalanche effect of further infringement lawsuits.

All of this is striking fear into professional musicians’ hearts. A few months ago, Emily Warren, a songwriter who’s worked with the likes of Shawn Mendes and Dua Lipa, released a song with a country artist that had a similar chorus to a pop song released at the exact same time — a total coincidence, she says. “Even though I’d never heard [the other song], it still felt like a tricky thing,” Warren says. Neither of the two artists took any action against each other, but the situation opened Warren’s eyes to how easily sticky situations can arise by accident. “The more cases are publicized, the more fearful people are,” she says.

While some record labels may have the budget to hire on-call musicologists who vet new releases for potential copyright claims, smaller players who can’t afford that luxury are turning toward a tried-and-true form of protection: insurance. Lucas Keller — the founder of music management company Milk and Honey, which represents writers and producers who’ve worked with everyone from Alessia Cara and Carrie Underwood to 5 Seconds of Summer and Muse — recently began encouraging all his songwriter clients to purchase errors-and-omissions insurance, which protects creative professionals from legal challenges to their intellectual property. “We all feel like the system has failed us,” Keller says. “There are a lot of aggressive lawyers filing lawsuits and going ham on people.” (He’s particularly critical of publishers whose rosters are heavier on older catalogs than new acts: “Heritage publishers who aren’t making a lot of money are coming out of the woodwork and saying, ‘We’re going to take a piece of your contemporary hit.’ ”)

Under E&O policies, insurance companies can cover several million dollars of an artist’s costs if they lose a copyright lawsuit. Joe Charles, senior vice president at insurance provider Alliant Insurance Services, says that as many as half of his personal A-list music clients — a roster of stars who already pay for tour insurance and other standard entertainment-industry policies — have recently shown interest in E&O coverage. “When a major claim is all over the press, we’ll get 10 to 20 calls from musicians asking how they can protect themselves and what it will cost,” Charles says. The number who’ve actually purchased the insurance is smaller due to the high costs, which can run from $20,000 to $250,000 a year, depending on the artist’s prior legal run-ins, their audience size, and how much they want to insure.

Artists are understandably reluctant to publicly disclose that they have copyright insurance, which could open them up to an increase in lawsuits. But music attorney Bob Celestin, who’s helped represent acts like Pusha T and Missy Elliott, says it is safe to assume that the majority of artists who show up in Top 10 chart positions are covered in this way. Big labels, too, usually have comprehensive insurance policies that protect them against copyright issues. Yet these policies have gaps. “An artist could find themselves uninsurable if they’ve had numerous claims and the insurance companies have already paid out millions in costs and settlements,” Charles says. “Or they might find a carrier willing to write it, but the rates are going to be astronomical.”

Songwriters, who may not have the financial wherewithal of celebrity artists but are equally liable for copyright claims, are often the most vulnerable. “We’re all nervous and afraid to fall into a battle over something as minor as a few notes or words,” says Ross Golan, a producer and songwriter who has released songs with stars like Ariana Grande and Justin Bieber. Warren says she’s even heard of some megawatt artists keeping musicologists on personal retainer to help them avoid lawsuits.

“There’s more conversation on the front-end as songs are being created,” says Joel Timen, vice president of A&R and publishing at Curb Word Entertainment. “A lot of my songwriters have been asking more questions: ‘Does this melody or pre-chorus section remind you of anything? Should we be careful?’”

The popularity of cheap music-production software, which offers the same features to every user, has added another layer of risk. “Music is now more similar than it is different, for the first time,” Golan says. “People are using the same sample packs, the same plug-ins, because it’s efficient.” Then there’s the issue of the finite number of notes, chord progressions, and melodies available. Or, as Wilbur puts it, “There are no virgin births in music. Music comes out of other music.”

The copyright lawsuit boom, and its unintended side effects, may be just getting started. In 2014, rock band Spirit accused Led Zeppelin’s Robert Plant and Jimmy Page of lifting the opening guitar riff of “Stairway to Heaven” from a 1968 instrumental called “Taurus”; a jury threw out the case in 2016, determining that Plant and Page didn’t plagiarize the musical motif — only to see the case turned around two years later on appeal, when a three-judge panel ruled that the original trial involved errors in jury proceedings. (“The jury is a whole other conversation,” says Keller, the music manager. “In British court, they’d just ask a musicologist to decide. In American court, we bring in 10 random people.”) In 2019, the court of appeals decided to reconsider the original panel’s ruling; it will likely issue a decision in the spring of 2020.

Artists, songwriters, producers, and labels are now awaiting the next Zeppelin verdict, with many hoping that a judgment in Page and Plant’s favor could unwind some of the headache-inducing ambiguity introduced by the “Blurred Lines” ruling. Others see the case, which has a chance of going all the way up to the Supreme Court, as a reopening of Pandora’s box. Will the latest ruling clarify the scope of music copyright — or muddy it even further? “At what point is an element of creative expression protectable?” says media intellectual-property attorney Wesley Lewis. “Litigators are all hoping for more clarity.”

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Spotify Target Artists, Labels For Ad Revenue - Leaving Smaller Creators Behind

Written by Andrea Zarczynski — Despite recording artists’ complaints of meager royalty payments, Spotify is approaching them and record labels for a new source of ad revenue. In order to support profitability, the streaming company has pinpointed music artists and labels to foot the bill in exchange for advertising their songs on the Spotify app. As deals are made with large players in the industry, the discovery of smaller labels and artists will suffer greatly, according to Daryl Friedman, chief industry, government and member relations officer at The Recording Academy.

“It’s a bad idea for artists, for fans – and in the long run – for Spotify,” says Friedman.

The new effort requires artists to pay Spotify additional dollars for exposure, which effectively reduces their royalties even further, Friedman explains. While major labels may choose to engage in the deal, indie labels and artists may not be able to afford it, thereby driving down the overall amount of music played on Spotify. In the long term, fans will suffer as Spotify playlists are reduced, he says.

In 2018 Spotify announced that it would not allow payola to dictate the formation of its playlists, a tactic that radio stations were known for entertaining in the past. Making its playlist curation process more transparent meant that while the platform allows artists and labels to submit songs for inclusion in a playlist, no payment will be accepted to ensure that the song is added.

As Spotify continues to lag behind its competitors in ad revenue, the company is exploring whether podcasts and its new paid promotions will become lucrative ways to strengthen artist-fan connections. Last year Spotify explored a new form of fan engagement with the beta launch of Marquee, a marketing tool offering artist teams the opportunity to engage with fans using full-screen “marquee” album recommendations on Spotify. The tool introduced a broader reach than previous recommendations that were determined by the platform.

Past Spotify services, including one that allowed artists to upload songs directly to the platform, were not well received by leading labels Sony Music Entertainment, Universal Music and Warner Music. The new paid promotions may appeal to some big names but will do little to improve the overall music industry, Friedman says. He suggests a stronger approach to diversifying revenue streams and increasing profitability – identifying ways to lure users from freemium ad-supported access to paid subscriptions.

“Every day I hear artists tell me that they’re getting millions of streams yet low royalties around $100. It’s really (Spotify’s) obligation to pay the artist,” says Friedman, who adds that, in contrast, radio stations pay no royalties to creators or record companies. “Spotify is better than zero, and radio is zero.”

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