Today I read an interesting article by Christopher J. Buccafusco, Professor of Law at Yeshiva University, entitled The Blurred Lines of Copyright Law Are Limiting Musical Creativity.
Buccafusco argues or perhaps thinks manifest that the “innovation space” of music is dwindling naturally because, first, the field is increasingly full of the protected intellectual property of all the music that has so far been created, leaving ever less room for wholly original creation in the future; and second, our tastes are narrower than we imagine, narrowing since birth probably, and therefore the universe of appealing (loosely analogous to “popular”) music is not so great as we might think. In other words, popular music composition or the gainful copyright of that music is at least somewhat a zero-sum game; its universe, finite; the edge, not far off.
Much is written lately about this concern, and I thing it’s far fetched, but let’s give it some consideration.
Hmmm, if we knew how much popular music could be written, and subtracted all that has already been written, we could get to the bottom of this quickly.
Nobody told you there was going to be math? Sorry. Let’s start.
A ton.
You hear it said all the time. Or I do anyway. “There’s only twelve notes!” Well, if we work from Do (as in “Do (Doe), a deer”) as our starting point and sing the scale up to the next Do an octave away, that’s 8 notes in a key (Do, Re, Mi, Fa, Sol, La, Ti and the other Do), plus the 5 accidental notes not in the key (the black keys on the piano where “Do” is the note “C”) and that’s thirteen notes total. I could’ve gone with twelve, but really in popular music that second Do is going to get a lot of work relative to some of the other pitches and deserves its place. And it’s going to get work here in “Doe, A Deer.” (It’s actually titled “Do-Re-Mi” but nobody wonders if you’re referring to the song or the scale when you say “Doe, A Deer.”)
“Doe, A Deer, A Female Deer.” That’s six notes. And here comes the math: 13 notes to the power of however many notes in our melody (6) minus 12 to the same 6th power is 4826809 minus 2985984 minus our “do a deer” melody leaves one million. eight hundred and forty thousand, eight hundred and twenty four other possible six-note melodies from those original thirteen notes.
Almost two million.
But that’s just static rhythm, we assumed the same rhythmic value every note. If we allowed for rhythmic variations, that would be a factor of “number of rhythmic choices to the power of however many notes in the melody.” Back to “Doe, A Deer, ” it happens to employ three different rhythmic values across its six notes (I think that’s right. I only thought about it for 5 seconds and I’m moving on.” So that’s three to the power of six?
“Hey Google, what’s three to the power of six?” Google says “the answer is 729.” Geesh, times that other huge number? Again, “Hey Google…” Google says, “1,341,960,696.” Number is getting big.
Hold up. That doesn’t factor in the number of harmonies against which those melodies might be applied. Keep it simple. 1.3B multiplied by three chord rock and roll is gonna put us up around seven billion.
So just six notes can be wrought in billions of ways, but how many of them would be pleasing and potentially popular melodies? A helluva lot fewer, I’ll grant you.
But a lot nonetheless, wouldn’t you think?
Our tastes would have to be damned narrow to winnow that down to something problematic, would they not? Do we really have a societal ill here that needs fixing. And if we do, shouldn’t we look elsewhere for the root of the problem? We should.
And Mr Buccafusco does. He points out that while current creatives want copyright laws to be in a state of balance — strong enough to protect their existing work, but flexible enough to allow them to continue creating — the retired creatives, and their estates I suppose (he calls these “legacy interests”) are only interested in the former — broad protection of their fixed supply of IP. And he’s right. Why wouldn’t his “legacy interests” people want any whiff of appropriation to be copyright infringement? Indeed they would.
Mr Buccafusco says it’s potentially big! He (and he has plenty of company) raises the Blurred Lines spectre and warns us all that because of that verdict and the actions of those who would broaden copyright protections, we’re facing a future of low incentive for creative pop music artists. And perhaps he and many others who agree with him will be right. (I read three of these a week.) I think time will show that all the fuss around the Blurred Lines verdict is overdone. It’s a jury verdict and an outlier even among jury verdicts. That jury was most entitled to its opinion, but juries are notoriously unpredictable and simply are not going to be right all the time. Will Pharrell Williams, et al. v. Bridgeport Music, Inc., et al. be a landmark case in forty years? Is past even prologue? I have my doubts.
Water is still wet. The originality of a piece of music may always be arguable, but it’s not arbitrary. Between the many musical “building blocks” — the reasonably unprotect-able common language, devices, and features that make up popular music and charm our narrow tastes — and the evidently several billion melodic possibilities you might employ in, around and through those building blocks, there’s inexhaustible opportunity for creativity and originality, if…
[long dramatic pause]
… there’s wisdom and reason around what’s protectable and what’s not.
No small “if.”
(Do not write me to explain that water is in fact not wet. I will climb through the screen and choke you.)
