The news of this case came out only hours ago, but here we are taking a cold look and looking for a hot take on the same day!
Almost exactly a year after putting out “In Ha Mood,” Ice Spice now faces this lawsuit from Duval “D.Chamberz” Chamberlain and Kenley “Kass the Producer” Carmenate who think “In Ha Mood” sounds too much like their own “In That Mood,” from 2022.
Here’s a quick listen to both before I explain why this will be a challenging infringement case to make.
First, here’s Ice Spice’s “In Ha Mood”:
And here is D. Chamberz’s “In That Mood:”
It’s helpful to move quickly from the question of “Are there similarities?” or even “Do these sound the same?” to “Are the similar elements original to and protectable by the earlier work’s authors? and “Are the similarities of the sort that copyright seeks to prevent such similarities, or should it?”
You probably heard similarities. Me too, and not just the title lyric. Copyright infringement lawsuits like this arise from genuinely observable similarities and completely sincere opinions that someone has been ripped off. These are two songs with a very short lyric and title somewhat in common, with similar drill beat styles, minor keys, similar tempos, and maybe a few other observable things. Anyway, there are broad “these sound a bit alike” type things and more specific namable things. So why might a forensic musicologist say Mr. Chamberz and Mr. Carmenate face a lot of challenges with this lawsuit?
The similarity in the titles is obvious and the lyrics appear in the song, well, a whole lot. But generally, copyright doesn’t protect titles and short phrases. And three words are nearly as short as it gets. They’re also a common expression, albeit with some variations. A song called “In The Mood” is so familiar that it made NPR’s list of the 100 most important American works of the 20th Century!” “In A Sentimental Mood,” is another.
A lot of the time, musicology involves math — the math that describes probability. The chance of a die roll coming up 6 is 17%, but the chances of doing it twice in a row is 3%. That’s 17% times 17%. When coincidences add up, the probability of their being dictated purely by chance dissipates.
What’s the probability that Ice Spice used the expression “she in her mood” in her day-to-day life? I don’t know, and I’m not going to be flippant and guess. Assume it’s never. She only did it for this song. Now what’s the probability she would choose a drill beat at this tempo? I would look to stack and essentially multiply my best calculations of such probabilities. Of course, probability is largely dictated by how common an element is. Simplicity is another factor. Simplicity is not a negative quality in music, but simplicity and brevity work to increase the probability of similarity by coincidence.
Therefore when looking at a phrase that is both brief and common, we entertain that it might be a coincidence. Add that the phrases aren’t identical, which they aren’t, nor are they synonymous, and the math moves decidedly in the defendant’s favor. There are simply too many possible ways outside of copying Ice Spice comes up with this simple phrase.
We’ll need a lot of other compelling coincidences to stack. That would change our tune, perhaps.
So, why else are we here? I suspect the plaintiffs hear their melody in there, so let me indulge that idea.
Here’s the problem with that.
The melodic element behind Ice Spice sounds sampled from this track by Fabian Mazur, and it’s from this that Ice Spice takes her simple, catchy, and scale-wise melody which goes 3-2-1-2 in a minor key. Those are scale tones in order, like do-re-mi. This one actually sort of goes mi-re-do-re-mi. (And don’t anyone come at me with minor solfege spellings. Don’t.) And as nobody cares which minor key we’re in exactly? It doesn’t matter.
The plaintiff’s track has a similar phrase, played faster, and the catchy simplicity of “In That Mood” centers around those same tones, sorta. D. Chamberz’s “In That Mood” is playing 5-1-2-3-2-1-2-3. So that 3-2-1-2 element is in both, this doesn’t matter much.
Immediately available reasons why include that scales are common unprotectable elements. And, if I’m typing out numbers that fall in numerical order upward or downward, that’s a scale, people.
Also, the particular figure the plaintiff is using will be found everywhere. Here for example:
They’re more identical by far in that respect. Interesting too that D. Chambers put an awkward note in the bass. If his figure is 5-1-2-3-2-1-2-3, which I applied to be charitable and put the observable similarity in the best possible light, then his bass note is 5. If I less charitably insist that “In That Mood” is in that key, E, the low bass tone that plays almost throughout, then the figure becomes 1-4-5-b6-5-4-5-b6 and contains no similarity to Ice Spice at all.
It would be true that the general usage of the title phrase is similar in both works, but such general usage is very common. These two songs are both going juju on that beat like a hundred other tracks do. Also the rhythmic placements of “she in ha mood” and “get in that mood,” are different. So when a forensic musicologist gets called in and transcribes these two songs, they’re not going to line up without some musicological shenanigans.
Arguments like these are often met with “But selection and arrangement, your honor!” That’s the idea where one might acknowledge that the observable elements on an individual basis aren’t original or protectable by copyright, but the particular application of a collection of such elements might itself be original. And that’s valid, but regular readers of Musicologize know it’s not some Fantasyland where everything turns into infringement. In music copyright, that’s how it gets applied lately, and so far, I’ve merely seen the concept indulged. I can’t say I’ve seen it work.
It’s being floated in the most important case currently in play — the one in which Steely and Clevie claim to own a small part of virtually all Reggaeton. It won’t work there, nor likely here.
