I’ve only got a few minutes for this rush to judgment. Three should be plenty. Start the clock.
I used to love lame-ass jazz funk-pop. A track like Shakatak’s “Easier Said Than Done” would’ve been in heavy rotation on my car stereo with the Jensens in the back, Blaupunkts in the doors, zillion-band equalizer. I liked the orchestration, the somewhat elevated musicianship, and the production sheen. And I still find it personally disappointing when fairly good musicians for some reason are just no less prone, as here, to entertain an objectively silly notion that a K-pop band needed to know their mundane forty-year-old melody to have come up with a similar one, such as in New Jeans’ “Bubble Gum.”
K-pop is derivative, formulaic, bound to sound like something else here and there; big reveal.
In order of preference, the defense will argue, “We never heard your song,” “your song’s melody is not original or protectable” (“we’ll find it in prior art, and it’s basic”) and then “our two melodies are not that similar.”
That first defense will fail.
The second two will do the trick, so let’s just jump right to those.
Plaintiff’s “Easier Said Than Done” melody is five notes long — Sol Fa Mi Re Mi, or if you prefer 5-4-3-2-3. Notice the directionality? the scalewise-ness? (You needn’t be a musicologist here. Those syllables and numbers are adjacent in every case, right?) If you DO wanna get a little musicologized here, we might notice those pitches are in order “chord-tone, non-chord tone, chord-tone, non-chord tone, chord-tone.” That’s about as standard a melodic behavior as you’ll find. It’s how I’d teach a four-year old to write a melody; “Mary Had A Little Lamb” level musical language.
Mary Had A Little Lamb goes “Mi Re Do Re Mi.” See the resemblance? Scale-wise and CT/NCT/CT/NCT/CT.
You think I’m not going to find twenty of those in prior art?! Good thing I’m rushed this morning. I can’t get my brain to move on from Billy Idol’s “Eyes Without A Face.” Also, I’m on vacation. Let me be.
Oh, that latter defense. The melody isn’t THAT alike. Notes are given meaning by their context. Plaintiff’s harmony is completely different. Long lists of available but musicologically lesser observations such as the similar instrumentation, rhythm, tempo, harmonic language are noise, somewhat part and parcel of the lame-ass, jive, pseudo jazzy, noodling, wimped out stuff that I already admitted I would enjoy in 1982. (Loads of extra-credit if you know whom I’m plagiarizing.)
This case should go away.
Here are both tracks. Inquiries welcome.
