Andy on the Road

13 September 2009

Joe Satriani v. Coldplay ends in settlement.

Filed under: intellectual property, music, nerdingout — Andy @ 12:49 pm

Whenever Coldplay releases an album these days it starts a small wave of copyright litigation.  Last year’s Viva La Vida or Death and All His Friends was no exception.  Last week, however, that docket got a little bit lighter, as the most prominent infringement case settled.  Joe Satriani, famed rock guitarist and founder of the G3 tours, claimed in a lawsuit back in December that the title track off of Viva La Vida infringed Satriani’s copyright in his 2004 track if “If I Could Fly.”  In essence, Satriani argues “Viva La Vida” copied his song without permission.  Here are both for comparison:


Joe Satriani – If I Could Fly


Coldplay – Viva La Vida

For a really ill-informed discussion of this case, check out the comments on the Satriani YouTube post.  For a more music-theory based discussion of their similarity, check out this excellent YouTube video from a guitar instructor in Canada.

On the music side of this (and largely care of the above posted video) here’s the rundown: Coldplay’s song is in a slightly swung rhythm at about 138 BPM, in the key of F minor doing a VI–VII–III–i (Dbmaj–Ebmaj–Abmaj–Fminor) progression.  Satriani’s song is also at about 138 BPM, roughly the same rhythm, and the chorus goes through a iv–VII-III-i progression in B minor (Em7–Amaj-Dmaj7–Bm).  At this most fundamental level, the only variants between the two are the key and the first chord of the progression – and the two different chords are actually quite similar.  The VI chord in the Coldplay is the relative major of the iv chord in the Satriani (which is to say if they were in the same key they’d share 2 out of the three notes in the chord).  In other words, the meter is the same, the chords are virtually identical, and where the chords vary they still are quite similar harmonically.  Now, this progression is just a progression, and as an old song from my band notes there’s a lot of songs that share the same three or four chords.  Nevertheless, it is a fairly unique progression, a fact which wouldn’t bode well for Coldplay.  There are many other elements to consider, but it does certainly lay a musical foundation for substantial similarity.

As for the legal analysis, it’s important to remember that the substantial similarity between these two would have to be either admitted by Coldplay or found at trial (Coldplay demanded a jury trial in their answer, so it would have gone to a jury to decide unless the evidence was so overwhelming as to lead a judge to direct a verdict on that point).  Absent such a finding or stipulation, I can’t say for sure whether the harmonic structure, meter, and rhythm alone would be legally sufficient.  Satriani would also have to prove that Coldplay had access to the work, but given how broadly Satriani is distributed and how broad Coldplay’s musical arms reach I don’t imagine this would be difficult.  Coldplay seems to have challenged this exact point in their Answer, however, arguing as an affirmative defense that these two songs were independent creations.  In other words, Coldplay did their song without ever hearing the Satriani song.  This was one of nine affirmative defenses in their Answer that Satriani would have had to get around, although some of the defenses look a little dubious. (Including “lack of originality” in the Satriani work, which either suggests that Satriani’s work does not have the requisite creativity, which is preposterous, or that Satriani forfeited copyright through 17 U.S.C. § 103(a) by using other copyrighted material without permission, which is highly unlikely.)

Whatever we think of Satriani, Coldplay, or the case in question, the answers to all these legal problems have left the realm of the courts.  The parties asked to settle the case in front of an arbiter in July, and last Wednesday the parties filed a joint stipulation for dismissal of the lawsuit.  Either Satriani was scared off or (more likely) the parties came to some form of settlement.  The question of whether Satriani would have won at trial is now left to speculation by the copyright nerds of the world.

If you’re still interested in the details of the case and up for some legal digging, this case is captioned Satriani v. Martin et al, and all of the filings are up on Justia.  In May, Cat Stevens (now Yusuf Islam) also claimed “Viva La Vida” infringed his original “Foreigner Suite” and threatened action, but about a month later he dropped the suit.

Update – 15 Sept, 8AM: Justia posted two more filings on the Satriani v. Martin docket yesterday, including an official order to dismiss the case with prejudice (meaning that Satriani may not file the case again).  Not too much to see here; I suspect someone will have to get in touch with the parties to hear the details of the settlement.

I also want to take a second to say hello to the folks over at Techdirt for mentioning my blog yesterday while covering this story. Many thanks!

Update 2 – 23 Sept, 10AM: I realize in the comments I was playing it a little fast and loose with the degree to which expert testimony would be admissible with respect to the infringement, so I want to clarify:

Independent origin is a total defense to copyright infringement.  If I were a monk in Nepal and I came up with a song identical to “Viva La Vida” without ever hearing Coldplay’s song to begin with, I could not be found to infringe Coldplay’s song.  However,  proving this degree of “copying” can be very difficult absent party or witness admission (“Yes, I saw Chris Martin at a Joe Satriani concert where he played ‘If I Could Fly.’  Chris had his tape recorder out.”).  Accordingly, courts allow expert testimony to show how unique elements may be used as circumstantial evidence of direct copying (“Given these unique factors, it’s highly unlikely that Chris Martin would have come up with this on his own were it not for hearing Satriani’s song.” combined with “‘If I Could Fly’ was a #1 on Top of the Pops for two weeks and it’s extremely likely that Chris heard it.”).   This is sometimes called the “access/striking similarity” inference of copying.

Proving “copying” is only half of the battle, however.  Satriani would also have to prove that he copied the elements in such a way as to be unlawful appropriation.  Not all copying is copyright infringement, after all, and his copying would have to go to the protectable elements of the expression, and not just the abstract ideas.  The courts have employed variety of techniques in finding this, but at the heart they all recognize this as being the province of the jury, and not the experts.  In other words, we play both and ask the jury to determine whether the copying done in the secondary work is “too much” of the original.  The term most often tossed around here is “substantial similarity,” which helps to illustrate to a degree.

An example might help illustrate: I really love the guitar work of Marc Ribot in Tom Waits’ Rain Dogs.  Were I to try and create that same over-driven Telecaster flamenco-infused soloing in my own song, I am “copying” Ribot but my copying is not so substantial as to be infringement (I think.).  However, as I start to appropriate more – say the notes of the solo or the lyrics of the song or even the chord changes and tempo – this might start to feel more like infringement.

Were Ribot to sue me, he would first either have to prove that I copied his work (I think this blog post might be a good piece of evidence to start with) or prove through circumstantial evidence that I had access and through expert witnesses that the songs are so strikingly similar that I could not have come up with it without copying, and then persuade the jury that my copying was so substantial that it interferes with his monopoly conferred by copyright.  Market harm or other data may be introduced as evidence here to help draw inferences, but ultimately it is for the jury, and not experts, to decide.

So, to artificially draw up some parameters here as a court might, the evidence above about chord structure and melody would go to the “access/striking similarity” inference of copying, and is best paired with some other evidence as to the popularity of “If I Could Fly.”  (SoundScan has Is There Love in Space?, the album containing this song, as selling around 90,000 copies worldwide, for what it’s worth.)  All of this goes to the question of “copying.”  To take this copying into the realm of infringement, however, requires a juror (say, you) to listen to both and determine whether the copying is so substantial as to constitute infringement.  Naturally, this is subject to dispute.

29 July 2009

Bad Call?

Filed under: huh., intellectual property, music, nerdingout, randomthoughts — Andy @ 7:00 pm

This is a slightly more whimsical (and short) approach to a topic I spilled a great deal of ink on last week.  I saw this bumper sticker on a traffic pole yesterday:

bad rabbits

Clearly, a sticker done in homage to:

bad brains

Is this good?  Bad?  Acceptable?  Infringement?  Legally fine but artistically dubious?  Artistically clever but legally questionable?  An unfair use of Bad Brains’s design to imply support from Bad Brains or their fans?  A strategically bad decision of iconography, considering how different Bad Rabbits and Bad Brains are?  Totally fine and rather cute or amusing?

I’m torn.  All I know for sure is I checked them out because I thought they may be similar to Bad Brains, but they turned out to be entirely different (and I see very little crossover between these fan bases).  I also think I may know some people in Bad Rabbits – at least a few went to Northeastern – so I should be careful before I rip on them too much.

28 March 2009

Sometimes You Have To Embrace The Pillow

Filed under: goodcalls, intellectual property, music, nerdingout — Andy @ 12:29 am

You gotta love Electro-Harmonix. Not only do they make some of the best guitar pedals known to man, they get the music industry and how we can get out of this moral tailspin. As Make reports, when someone made a pillow commemorating the Big Muff Pi (one of the best fuzzboxes ever released) they responded accordingly:

We’re all too familiar with the endless lawsuits suffocating the world of music, and so we decided to do something different. Instead of threats, demands, and legal letters, we contacted Gwendolin, told her we loved her work, and offered a formal license in exchange for an option to purchase them at discount. So, rather than a new enemy we now have a new friend, and a beautiful Big Fluff Pi. Take that as a lesson, music-industrial complex!

Thanks for the tip, Conor. And you can grab one of those pillows here, if you don’t mind parting with 99 Euros.

16 November 2008

The Star Wars Holiday Special Turns 30

Filed under: friendsromanscountrymen, huh., nerdingout, snarkbutter — Andy @ 5:06 pm

“If I had time and a hammer, I’d track down every bootleg copy and smash it.”

~ George Lucas, on the Star Wars Holiday Special

On November 17, 1978 George Lucas decided to lease out the entire Star Wars universe for a two-hour holiday special on CBS. The Star Wars Holiday Special included appearances by all of the major cast players, and with the exception a Muppet Show episode in 1980 would be the only time the group got together outside of the original trilogy of movies.

The plot surrounds Chewbacca’s celebration of “Life Day,” a holiday which seems eerily like Christmas. But naturally, since this happened a long time ago and a galaxy far, far away it couldn’t possibly be the Christian holiday we know and love. If you think that’s convoluted, wait until you see the rest of the plot. Here’s a sample:

This special also holds the strange honor of being the very first time the world meets Boba Fett, a character who plays more prominently in The Empire Strikes Back and Return of the Jedi movies, which would follow in ‘81 and ‘83. Strangely, Lucas decides to introduce this menace and villain of the later movies via a very silly and painfully 70s cartoon:

I imagine some out there might be asking, “Why haven’t I heard of this? I’m a big Star Wars fan. How did this never get released as a bonus feature on one of the copious releases Lucas has put out to date?”

Well, the answer’s quite simple: this movie is terrible. Not bad in a charming way; This isn’t a Santa Claus Conquers the Martians sort of holiday movie. This is straight up, flat out bad. And worst of all, it’s two hours long. So it’s not like a charming little holiday special which is over before you can say Hallmark. We have to wait two whole hours before the crew of the Millennium Falcon learn the true meaning of Christmas…or rather, Life-Day.

Longtime compadre Oscar actually owns a copy of this movie, and late one night last year we gathered our apartment together to watch it. After being distracted for nearly an hour by the Kenner Star Wars Action figure ads also on his bootleg DVD we finally got around to putting on the feature. When we started there were probably about 8 or 9 of us in the room – several of us had friends over. By the time the movie was over only two of us remained – and I, regrettably, was not one, as I had work in the morning and couldn’t stand to watch another frame of my sacred, dearly loved Star Wars characters foreshadowing the great commercialization of the brand which haunts it to this day.

And it’s too bad I didn’t stick around for the whole thing, as I missed Princess Leia singing the Life Day song:

I think when I get back to Boston on my winter break I’ll try and round up the gang again to try and finish the movie. Until then, Happy Life Day, all you nerds out there. And if you are fortunate enough to have a copy, be sure to put aside some of your Monday night to watch on its 30th birthday.

7 November 2008

Are we entering the Bartlet administration?

Filed under: huh., nerdingout, politics — Andy @ 12:06 pm

Quick thought between classes today, with credit owed to Lara for introducing me to this.

By now we know Rahm Emanuel was selected to be Obama’s cheif of staff. But did you know that this isn’t the first time he’s been part of a presidential administration. It’s the third.

Now, wait, I can hear you say. That’s not right, it’s his second. He was a senior adivser for Clinton previously. And between then and now he was a Congressman.

Ah, I say in our hypothetical conversation, you’ve forgotten about his time in the Bartlet Administration, where he served as deputy Cheif of Staff. You see, Rahm Emanuel is the inspiration for Aaron Sorkin’s character Josh Lyman in The West Wing. The incident with his sending of a dead fish was even mirrored in an episode with Josh.

I just hope we get Toby Ziegler for a Communications Director.

[editorial note - the depth of Wikipedia articles for these fictional characters is astounding]

Sketch of Lyman from Flickr user beckyjules. Photo of Emanuel from his website.

1 November 2008

“It’s coming right for us!”

Filed under: lawsandsausages, nerdingout — Andy @ 8:25 pm

I can’t believe the memo I’ve been working on for weeks can be summarized by 2 minutes of South Park:

(it’s South Park, so naturally it’s pretty violent and NSFW)

As a footnote, the hunter has to have a good faith belief that he or she is in risk of imminent harm in order to take an endangered species in self-defense. See United States v. Clavette, where this exact scene almost played out.

Thanks to Meredith for passing this along.

Ars Technica lands the nerd double-axle.

Filed under: laughs, nerdingout — Andy @ 2:25 am

(vote Elder Gods ‘08, from Flickr user randy.andrews)

It is just not right how much I enjoyed this Linux/”Call of Cthulhu” mashup Ryan Paul put together over at Ars Technica – “Call of Cthbuntu”

A sample:

His office was like an ancient reliquary, and every nook and cranny was occupied by the historical treasures that he had accumulated over the long years. He had always planned to start a museum with his sizable collection so that he could continue sharing his love of computer history with future generations. I traveled to Arkham and arrived at Miskatonic with the intention of seeing that goal fulfilled. Amid the temporal debris in his storage room, I discovered a PDP-4, an Apple Lisa, endless piles of punchcards, and what appears to be the original draft of Charles Babbage’s 1857 study entitled The Relative Frequency of the Causes of Breakage of Plate Glass Windows.

My eyes wandered down the rows of shelves, past the piles of ADB cables, and fell upon an unassuming brown cardboard box in a dark corner. It exuded a sinister aura that filled the room with an oppressive weight. As I walked closer to it, I could see strange symbols emblazoned upon its surface. I opened the box and paused for a moment before reaching inside to withdraw its contents. What emerged from that box will haunt my dreams until the day that I draw my final breath. It was a black CD case decorated with a visage of unparalleled grotesqueness.

Somewhere in a lab someone was trying to create the nerdiest thing ever, and now he or she just has to give up. I think this is the nerdiest thing mankind can create, though I’d call my 1L friends getting together, watching horror movies, and playing “spot-the-tortfeasor” a likely second.

Hope you all had a good Halloween, and happy November.

27 October 2008

Even Charlie Brown likes his contract law

Filed under: gdublaw, nerdingout, thecommonlaw — Andy @ 4:13 pm

So here I was, taking a break from the ever-mounting levels of work we 1Ls deal with around finals season to watch the ever-classic It’s The Great Pumpkin, Charlie Brown on the YouTubes care of Paste Magazine’s writeup of the new deluxe edition release. I was thinking “gee, this mindless cartoon will let me take my mind off of the law for about half an hour, before I dive back into it.” How was I to know that not 3 and a half minutes into the special we get a contracts case involving promissory estoppel and statute of frauds!

“It’s a signed document! I guess if you have a signed document in your possession, you can’t go wrong. This year I’m really going to kick that football.” ~ Charlie Brown

So now instead of taking a little cat-nap while watching one of the classics of Halloween, I’m left wondering if Charlie’s got a torts or contracts claim against Lucy for damages suffered in reliance of the promise evidenced by the signed writing. I don’t think the lack of notarization will even matter, and perhaps the statute of frauds does not apply, since this would likely not be a case where the law forces the agreement to be so evidenced.

This winter break is going to be a welcome departure.

24 October 2008

Holy Noir, AFI!

Filed under: huh., laughs, nerdingout, washingtondc — Andy @ 3:45 pm

(DIY Noir)

DCist just gave me the best reason yet to neglect my impending assigning memo for one more weekend.

The American Film Institute Silver Screening Room up in Silver Spring is doing a big film noir series, what they’re calling Noir City, DC from 10/17 through 11/5. This weekend includes showings of Hitchcock’s Strangers on a Train, fellow Farley Granger flick Side Street, They Live By Night, and a handful of other classics. Hardcore stalkers will appreciate the screening of Detour, a movie which we did in our summer movie-watching project, Endless Feature. For showtimes, tickets, and more info, click on the Noir City link above.

Also, for those looking for something a little closer to DC, foreign, and/or free, may I recommend Sunday afternoon’s screening of Criterion classic, Rififi. That’s at the National Gallery right on the Mall. I’m definitely going to try and make that one.

I can’t do a post on noir without mentioning another not-so-recent-but-still-amazing release. The Firesign Theatre, Elder Gods of the absurd-comedy world, have teamed up with Shout Factory! to release Box of Danger: The Complete Nick Danger Casebook. Nick Danger was a faux noir throwback character Firesign used on a number of shows and recordings. He was usually the star of absurd sketches laden with more muddled metaphors and Beatles references than you can shake your happy warm gun at. It’s some of my favorite radio comedy.

Hope to see you Three Stars kids at some of these events. Have a great weekend, from the desk inside the room outside my frosted-glass window: Sralles Ydna. I’m off to wear a classy fedora somewhere.

12 October 2008

“Jurisdiction!”

Filed under: gdublaw, laughs, nerdingout, thecommonlaw — Andy @ 6:07 pm

I know, bad form to post two things within a couple hours of each other, but my friend Meredith sent me this and it warrants posting. She and I and a couple hundred of us here are preparing for our Civil Procedure midterms. Apparently NYU Law students in 2006 had a little fun going over the relevant case history surrounding the elements of in personam jurisdiction. If you are a law nerd, this is hysterical. If you’re not, this is going to make no sense to you and you’re going to find it revoltingly nerdy.

The part where they recreate the accident in World-Wide Volkswagen v. Woodson is killer.

Lyrics below the cut.

(more…)

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