Does Five For Fighting's "Superman" Infringe Angie Aparo's "Seed? (Part 2 of 3)
If accused of copyright infringement (copying Angie Aparo’s “Seed”), Five For Fighting could reply: “We didn’t copy your song.”(That defense should be enough, don’t you think?)Then, someone on the potential plaintiff’s side (lawyer/publisher/manager etc.) could say, “YES you did.”Defendant (Five For Fighting) could reply, “NO we didn’t.”Then, Plaintiff could state, “You HAD to copy it. You COULDN’T have written it any other way.”Then, Defendant could state, “NO. We wrote it without copying. There was no copying. Now, go away.”Plaintiff could bring in an “expert” in music. This expert could state that the defendant stole the song.Defendant could bring in another expert who could state that the Defendant did not copy the Plaintiff.(Now we will drop the conditional auxiliary verb - “could” - as we’ve got a barn-burner of a federal copyright infringement matter here.)Experts for the Plaintiff and Defendant agree to present evidence, and to two (2) nomenclative points:
- Melody is indicated by numerical scale degrees: 1-2-3-4-5-6-7-8
- Time is indicated by a number, decimal point and two-digit number. This configuration is identical to that indicated by an MP3 player or CD player. For example, the indication, “2.31” indicates “two minutes and thirty-one seconds.”
Plaintiff and Defendant agree that the melody in question is:
1-2-3-5
and that 1-2-3-5 occurs at these points:(It is common that there can be slight disagreements as to the exact temporal location of some of the numbers, but these are inconsequential in the determination of copyright infringement in this specific case)Angie Aparo - “Seed”(YouTube: http://bit.ly/Ri53Wr )1.21, 1.24, 1.291.43, 1.542.39,3.25, 3.35, 3.45Five For Fighting - “Superman (It's Not Easy)”(YouTube: http://bit.ly/QlaDHC )0.37, 0.391.12, 1.14, 1.21, 1.232.16, 2.18, 2.25, 2.272.51, 2.53, 3.00, 3.02Plaintiff’s expert touts and further explains his evidence.Defendant’s expert states that the melody in common is not copyrighted because it can be found in many songs written before the Plaintiff’s song.Plaintiffs demand Defendants’ expert witness prove that the melody in question is not copyrighted.Defendant’s expert witness shows that the melody is found in the music of: Bach, Borodin, Brahms, Dvorak, Foster, Guonod, Haydn. Lear, Mendelssohn and Mozart.Plaintiff demands specificity.Defendant specifies:
Bach - Jesu, Joy Of Man’s Desiring (Cantata No. 147)Borodin - Prince IgorBrahms - Piano Concerto No. 1 in D minorDvorak - Sonatina in G for Piano and Violin, Op. 100Foster - Oh, SusannahGuonod - Mors et vitaHaydn - Trumpet Concerto in EbLear - FrasquitaMendelssohn - Piano Concerto in G minorMozart - Piano Concerto in Bb, K. 191
Plaintiff is not impressed and wants Defendant to give them evidence from a song written and recorded in the past 50 years.Defendant says that will be easy and that he can find this simple melody in several popular music styles.Plaintiff feels that the Defendant’s Expert may have gotten himself into a predicament that could easily backfire. Talking too much, and too large, can cause trouble.Plaintiff asks, “can you provide a country song that features 1-2-3-5?”Defendant replies, “yes.”Plaintiff asks, “can you provide a rock song that features 1-2-3-5?”Defendant replies, “yes.”Plaintiff asks, “can you provide a soul/R & B song that features 1-2-3-5?”Defendant replies, “yes.”Plaintiff asks, “can you provide a Brazilian song that features 1-2-3-5?”Defendant replies, “yes.”Plaintiff asks, “can you provide a song recorded in Minnesota that features 1-2-3-5?”Defendant replies, “yes.”Plaintiff asks, “can you provide a song recorded in Iowa that features 1-2-3-5?”Defendant replies, “no.”Plaintiff asks, “can you provide a 17th century popular Persian song that features 1-2-3-5?”Defendant replies, “no.”The Defendant’s expert wasn’t as cocky as Plaintiffs anticipated. But surely there will be enough here to discredit him. We will ask him more tomorrow - hand him more rope.Tomorrow we will end this discussion. Both side are convinced that they are right.