What is the minimum number of notes in a song/melody for it to by copyrighted?

February 12, 2005 10:46 PM

Copyright law questions; what is the minimum number of notes in a song/melody for it to by copyrighted? Is there anything stopping you from using a computer to generate all the possible combinations of melodies of that lenght and then using some ai (or people distributed over the internet), to filter out all the non-horrible and already existing ones, and then copyrighting the rest? Thereby owning almost all future music?
posted by Iax to law & government (27 comments total)

I'm no copyright scholar, but wouldn't that not live up to the "creativity" requirement of copyright? You could copyright the program that wrote the music, but if all it did was use an algorithm to output data according to rules, what creative input would you have had in the creation of that music?

Also, you would probably somehow have to make sure that you weren't accidentally claiming copyright on somebody else's already-copyrighted music, which would be real hard to do. You'd probably get sued.
posted by Hildago at 10:52 PM on February 12, 2005

Minimum number of notes to be copyrighted? I believe it's 8. I heard Stephen Schwartz speak on writing the music for the hit Broadway musical Wicked on how he would borrow some tunes from The Wizard of Oz, but only 7 notes, because that's the limit to avoid copyright issues.
posted by ThePinkSuperhero at 11:02 PM on February 12, 2005 [1 favorite]

You might be interested in this... A few years ago, there was a funny case about silence falling under copyright.

Though had the guy not jokingly included John Cage's name as a cowriter on a track of silence he probably would have got away with not paying royalties to his estate.
posted by bobo123 at 11:28 PM on February 12, 2005

I think this has actually been done -- or done for some reasonable subset of notes over a certain number of measures. I can't come up with specifics via Google off the top of my head or find my notes from the computer assisted composition course I took back in 1995, but the idea was being discussed back then.
posted by weston at 12:05 AM on February 13, 2005

If a new instrument were to be invented today, the sound it makes would be copyrighted within a week. Copyright law as it stands right now means that you can copyright nearly anything that nobody else has a copyright on and isn't public domain. Sometimes, even that doesn't stop people.
posted by Saydur at 12:16 AM on February 13, 2005

Science fiction writer Spider Robinson ponders this question in his Hugo Award winning (1983) short story "Melancholy Elephants", which can be found in the collection By Any Other Name, several stories in which are available (ironically?) without cost courtesy of the Baen Books (although it's not part of the Baen Free Library).
posted by orthogonality at 12:36 AM on February 13, 2005

You can't copyright an idea. You can protect a produced work.

Unless your AI composes and performs a (practically infinite) set of a priori uncomposed melodies, and you somehow publish these works, you wouldn't own anything to defend in court.

Cage's 4'33" was protected because it was performed, literally.
posted by AlexReynolds at 12:45 AM on February 13, 2005

In the USA there was a court case that found NWA guilty of using 3 notes of a guitar riff from Funkadelic's "Get off Your Ass and Jam" for their song "100 Miles and Runnin'". On the other hand (as an example), jayz freely gives out free samples of his black album to remix/sample. I would guess it would depend on the artists you chose to sample from.
posted by squeak at 1:50 AM on February 13, 2005

The NWA case involved violation of the copyright in a sound recording, as opposed to a musical composition. If NWA had themselves performed a melody which they composed and which included those three notes (as opposed to a recording of Funkadelic playing those three notes), there would almost certainly not have been a violation.
posted by leecifer at 6:37 AM on February 13, 2005

As AlexReynolds says, wouldn't you have to publish them as music for the copyright to take effect? Otherwise you take any new song, and claim that you'd thought of it first.
posted by carter at 7:48 AM on February 13, 2005

what is the minimum number of notes in a song/melody for it to by copyrighted?

There is no minimum number of notes, in theory. However, there is an originality requirement. Just as you can't copyright individual words, you cannot copyright individual notes or chords, unless you have a good argument that you have done some sort of incredible Terry Riley/John Cage creative thing with just one or two notes.

Is there anything stopping you from using a computer to generate all the possible combinations of melodies of that lenght

Assume a 12-tone scale. Assume up to three notes can be played simultaneously to form a chord. Assume a combination of three notes or chords is safely within the originality requirement.

There are 220 possible chords of three notes from the 12 tone scale, plus 66 chords of two notes, and 12 single notes, for a total of 298 possible choices for each of the three note spaces. 298^3 = 26463592. The nonrefundable filing fee for a musical composition is $30. Assuming your legal theories are valid, (and that three-note assumption is a BIG stretch), you're out $793,907,760 in filing fees alone.

and then using some ai (or people distributed over the internet), to filter out all the non-horrible

If you can develop AI that can determine what music humans think is horrible or non-horrible, then make your millions off that invention, not this scheme.

and already existing ones,

With human beings producing music for a good 10,000 years, this is going to be a large body.

Thereby owning almost all future music?

The "thereby" does not follow. If someone else comes along and writes a three-minute song that incorporates one of your 26,463,592 copyrighted combinations, all they have to do to avoid infringement is prove that they applied some of their own originality to your pre-existing work and thereby created a wholly new creative work.
posted by profwhat at 8:29 AM on February 13, 2005

According to a recent article in the New Yorker, there was a critical number of notes. It was mentioned in regard to Andrew Lloyd Webber. The author then went on discover that Webber had cribbed the melody from an even earlier piece, refuting the argument that he stole it. I can't find which issue it was, and I can't find it online.
posted by Jack Karaoke at 8:57 AM on February 13, 2005

The difficult part would be "to filter out all the non-horrible and already existing ones". You might as well copyright the horrible and non-horrible ones alike, but there's no easy way to find out whether a given tune is subject to someone's copyright.

you're out $793,907,760 in filing fees alone.

You would simply copyright the whole thing at once, not each bit seperately. Covering simple melodies, no chords involved, would be computationally feasible. I estimate that to cover most musically reasonable 8-note sequences would take less than a terabyte of large midi files. If you had an algorithm that could generate only the kind of stuff likely to sound good in popular music, probably much less.

all they have to do to avoid infringement is prove that they applied some of their own originality to your pre-existing work and thereby created a wholly new creative work.

I don't think it's as simple as that. I don't know how it is exactly, but given some of the cases I've heard about, I'm quite sure it's not as simple as that. Deciding what is and is not a "derivative work" is ... complicated. Some discussion here.
posted by sfenders at 9:03 AM on February 13, 2005

Elastica got sued by Wire over the song "Connected," which had a guitar line of five notes (you know the song--dum duh dum dum dum, duh dum dum dum). Wire's song "Three Girl Rhumba" used the same guitar line. They ended up settling out of court.

profwhat, all I can say is bravo.
posted by goatdog at 9:07 AM on February 13, 2005

I leanred this very thing in my Music Industry classes in school. Basically it boiled down to the fact that there used to be a minimum number of notes (the exact number escapes me), but now you can in theory be sued for ONE note if you can show intent to copy. Of course, this is nearly impossible to do with one note, so there is no minimum...only what you can convince a judge of intentional duplication. Or something like that.
posted by rooftop secrets at 10:13 AM on February 13, 2005

In the UK there was a case a few years ago (I don't remember which one), and one of the thing I remember hearing on the news is that the prosecution (or whatever) had to prove there was a reasonable chance the defendant had heard the original. That would be hard given the potential length of your program's output.
posted by cillit bang at 10:58 AM on February 13, 2005

I'm having *no* luck finding more info today, but wasn't there some hullaballoo a couple of years back on the internets about some Australians who'd decided to copyright all possible combinations of phone number tones?
posted by kimota at 11:43 AM on February 13, 2005

You would simply copyright the whole thing at once, not each bit seperately.

"Your honor, the opening line of 'Baby One More Time' has a three note sequence that appears approximately 24,567,231 notes into my 79,390,776-note copyrighted musical work. The horror! Obviously, they copied me, because no one could independently derive those notes. And they added nothing to it at all, either. So, make them pay up. Ha-ha!"

Look, the point is that the copyright system is run by humans with judgment and the capacity to apply rules sensibly. You can't hack law the same way you hack code. If anyone were to ever actually attempt to copyright a 79,390,776-note musical work, and then have the gaul to sue anyone else who wrote any other musical work that happened to contain three of those three notes, they would lose. And that is true even if no lawyer can currently point you to the statute, regulation, or case that says they would lose: no judge is ever going to say, "Wow! Cool! you now own all music that can be composed in the future!"
posted by profwhat at 1:20 PM on February 13, 2005

There are no "magic numbers" in terms of notes and determining what may or may not be infringement. There may have been some "unwritten rules" from various record companies, but since the length of any given work can fluctuate from 1 second of silence to an hour of white-knuckle guitar rawk, it really boils down to intent and whether the chord (note, sample, etc.) can be distinguished as being from an original work.

Or as is more succinctly said here:

How much of someone else's work can I use without getting permission?
Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances. See FL 102, Fair Use, and Circular 21[warning:pdf], Reproductions of Copyrighted Works by Educators and Librarians.
posted by lilnemo at 1:30 PM on February 13, 2005

Your question is what is the minium number of notes to have something copyrighted.

The answer is none.

Any original works of authorship fixed in any tangible medium of expression can be copyrighted.

That could technically be as short as anything you could do originally if you write it down. That's it. It just has to be written down (or recorded) and be original.

The problem is that there are are a finite number of notes (I'm a lawyer and not a musician, so I don't know what that number is). With a finite number of notes, you have the problem of most permutations not being "original"---they have been done before. But, as a technical matter, you could have a copyright of one note played by a particular thing. So, you could copyright "E minor" played by an electric washboard broadcast through a bullhorn in a vaccum chamber. It would be original and fixed in a tangible medium.
posted by dios at 2:54 PM on February 13, 2005

The problem is that there are are a finite number of notes (I'm a lawyer and not a musician, so I don't know what that number is).

12, using the standard western system.

All of these discussions of pitches, however, ignore the other fundamentals of music - rhythm and timbre, which create astronomically many more possible variations.

The premise of this question is basically impossible.
posted by ludwig_van at 3:33 PM on February 13, 2005

More than 12 actually. Since intervals are what matter to this question, you technically have more than 12 possibilities in each direction. But only a relatively small set of them would be commonly used. There are a finite number of commonly-used rhythms, too.

I was figuring 32 total possibilities for each note, which I think would be enough to cover the majority of music that's been written. If you figure 128 possibilities for each note, enough to cover 16 intervals and 8 note durations, that's still only 300 terabytes of data, plus whatever encoding overhead.

So, anyway, yes I think that is possible.

When using a substantial portion of a tune, using a different instrument, or a different key does not usually get you out of copyright trouble.

the copyright system is run by humans with judgment and the capacity to apply rules sensibly.

I'm not sure if they're all that sensible, but yeah, any judge would easily find a way to rule against anyone who tried to "own" all possible music if it came to that.

However... publishing a 6000-petabyte archive of "music" could still be fun, legally speaking. Declare its contents to be in the public domain. What then happens to future copyright claims on something that was previously published in this archive?
posted by sfenders at 4:23 PM on February 13, 2005

More than 12 actually. Since intervals are what matter to this question, you technically have more than 12 possibilities in each direction. But only a relatively small set of them would be commonly used. There are a finite number of commonly-used rhythms, too.

I'm not sure what you're saying. There are 12 chromatic pitches, and different intervals are yielded by different juxtapositions of those pitches. Which rhythms are "common" is irrelevant.
posted by ludwig_van at 4:52 PM on February 13, 2005

12 times however many octaves. For intervals, I'd say there's a melodically useful range of about 16 semitones up or down ... which, coincidentally, is exactly the distance my hand can reach on a piano.
posted by sfenders at 5:29 PM on February 13, 2005

I thought once you published something it was automatically under copyright?

And for publishing couldn't you just use the internet. Then there would be the possibility that any new composers just derived their work from your site.
posted by Iax at 8:50 PM on February 13, 2005

12 times however many octaves. For intervals, I'd say there's a melodically useful range of about 16 semitones up or down ... which, coincidentally, is exactly the distance my hand can reach on a piano.

I'm not trying to be overly contentious here, but your "melodically useful" qualification for melodic range is not very meaningful. In classical repertoire, it's true that melodies don't tend to jump around wildly, but very wide intervals in melodies is a distinctive feature of 20th century music. See also: pointillism.
posted by ludwig_van at 9:24 PM on February 13, 2005

This is an interesting topic and caught my eye. My friends and I, within the last three or so days, were discussing this exact idea. Except it dealt with samples, which could be argued as notes, and how short they had to be.

The argument boiled-down to the ability of the original copyrighter/artist/producer/etc. being able to recognize said sample.

But, the argument breaks down at some point because there is probably a lowest-threshold point which a sound is indistinguishable from a pure tone. This probably also varies from person to person. My friends and I agreed this would be the most "fair" in a scientific way.

However, I found this which describes the court cases that squeak referred to above. I find this to be very unfortunate.

Whats interesting is that in that article, the original court that tried the aforementioned case stated that it "did not rise to the level of legally cognizable appropriation" which was the most common sense judgement, in my opinion.
posted by Vicarious at 11:31 PM on February 13, 2005