Are drum patterns copyrighted within pop songs?

June 21, 2005 1:19 PM

Are drum patterns copyrighted parts of song compositions? I need a copyright expert or pointers on how to get some free (or cheap) advice from one.

I know that if I record myself and my band performing "Rock Your Body," and put that on a CD and print up a stack of them for sale, I owe Justin Timberlake's music publisher a fee according to a set schedule. My friends have had to show proof of these payments to CD replicator shops in the past.

I also know that if I sample and loop the drums from "Rock Your Body," that it is a completely different issue of licensing (part of) the actual recording.

But what if I get a new drummer to play almost exactly the same beat as Justin's drummer (pretending for a moment that there's an actual drummer on our example recording)? Can I do that with impunity? If it were the chords or the lyrics, no. But I have heard that drums are not covered by the same parts of law.

This is not idle curiosity but a pressing practical issue with thousands of dollars at stake. Thanks for peeking in!

posted by damehex to law & government (14 comments total)

This is not idle curiosity but a pressing practical issue with thousands of dollars at stake.

Well, that's easy, then: Lawyer.
posted by mendel at 1:43 PM on June 21, 2005

IANAL, but I very much doubt you're going to get sued over a rhythmic pattern, unless it's so unique that hearing your song is going to instantly call to mind the other song. I would think that rhythm is a copyrighted part of a song as much as any other element, but rhythm alone isn't usually enough to make a clear case of infringement.
posted by ludwig_van at 1:58 PM on June 21, 2005

do it and don't pay 'em. how are they gonna make you only play a trap kit a certain way?
posted by 31d1 at 2:21 PM on June 21, 2005

IANAL either, but I always thought that only lyrics and/or melody are copyrightable – not rhythm patterns or chord progressions.
posted by timeistight at 2:50 PM on June 21, 2005

I agree you should get a lawyer if thousands of dollars are involved. (and IANAL)

But listening to "Rock your Body" I don't think you're going to run into trouble. The drums sound like pretty generic disco, and people are more likely to think of Donna Summer or Rick James than J. T. when they hear it.

If there's anything really unique about the drums (a peculiar fill or processed sound) avoid duplicating that. If you hire a good drummer they can probably come up with 20 or 30 variations of the same basic beat that they learned long before they ever heard "Rock your Body".
posted by mmoncur at 2:54 PM on June 21, 2005

You might want to read this New Yorker article on the subject, especially the part about the Beastie Boys. Also, what mendel said.
posted by revgeorge at 2:54 PM on June 21, 2005

I immediately think of the lawsuit that Huey Lewis and the News filed against Ray Parker Jr. back in the 1980s. The story goes that Ivan Reitman (director of Ghostbusters) commissioned the band to write a theme song for the upcoming movie. The band declined, so Reitman sought out Parker for the job. Reitman gave Parker a tape of Huey Lewis's "I Want A New Drug" from which Parker allegedly "borrowed"/stole the bass/rhythm line.

When the band discovered the similarity ("They $&@^! ripped us off!" is one quote I remember from a VH1 special on the band) they sued both Reitman and Parker and after ten years they settled out of court with Parker paying the band an undisclosed sum.

In 1985 the band was approached again by Hollywood, this time to write a theme song for Back to the Future. The band accepted the offer, deciding that if Hollywood was going to use their music anyways they should at least be paid for it.
posted by Servo5678 at 3:03 PM on June 21, 2005

There have been lawsuits over "musical compositions" where there is no melody, rhythm or anything.
posted by grouse at 5:02 PM on June 21, 2005

servo: Stealing a bass line is going to be a lot more obvious than stealing just a rhythmic pattern. A bass line is a melody with both pitch and rhythm.

grouse: I don't think that applies here either. In that case, the entirety of the composition was "stolen."
posted by ludwig_van at 8:35 PM on June 21, 2005

Vanilla Ice risked a lawsuit when he sampled "Under Pressure"'s bass line without authorization. Hip-hop and electronica artists have to get every sample cleared -- even tiny three-second samples. It sucks for sample-heavy artists, and it's being fought by folks like the EFF, but that's how it is.

And revgeorge, oh geez, that is the best article I've read all week.
posted by NickDouglas at 9:23 PM on June 21, 2005

Nick, he wasn't asking about sampling anything. That's a different animal.
posted by ludwig_van at 9:54 PM on June 21, 2005

Thanks for the things to read! Will read them tomorrow. I am of course not doing anything with rock yr body, but instead working with a variety of old drums from soul records. Some of them are very much recognizable in the original. The thousands are if I pay as if I were covering the songs in question when I have a drummer make his own tracks inspired thereby. If I don't volunteer to pay, the price is zero. Unless I have some moderate success with the music, at which point I risk a lawsuit (or several).
posted by damehex at 10:06 PM on June 21, 2005

A beat or groove is not copyrightable. Bo Diddly used to feel that he deserved a royalty on any song that used the beat the bears his name, but he never had a real case. It would never stand up in court. (He wasn't the first one to use that beat anyway.)
posted by wsg at 12:16 AM on June 22, 2005

Percussion sections of compositions and performances are indeed copyrighted with the rest of the composition or performance.

However, copyrighting an entire work doesn't give you enforceable rights in the components of the work which are public domain. (The copyright in a romantic comedy doesn't keep you from writing a movie with a very similar boy-meets-girl-loses-girl-wins-girl plot.)

Setting aside performance (you correctly note that you couldn't sample so much as a bar of a recorded drummer's perofrmance without a license), a drum pattern would have to be very distinct and demonstrably original for unlicensed reuse in a new composition to give rise to a winning infringement action.

My guess is that it would have to be a multi-bar section of a famous composition in which the drumming was or became the center of attention -- the eight-bar drum break/drum solo that Phil Collins "In the Air Tonight" is an example of something you probably couldn't reuse in a composition without license.
posted by MattD at 5:51 AM on June 22, 2005