The video is absolutely worth watching, but one of the more relevant bits is this:
> [...] in Dark Horse it's just the background texture for one of the verses. It has the same musical function as a chord progression or a drum groove: it serves to highlight the melody but it's not the song itself. Up until this point it seemed like only melodies could be copyrighted in the composition of song, however the recent court decisions surrounding Robin Thicke's Blurred Lines and Marvin Gaye's Got To Give You Up has thrown all of this into question.
> This is why the lawsuit demanded a trial by jury: because they wanted to confuse non-musician non expert jurors with fancy music theory jargon.
He also specifically calls out the expert witness, saying:
> You're doing it in a fairly intellectually dishonest manner because I sincerely doubt you would make the arguments that you made in court at [an] academic conference for example, or you wouldn't write them down in a scholarly article, because your academic peers would absolutely eviscerate you for saying some of those things -- and yet in front of a jury of your peers you said them.
I don't understand why a Jury of Peers [1] wouldn't be comprised of domain experts and not just random people off the street. And it seems like having domain knowledge is likely to get one NOT selected for jury duty. Can any lawyers chime in on this (even armchair hn lawyers)?
Juries are completely inappropriate tools for the job of deciding civil trials. Like lots of things that are crazy in the US the Americans did it as a perverse imitation of how England did it back when they became independent.
Today nobody else does this, England for example only really uses jury trial to decide serious criminal cases (for minor stuff there isn't a professional judge at all, a panel of lay magistrates decides, they mostly seem disappointed rather than angry - like parents whose teenager was caught smoking).
Ummmm..... the Magna Carta was not about protecting the commoners from the king. It was about protecting the peerage from the king. "Jury of peers" is a jury of other members of the peerage trying a peer. Commoners were not part of the program.
The standard of "substantial similarity" in copyright law depends not on how an expert would see things, but on how a reasonable average person would see things. Juries are not perfect, but a jury of random people is probably the most qualified way to determine the question "would average people see these two things as substantially the same."
Leonard French—a YouTuber and actual copyright attorney—does a good job covering the legal standards and issues here: https://youtu.be/t-tsw6Z4eHc.
> a jury of random people is probably the most qualified way to determine the question "would average people see these two things as substantially the same."
A jury of random people can be confused and then convinced by lawyers. That's the way they like it, and that's the problem with jury selection - they chose people specifically because they are not knowledgeable.
Juries are supposed to apply “common sense” as well as evaluate the veracity of testimony. If expert domain knowledge is necessary, expert witnesses will be called to present it. Experts on a jury are a problem because they will essentially provide alternate evidence outside the public court procedure (jury proceedings are secret), and because their expertise is not subject to challenge by the other side. (Imagine the Dunning-Kruger effect in a jury setting.)
But most of the people listening to his arguments are also not experts. I’d rather see him arguing with an expert who could have counter arguments. I’d like to believe him but right now I have to take his word for it.
The whole channel really. If you ever felt like taking something apart to see how it works, in some of his videos he does that with songs. I didn't know people had access to stems of popular songs. And then there's music theory. It's like neuroscience. You push some piano keys (or what have you) and certain feelings appear. It's like programming but your whole work is presented to the user and there are no security issues. Really fun stuff.
The "prior art" from 1984 he mentions is radically different in the note pattern used which alone defeats that entire line of argument. Similarly, reaching back to classical music to talk about modern synth beats is a red herring. All he succeeded in doing here was showing that there wasn't actually prior art.
He does a bit on how the pagan aspects of the lyrics and video are irrelevant, but proving harm is crucial to a legal case. If the music is indeed copyrighted, then he could easily be harmed by the associations that would negatively affect his own song (and most in the US would recognize pagan themes as decidedly at odds with Christian ones).
The final blow is recognition and feel. A huge number of people would recognize Dark Horse exclusively by the playing of that short set of notes much as they could instantly recognize Billie Jean by its opening rift (or any number of other songs). This alone indicates that the notes in question are more than superficial.
Likewise, would the song have been successful without their support? It's doubtful as they try to add a crucial layer of sound over the otherwise very drab and forgettable (if not outright distasteful) melody.
If the notes are derivative and add substantially to the new work, then there is a case here.
EDIT: I say this as someone who doesn't like the current copyright system (either its interpretation or length)
>The "prior art" from 1984 he mentions is radically different in the note pattern used which alone defeats that entire line of argument.
It's not radically different at all. I'm a musician, but even for a lay person, this is as close as it gets without it being 100% the same.
>Similarly, reaching back to classical music to talk about modern synth beats is a red herring.
This doesn't even make sense. It's like saying that referring to a 18th century invention to invalidate a 2019 patent is a red herring. Music is music.
>The final blow is recognition and feel. A huge number of people would recognize Dark Horse exclusively by the playing of that short set of notes much as they could instantly recognize Billie Jean by its opening rift (or any number of other songs). This alone indicates that the notes in question are more than superficial.
No, it only indicates that these persons have a limited repertoire.
Jumping UP an entire FIFTH is hardly the same as dropping DOWN a single NOTE then dropping down another single note. In what world are these two even remotely similar?
> This doesn't even make sense. It's like saying that referring to a 18th century invention to invalidate a 2019 patent is a red herring. Music is music.
Point out even one classical music piece were any instrument is used even remotely similarly to how this piece ties together the song. It does not exist. Trimming out a few similar notes used in an entirely different manner for an entirely different effect is like saying Picasso and Rembrandt are similar because they use similar lines and curves.
> No, it only indicates that these persons have a limited repertoire.
Copyright exists for the general public (as stated in the US constitution). If you need an expert to tell you two pieces of music seem to be similar, but actually are not, then there's probably something wrong.
>Point out even one classical music piece were any instrument is used even remotely similarly to how this piece ties together the song. It does not exist.
Actually tons of classical pieces depend on a key motif by a particular instrument...
>Copyright exists for the general public (as stated in the US constitution).
The US constitution is wrong: copyright as it stands exists for fat company executives.
Well where the hell was this guy when Perry's team was building their defense? It's apparent what his position is, but he presents well, sounds sincere, and AFAICT has better evidence.
I like Adam Neely, but Leonard French is an actual copyright attorney. He meanders a bit, but does a good job explaining the law here, including why this decision is narrower and more defensible than a lot of musicians might think.
> [...] in Dark Horse it's just the background texture for one of the verses. It has the same musical function as a chord progression or a drum groove: it serves to highlight the melody but it's not the song itself. Up until this point it seemed like only melodies could be copyrighted in the composition of song, however the recent court decisions surrounding Robin Thicke's Blurred Lines and Marvin Gaye's Got To Give You Up has thrown all of this into question.
> This is why the lawsuit demanded a trial by jury: because they wanted to confuse non-musician non expert jurors with fancy music theory jargon.
He also specifically calls out the expert witness, saying:
> You're doing it in a fairly intellectually dishonest manner because I sincerely doubt you would make the arguments that you made in court at [an] academic conference for example, or you wouldn't write them down in a scholarly article, because your academic peers would absolutely eviscerate you for saying some of those things -- and yet in front of a jury of your peers you said them.