In 3 Stooges Case, Justices Take Role of Art Critics
Stu Mark
In 3 Stooges Case, Justices Take Role of Art Critics
Ruling upholds license fees unless celebrity depictions show 'significant'
creativity. It may have wide 1st Amendment effects.
By MAURA DOLAN, Times Legal Affairs Writer
SAN FRANCISCO--The California Supreme Court ruled Monday that an artist
is required to pay licensing fees to depict a celebrity unless the art
contains "significant creative elements."
The ruling, in a lawsuit filed by the heirs of the Three Stooges, sets
up a novel legal test for determining when artwork is commercial
exploitation and when it is protected by the 1st Amendment. Experts said the
case is likely to influence courts across the nation and may force judges to
become art critics.
In deciding what is truly art, a judge must determine whether it
contains enough creativity to "be transformed into something more than a
mere celebrity likeness or imitation," the high court said.
The unanimous decision stemmed from a case brought by the Stooges'
heirs against a Los Angeles artist who reproduced charcoal drawings of the
slapstick comics on lithographs and T-shirts.
The drawings by Gary Saderup are not protected by free speech rights
because they are "a literal, conventional" depiction of Moe, Larry and
Curly, the court said, and only their heirs have the right to sell the
comics' images.
The test established by the court represents an attempt to balance the
free speech rights of artists against the rights of the famous to make money
from their images. But several experts said the test may be difficult to
apply.
"It forces the court to become an art critic," said UC Berkeley law
professor Stephen Barnett. "Andy Warhol makes it and Gary Saderup doesn't."
The test requires "a lot of very subjective line-drawing," said
Whittier Law School professor David S. Welkowitz, who wrote a brief on
behalf of Saderup. "For example, suppose Mr. Saderup had used odd colors in
the background to outline his figures. Would that have been significantly
transformative?"
Monday's decision gave both sides in the case some satisfaction. For
the first time, the California high court has recognized the legitimacy of a
1984 state law that gave celebrities and their heirs ownership rights to
their images for 70 years after death.
Saderup had argued that the law applied only to the use of celebrities'
images in advertising, endorsements and sponsorship. The court said the law
can also cover artwork.
At the same time, the court said artwork depicting a celebrity is not
subject to the law merely because it is mass-produced as posters or T-shirts
or sold for profit.
Creations also do not automatically lose 1st Amendment protection
because they are intended to entertain rather than inform or because they
contain no discernible message.
Even poor artwork is protected by free speech rights, the court said,
and celebrities can be lampooned and parodied.
"Because celebrities take on personal meanings to many individuals in
the society," Justice Stanley Mosk wrote for the court, "the creative
appropriation of celebrity images can be an important avenue of individual
expression."
Though famous people have no right to censor disagreeable portrayals,
they do have the ability "to prevent others from misappropriating the
economic value generated by the celebrity's fame through the merchandising
of the 'name, voice, signature, photograph or likeness,' " Mosk continued.
The justice admitted that it was not a simple matter to determine the
often subtle distinction between what is and what is not protected by free
speech rights.
A product that derives its value primarily from the celebrity's fame is
not protected, he wrote. When the value of the work stems principally from
the artist's skill, creativity and reputation, it is protected.
"We do not hold that all reproductions of celebrity portraits are
unprotected by the 1st Amendment," Mosk wrote. "The silk screens of Andy
Warhol, for example, have as their subjects the images of such celebrities
as Marilyn Monroe, Elizabeth Taylor and Elvis Presley.
"Through distortion and the careful manipulation of context, Warhol was
able to convey a message that went beyond the commercial exploitation of
celebrity images and became a form of ironic social comment on the
dehumanization of celebrity itself."
The court, describing Saderup's portrait of the Stooges, said "his
undeniable skill is manifestly subordinated to the overall goal of creating
literal, conventional depictions of the Three Stooges so as to exploit their
fame."
Saderup said he has not yet decided whether to appeal the decision to
the U.S. Supreme Court.
"It is unfortunate that an artist such as myself is labeled uncreative
by the Supreme Court for skillfully capturing the spiritual essence of his
subject," Saderup said Monday. "This is what I have tried to do all my
life."
Saderup, who made about $75,000 from the sale of Stooges posters and
T-shirts, said his rendition of the Stooges was not a mere photocopy of
their likenesses.
Saderup attended Pasadena's Art Center College of Design and sells his
work in kiosks and shopping centers across the nation. He has sold drawings
of more than 100 famous people, including Albert Einstein and John F.
Kennedy.
Edward C. Wilde, who represented Saderup in the case, said the test
established by the court will chill free speech.
"When determining the value of art is so difficult for 'experts,' we
fail to see how judges will have the ability to know art 'when they see it,'
" Wilde said. "This portion of the decision should be of great concern to
the public."
Robert N. Benjamin, an attorney for the Stooges' heirs, said the
court's new test will create a lot of litigation but "it's something that
heirs and celebrities and artists can live with."
"We know that there are going to be opportunists who try to use the
opinion to improperly use celebrity images," he said. But all a court must
do is determine whether a product was purchased because of the celebrity or
because of the nature of the work, he said.
"If the consumer goes into the store and sees the product with the
celebrity image, why does the consumer want to buy it?" Benjamin said.
Consumer surveys and expert testimony can provide a court with the answer,
he said.
He called the "transformative test" established in Comedy III vs.
Saderup, S076061, " a totally new creation" that will be cited in cases
across the country.
"It is not something that I have ever seen before," said Benjamin, an
intellectual property rights lawyer and the stepson of Curly Joe Derita, who
was the third replacement for the original Curly.
Unless Saderup appeals to the U.S. Supreme Court, he will have to turn
over his profits from the Stooges work to the heirs and pay their legal
fees.
The heirs, including Benjamin, operate a Web site that sells Stooges
memorabilia, including charcoal portraits. Had Saderup approached the heirs
for a license, he probably would have been given one, Benjamin said.
In such cases, the artist typically pays a royalty of 10% of sales,
Benjamin said.
The legal doctrine at issue in the case is called the right of
publicity. It is intended to protect entertainers, athletes and other famous
people whose likenesses have a commercial value.
At least 17 states, including California, have laws that specifically
give celebrities legal control over their likenesses. California's law
exempts original works of art, news publications, books, music, radio and
television and movies.
Courts across the country have issued mixed rulings in right of
publicity cases, although the trend has been to favor celebrities' property
rights.
In one case won by an artist, a federal trial judge ruled against Tiger
Woods after he sued a painter who had sold a limited number of prints of the
golf pro. That case is now before the 6th Circuit Court of Appeals, which
covers portions of the Midwest.
Michael Gula
> In 3 Stooges Case, Justices Take Role of Art Critics
Having judges make judgments about art is nothing new. After
all, they have to decide how many elements Michael Bolton can
take from an Isley Brothers song (which he says he never heard)
before it becomes copyright infringement, or whether it's OK for
George Harrison to change "doo lang doo lang" into "Hare
Krishna."
(By the way, isn't it obvious that "A Little Green Rosetta" is
ALSO derived in part from "He's So Fine"?)
David Blumenstein
>
> http://www.latimes.com/news/state/20010501/t000036691.html
>
> In 3 Stooges Case, Justices Take Role of Art Critics
>
> Ruling upholds license fees unless celebrity depictions show 'significant'
> creativity. It may have wide 1st Amendment effects.
This makes me want to throw up and hurt people.
--
David Blumenstein
Cartoonist
http://www.nakedfella.com/
Biffy the Elephant Shrew
wrote:
>(By the way, isn't it obvious that "A Little Green Rosetta" is
>ALSO derived in part from "He's So Fine"?)
Equally as obvious as "Cosmik Debris" being an anti-abortion screed and
the entire _Over-Nite Sensation_ album being about drugs.
Your pal,
Biffy the Elephant Shrew
http://www.mp3.com/michaelpdawson
http://members.aol.com/biffyshrew/biffy.html
"The government has fallen into the hands of the potatoes."
--Erik Satie, 1918
Biffy the Elephant Shrew
<stu...@earthlink.net> wrote:
>Saderup had argued that the law applied only to the use of celebrities'
>images in advertising, endorsements and sponsorship. The court said
"Ooh, a wise guy, eh?"
Michael Gula
>
> In article <3AEF6A03...@erols.com>, Michael Gula <mike...@erols.com>
> wrote:
>
> >(By the way, isn't it obvious that "A Little Green Rosetta" is
> >ALSO derived in part from "He's So Fine"?)
>
> Equally as obvious as "Cosmik Debris" being an anti-abortion screed and
> the entire _Over-Nite Sensation_ album being about drugs.
Oh come on, Biffy! Are you going to FORCE me to prove it?
Think it over.
ii7 - V7- ii7 - V7 - I
ii7 - V7- ii7 - V7 - I
A Little Green Rosetta
(Hare Krishna)
A Little Green Rosetta
(Hare Krishna)
A Little Green Rosetta
(Krishna Krishna)
A Little Green Rosetta
(Hare Hare)
You'll Make a muffin betta
(Hare Rama)
Make a muffin betta
(Hare Rama)
With a Green Rosetta
(Rama Rama)
With a Green Rosetta
(Doo Lang Doo Lang Doo Lang)
Well?
Biffy the Elephant Shrew
wrote:
>Biffy the Elephant Shrew wrote:
>>
>> In article <3AEF6A03...@erols.com>, Michael Gula <mike...@erols.com>
>> wrote:
>>
>> >(By the way, isn't it obvious that "A Little Green Rosetta" is
>> >ALSO derived in part from "He's So Fine"?)
>>
>> Equally as obvious as "Cosmik Debris" being an anti-abortion screed and
>> the entire _Over-Nite Sensation_ album being about drugs.
>
>Oh come on, Biffy! Are you going to FORCE me to prove it?
>
>Think it over.
>
>ii7 - V7- ii7 - V7 - I
Oh for crying out loud. You're saying "Rosetta" is derivative of "He's So
Fine" because they're both based on the ii-V-I progression? I think that
progression just may have been used elsewhere before either song. The
*tunes* are not at all similar, as they focus on different degrees of the
scale.
>A Little Green Rosetta
>(Hare Krishna)
Hare Krishna? If you're going to bring "My Sweet Lord" into the equation,
although it has a nearly identical melody to "He's So Fine," the MSL chord
progression is different. Instead of holding on the I, it goes I - vi - I - vi
-
I - iib-7. That doesnt match ALGR.
Michael Gula
>
> In article <3AF20819...@erols.com>, Michael Gula <mike...@erols.com>
> wrote:
>
> >Biffy the Elephant Shrew wrote:
> >>
> >> In article <3AEF6A03...@erols.com>, Michael Gula <mike...@erols.com>
> >> wrote:
> >>
> >> >(By the way, isn't it obvious that "A Little Green Rosetta" is
> >> >ALSO derived in part from "He's So Fine"?)
> >>
> >> Equally as obvious as "Cosmik Debris" being an anti-abortion screed and
> >> the entire _Over-Nite Sensation_ album being about drugs.
> >
> >Oh come on, Biffy! Are you going to FORCE me to prove it?
> >
> >Think it over.
> >
> >ii7 - V7- ii7 - V7 - I
>
> Oh for crying out loud. You're saying "Rosetta" is derivative of "He's So
> Fine" because they're both based on the ii-V-I progression? I think that
> progression just may have been used elsewhere before either song. The
> *tunes* are not at all similar, as they focus on different degrees of the
> scale.
The phrase "so fine" and the word "Rosetta" both utilize the 3rd
and 2nd degrees of the scale ("me" and "re") in substantially the
same manner. That's two notes out of three -- greater than
one-half. And observe that, when the chord progression resolves
to the tonic, both melodies come to rest on "do." There are SEVEN
DIFFERENT NOTES in the scale and no fewer than THREE of those
notes would be a natural resolution to the preceding cadence.
Could it be MERE COINCIDENCE that the melodies in both of these
compositions come to rest on "do" after that cadence?
And as for the chord progression ii - V - ii being also used in
other songs. Mr. Zappa himself testifies IN HIS OWN BOOK that a V
chord moving to a ii chord is not the normal practice in music
composition, yet BOTH of the aforementioned songs (as well as "My
Sweet Lord") make liberal use of this very same UNUSUAL
configuration. COINCIDENCE? How likely a coincidence can this be?
> >A Little Green Rosetta
> >(Hare Krishna)
>
> Hare Krishna? If you're going to bring "My Sweet Lord" into the equation,
> although it has a nearly identical melody to "He's So Fine," the MSL chord
> progression is different. Instead of holding on the I, it goes I - vi - I - vi
"My Sweet Lord" *must* be brought into the equation, inasmuch as
a New York District Court held that the similarities between "My
Sweet Lord" and "He's So Fine" were so great (essentially being
the same song with different words) that George Harrison was
found guilty of plagiarism! If A is essentially B and B is
essentially C, then A is essentially C.
Certainly there are distinctions to be made between "He's So
Fine" and "A Little Green Rosetta," just as there are ALSO
distinctions to be made between "My Sweet Lord" and "He's So
Fine." Those differences, however, do not rise to the level of
negating the derivation. If it can be demonstrated (as it CAN be
demonstrated) that the degree of distinction between those two
songs is roughtly equivalent to the degree of distinction between
"My Sweet Lord" and "A Little Green Rosetta," a strong argument
is thereby made for the derivation of "A Little Green Rosetta"
from "He's So Fine."
Ladies and Gentlemen of the Jury, I charge you to pay the utmost
attention to the evidence. You may find it shocking -- yes,
disturbing. But you must not shirk your responsibilty to
impartially weigh EVERY relevant fact in the discharging of your
sacred duty.
Lewis R. Saul
> Ladies and Gentlemen of the Jury, I charge you to pay the utmost
> attention to the evidence. You may find it shocking -- yes,
That was Michael Gula dressed up like Clarence Thomas giving legal advice to
an elephant shrew...
Michael IS flipping out -- we've gotta get him back to normal before
Vladimir finds out and makes him do it on an N&C page...
JUST GET OUT OF THIS PROFESSION!
What can I say about these seven notes?
waaaaaaaaaaaaaa....
Biffy the Elephant Shrew
<mike...@erols.com> wrote:
>The phrase "so fine" and the word "Rosetta" both utilize the 3rd
>and 2nd degrees of the scale ("me" and "re") in substantially the
>same manner. That's two notes out of three -- greater than
>one-half.
I will concede that these isolated words do indeed use the second and third
degrees of the scale in the manner described; yet this is only an isolated
detail taken out of the context of the overall shape of the melodic phrases
involved. And even so, by your own admission these details themselves
are only 67% similar! The "He's So Fine" phrase is a purely descending line,
followed by a distinctive answering "hook" from the backing vocalists. The
"A Little Green Rosetta" phrase is characterized by the wide *ascending*
leap of a seventh with which it begins. There is no "answering" vocal at
all; although there is the vibraphone phrase between the vocal lines, which
moves by skips and bears no similarity at all to the tightly constricted
"doo-lang" melody. No reasonable person could suppose that one of these
melodies was "borrowed" from the other.
>And observe that, when the chord progression resolves
>to the tonic, both melodies come to rest on "do." There are SEVEN
>DIFFERENT NOTES in the scale and no fewer than THREE of those
>notes would be a natural resolution to the preceding cadence.
>Could it be MERE COINCIDENCE that the melodies in both of these
>compositions come to rest on "do" after that cadence?
Please try to be serious. Coming to rest on the keynote (both of the
chord and of the tonality of the composition as a whole) must be the
commonest melodic motion in all of tonal music. No causal relationship
can reasonably be inferred between the Chiffons' and Zappa's use of such
a universal practice. It's like observing that both performers inhale
before singing. Such frivolous citations can only serve to undermine your
case, which is precarious enough already.
And even if the use of the "do" or keynote when resolving to a I chord were
significant enough to be worth examining, the different ways the two
songs approach this point--wailing ecstatically in a high register in "He's So
Fine" versus drooping stepwise onto the lower octave in "A Little Green
Rosetta"--renders it inconceivable that the latter could possibly be
"derived" from the former.
>And as for the chord progression ii - V - ii being also used in
>other songs. Mr. Zappa himself testifies IN HIS OWN BOOK that a V
>chord moving to a ii chord is not the normal practice in music
>composition, yet BOTH of the aforementioned songs (as well as "My
>Sweet Lord") make liberal use of this very same UNUSUAL
>configuration. COINCIDENCE?
You are putting words in Zappa's mouth: he did *not* state that this
progression was "not the normal practice in music composition." Nor would
it be true if he had. I quote from one of the most respected of harmony
textbooks, Walter Piston's _Harmony_, "Table of Usual Chord Progressions":
"V is followed by I, sometimes VI or IV, less often by III or II"
V-ii, though not the commonest of the movements from V, is still a USUAL
chord progression, contrary to your claim above.
Furthermore, the song cited by Zappa as being interesting for using the
V-ii progression is "Little Deuce Coupe," not "He's So Fine." Zappa could
hardly have been unaware of "He's So Fine"--it was roughly contemporary
with "Little Deuce Coupe" (entering the charts in March 1963, while "Little
Deuce Coupe" followed six months later), but was much more popular,
spending four weeks at #1 (a feat eerily duplicated seven years later by
"My Sweet Lord") while "Little Deuce Coupe" never rose higher than #15.
If Zappa felt that the earlier song was interesting in the same way as the
later one, why would he cite the later one in his book as being an "exciting"
development? Obviously it was not *just* the fact that a V chord was
followed by a II chord that excited Zappa--as per Piston's expert
testimony, this is a "usual" chord progression--but that this progression
leads to a chorus-closing cadence on I, thus retaining the *function* of
the traditional ii-V-I progression while reversing the order of the ii and V
chords. This does *not* occur in "He's So Fine" (or "My Sweet Lord," or "A
Little Green Rosetta"), which are based on an extended version of the
traditional ii-V-I progression in which the ii and V are repeated before
resolving to I. It's still ii-V-I and still one of the most common
progressions in all of creation.
>"My Sweet Lord" *must* be brought into the equation, inasmuch as
>a New York District Court held that the similarities between "My
>Sweet Lord" and "He's So Fine" were so great (essentially being
>the same song with different words) that George Harrison was
>found guilty of plagiarism! If A is essentially B and B is
>essentially C, then A is essentially C.
On the other hand, if A is *not* essentially B, as is the case with "He's So
Fine" and "A Little Green Rosetta," your fallacious syllogism collapses like
the shoddy house of cards that it is. The New York District Court found
that the *melodies* of "My Sweet Lord" and "He's So Fine" were so similar
as to constitute infringement on Mr. Harrison's part, and they were
correct in so finding. There is no such similarity between either of these
songs and "A Little Green Rosetta," as proven above. There is a similarity
in chord progression among the three songs; but chord progressions do
not constitute the *substance* of a song, which is why they are not
copyrightable. Innumerable songs may share common chord progressions
without being "derived" from one another.
>Certainly there are distinctions to be made between "He's So
>Fine" and "A Little Green Rosetta," just as there are ALSO
>distinctions to be made between "My Sweet Lord" and "He's So
>Fine." Those differences, however, do not rise to the level of
>negating the derivation. If it can be demonstrated (as it CAN be
>demonstrated) that the degree of distinction between those two
>songs is roughtly equivalent to the degree of distinction between
>"My Sweet Lord" and "A Little Green Rosetta," a strong argument
>is thereby made for the derivation of "A Little Green Rosetta"
>from "He's So Fine."
No such demonstration has been made, nor could it be. The perceived
similarities between "He's So Fine" and "A Little Green Rosetta" pointed out
by Mr. Gula, consisting of only a few notes (or even one single note!) at a
time, are insubstantial and disjunct, and are negligible in comparison to the
close parallels between "He's So Fine" and "My Sweet Lord," whose near
identity, both melodically and harmonically, is continuous over the course
of many consecutive measures. To suggest that these vastly differing
degrees of similarity are equivalent is simply irresponsible.
In closing, we at Elephant Shrew Music would like to take this opportunity
to extend to Mr. Harrison our best wishes for a full and speedy recovery
from his latest bout with cancer. "You're so fine," sir!
Lewis R. Saul
>
> "V is followed by I, sometimes VI or IV, less often by III or II"
>
Does Piston capitalize those last two???
> development? Obviously it was not *just* the fact that a V chord was
> followed by a II chord that excited Zappa--
Don't you mean "ii" rather than "II" ???
Biffy the Elephant Shrew
<ls...@mindspring.com> wrote:
Piston does not use the convention of lower case type for a minor chord.
When he writes II, a minor chord is understood, as the triad on II of a major
scale is always minor.
Michael Gula
>
> I will concede that these isolated words do indeed use the second and third
> degrees of the scale in the manner described; yet this is only an isolated
> detail taken out of the context of the overall shape of the melodic phrases
> involved. And even so, by your own admission these details themselves
> are only 67% similar!
67% is actually quite substantial -- and this evaluation is thus
far limited to an examination of the main motif. As we will see,
the percentage becomes larger and more conclusive as we broaden
the scope of our examination.
> The "He's So Fine" phrase is a purely descending line,
> followed by a distinctive answering "hook" from the backing vocalists. The
> "A Little Green Rosetta" phrase is characterized by the wide *ascending*
> leap of a seventh with which it begins. There is no "answering" vocal at
> all; although there is the vibraphone phrase between the vocal lines, which
> moves by skips and bears no similarity at all to the tightly constricted
> "doo-lang" melody. No reasonable person could suppose that one of these
> melodies was "borrowed" from the other.
Quite to the contrary. The exhibit which you see before you
(http://sites.netscape.net/mmgula/exhibitA.jpg) shows the primary
motif and accompaniment of all three songs under discussion,
simplified and stripped down to their essence by transcribing
them as a series of quarter notes, along with a few ornamental
"grace" notes. This is the same type of analysis utilized by the
District Court of the Southern District of New York in 1976 in
deciding Bright Tunes v. Harrisongs, giving such a method of
analysis judicial precedent.
As a study of Exhibit A reveals, this vibraphone phrase, which
serves the same purpose as the respective answering vocal phrases
in "He's So Fine" and "My Sweet Lord," ("to fill in and give
rhythmic impetus to what would otherwise be somewhat dead spots
in the music" 420 F.Supp. 177, 179, n.8), is essentially the same
as the "Hare Krishna" chant which accompanies the latter song's
main motif. Observe particularly the notes in red. The second
note of the vibraphone phrase corresponds to the second half of
the first syllable in "Hare," while the third and fourth notes
correspond closely to the second syllable in "Hare" and the first
syllable of "Krishna." Therefore, we see that not only the main
motif, but the accompaniment thereof, is derived (even if
unconsciously) from "My Sweet Lord" which, by common agreement,
is "He's So Fine" with different words. The notes which "A Little
Green Rosetta" share in common with the two previous tunes are
not "insubstantial and disjunct," as my worthy adversary claims.
> Please try to be serious. Coming to rest on the keynote (both of the
> chord and of the tonality of the composition as a whole) must be the
> commonest melodic motion in all of tonal music. No causal relationship
> can reasonably be inferred between the Chiffons' and Zappa's use of such
> a universal practice.
Establishing a causal relationship is not at issue, just as it
was not at issue in the case of Bright Tunes v. Harrisongs. The
issue in the instant case is that of derivation, which, like
plagiarism, may occur consciously or unconsciously.
> And even if the use of the "do" or keynote when resolving to a I chord were
> significant enough to be worth examining, the different ways the two
> songs approach this point--wailing ecstatically in a high register in "He's So
> Fine" versus drooping stepwise onto the lower octave in "A Little Green
> Rosetta"--renders it inconceivable that the latter could possibly be
> "derived" from the former.
Inasmuch as Mr. Zappa's injury by a deranged fan, which preceded
the composition of this song, caused his voice to be deepened, it
is easy to understand why he would attain to that selfsame note
by dropping into a lower octave in lieu of "wailing ecstatically
in a high register." It is all the more indicative of how deeply
etched "He's So Fine" was in his musical mind to see how
determined was he, regardless of the route his limited vocal
range did necessitate, to arrive at the SAME NOTE at the same
point in his own song!
> The New York District Court found
> that the *melodies* of "My Sweet Lord" and "He's So Fine" were so similar
> as to constitute infringement on Mr. Harrison's part, and they were
> correct in so finding. There is no such similarity between either of these
> songs and "A Little Green Rosetta," as proven above. There is a similarity
> in chord progression among the three songs; but chord progressions do
> not constitute the *substance* of a song, which is why they are not
> copyrightable. Innumerable songs may share common chord progressions
> without being "derived" from one another.
While it is true that chord progressions are not copyrightable,
pop melodies "live" within them, thus making them an inseparable
part of the musical experience. The "Bright Tunes" court
realized the importance of harmony. "(W)hy a composer chooses
the succession of notes and the harmonies he does whether it be
George Harrison or Richard Wagner [or Frank Zappa] is a
fascinating inquiry." 420 F.Supp. at 180. Consequently, the chord
progressions, even though not copyrightable, are dispositive of
the issue. "The harmonies of both songs are identical." Supra at
178.
IN SUMMARY:
I. Two out of every three notes used during the main motif of
"A Little Green Rosetta" are the same as those in the main motif
of the earlier "He's So Fine/My Sweet Lord."
II. The first note after the cadence of "A Little Green Rosetta"
is that of the earlier "He's So Fine/My Sweet Lord."
III. The prominent use of the "less often" alternating V7 to ii7
chord progression in "A Little Green Rosetta" was preceded by its
"less often" utilization in "He's So Fine/My Sweet Lord."
IV. The marimba "answering phrase" of the main motif is
virtually an instrumental version of the "Alleluia/Hare Krishna"
chant accompanying the main motif of "My Sweet Lord," which by
common agreement is "He's So Fine" with different words.
V. Mr. Zappa, with his encyclopedic grasp of both music and pop
culture, certainly was familiar with both "He's So Fine" and "My
Sweet Lord."
The prosecution rests.
Ammo
to show how hung up the businessmen are, and I conclude it make it
harder for musicians to write good music. No wonder hip-hop and
rap are so popular. Nobody's ever going to complain Eminem or Will
Smith ripped off a melody!
Can you imagine? The court's in session -
"y'honna, I submit dis ye-ah drumbox patte'n b'long t' I-and-I an'
dat dere mo-fo ripped it off and he owe me a tonna monnay!"
The All Your Brand website (http://www.allyourbrand.org/) has a
cool logo on its page footer: Copyright - Who Needs It?
I missed the original posting in this 3 Stooges Case thread -
here's that URL again:
http://www.latimes.com/news/state/updates/lat_art010501.htm
Summary:
SAN FRANCISCO--The California Supreme Court ruled Monday that an
artist is required to pay licensing fees to depict a celebrity
unless the art contains "significant creative elements."
The ruling, in a lawsuit filed by the heirs of the Three
Stooges, sets up a novel legal test for determining when artwork
is commercial exploitation and when it is protected by the 1st
Amendment. Experts said the case is likely to influence courts
across the nation and may force judges to become art critics.
In deciding what is truly art, a judge must determine whether
it contains enough creativity to "be transformed into something
more than a mere celebrity likeness or imitation," the high court
said.
---------
My Rant:
Copying the original 3 Stooges films will violate copyright.
Anything else - including attempting to paint exact pictures from
a film - will not, I am convinced. The actors and the characters
they portray have passed into popular iconography and belong
there. The heirs should have no rights. The judges are stupid.
Government, through a panel of experts that is not beholden to the
deep pockets of industry, should enact legislation to guide the
courts in the matter of copyright. Unfortunately, our
representatives are totally out of touch with their creative side.
So their opionions depend only on those who stand to make the most
money.
There are many more creative people out there who REFUSE to get
involved in copyright issues, and who therefore limit their output
to a local audience,. than there are Great Composers who would
SUFFER by not receiving their fourth $100,000 royalty cheque this
year. The RIAA hosts an article by Mike Stoller, (co-author with
Jerry Lieber of "Hound Dog" and "Jailhouse Rock" and "Love Potion
No 9"), who does not convince me he is not a fat pig, at
http://www.riaa.org/napdoc2.cfm . This article from the New York
Times (which I'm sure the RIAA pays every time somebody hits the
above page, right, because that would be theft!), concludes, "by
taking the incentive out of songwriting, Napster may be pushing
itself closer to a time when there won't be any songs for its
users to swap".
This guy only has his retirement income in mind. Who gives a shit
about the 17-year-old no-talents? And who would bother to download
their songs? Napster is really of use only to us composers and
musicians. Music industry should not prevent us from learning the
music that they sell to the general public. If they are smart,
they will laissez-faire. If they arrest me, I will counter-sue
them for the right to fair-use as in the traditional fake-book
used by musicians. The claim that the composers benefit from
distribution of their music through public and even private
performance cannot be defeated.
Where would Frank stand on the Napster issue? Come on people,
think about it!
AMMO
hans
----------
In artikel <3af5...@rsl2.rslnet.net>, "Ammo" <am...@citytel.net> wrote:
>
> Where would Frank stand on the Napster issue? Come on people,
> think about it!
>
> AMMO
>
>
He would sue.
Hanzo
Biffy the Elephant Shrew
wrote:
>Biffy the Elephant Shrew wrote:
>
>> I will concede that these isolated words do indeed use the second and
>third
>> degrees of the scale in the manner described; yet this is only an isolated
>> detail taken out of the context of the overall shape of the melodic phrases
>> involved. And even so, by your own admission these details themselves
>> are only 67% similar!
>
>67% is actually quite substantial -- and this evaluation is thus
>far limited to an examination of the main motif. As we will see,
>the percentage becomes larger and more conclusive as we broaden
>the scope of our examination.
The figure of 67% was based on your evaluation of three notes in the eight-
note "A Little Green Rosetta" motif. "Broaden the scope" by taking the
other notes into account and your percentage dwindles precipitously.
>> The "He's So Fine" phrase is a purely descending line,
>> followed by a distinctive answering "hook" from the backing vocalists.
> The
>> "A Little Green Rosetta" phrase is characterized by the wide *ascending*
>> leap of a seventh with which it begins. There is no "answering" vocal
>at
>> all; although there is the vibraphone phrase between the vocal lines,
>which
>> moves by skips and bears no similarity at all to the tightly constricted
>> "doo-lang" melody. No reasonable person could suppose that one of these
>> melodies was "borrowed" from the other.
>
>Quite to the contrary. The exhibit which you see before you
>(http://sites.netscape.net/mmgula/exhibitA.jpg) shows the primary
>motif and accompaniment of all three songs under discussion,
>simplified and stripped down to their essence by transcribing
>them as a series of quarter notes, along with a few ornamental
>"grace" notes. This is the same type of analysis utilized by the
>District Court of the Southern District of New York in 1976 in
>deciding Bright Tunes v. Harrisongs, giving such a method of
>analysis judicial precedent.
It is unfortunate that the court accepted a practice which amounts to
evidence tampering. One wonders if in a case of literary plagiarism they
would examine a version of the material in question that was reworded so
as to make the texts correspond more exactly.
It is even more unfortunate that you appear to have retained the services
of a transcriber who is clearly incompetent. The seven-syllable, eight-note
"A Little Green Rosetta" motif, apart from being stripped of its true
rhythmic values, has been rendered as just three notes, plus two
"parenthetical" notes!
The technique of reducing the tune to quarter notes distorts "He's So
Fine" badly, but does not completely eliminate the song's identity, as the
basic melodic contour of a falling minor third followed by a falling major
second is still present. "A Little Green Rosetta," on the other hand, cannot
be reduced to three plain quarter notes in stepwise motion and still be
recognizable as the same song. That's not "A Little Green Rosetta"; that's
not even "He's So Fine"--it's "Three Blind Mice"!
A more accurate representation of the opening phrases of the songs in
question will be found at
<http://members.aol.com/shrewnews/rosetta.jpg>. The key of "He's So
Fine" has been changed to match that of the Zappa composition, but the
rhythmic values, which are an integral part of the compositions, are
retained. From this it is plain to see how far-fetched the idea of Zappa
borrowing from "He's So Fine" is.
>As a study of Exhibit A reveals, this vibraphone phrase, which
>serves the same purpose as the respective answering vocal phrases
>in "He's So Fine" and "My Sweet Lord," ("to fill in and give
>rhythmic impetus to what would otherwise be somewhat dead spots
>in the music" 420 F.Supp. 177, 179, n.8), is essentially the same
>as the "Hare Krishna" chant which accompanies the latter song's
>main motif.
You persist in attempting to confuse the issue by citing "My Sweet Lord"
when your original contention was that "A Little Green Rosetta" was
derived not from this song, but from "He's So Fine." The point that the
vibraphone line in the Zappa song was not derivative of the Chiffons' "doo
lang" is "refuted" with a reference to a different song. This is irrelevant,
incompetent and immaterial. Even your own simplified transcription
exhibit, which glosses over the rhythmic differences between the two
fragments, demonstrates that Zappa's four-note arpeggio-based figure
and the six-note "doo-lang" figure have ONLY ONE NOTE IN COMMON, which
hardly argues for derivation! And if one examines the music as it actually
was recorded, rather than in the simplified version presented by in your
"exhibit," we see that this one note doesn't even fall on the same beat.
The "Hallelujah/Hare Krishna" backing vocals in "My Sweet Lord" are sung
to two different melodies over the course of the song. Note the passage
beginning at 2:13 on the recorded version of this song, where the word
"Hallelujah" is sung to what is essentially the same melody as the Chiffons'
"doo lang doo lang doo lang" (but reduced to four syllables by eliding two
pairs of repeated notes). The "Hare Krishna" phrase cited above, however,
does not appear in "He's So Fine" and is therefore not relevant to a
discussion of the alleged origins of "A Little Green Rosetta" in that song.
As for the vibraphone part serving the same purpose as the backing vocals
in "He's So Fine" (or "My Sweet Lord"), even this is not strictly true. The
melody line of "A Little Green Rosetta" is sung over a vamp consisting of
alternating phrases on the marimba and the vibes. Thus the vibraphone
part is not present simply to "answer" the lead vocal; rather, it forms half
of a continuous musical background theme supporting the melody. This is
clearly distinct from the function of the "doo langs" in "He's So Fine."
>Observe particularly the notes in red. The second
>note of the vibraphone phrase corresponds to the second half of
>the first syllable in "Hare," while the third and fourth notes
>correspond closely to the second syllable in "Hare" and the first
>syllable of "Krishna." Therefore, we see that not only the main
>motif, but the accompaniment thereof, is derived (even if
>unconsciously) from "My Sweet Lord" which, by common agreement,
>is "He's So Fine" with different words.
There is no such common agreement. Perhaps a more careful reading of
my statement that "The New York District Court found that the
*melodies* of "My Sweet Lord" and "He's So Fine" were so similar as to
constitute infringement on Mr. Harrison's part, and they were correct in so
finding" would clarify my position on this issue. As you pointed out
yourself, "He's So Fine" and "My Sweet Lord" do not correspond exactly.
By citing elements of the latter song that do not occur in the former, you
do more to highlight points of distinction between those two songs than to
support your case that Zappa borrowed from the Chiffons.
>The notes which "A Little
>Green Rosetta" share in common with the two previous tunes are
>not "insubstantial and disjunct," as my worthy adversary claims.
They are indeed: insubstantial because each "identity" comprises only one
or two notes; disjunct because these tiny fragments are isolated in separate
parts of the song.
>> Please try to be serious. Coming to rest on the keynote (both of the
>> chord and of the tonality of the composition as a whole) must be the
>> commonest melodic motion in all of tonal music. No causal relationship
>> can reasonably be inferred between the Chiffons' and Zappa's use of
>> such a universal practice.
>
>Establishing a causal relationship is not at issue, just as it
>was not at issue in the case of Bright Tunes v. Harrisongs. The
>issue in the instant case is that of derivation, which, like
>plagiarism, may occur consciously or unconsciously.
If Zappa had in fact used the Chiffons' song as a template for composing
"A Little Green Rosetta," as you yourself contend, and if he was, as you
state below, "determined...to arrive at the SAME NOTE at the same point in
his own song," then clearly an element of the earlier song would have
defined the corresponding element in the later one. This is a causal
relationship.
>> And even if the use of the "do" or keynote when resolving to a I chord
>were
>> significant enough to be worth examining, the different ways the two
>> songs approach this point--wailing ecstatically in a high register in
>"He's So
>> Fine" versus drooping stepwise onto the lower octave in "A Little Green
>> Rosetta"--renders it inconceivable that the latter could possibly be
>> "derived" from the former.
>
>Inasmuch as Mr. Zappa's injury by a deranged fan, which preceded
>the composition of this song, caused his voice to be deepened, it
>is easy to understand why he would attain to that selfsame note
>by dropping into a lower octave in lieu of "wailing ecstatically
>in a high register." It is all the more indicative of how deeply
>etched "He's So Fine" was in his musical mind to see how
>determined was he, regardless of the route his limited vocal
>range did necessitate, to arrive at the SAME NOTE at the same
>point in his own song!
This argument rests on the premise that Zappa's post-accident vocal
range did not encompass a major ninth (the range of the "He's So Fine"
melody). This is not the case: *in this very song*, Zappa demonstrates
that he could range from a low G ("A LITTLE green rosetta") to a high A
("They're purty GOOD musicians"), which are the *very same* highest and
lowest notes found in the recording of "He's So Fine" (in its original key of
G). The highest and lowest notes used in a melody are important psycho-
acoustic points in defining the character of that melody. Although the
high and low notes in "He's So Fine" and "A Little Green Rosetta" are the
same, naturally chosen to accommodate the vocal ranges of the
respective singers, they fall on different degrees of the scale due to the
songs' different key signatures. The Chiffons' lowest note is the keynote
and highest note is the second degree; Zappa's lowest is the fifth and
highest is the sixth. Had Zappa been attempting to replicate the effect
of "He's So Fine" (consciously or unconcsiously), he would obviously have
chosen his key accordingly.
>> The New York District Court found
>> that the *melodies* of "My Sweet Lord" and "He's So Fine" were so similar
>> as to constitute infringement on Mr. Harrison's part, and they were
>> correct in so finding. There is no such similarity between either of
>these
>> songs and "A Little Green Rosetta," as proven above. There is a similarity
>> in chord progression among the three songs; but chord progressions do
>> not constitute the *substance* of a song, which is why they are not
>> copyrightable. Innumerable songs may share common chord progressions
>> without being "derived" from one another.
>
>While it is true that chord progressions are not copyrightable,
>pop melodies "live" within them, thus making them an inseparable
>part of the musical experience. The "Bright Tunes" court
>realized the importance of harmony. "(W)hy a composer chooses
>the succession of notes and the harmonies he does whether it be
>George Harrison or Richard Wagner [or Frank Zappa] is a
>fascinating inquiry." 420 F.Supp. at 180. Consequently, the chord
>progressions, even though not copyrightable, are dispositive of
>the issue. "The harmonies of both songs are identical." Supra at
>178.
The chord progressions of "He's So Fine" and "A Little Green Rosetta"
are not "identical." The verses of the former alternate the V and II
chords four times before resolving to the I, as opposed to Zappa's two
repetitions of this pattern. The delayed resolution builds up a tension
that is not present in the more relaxed Zappa composition. If indeed
"(W)hy a composer chooses the succession of notes and the harmonies
he does whether it be George Harrison or Richard Wagner is a fascinating
inquiry," then the matter of harmonic rhythm and its contrasting use in
these two songs must be taken into account.
>IN SUMMARY:
>
>I. Two out of every three notes used during the main motif of
>"A Little Green Rosetta" are the same as those in the main motif
>of the earlier "He's So Fine/My Sweet Lord."
Simply not true. The "A Little Green Rosetta" motif consists of eight
notes; only two of them roughly correspond with the "He's So Fine" motif,
and in terms of falling on the same beat of the bar (or subdivision
thereof), *not one note* corresponds exactly.
>II. The first note after the cadence of "A Little Green Rosetta"
>is that of the earlier "He's So Fine/My Sweet Lord."
The attempt to find a meaningful relationship between two songs in the
coincidence of *one single note* is laughable, especially when one would be
hard-pressed to find a tonal song that *didn't* include this specific melodic
gesture somewhere.
>III. The prominent use of the "less often" alternating V7 to ii7
>chord progression in "A Little Green Rosetta" was preceded by its
>"less often" utilization in "He's So Fine/My Sweet Lord."
But in a different way, as explained above.
>IV. The marimba "answering phrase" of the main motif is
>virtually an instrumental version of the "Alleluia/Hare Krishna"
>chant accompanying the main motif of "My Sweet Lord," which by
>common agreement is "He's So Fine" with different words.
There is no such "common agreement." Infringement is not identity.
Incidentally, your confusion of the marimba part with the vibraphone part
here indicates that you recognize (perhaps only subconsciously?) that
these two instruments' parts fit together as a continuous vamp underlying
the vocal rather than "answering" it in the manner of "He's So Fine."
>V. Mr. Zappa, with his encyclopedic grasp of both music and pop
>culture, certainly was familiar with both "He's So Fine" and "My
>Sweet Lord."
>
>The prosecution rests.
About fucking time.
David Wilcher
"Biffy the Elephant Shrew" <biffy...@aol.commie.rats> wrote in message
news:20010508023848...@nso-cu.aol.com...
>
> There is no such "common agreement." Infringement is not identity.
> Incidentally, your confusion of the marimba part with the vibraphone part
> here indicates that you recognize (perhaps only subconsciously?) that
> these two instruments' parts fit together as a continuous vamp underlying
> the vocal rather than "answering" it in the manner of "He's So Fine."
Mr. Gula, Mr. Shrew - a fasinating discussion, but I must point out that
"it's all one NOTE.. Everything; even the ponies."
dave
Lewis R. Saul
> of a transcriber who is clearly incompetent.
I have been following this thread without much investigation, as it is
extremely complex, even for someone like myself who is a classically-trained
musician...
I have not even seen Mr. Gula's "exhibit" transcription, so I can't comment
on that...
But I would go so far as to say that I find it extremely unlikely that Mr.
Gula has "retained the services of a transcriber who is clearly
incompetent."
Respectfully,
Biffy the Elephant Shrew
<dwil...@woh.rr.com> wrote:
>Mr. Gula, Mr. Shrew - a fasinating discussion, but I must point out that
>"it's all one NOTE.. Everything; even the ponies."
Yeah, but the pigs don't know that!
Milhouse Guidry
>Yeah, but the pigs don't know that!
-No shit! They don't even know how their own music works!
As a side note, Biffy, you might say I am a "fan" of the pages you have at your
web site (http://members.aol.com/biffyshrew/biffy.html) that are devoted to
L(e)ather. I've read over that stuff a whole mess of times and it is a joy and
a learning experience each time. Thanks for going through all the trouble so
that a dork like me might learn something. Thank you.
--Milhouse
NP: the pixies "broken face" and "gigantic"
Alt.Fan.Frank-Zappa...
it's like fucking a slightly more voluptuous
version of someone's father.
Something For Nothing issue 51 out now
for your copy send 55 cents in postage to
SFN / 516 3rd St. NE / Massillon, Ohio 44646
Biffy the Elephant Shrew
milho...@aol.commieplot (Milhouse Guidry) wrote:
>As a side note, Biffy, you might say I am a "fan" of the pages you have
>at your web site (http://members.aol.com/biffyshrew/biffy.html) that
>are devoted to L(e)ather. I've read over that stuff a whole mess of times
>and it is a joy and a learning experience each time.
Thank you.
Martin Higgs
<ls...@mindspring.com> wrote:
>I have been following this thread without much investigation, as it is
>extremely complex, even for someone like myself who is a classically-trained
>musician...
An interesting programme on the radio this morning about Nadia and
Lily B. Mostly about Lily, they played part of a piece of hers that
was premiered at her funeral. I didnt realise she died so young! ...25
if I remember correctly.
Martin...........
Lewis R. Saul
> was premiered at her funeral.
Piú Jesu?
If that's what you're referring to, it really is a spine-tingling piece.
She dictated most of it to Nadia on her deathbed.
When you speak of under-appreciated composers, Lili Boulanger is at or near
the top of the list...