OA653: Disney Sued Over Frozen 2 Song - MUSIC LAW!

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 653, I think.

0:01:25 Thomas: Oh man, Andrew. How's it going? I'm Thomas. I'm the musician of the podcast. That's Andrew. He's the lawyer. How you doing, Andrew?

0:01:28 Andrew: It is. I am doing fantastic, and I am super excited whenever we get a chance to do one of these that combines your interests and background and expertise with my interests and background and expertise. Boy, it's, it's just fun. This is gonna be another music episode.

0:01:48 Thomas: Music, law, so much. We don't do these enough, although I say that I never want to do it again, because what happens is I spend, I don't know, 40 hours obsessing over it in my ADHD brain that goes down a hundred different rabbit trails, and I don't even know that I wrote it down properly, so, you know, never mind, let's never do this again. However, I have a tremendous amount on this, and I can't wait to get to it

0:01:51 Andrew: No.

0:02:13 Andrew: An indication of how long this has been. And I, I do think we need to bring listeners back up to speed. The last time we covered this in depth was episode 369, uh back when we were talking about uh Led Zeppelin and the lawsuits uh by the band Taurus over their song Spirit. And this is also when Andrew was wrong, um two years in the making of Andrew Was Wrong.

But yeah, in in that episode 369, the Ninth Circuit, en banc, ruled in favor of Led Zeppelin. And I opined at the end that I thought this was a case where, you know, got a lot of boomers on the Supreme Court. You have a split among the circuits. I'm about to explain what that rule is. I thought that Supreme Court would take it up, and they declined. Declined. The, um, Ninth Circuit, en banc, has now ruled, has now rolled, two years ago, as we told you in opening, it is, in episode 369, that Led Zeppelin did not copy Randy California's band Taurus uh playing their song Spirit uh when the folks at Led Zeppelin wrote Stairway to Heaven. So, so, case closed. At issue in that case was something called the inverse ratio rule, which said this: the stronger the evidence you have that one party had access to the work that is alleged to have been copyrighted, the less compelling the similarities between those two works need to be in order to

0:03:02 Thomas: Sure yeah

0:03:36 Andrew: Give rise to an inference of copying. And you, you might recall that Randy California's band Taurus was the opening act for Led Zeppelin, so you know. Um, and, uh, by the way, this is a rule of interpretation, right? Like, it's not in the statute at all. We're gonna, you know, talk about specifically what the statute says, which is just kind of bare bones. You know, you, you may not copy a copyrighted work. Copyright law does not say that you prove more access, the less you have to prove similarity.

0:03:45 Thomas: Yeah gotcha but what did the founding fathers say? Yeah.

0:04:06 Andrew: Yeah Right, yeah. So this is just a way of getting at kind of the fundamental question that I described, which is a copyright infringer is going to say, I just created this simultaneously, and it's just a crazy random coincidence, right? How do you disprove that assertion, right, that it's juste a coincidence? Um, the arguments that the Ninth Circuit relied on, um, were two major, good arguments, right? The first one was, um, the inverse ratio rule maybe made sense, you, in the first half of the 20th century, uh but everybody's gonna have access to everything nowadays, right?

0:04:42 Andrew: So, like, how more or less access to, you know, but it's a big threshold, The right? Second argument that I think carried the day at the Ninth Circuit was, rule winds up giving the most protection to the most popular performers, because it lowers their burden of proof, right? So, you, you're left with, oh hey, um, if you have a song that everybody knows, right, it now makes it easier for people to sue you, because now demonstrated access, kind of, above and beyond, and

0:04:24 Thomas: Yeah yeah oh yeah well no if you have

0:05:20 Andrew: For

0:05:20 Thomas: The bigger song, it, you're suing somebody and you're proving this whole thing, I feel like that's, that's reversed, and maybe this could be me misunderstanding, so I just want to talk through it, I get the principle, but if the, if song being distributed far and wide means you have less of a burden on similarity, then that would make it easier for bigger band to sue a smaller band, right?

0:05:44 Andrew: Have wide access, right? But remember, what it's saying is, the more people have heard your song, the easier we want it to be for somebody to claim that you, that band, stole somebody else's song, stole the plaintiff's song.

0:06:01 Thomas: I think you're mixing up what, who the parties would be. If you were saying Led Zeppelin stole a song, the thing you're, is in question, is not how widely viewed or listened to the Led Zefflin song is. The thing that is in questions how many people have heard fucking Taurus. That's what actually is in, in question. It doesn't make a difference that a billion people have heard Stairway to Heaven, that, that has no impact on, did they steal it from this little band, right?

0:06:26 Andrew: That's correct. We're going to have to go back, but that rule was overturned, in finding in favor of Led Zeppelin as the defendants, right? So, in other words, Taurus, as the smaller band, wanted to take advantage of the inverse ratio rule

0:06:42 Thomas: But but the reason they wanted to do that was because of them being the opening act, so because Led Zeppelin had tons of access via them being opening act, they're saying we should barely have to prove this likeness at all. Has no, uh, how many people have listened to Led Zeppelin has no bearing on any of, of that, right? It's just, okay.

0:07:00 Thomas: I think we're on the same page. But I get that principle. So are you saying they struck down that principle or are they just saying that it wasn't really convincing enough in this case?

0:06:43 Andrew: Correct yes correct yeah, okay so they struck down that principle, they said that we are no longer going to use that inference in allowing plaintiffs to prove copying. This is why I thought the Supreme Court might take it. The second, fifth, seventh, and eleventh circuits have all rejected the inverse ratio rule, the sixth and ninth were the circuits that were sort of holding out. And And this is the Ninth Circuit reversing on that, right? So that's a classic, like, split among the circuits and, seemed like a good opportunity for the Supreme Court to, yeah, so here's my thoughts on that. In that, a typical situation, in the Led Zeppelin situation, had right, very little overall access to to the Taurus song spirit, but you had a lot of specific access

0:07:15 Thomas: Oh, wow. Hmm. Yeah well not only that, what do you think about that rule? Because I think that's a good rule.

0:07:56 Thomas: Which

0:07:56 Andrew: In the fact that they opened for Led Zeffelin.

0:07:58 Thomas: Should be super convincing, I would think that would be more convincing than saying, like, "Oh, this band's everywhere, so you've probably heard them and maybe you picked up on that," versus if we find evidence that it's like, "Wow, these songs are similar," and then, "Oh, it turns out you guys were roommates in college and that person had written that song in 1970," you know, whatever. Hmm.

0:07:59 Andrew: Yep, right.

0:08:15 Andrew: Think that would require kind kind of a more nuanced rephrasing of the inverse ratio rule, right? Because the inverse ration rule would also say, you know, if it's Taylor Swift, right, have to prove almost nothing, right. Because everybody's are, you know, I mean, even I've heard Taylor Swift.

0:08:27 Thomas: Everybody's heard it okay when you say it when you put it that way, that makes sense. And given what we're going to talk about a lot today, which is how common a lot of these musical elements are. If you're goingto dial up, dial the, "Of everyone's heard this song," whatever it may be, Taylor Swift nowadays, even though I don't know that I know a single Taylor Swift song, but that's because I'm a weirdo. Everybody's heard whatever song, and then some smaller artist or whoever has a song that's like the same chord progression.

Well, that's an an incredibly common thing because all kinds of songs are the same chord progression all the time, but in the, with this rule you're saying, "Well, but we've dialled up the exposure part of the whatever to a million, so therefore the similarity is dialed down so far that just having like drums is like, is similar enough." So, I, I get, when you put it that way that makes a ton of sense, it's more about that dynamic, but I still think the other way makes sense. Like, Like if, if you can prove like some specific access rather than this broad, overwhelming popular access,

0:08:35 Andrew: Yeah,

0:09:30 Thomas: That seems to be a case where, yeah, maybe you would lower the threshold because you're already proving or you're ready, at least not proving, but making it seem likely that this person specifically saw this smaller thing.

0:09:43 Andrew: Think the specificity of access is a really, really good point to be made here because

0:09:49 Thomas: And so I noticed, Andrew, you said it was an, Andrew was wrong, you didn't say it was Thomas was right, and I think that's because, if I remember right, I've given up trying to predict what a court will do in any of this, um, because we've got some rulings that we're going to talk about that are so bizarre that truly I would never try to predict what a court is going to do.

Something but, but I do think I remember having the pretty strong opinion that Led Zeppelin shouldn't really have to pay anything to this band, but for reasons that don't seem to be a part of the, the legal logic, and I want to just mention those real quick from my memory. The, the two problems I remember in talking about this stuff to lay people, into lawyers who don't understand music, is for one, it's hard to get lay people to understand that certain things are very fundamental, building blocks of music, like, um, for the "Stairway to Heaven" example, it's the descending chromatic kind of baseline of the chords, or the chord progression, that's in everything. I mean, yes, it was the same key, the same chords, but I played another song, if you remember, that has that exact same progression, and there's a billion of them. It's hard to get music, non-music people to understand that.

And secondly, here's what I still don't think anyone accounts for, or any of these cases tend to account for, is how much of the song it is, and that part really bothers me, because it's like, Andrew, if, take an example, if I, in 19, I don't know, 60, had written a song that said, like, "Is this just normal life, or is it a fantasy," and that's all it had, like, let's say that's like, like, and then it went somewhere else, did something else, and then, you know, later on, I'm like, "Queen stole my song," and it's

0:11:23 Thomas: Literally just the first line of a song that's actually a magnum opus of like eight different parts with all these different things, you know what I mean. The, the fact that you could be like, "Yeah, no, he's, they stole that," there's... there's no real, like, mathematical or, um, laid out way to account for that part where the, the thing that has been copied, there needs to be some principle of how much of the song's success is the thing that has been copies responsible for. That's what I don't like.

0:11:51 Andrew: I love that. I've been doing research, I've been trying to come up with kind of a grand unified theory of copyright and music. And I'm not sure I'm there.

0:11:58 Thomas: No, Well, because, because the rulings are so bad.

0:12:03 Andrew: Well, but here's my go at what the problem is, right? This is not the, a solution yet, but here's what I think the problem is, and it is this. I think copyright law works really, really well for written works, right, books, and derivatives of books, and I think those derivatives include movies, television, right, includes so much of entertainment. And now let me express two principles to you, um, so let me do the law, and then, and then I'll, I'll talk about what I think, kind of my grand unified theory of copyright, that incorporates what you've said, because I agree 100% with what you said, but going to get to where sort of the problem is.

So, copyright protection, copyright is meant to give the author exclusive property rights in the work, such as the sole right to reproduce, distribute, display, and perform, and, crucially, to adapt your work, the mainstream, right, stream the way to think about that is, right, George R.R. Martin, right, "A Game of Thrones," right, you get, you get to, uh, create, you own the right, the copyright, in creating the derivative work that was "Game of Thrones" on HBO, and you damn well should, right, like, yes, HBO had to pay to get the rights to George Or. Martin, that's a lot better than somebody reading his book and going like, "Hey, hey, man,

0:12:26 Thomas: Sure.

0:13:25 Andrew: This would make a really great TV show. Let's cut this, you know, author asshole out of it entirely and just steal it, right? So qualify for copyright protection, your work must be an original creation. And to be original, that means you must, one, independently create it, and two, it must possess some minimal degree of creativity, right. Which

0:13:47 Thomas: So no Nickelback can be copyrighted, I guess. All public domain. The judge is like, this all sucks and I hate it. Anybody can take this because it sucks.

0:14:01 Andrew: Is entitled to copyright protection so long as the similarities in those two works are not the result of illicit copying. And we've talked about that before, that's the... there can be 12 shows on TV that are, hey, you know, which amateur wants to get a free music contract, and we're going to have a three judge panel of judges, and one of the judges is going to be super nice, and one is going tobe a former pop star, and one is going to be incredibly cranky and mean, right? And that's obviously all ripping off of American Idol, but you can do that, right? You can call your, you know, new show something else, uh, and as long as you don't call the mean judge Simon Cowell, right, you're you're fine.

0:14:41 Thomas: Someone can't also be named Simon Cowell.

0:14:44 Andrew: I don't know. It would be very interesting if if there was a, you know, an angry judge on The Voice whose name happened to be Simon Cowell, I would, I, I would want to be on the sidelines for that lawsuit, because that would be a lot of fun. So, so that gives us kind of your your baseline, right? Copyright protection does not extend to the idea, procedure, process, system, method of operation, concept, principle, or discovery. Ideas cannot be copyrighted, only the way that you've expressed those ideas can be protected. So facts, right, which are not created but are merely discovered, are similarly not entitled to protection, right? It is how you choose to display that.

0:14:44 Thomas: Oh, interesting.

0:14:55 Thomas: Interesting.

0:15:24 Thomas: Interesting, I got a quick question, does that mean if, if someone writes a biography of George Washington and I go and I copy every single fact that's in there, but I just put it in different words, you know, I'm not, I'm not like copying every sentence, but, you know, here's a story about how he, you know, he got all his teeth from slaves because actually he's evil like everybody else at that, the time, and same fact, same story, and maybe, maybe even, let's, let's say the biographer did some investigative work or research or whatever to get at all those facts and stories, am I okay to just copy those?

0:15:26 Andrew: So Yes, with an asterisk, right. The fact that George Washington had wooden teeth is a fact, and you would not show that you have infringed on some other's copyright by reporting in your biography of George Washington that he had wooden teeth. But if Thomas Smith writes the biography and says, George, yeah, Washington had wooden teeth, which were stolen from slaves because, you know, he's, he was a horrible person as we,

0:16:23 Thomas: Yeah, they were actually teeth, teeth that were stolen from slaves, but yeah.

0:16:27 Andrew: Right. That spin becomes a copyrightable element, right, the stolen from slaves part. Right. Because although there is a factual predicate for that, right, the characterization of, you know, how this would belong in sort of a work of revisionist history, for example, rather than, you know, hagiographical history is something that you might be able to enforce your copyright. You know, you got a chapter that that ties in the fact that the teeth were stolen and that, you know, this modern myth immediately sprung up around the teeth being wooden as opposed to being pried out of human beings. Right. Like that. That's a unique copyrightable element. Similarly, you could have an arrangement of facts, but the order in which you arrange them becomes copyrightable.

0:16:27 Thomas: Sure, yeah

0:17:16 Andrew: Each individual element is not, but if you have a textbook that says, OK, George Washington had false teeth, was a revolutionary commander, across the Delaware, then was elected president, right, and you present those exact same four facts in the exact same order, right, that might be copyright infringement. The, the question is, and this is, this is what's really, really hard, right, and we talked about this in episode 369, the tort here, right, is copying, but the problem is you never see somebody actually copy, right. So imagine hypothetical in which, you know, I love using Tale of Two Cities because it was the best of times, it was the blurst of times. But right, imagine that copyright is still valid. It probably isn't. It's almost certainly public domain by now.

But if I was raised in a hermetically sealed environment, and I managed just independently to produce a novel about the French Revolution that began with, it was the best of times, it was, was the worst of times, uh, then the estate, uh, would have, absolute, the Dickens estate for Tale of Two Cities would have absolutely no copyright claim against me, because, right, I could convincingly disprove that I had ever seen yeah I was, if, if you could show, every, you know, uh, the Truman Show, right, like let's imagine every element of my life has been recorded, you would show I have no access to Tale of Two Cities, I never read it, I just independently came up with it, um, I'm not infringing your copyright, your copyright prevents me from copying, if I independently come up with the same thing, tough, tough noogies, right?

When, so it comes to books, we have that really kind, kind of clear dividing line, right? You look to the derivative work and you see if it contains copying of constituent elements of the work that are original, okay, and um, the way in which you show that is, um, by showing that you have, right, the same words, the same order, the same kind of core element of expression.

0:17:47 Thomas: Yeah, Wow.

0:18:23 Thomas: But you were a bubble boy

0:19:18 Andrew: And that is, right, there is both an intrinsic and an extrinsic test, an right? Intrinsic test of, hey, does this seem like this is copying somebody else's written work? And the extrinsic, right? Like, okay, you know, here are the repeated words, here's the repeated order, whatever, here's the thing, if I write a, a book, and, and I steal word for word, it was the best of times, it was the worst of times, you have a valid copyright claim against me, but if I steal the idea, the concept of, uh, here's the underworld of the French Revolution and the resistance

0:19:51 Thomas: Was a sunny day it was a cloudy day

0:19:56 Andrew: It works when we're talking about written works, because we have an academic taboo against plagiarism, that's really, really, really, really strong, I think, and now we get into kind of my grand unified theory of music,

0:20:12 Thomas: I And it's that hair metal is good and all other music is bad.

0:20:14 Andrew: Well, no, I'm actually going to use a disco song as the basis of my departure here. And it is this. I think direct copying of a very, very small amount of a prior song not make sense in the same way that the direct copying of A Few Lines of a Prior Written Work does make sense, right?

0:20:18 Thomas: Ah, What do you mean makes sense?

0:20:38 Andrew: As being a copyright violation, I start My Novel, it was the best of times, it was the worst of times. You're like, dude, you're ripping off Charles Dickens. At least pick something more obscure. This is obviously a copyright violation. But consider, and I don't know if you know the disco song A Fifth of Beethoven by Walter Murphy and the Big Apple Band, right? But it uses the da-da-da, right, and then transitions into a disco song, this is as minimal a remix as you could possibly get. It is literally those four notes. And then.

0:20:40 Thomas: Okay, hmm, yeah, yeah.

0:21:12 Thomas: Yeah, that

0:21:14 Andrew: Right, it was a number one hit. Now, obviously, Beethoven was several centuries too late to assert a copyright claim. But I think if you looked at it in the abstract and you were like, suppose Walter Murphy and the Big Apple Band were contemporaries of Beethoven, right? And they wrote it a week after Beethoven wrote his Fifth Symphony. I think he would still say, man, taking a orchestral symphonic piece and turning it into a disco song is is really transformative, is really creative. And it doesn't feel like hacky ripping someone off in the same way that, you know,

0:21:14 Thomas: One obviously public domain oh wow

0:21:59 Andrew: Stealing that.

0:21:59 Thomas: I just, I don't think I agree with that. Well, the most analogous case I think is going to be the dum dum dum dum dum, that's like virtually that same case, but with something that's not public domain, and that one went the other way of what I think you're saying.

0:22:02 Andrew: That's interesting. Yeah.

0:22:16 Thomas: Vanilla Ice and uh, yeah, Queen and David Bowie.

0:22:16 Andrew: Yeah, no, that's what I'm saying is that I think, yeah, Vanilla Ice and Queen. And, also think the opposite of the Idol rule is true too, which, right, is that when it comes to written works and derivations of written works, you you don't want to wind up erring on the side of like crediting the first person with an idea. And so, therefore, something can be very, very, very, very similar, but so long as it does not appropriate certain elements, then there's no copying and there's no copyright violation. On the other hand, I think because of the like smaller universe of the musical alphabet, so to speak, The elements that constitute a song and the rules that govern, right? Like, you'd you be able to speak to this much better than me.

0:23:08 Andrew: That, that if when something is really, really similar, but what you're stealing is the idea of the song, that kind of feels like, well, maybe that should get protection in musical copyright. Be right, um, was going to stay a song that is the equivalent of the similarities between American Idol and The Voice, right? I'm having a hard time coming up with one off the top of my head. Okay.

0:23:21 Thomas: Are you stealing the idea of the song in what way? Do you mean? Oh, think that's more like a common chord progression because chord progressions aren't usually enough, they aren't enough, actually, from my understanding, to just by themselves be, uh, copying in music. And, and that's good because there's only so many chord progressions. Now, I want to do a quick parenthetical because I've expressed a complicated opinion on this. In my opinion, there's way more that you can do in music than is being done.

It's like saying if every popular painting was like four colors and that's it, like just basic four colors. And then you're arguing, yeah, see, there are only four colors, so everybody should be able to copy whatever because every painting is just the same four colors, you just kind of put them in a different order. I would be over there being like, actually there's a billion colors, like if you, if you work at it and make a good painting, there's a gazillion things you can do with it. But it just so happens that the human brain likes these same four stupid colors. And so every popular painting is just the same four colors over and over in a slightly different order. So that's my complicated feeling on it, which is, in some sense, I almost wish the law was like insanely, uh, strict, and therefore people would actually have to innovate and make different things.

But setting that aside, I get it, pop music is pop music, there are these common elements that are very common, and so the equivalent of that, I would say, is a chord progression, and I have prepared, uh, two songs that, like, maybe you'll be able to hear how they're the voice and the, the American Idol equivalent.

0:25:01 Andrew: I'm really interested in that. So think, kind, as we move to that, we've talked about the Katy Perry lawsuit, for example. Example, but one of the ones we haven't discussed that I'm really curious, it was a huge story, uh, was March of 2015, when a U.S. District Court for the Central District of California, uh, ruled that Robin Thicke and Pharrell Williams' song "Blurred Lines," uh, infringed on Marvin Gaye's song "Got to Give It Up," right?

0:25:26 Thomas: Tipping my hand here, but, uh, this is the worst case, this is absolutely terrible. So here's, here's the first one. All, right, here's the Marvin Gaye song, and

0:25:32 Clip: Everybody get up!

0:26:03 Thomas: They go on to be quite different, like the melodies are different, um, and you even heard in that intro to the "Blurred Lines" song that even does a chord change that the Marvin Gaye song doesn't, so the Marvin Gaye song just rests on kind of the same underlying, uh, chord, if you can even call it that, it's just a bass line of a couple notes, you know, and but the "Blurred Lines" song even gives you a chord exchange in the beginning. There, I think this is absolutely terrible, um, this is the barest of similarities, I mean it's a beat, it's a feel, but there's just nothing there, the bass lines aren't even the same, they're not the same bass line, it's, it's very weird, this is a terrible decision.

0:26:39 Andrew: It's interesting because, again, the test is a, is a two-fold test, right? There is, you have to show an objective level of substantial similarity of, of the protectable components of each song, and, right, then you have the intrinsic test, which is what an ordinary reasonable person and whether they would conclude that the defendant unlawfully appropriated the protectible expression by taking material of substance and value. That's called the lay listener test. And literally what you do is for the jury, you do what we just did on the show. You play them both and you say, all right, did song number two kind of sound like song number one. And I have to tell you, as I came predisposed, right, to say no, no, no, this is, uh, I do, sound kind of similar, right?

0:27:28 Thomas: But if the test is they sound similar, that's a terrible test because what you really need is does this sound similar to this in a way that's above and beyond how similar every song is to every other song, you need context, you can't just be like, hey jury, does this, this sound like that, yeah, they both have beats, they both

0:27:47 Andrew: Well, no, but but more than that, I mean, let me articulate it, right, you have a, I get, not the same baseline coming from the expert, a very similar baseline, you have the like crowd noise in the back, and then when the bass ends, it begins, it picks up with a kind of a falsetto note, and so those three things, I, I don't think, as a lay person, that, and I'm out to lunch by saying they do sound substantially similar to me.

0:27:48 Thomas: Yeah yeah again it's similarities in the way, the problem is it's hard to, I don't know where you're supposed to get in, if you are, I don know, a plaintiff, or if you're just like a music expert, I don't know how you're supposed to get in the information. Okay, but there's a billion other songs that have that level of similarity with a billion others SONG, that's just how song work

0:28:30 Andrew: Well, that's what comes in with the protectable elements, Because right? Remember, if you didn't come up with the thing, you don't have a copyright in that thing, right. And so if something is, you know, if all pop songs, you began with, you a crowd kind of milling about and cheering, which right, we know they don't, then, you then would say, okay, like you cannot consider the fact that these both begin with, the crowd kind of cheering, but the fact that they don't, there's

0:28:32 Thomas: Yeah for my sanity. Can I play "Blurred Lines" one more time? There's not a crowd, it's just the couple it's the people who are in the, so I think it's actually quite different, it's people who aren't the recording artists are making a few noises, sure, whereas Marvin Gaye is actually, like, what you're describing, it's like a party or something, like it sounds like it's a, so are we to believe that anyone who writes a song that has a, a bass line going, a drum beat, and some shouts, some, that's that concept is over, only Marvin Gay in 1970 whatever could do that, part is that what we're

0:29:06 Clip: Everybody get up!

0:29:13 Andrew: Less, there's the woo, there there's the, that's right.

0:29:30 Andrew: Yeah.

0:29:49 Thomas: To believe here, could

0:29:50 Andrew: So Duke, again, notice that, right, we're hitting the extrinsic versus the intrinsic test. The intrinsic test is just, hey, does this sound substantially similar to you? The extrinsic test looks to musical experts, people like you, and out the individual elements. And so from one of the leading cases, here are six things that the experts will look to, number, right, one, patterns and groups of notes in musical phrases. Two, melodies. Three, metric structure. Four, harmony. Five, unexpected departures from normal metric structure, and six, particularly, particularly intricate measures or sections, yeah.

0:30:31 Thomas: So that list is interesting, now I haven't read the decision or whatever of that "Blurred Lines" case, but the way it was reported, especially by musicians and music people who are like, this is a pile of bullcrap, this is the worst thing in the world, is it's, now atmosphere is added to that list of things, because if you notice, patterns of groupings and notes and music phrases, nope, melodies, nope, metric structure, no, I'm, no, harmony, nope, unexpected departures from the normal metric structure, and six, particularly intricate measures or sections, none of that. In, in my mind, is there's some kind of crowd noise, loosely speaking, and a bass line and drums. Where would you fit that into that list, I guess?

0:31:12 Andrew: I mean, it, as a non-expert, I think I would fit it in under five and six, but, but I agree with you that when you, you break it up, I think that's why the atmosphere has, you, even though it's not present in the appellate case law, right, because that's what I'm distilling this down from, that at the trial level, uh, you can see how that becomes kind of part of the consideration, because, yeah, my, my first instinct, right, as an idiot, when it comes to music, was, yeah, okay, I mean, I kind of get it, there's, right, a couple of things in common, right, right, and And the more that you say, okay, well, now let's look at, let's analyze the individual elements, um, more, I'm persuaded away from my position, right?

0:31:46 Thomas: I'm not saying there's no similarities. Yeah, it's just about putting those similarities in context, I think.

0:31:59 Thomas: Well, good. But that one really threw a wrench in anyone trying to predict. That case in particular is why I would just never, I'm never going to try to predict what a court is going to do, but I could give you my opinions as a musician on these things, but that decision to me is just so bonkers.

0:32:19 Andrew: Let's compile that with one that came out at around the same time, uh, and This one, I, it was Sam Smith's song, Stay With Me, which was alleged to have infringed on Tom Petty's 1989 hit, I Won't Back Down, which obviously I know well. That was settled.

0:32:24 Thomas: Yeah. Yeah. Okay.

0:32:38 Thomas: Yeah, okay, that, I think Sam Smith just was like, oh yeah, my bad, here's the writing credit so we don't have like a court and, yeah, knowing, keeping that in mind, so this isn't like a court decision that we can point to, but, but it's a thingy we can point to here. I want to get your, I'm curious now, get, you're the person we brought into the courtroom to just be a normal person, listen to these two songs, see what you think. All

0:32:43 Andrew: And royalties, right?

0:32:58 Clip: Oh won't you stay cause you're

0:33:21 Thomas: Right, and we know this song already, but Just do you think, sure.

0:33:23 Clip: Well, I'm

0:33:42 Andrew: Obviously that tempo, the, is very different, the but, but if you ask me again, I'm using the wrong, I think I'm using the wrong mode of analysis, but if you're asking me did Stay With Me sound like Won't Back Down, it, it was not, they weren't dissimilar, right, would be listening, I would want to see

0:33:46 Thomas: Give me your opinion Mr. Toya, answer the question, do you, you think that that is a good decision if a court had said, yeah, you ripped off Tom Petty, what would you, would you agree with that, disagree, yeah.

0:34:16 Andrew: So Let me put this into, and I've been meaning to ask you this as a question, because I think it's important, as a setup, of the things that you can't do in written copyright that I understand, uh, is you can't take somebody else's written work and go through and like just kind of barely rewrite it and like, well you know, or use use, uh, thesaurus to change the adjectives. Right. Like, you know, it it was the greatest of moments. It was the least of moments, right? Like that we recognize that as plagiarism in literature. I'm thinking about copyright, I struggle with creating a rule that would enable you as a composer to deliberately copy someone else's work. You're right, the artist. You say, I'm going to take Tom Petty's work and I'm going to slow it down and I put some other shit that. That seems to offend the basic principle of copyright. Right. The idea that like you are starting with Tom Petty's work in the end reading it.

If I were to take, I don't know, like Slash's riff from Sweet Child of Mine and then like write a ballad around it and like just slow down, you know, and make it crappier. You would still be like, right, but you started with stealing the, you know, one of the world's most iconic guitar riffs, and then you just made it worse, Andrew, because you suck.

0:34:37 Thomas: Speed it up, for example, change keys maybe sure yeah so

0:35:41 Andrew: And so I don't know how, this is the question that I'm trying to phrase to to you, how do you prevent deliberate copying, where, where you're just like applying a rote transformation to music, from opening the floodgates to, you, time a chord progression that's considered to be infringement, because that would leave us four with, you, songs.

0:36:03 Thomas: I don't see that as that difficult, actually, um, my opinion on this Sam Smith one is, I, if I were the decider of that case, I would say yeah, you ripped off Won't Back Down, and by the way, it could have even been an accident, could have been just like, everybody's heard I Won't Back Down, but you know, I'm not saying I don't think you should have to prove that Sam Smith with a mustache and a trench coat in the dark of night was like, I'm gonna copy I Won't Back Down. But you know, like, I think in, I, music, a lot of it is you have a melody in your, your head, you know, there's a famous story that, as a Beetle, an avid Beatles fan, I don't know if you know this, but when, uh, Paul, I guess, the way he says it, he just sort of woke up, I think it is, with the melody of, uh, Yesterday, and he swore it was already a song, and he went around and asked everybody he knew, including, I think, the

0:36:06 Andrew: Right right well and

0:36:49 Thomas: Fifth Beetle, like, "Hey, is this a song? What am I remembering? Is this a song? Have I heard it?" And then eventually nobody had heard it that he knew of, so he's like, "I guess I kind of wrote it in the back of my mind." And as a musician, I can actually really relate to that, because I write songs in my head, on and I'm unaware of it, and I'll start with an idea one day, and within a week it'll morph, it it'll be the same, but like it'll have taken on different kind of structure and different things that I've done unconsciously. And it's funny because actually, like, I have proof of it, like, I I have early memos, voice memos I recorded of songs, and then I'll look back and I'll think, "Yeah, okay, that was the song I started." I go back and listen, I was like, "Oh, that was way different." And I never, I never set about to change it, but it just evolved in my head.

0:37:35 Thomas: Stuff like that, like stuff, melodies, if you're a musician, if you're a songwriter, melody, melodies are bouncing around all the time, and it's really hard to, for sure, know, is this a melody that is bouncing around because I've heard it, or because my brain was working on and knocked it out, yeah.

0:37:49 Andrew: And that's what gets into my, you, grand unified theory of music versus literature, because you can very clearly have an inspiration as an author, and, and I identify more, or, right, I write both fiction and nonfiction, right? So you can have an inspiration. Yeah, that, well, I

0:38:08 Thomas: Yeah. Let me agree with that and say that that might be what Robin Thick and Pharrell Williams song is, I think that's like, hey, look, this is an inspiration, here's a, here's the feel, it's a bass line, a beat, and some crowd noise, that's not a effing song, that's a copyrightable, in my opinion, that's that, like, no, no one can ever do bass line, drums, and voices, that's it, no, that's like an inspiration, oh okay, I see this idea someone has had and I'm gonna do my own riff on it, yes, it has falsetto, okay, but like, that's the same as saying it has guitar and there's guitar in the other one, that's all, the, you know

0:38:43 Andrew: I agree with you because remember that the reason to establish a particular limitation on copyright is to strike the balance that incentivizes original creations, but maximizes the universe of art that we have to listen to, right, it

0:39:01 Thomas: What I was going to say, kind of in response to your question, is in my opinion, and I think this is generally the opinion of most music people, is the key ingredient to songs, the important part that you can't copy, is the melody. It's the catchy melody. It's that part where if I ask any dummy on the street, hey, do you know Sweet Child of Mine, kind of the guitar thing? They're like, oh yeah, do-na-na, na-na na-nu, do na-no-na. They know that melody.

It was a good one for you to pick because that's so iconic that if you make a song that's like, like a slower version of that, that's like, all right, but you're still using the thing, like, that's a melody, that iconic guitar riff. Nobody can do that exact same melody again, even if they change it up a little bit. And that, I think most musicians and most of what I've read about, you now, people writing about music laws, it is kind of that like, that's the, the test, it's the, the key melody here is the catchy thing, is it, a is it distinct enough, because some, some things are just not distinct enough, you know, if it's too small of a selection of notes that's similar, or if it just kind of generic sounding, but Stay when With Me and with I Won't Back Down, it's close to being too minuscule to matter, but not, I mean, it's not, not really. Like it's, it's

0:40:15 Thomas: The exact same phrasing. It's the exact same. Yeah. But the timing is virtually identical. And the, of the way the, the bars go is virtually the identical to the point where it's like, yeah, that's, that is very similar. You know, there is the pause before the stay, you know, I Won't Back Down. You are like, there is, it just, as clear as a musician, like, no, that it is the same, it, it is same thing. And it's, it's important enough, I think, to both of those songs to matter, like, those are the main features of those sings. Well

0:40:15 Andrew: It's it's three notes Right.

0:40:42 Andrew: Interesting interesting I, where I went down a rabbit trail, was trying to parse out what counts as inspiration in literature that maybe doesn't translate over to music, right? I stumbled on was actually two authors that are both heroes of mine, and I think probably very familiar to our audience, and that is Douglas Adams in Hitchhiker's Guide to the Galaxy, and Carl Sagan, similar people reaching a similar audience, right? They were both atheists and pro-science. Adams wrote science fiction and humor. Sagan wrote science fact. I don't know if you've heard Carl Sagan's speech or read Carl Sagen's speech, The Pale Blue Dot, yes

0:41:27 Thomas: Yeah, the thing Where he's talking about, um, the fact that he wants to get a picture as the, the probe is going out and looking, you Know, that, yeah. Okay, yeah, love that. By the way, there's a YouTube video that's like that and it's set to some inspirational music that I swear, that nothing could give me chills and a bit of a teary, misty eye faster than that. Is the most beautiful thing.

0:41:34 Andrew: Yes yeah All Right, tell me if this is not substantially similar to, in the sense of being inspired by, by at least the same test. So, let's do Sagan's speech first. Pale Blue Dot. Here's what he says. "Look again at that dot. That's here. That's home. That's us. On it, everyone you love, everyone you know, everyone you've ever heard of, every human being who ever was, lived out their lives. The earth is a very small stage in a vast cosmic arena. Think of the rivers of blood spilled by all those generals and emperors so that in glory and triumph they could become the momentary masters of a fraction of a dot. Think of the endless cruelties visited by the inhabitants of one corner of this pixel on the scarcely distinguishable inhabitants of some other corner. How frequent their misunderstandings, how eager, eager they are to kill one another, how fervent their hatreds.

0:42:38 Andrew: Our posturings, our imagined self-importance, the delusion that we have some privileged position in the universe, are challenged by this point of pale light. Our planet is a lonely speck in the great enveloping cosmic dark. In our obscurity and all this vastness, there is no hint that help will come from elsewhere to save us from ourselves. It has been said that astronomy is a humbling and character-building experience. There is perhaps no better demonstration of the folly of human conceits than this distant image of our tiny world. To me, it underscores our responsibility to deal more kindly with one another and preserve and cherish the pale blue dot, the only home we've ever known." Beautiful, right? Now Douglas

0:43:17 Thomas: Let's see the other one. This is just, go ahead and read that other one.

0:43:19 Andrew: Adams Wrote this 20 years earlier. This is the beginning of The Hitchhiker's Guide to the Galaxy, tell me how similar it is. "Out in the uncharted backwaters of the unfashionable end of the western spiral arm of the galaxy lies a small, unregarded yellow sun. Orbiting this at a distance of roughly 92 million miles is an utterly insignificant little blue-green planet whose ape-descended lifeforms are so amazingly primitive that they still think digital watches are a pretty neat idea.

This planet has, or rather had, a problem, which was this: most of the people on it were unhappy for pretty much most of the time. Many solutions were suggested for the problem, but most of these were largely concerned with the movements of small green pieces of paper, which is odd, because on the whole it wasn't the small green piece of paper that were unhappy. And so the problem remained. Lots of the people were mean, and most of them were miserable, even the ones with digital watches. Many were increasingly of the opinion that they'd all made a big mistake in coming down from the trees in the first place, and some said that even the trees had been a bad move, and that no one should have ever left the oceans.

And then, one Thursday, nearly two thousand years after one man had been nailed to a tree for saying how great it would be to be nice to people for a change, one girl sitting on her own in a small cafe in Rickmansworth suddenly realized what it was that had been going wrong all this time, and she finally knew how the world could be made a good and happy place. This time it was right, it would work, and no one would have to get nailed to anything. This is not her story."

0:43:20 Thomas: Oh, Oh, I don't see that as even close to copyright infringement.

0:44:48 Andrew: Very clearly is not copyright infringement, but, but if you analogize the elements from music to between the two pieces, I think you could make a case, right? Begin with the insignificance. It transitions to the problems and violence and hatred. Then it transitions to thinking about a potential solution. And then it says, both obliquely critical of religion. And then they both end with kind of an optimistic note about the future in light of our size and importance in comparison to the rest of the universe. My point is certainly not, there's absolutely, there's zero way that you would bring a copyright infringement claim between these two things. They're very, very similar. They strike a different tone.

0:45:38 Thomas: Right. You're just trying to find the analogy to music in that.

0:45:45 Andrew: Right. And I would not want the state of Douglas Adams to have been able to have sued Carl Sagan, Not that they would have to say, hey, you know, how dare you, you produce a serious derivative of the introduction to the Hitchhiker's Guide to the Galaxy. But the law would not have allowed that. And so I think the question is, right, from my perspective, how do you bring the music aspect of the law into conformity with the written aspect of copyright law such that we can recognize these two pieces as being similar of being potentially inspired by one another, right? Right? Like Sagan and Adams ran in the same circles, right? They talked to the same groups of people. But how do we protect both forms of expression, even recognizing that they may have a significant amount of underlying similarities? I don't think our current law is doing a good job of that.

0:45:49 Thomas: Yeah. Okay.

0:46:38 Thomas: Let me answer that question, for which one, the comparison between written works like books and music is entirely I it's something that you would only do if you started with a law that was clumsily written to include those things and you're trying to reconcile it if you were setting about today to write copyright law from nothing about each of those things, you this just wouldn't use the same principle, they're just different things logically, like speaking, speaking, and from a stepping from back kind of standpoint, I don't see any need to have there be like this intense comparison that works out perfectly, that maps onto each other between two very, very different things.

Books are things that you are meant to read, or if you're me, listen to on Audible for about 12 hours to eight to 10, 12, somewhere really long, 30 hours, you know, that's a long, long experience of your life, a part of your life, you know, shorter one might be three, four, five hours, still very, very much different than a thing that you're meant to hear and you have stuck in your head singing that has a, often has a chorus or a part that's like the specific hook that you identify with the song, that's seconds, you know, that's 10 seconds or so, that could be the be the copyrightable identifiable book of the thing.

I think they're just two very different products that should have very different rules. Or if you had, if to try to analogize them, it would put them into that fuller context. You'd say, okay, well, let's say those are both paragraphs, which you just read. Let's say those are book paragraphs of books.

0:48:11 Thomas: How long are the books? Well, they're, you know, x things long, okay, let's compare that to this three minute song, in this three minute song, and so what portion of time would we be worried about in that case? And I think what you'd find is if you analogize the music onto the book thing, it would have to be like, you know, chapters and chapters that bear uncanny resemblance to to be the same thing with some of these music ripoff cases.

0:48:35 Andrew: That's Really, really interesting. We have is one law that is right the source for the legal obligations That covers multiple different media. And I think you've made a very, very convincing case that music is just not like other media. There there may be other media that to which it analogizes better. So for example, I'm thinking like in the world in which, um, you cartoon shorts, right? Like Looney Tunes were all affixed, they were like six minutes long, they were always six minutes along, they were never six minutes and 30 seconds, and they were certainly never a half an hour. Um, you know, maybe a song is comparable to you a six minute uh cartoon, but but you're absolutely right that when you're talking about making a comparison among you 300 page books or a two-hour movie or you even a half hour TV show, uh, that difference to the way in which we consume the media, a difference for purposes of figuring out that test.

0:48:43 Thomas: You Yeah.

0:49:41 Andrew: And I think what might save you on that, right, is some rigor around educating the public and the courts regarding not the objective component, but the subjective component of the similarity, right? Is to say, hey, in light of, And I love this because this keeps serving as your touchstone, but it's nowhere in the law. And that is, in light of the universe, that substantive similarity has to be compared against the backdrop of that this is a pop song, this is, you know, an orchestral arrangement, this is whatever, and this is the universe in which it inhabits, right? Right. Like you would not say would not be begin to be evidence of copying that. Like, you know, if I wrote a 45 page short story and you were like, well, you obviously ripped off this, you Hemingway, 45 page, short story. And it would be like, Well, the fact that they're both 45 pages is probably not, you know, a good similarity.

0:50:36 Thomas: Yeah. Yeah. Yeah. I think really what I would want to distill down to, and I think actually what some of the law that I've encountered tries to distill down to, or maybe it's just opinion about music law, but it's what's the thing? What is the thing about the thing that makes it special? Like, what is the things about this song that made it sell? And if I were to ask you, Andrew, okay, let's say you're in the shower, you're going to visualize that, and you are somebody who knows "Stay With Me" and "Won't Back Down," and you're just humming along in the shower.

You're thinking of those songs, forget forget anything else, Andrew. You're just humming "Won't Back Down." You just do-do-do in the show. Are you just, and then Uh, unbeknownst to you, uh, Sam Smith fan, is not my brother Sam, but this artist Sam is in the, is in a shower stall next door and he's like, "Oh, you know what, I love that one song by Sam Smither." I think it's, it's like, it's the same thing. Like, that's the thing you would be humming in the shower if you knew both those songs.

0:51:20 Andrew: You do, yeah, the humming in the shower, I like it.

0:51:49 Thomas: Uh, in music classes, for basic, you know, like, you know, trying to teach people know nothing about music, when you try to teach, like, what is actually the melody of the song, oftentimes they'll just be like, "It's the thing you hum in the show." It's the hum in shower test. All

0:52:03 Andrew: Well, I think that ought to make its way into copyright law, and I think that's a perfect framework for analyzing Grigson versus Lopez, which we were supposed to discuss in the first place.

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0:54:13 Andrew: Let's Get to it. Grigson versus Lopez is a lawsuit that was filed by Daniel E. Grigson against, uh, Lopez and, uh, more importantly, the Walt Disney Company, and it alleges copyright infringement between the Frozen song Some Things Never Change and Grigston's song Oh.

0:54:24 Thomas: Yeah.

0:54:36 Thomas: Frozen Two, but yeah.

0:54:37 Andrew: Frozen Tube, sorry, and Grickson's song, which is called That Girl. As usual start reading the complaint, Plate, backwards, scroll down to the bottom, uh, the lawsuit is brought by Renner Kenner Grieve Boback Taylor and Weber, which is an a nationally known intellectual property law firm, so serious firm, uh, with real chops. Um, there are a bunch of typos in the counts, either that or somebody that, like, has no idea how to do roman numerals. There's, like, I'm not kidding, it goes from count seven to count 18, ends on count IIX, which is not a thing, that's not how Roman numerals work. It's 10 counts. Okay. But they're all copyright act claims. It's a complaint for copyright infringement. And so it's been filed in federal court, not because there is diversity, although there is diversity in this case, but because the claims arise out of a federal statute, a federal cause of action, the U.S. Copyright Act. Don't we start with, and I think we could stipulate as a fact that in 1999,

0:55:21 Thomas: Okay. I

0:55:52 Andrew: Not what I've heard of before, but Daniel E. Grigson released a song called That Girl, which was on a CD. And for our younger listeners, a CD used to be a collection on a digital medium of songs that an artist would produce on an album called Planet Necco. This begins at paragraph 19 of the complaint, and that establishES the bare minimum of what you need for a copyright complaint. And that is that Grigson released this song, That Girl, out into the public. Right. So therefore, it is available to have been copied and it was released in 1999. So it way predates the song Some Things Never Change from Frozen 2. that we're no longer working under the inverse ratio rule, is pretty small.

So I think fair to say I certainly hadn't heard of either the artist or the song before. So then he goes through and establishes all of the ways in which the song has been released, re-released, has made its way into the public. So Then files for federal copyright protection, and you do two things. You send out the deposit copy, right, which contains the written music. And then you also file with the U.S. Copyright Office the recording. So that's how you register your copyright when you have a song. 2000, Pelican Records releases another CD called Cinco de Neco, Musica Suave, and it includes the track That Girl. So, you know, they're record labels trying to get it out there.

2001, Pelican Records released Blue Hair Day, which included the track That Girl. Um, paragraph 19 alleges that it was available for streaming, download, and purchase on mp3.com, uh, also released in, uh, paragraph 19 says a CD format, paragraph 21 says released a CD format, uh, paragraph 22 says available in hard copy, download, and streaming.

0:57:59 Andrew: And then it says paragraph 23, since 2001 through today, Blue hair Hair Day, including That Girl, has been available on dozens of music platforms, including iTunes, Spotify, Apple Music, and Amazon Music. Between 2001 and 2014, That Girl streamed on True Sonic Mood Music commercial streaming platform more than 100,000 times. Now, I have never heard of the True Sonic Mood Music commercial streaming platforms, but apparently they were able to get data from that. And, you, seems like a pretty big number for and is probably prima facie evidence that, uh, this song is publicly available, and that the composer of the Frozen Two song will probably have to produce some very specific evidence, evidence to to make the claim of, hey, I've never heard of this guy, I've never heard this before.

0:58:46 Thomas: I love switching roles here a little bit, because I've done a little research on this, Andrew, and I would love, so you've presented the prima facie, as written, kind of complaint, uh, on this, and I, I can't wait to, uh, clarify some things in this. Um, and the rest of the items, we don't have to go through every one, but it's just more stuff about, like, what this Grigson guy has done, you know, other releases of the same thing.

0:59:09 Andrew: The Other aspect, I think, right, is to say, uh, and this is set, set forth in paragraph 24, uh, but basically the idea is Grigson has also, that's the plaintiff, produced, worked with, made songs for kids. And so beyond just, hey, That Girl is in, uh, the ether, right, and is available for streaming and download, and you can can find it, but also, like, hey, we play in the same sandbox, right? I write a lot of music for kids, I work for kids, and if you're writing music for Frozen, right, that's also you, the the kids audience. Um, but yeah, I mean, there's, like, 30 paragraphs Of that, that, yeah.

0:59:09 Thomas: Oh.

0:59:46 Thomas: There's Quite a few. And so, uh, you've never heard of Pelican Records, would it surprise you to learn that that's just a label that Grigson himself started and released his own one CD on? It's Not a real record label, it's just his personal thing that he really, it's like if I really gave you a tape in the 90s And just wrote Pelican Records On It Yep.

1:00:01 Andrew: I That would, that would, yeah. Top Top Five Records From High Fidelity

1:00:12 Thomas: There You Go. Uh, so That's that first thing. Um,

1:00:13 Andrew: Yeah, exactly. Yeah. Okay. Wow. Well, that instantly, that's that's not a great fact to have omitted from your complaint.

1:00:21 Thomas: I want to be fair, Pelican Record has produced a few more CDs or whatever, but but at that time, I mean, it was just a thing that Grigsen started, it wasn't a pre-existing thing. Um, I was really looking forward to what a billion dollar attorneys could do with this debunking, because even me, as not the lawyer, just the guy who did the research into this, I had some fun. I'm excited to get to some of these, that was the first bit of fun. Okay, he applied for copyright, all that, you know, whatever, I'm sure he did, that's that's all fine, uh, Blue Hair Day, fair enough, it's on those music platforms. Also, there's a guy from my high school who wrote a few songs that, you know, a handful of people have listened to. He's fine, nothing wrong with him. He is one of those guys that plays open mics. He has an album on Spotify as well. It is not hard to put your album on Spotify.

1:01:06 Thomas: That is okay. But then we get to that part that is like, oh, that girl streamed on True Sonic Mood Music commercial streaming more than 100,000 times. Wow. Okay. That sounds like something as you alluded to. This is delightful. I went on of a research a bit rabbit trail of this. So later on, it also says, and this is important because it relates to this, that it was on mp3.com. Now, do you know mp4.com? Do you know anything about it? Do You remember it? I'm not sure you would have. You were doing law stuff in the nineties, I'm sure.

1:01:33 Andrew: Uh, So Enlighten me.

1:01:34 Thomas: I Remember mp2.com because I was a very terrible musician in high school who didn't, well, you know what, I won't say that. I was good musician but was completely deprived of resources by my effing family, so I had no ability to practice a guitar or do anything fun. Anyway, I listened to Dear Old Dads for all that stuff. But as a result, I had had to, like, literally figure out ways to, against my parents' wishes, play music with friends and practice on other people's guitars and stuff, and so naturally I wrote some very terrible songs that I hope we'll never see the light of day and no one will ever hear, those were uploaded by me, some of them, to mp3.com, because mp 3.com was a website where you could just upload your own mp threes that's all that was, so, like, you write your music Your shitty garage band and you're like, we're on mp three yeah, anyone is, because you can just upload your stuff onto mp3.com Yeah.

1:01:34 Andrew: Yeah.

1:02:27 Andrew: So It's a, it's Aware on Geocities.com

1:02:30 Thomas: It, precisely, it's that, it's basically Was that it's like, oh, we'll be Geocities for the, now briefly you could find other, like, real music on that, but that was because they, they went under the legal theory that it was fine, this was early internet, um, and, like, the internet music thing as a whole, we could talk about that forever, do a deep dive on how that evolved, because at first I, I think a lot of internet people were like, yeah, you can just share music on the internet, it's fine, because you own that, you bought that file essentially, so you get to do whatever you want with it.

And so a lot of people did that, until, you know, corporations and people with a lot of money started cracking down on it, when rightfully so, I think. And for a while, mp3.com had real music, but then, I think, due to lawsuits, they were like, now it's only stuff that you specifically have the rights to and you have to verify it.

And so then it became, I think, a place where just, you garage bands upload their stuff, because, I don't know, the Beatles weren't going to mp3.com to upload their own mp3s of their stuff.

1:02:32 Andrew: Yeah,

1:03:25 Thomas: And so here's what's funny, mp3.com, it's a complicated, like, business structuring thing, but I was researching that. And then I was searching, what the hell is this streaming thing, this commercial streaming thing that says it has 100,000 thingies? Well, it's Mood Media North America, which is the streaming service formerly consisting of Muzak LLC, DMX, and True Sonic, is a commercial music company and a wholly owned subsidiary of Mood Media Corporation, uh, founded in 1999, a small business unit of the now defunct mp3.com, True Sonic provided background music to businesses. It's elevator, elevator music, basically

1:04:00 Andrew: Uh so So already, basically, what we have here are what you might call credential inflation.

1:04:07 Thomas: Oh. It's so good, so that's all that is, that's, there's nobody, nobody went, like, oh, I'm gonna go stream That Girl from Blue Hair Day a hundred thousand times, it's Just some company that bought all this worthless music and used it is essentially like music where it's just playing in elevators and places that nobody would care, and so the rest of it is just, I love this little switch they do, they're trying to establish, I think, as you've outlined for legal reasons, the ability for, or the likelihood for Robert Lopez to have heard this song and And the way they do this is by saying, you know, here's all my music, there's impressive streaming numbers. And also I write kids stuff. I all the time, kids stuff and furthermore, Robert Lopez once said he looked at YouTube. So therefore he, but here's, what's funny, the song that girl, and we'll get to it. It's not a kid's song. I don't know if you noticed that, Andrew.

1:04:18 Andrew: Right.

1:04:41 Andrew: That's exactly right.

1:05:01 Andrew: I I Did not.

1:05:03 Thomas: You could have played it on a kid's thing, but it's not, there's nothing about it that's a kid song. Like, you can, it's actually kind of an adult theme. It's like a breakup song, essentially. Again, there's nothing that stops you from labeling a kid's song, but I don't even think it is. And what I think is going on here is that Grigson has written this song for his shitty band that nobody cared about, but he's also later on done a bunch of kids sort of related stuff that nobody's heard of also, and I've gone to all these websites and these things, there's a Facebook page with two followers, you know.

1:05:36 Andrew: Yeah.

1:05:36 Thomas: It's just nothing, it's all that kind of stuff. There's nothing, um, and, and to take nothing away from this guy, he does do some environmentalist stuff, I don't want to, you know, bash everything he's done, he, he teaches music to kids, and but, you know, it's lots of people teach music to kids, that's great, that's awesome. Robert Lopez isn't listening to your fucking music because you teach music to kids and have a YouTube channel with, you 10 subscribers or whatever. And what I think he tries to do is he tries to establish all those kid music credentials, but I think it's a bait and switch. I think the idea is like, yeah, look how popular I am, by the way, not popular, it's all made up, in the kid music sphere, and this is a kid movie. And so we're to believe that Robert Lopez would have like seen Grigson's work in the the kid music sphere and be like, let me check out his early hits.

1:05:36 Andrew: Yeah. Yeah. Right.

1:06:22 Thomas: Let me go find his early work that's not even kid stuff, but is, you know, I heard it in an elevator maybe the other day when I was in the Disney building. And no, let me go track that down here. I think if you were to do more thorough job than I've done, you could really debunk the chain of causation here because it's very silly.

It's a bunch of stuff to just try to say I'm a kid's music person, and therefore Robert Lopez would have heard this song that nobody has ever heard, like, this is not a song, no, nobody knows this, it's not real.

I found that hilarious, and by the way, I did several Google searches, like, in quotes, for some of this stuff, and Google was, was like, I got nothing, man, like literally it'd be like, I gotta, if you search Pelican Records with quote-unquote Planet Necco, like, so, so Planet Necco is the name of the album, we already established, if you put that in quotes it has three results, three, have you ever googled something that has three result, three results, that's not possible, I could take a screenshot right here, you could do it yourself, the first result is literally Grigson's website, which is good, you got the SEO going, so if anybody searches, you know, you're the top result on Google, but you're only result, nobody else, if a real, if it was a real song, if I search for some actual song even with very minor, um, play anywhere, you're going to get other things referencing the song, if you search all of the internet, but this is literally the only three, three results are Necco Records, like literally the Necco Records website.

And then some weird ones that I don't even know what they are. They might be like indexy thingies, uh, where it's just, I don't know. It's just literally three results. Nothing.

1:07:21 Andrew: No. I If you put Pelican Records in quotes as well, then you, you drop down to two hits, one of which is a copy of this complaint, so yeah, okay.

1:08:16 Thomas: Nobody has ever heard of this. This is not a real thing. Uh, also, um, I love the very public, I just, this was just minor language, but again, it's very, it's puffery. Are you allowed to do puffery in complaints? I guess you are, right, I

1:08:17 Andrew: Okay.

1:08:28 Andrew: You're allowed to do puffery and advertising, you really shouldn't do it in your legal briefs.

1:08:35 Thomas: Just if you notice, everywhere if you just search public, you can very clearly see they're just trying to make it seem like he's just, he's a celebrity, he's Tom Cruise, he's very, I love this, one is 24, Grigson has a very public history of writing original music for and with children, very, that is really

1:08:55 Andrew: Not not a slightly public, like

1:08:57 Thomas: Straight, yeah, like that, how, I don't even, who has a very public history of writing original music for children?

1:09:03 Andrew: Rafi.

1:09:03 Thomas: There's like three people you've heard of, yeah. There's not this guy who has, and under the evidence for that, are supporting paragraphs. Uh, he's got the environmental club youth group, and again, that all sounds great, this is not to diminish this guy's hobby and what he does. It seems to do nice work, but this is very clearly puffery and complete bullshit, which maintained a website, Facebook, and YouTube page. By the way, if you search YouTube for the environmental club, there's nothing. You cannot find it.

Side note, this is where I referenced the other day that YouTube search is completely broken. This is when I discovered that YouTube searches completely broken. So I want to allow for the fact that the YouTube page may exist, but YouTube is so terrible now that I wasn't able to find it. I searched every which way I could, I found nothing. Now, you can find girl on YouTube from Neckos for Breakfast. It has 30,000 views as of 10-10. Now, you can't go based on now because this got some publicity and now people have looked at the video. Fortunately, he preserved on his website, like one of his achievements was Neckos for Breakfast, that girl hit 30,000 views on 10-10-22.

1:09:04 Andrew: Huh, okay.

1:10:07 Andrew: And That before this lawsuit was filed 1st, 2022, so there you go.

1:10:13 Thomas: So, now it has 71K, which still is not even that much, but that's all because of people looking at this. Now the song hasn't been up for seven years. So, 30K views in seven years, as you say, one of our episodes, in that, I mean, it's just, it's not, these aren't numbers that are real. I mean, a lot of YouTube views are not even anything, anyway, could be a bot, it could be a, you know, like, okay, some people have listened to this, fine, that's, but that's, that's really insubstantial. Now I want to contrast that with what's very clearly two of the biggest fucking legends in music that have ever existed. I, Andrew, do you know anything about Robert Lopez and Kristen Anderson Lopez?

1:10:18 Andrew: Right. Right, right.

1:10:53 Andrew: Not, not specifically.

1:10:54 Thomas: Oh, Oh, oh. I look, years ago, I was over on my podcast, Comedy Shoeshine, that doesn't really exist anymore, saying how I would never, emphatically would never watch Frozen and would never let my kids watch Frozen. Frozen fast forward, Frozen fucking rules and Frozen two rules, sorry, I'm throwing the f-bombs, uh, but maybe maybe we loosen those requirements now that we're doing four a week, that's a lot of censoring, um, they are great movies, they just are, um, I had the privilege of taking my kids to Disney on Ice, now here's the thing, I love the Lopez's, I love Frozen, I hate the song Let It Go, I still cannot stand that song, it's it's horrible, I hate it, I'm sorry, I just, I just do, do, it's not good, but having said that, when I, I took my kids to Disney on Ice the other week, it was really fun, uh, and this isn't where the Kings play, the Kings Arena, you know, the Sacramento Kings, it's a big arena.

1:10:54 Andrew: No.

1:11:46 Thomas: It's, you know, it wasn't full, but it's a lot of people, and let me tell you, when they did the reveal of freaking Elsa coming out and starting Let It Go, it was like beetle mania I'm not, this Is this, this song is so legendary, I hate it by the way, but it's so legendary and struck a chord with so many people, so many kids, so many little girls specifically, the energy behind it is insane, like the place went nuts, it is such a an achievement just in terms of writing a thing that people love, like it just, it just is, and so the two of them were, Andrew, you weren't familiar with them, do you know the musical Avenue Q, they Wrote that, do You know the musical, um, Book of Mormon?

1:11:58 Andrew: Yeah Okay. Yes. Okay.

1:12:28 Thomas: They wrote that, do You do you know, Frozen, okay, you know, whoever, established, um, they wrote the the song, "Remember Me," a song so devastating I can't even listen to it, from from the movie Coco.

1:12:29 Andrew: Okay.

1:12:39 Andrew: No.

1:12:39 Thomas: They're incredible songwriters, Robert Lopez. Do you know what an EGOT is? EGOT, it's funny, it was kind of popularized as a joke, uh, in uh 30 Rock, but the whole joke was Tracy Morgan, who plays Tracy Jordan on 30 Rock, was was going to try to win an Emmy, a Grammy, an Oscar, and a Tony, and therefore be an EGOT.

1:13:00 Andrew: Okay, yeah.

1:13:00 Thomas: Now, show the didn't invent that term. I guess somebody else invented it in, I don't know, the 70s or 80s. But that's when people started talking about it, because it's kind of funny, EGot. It's like a funny sound. But it's also an incredible achievement to win one of each of those awards. In fact, there are only 17 people who have ever been an EGOT. And three of those include daytime Emmys. So those Are kind of controversial, like it's, there's only 14, really. Robert Lopez is the youngest ever to achieve an EGOT at 39 years old. Don't even have any of those letters. I feel like a fail. I got three years to win an Emmy. No, it's not happening. Yeah.

1:13:07 Andrew: Yeah. Wow. There's A podcasting version of that, right? Five

1:13:35 Thomas: And he did so in the shortest time span, in nine years. He did all four of those awards, won all four of them in within nine years. Here's, Robert Lopez is also a double EGOT, meaning he has won each of those awards at least twice. You want to guess how many double EGOTs there are? One. It's Robert Lopez.

1:13:51 Andrew: Oh That Guy, wow, okay.

1:13:55 Thomas: That's it. Not only that, if he ever wins one more Oscar, he would be a triple EGOT. He's won all those awards three times, except the Oscar he's won twice. This guy is a legend. They're incredible, incredible. The idea that this guy went, pulled up Nekos for Breakfast on YouTube, I was like, I've just had ideas man, I just gotta listen to some some inspiration and stole this song, is like me saying that Alex Ovechkin stole my slap shot technique. Like, it's literally that level of thing. It's Alex of etchkin the greatest goal scorer possibly ever, he's gonna break uh Wayne Gretzky's goal scoring record if you can believe it. It's like saying he, saw he some tape of my slapshot at at my my game the other day in beer league, and you know, I think he copied it, I think you can tell there's

1:14:05 Andrew: I Look

1:14:42 Thomas: A similarity. There.

1:14:42 Andrew: Like You can be famous and still steal stuff, right? I want to push back against that a little bit.

1:14:47 Thomas: Absolutely, I want to to put the claim in context. This, these are two people who ooze such talent, they have written written just non-stop unbelievable things that are hit after hit, that are unparalleled success. And the thing, so let's keep that in context when we're looking at the allegations that he had access to this YouTube video or whatever that nobody's ever heard of, and that's how he came up with this song. It's very silly. I get this is not a legal argument, and I understand that, you, the idea that like, oh he was all out of ideas one day and so he victimized some poor fool no one's heard of, I get that, that's theoretically possible, um, that's not a legal argument, this is juste putting it in context, it's just, it's insulting to even entertain this possibility.

1:15:29 Andrew: Well, what this lawsuit does is put the subjective test first and the objective test second. And I imagine you may have thoughts on both of these. So the subjective is paragraph 37. And again, this is some creative writing in paragraph 37 Grigson. This is the plaintiff's allegation. Plaintiff Grigston first heard the song "Some Things Never Change" while attending the film Frozen 2 during the week after its release on November 27th, 2019. As the song was being performed, he involuntarily stood straight up, turned to look at his wife, then at his kids, his eyes wide as saucers.

1:15:35 Thomas: Yep.

1:15:46 Thomas: Do

1:16:12 Andrew: Don't write your Complaints This No, don't This Is that It's bad. The close similarity to his own, "That Girl," was so striking to him that it caught him off guard, comma, the beat, rhythm, feel, theme, words. He sat back down with his head in his hands, his 11-year-old daughter leaned over to him and said, "Dad, Disney took your song."

1:16:13 Thomas: You Normally write Stuff Like, okay Okay And That 11 Year old daughter was Albert Einstein.

1:16:38 Andrew: Was Albert Einstein.

1:16:39 Thomas: Put This under r r slash this this happened, or Whatever that is.

1:16:39 Andrew: Yeah yeah Of All the things that didn't happen, this the most In that, uh, then we have, shortly thereafter, Grigson put audio files for both songs into his computer to analyze them further. He located a version he of "Some Things Never Change" with music only

1:16:58 Thomas: That's That might be slightly important, by the way, I've, so good thing you read that, I

1:17:02 Andrew: And transposed "That Girl" down two steps to match keys. Okay, he did not alter anything else.

1:17:09 Thomas: Love this.

1:17:10 Andrew: Not The rhythm, not the tempo, not the chords, nothing was added to him. The musical similarity was striking. So with that in mind Let's

1:17:10 Thomas: Yeah Let's, we should finally Play this at long last.

1:17:21 Andrew: Let's play these two songs.

1:17:23 Thomas: Okay, so we're gonna play, I'm gonna play uh just enough to get a sense, the verse and the chorus of "Some Things Never Change," uh, and then we'll gets to the other song.

1:17:31 Andrew: Can't wait for Grigson to sue Us.

1:17:33 Thomas: All

1:17:50 Clip: And my life's a little sadder and wiser, that's why I rely on certain certainty, your hand in my hand, just fine like an old star, some things are always good, so I change, holding on tight to you.

1:17:52 Andrew: All Right.

1:18:23 Thomas: Right, so you've Established the verse, course, take Every ounce of my body to not sing full-throated along with that. I... right. Now, here we go with this one. And you're going to recognize this from the radio, Andrew, in the 90s. It was everywhere. Sorry. What

1:18:23 Andrew: Yeah. All

1:19:01 Clip: I bet she'd never meet us back Of course we'd walk by her and her friends Nationships died in the past Even some people never changed But on a different mess, we'd kick out tests But inside they're still the same People never change

1:19:29 Thomas: Do you think?

1:19:31 Andrew: God, the hell did I just say, like, so, uh, okay, and let me say this, uh, because it's clear Grigston is going to try and sue us for, know, you playing that segment of of his song, uh, which by which, the way, fair use in commentary. I mean, it was necessary to evaluate your claim of similarity.

1:19:48 Thomas: We don't have Disney money. I don't think he'll come after us.

1:19:49 Andrew: Yeah, we do not have Disney money. We have podcast money. Flip about it.

1:19:54 Thomas: Honest opinion. I haven't, by the way, to the audience, I haven'T asked, we haven'T communicated this with each other. I'm genuinely, you obviously have gotten an indication of, well, maybe, I don't know. I think you know what I think. But I am curious for your lay person's opinion on the similarities here

1:19:57 Andrew: Yeah, no, we'd do this, yeah. I was looking for, right? I was applying the same test that I applied to everything we did in part one, right? And in particular to the, "Won't You Back Down." Right. And I, and was looking for those, those four notes, and I don't hear them. I don't hear them at all. It's not. And again, I think that that girl's song, it's better than I expected. I mean, it's a, it's a, it's a kind of catchy little, if if somebody were playing that over in the corner in the bar where I was drinking, I'd be like, yeah, good on you, dude. It's not similar to, I mean, like it's not just, not substantially, so I'm like, what the hell is this lawsuit? Did, did you do the thing that Grigson did?

1:20:07 Thomas: Yeah.

1:20:31 Thomas: It's a it's no yeah

1:20:49 Andrew: Okay, I

1:20:50 Thomas: So um, I'm not sure exactly what he did because I think if he, if he mashed him up, that would be funny. I have a version of that, um.

1:20:57 Andrew: Can't wait to hear that, but, but but let me tell you how I understand because I think maybe I have more insight as someone with less musical ability that he took the instrumental version, I, two steps.

1:20:58 Thomas: Yeah. But sure sure, yeah. He yeah, he, well, at first it's funny because he says that he changed his song, so he, he says he transposed that girl, uh no, his is the higher one, so it's

1:21:17 Andrew: He's saying clearly he means, because his is much lower than, right? That's insane. That can't be the case.

1:21:25 Thomas: It is the case. Uh I could bust out my guitar, do you want me to bust out? No, I actually did I

1:21:27 Andrew: All right. Okay. All so transpose that girl down two step. All

1:21:35 Thomas: Yes, what's funny is later on in the, when they show the written music, what they actually did in the written song music, and maybe this is the song expert, they transposed, uh, Some Things Never Change up two steps later, so it's just kind of a weird thing, like I don't know why you would do two different ways, it's the same thing, but whatever. So yeah, he's saying that it was so striking, he's saying that to, um, him the musical similarity was striking. Yeah, I don't know what to do with that, it's not really, you know, but later on he goes, he, he has some musicologist, who I think also saw the, the Disney dollar signs and was willing to debase themselves, uh Dr.

1:22:07 Andrew: Initially read this as Dr. Tomato, but it's Dr. Tomorrow. But yeah, that's

1:22:13 Thomas: Tomato would never do something like this, I will not have you besmirch his name, I

1:22:16 Andrew: Right. No one will impugn Dr. Tomato here on this podcast. So remember that the first test, that is the subjective similarity, right, we don't transpose it, we just listen to the two songs because that's what the jury will do. You will play them both right

1:22:30 Thomas: Transposing actually is fine, that part's fine, because I'll tell you why, it's because if I wrote, if, you know, if Paul writes "Hey Jude, don't make it bad," and I'm like, I know, I'll do Hey Jude just a step higher, I'm still ripping, so it's okay to transpose it to compare, like, did you just change the key and you're still ripping off the same, you know

1:22:49 Andrew: But I would, but the way in which that would play out in front of the jury is that you would introduce the music expert to transpose up the two keys, right, and you would just, the substantial similarity, as you just play it for the jury, and I have to tell you, just listening right to you doing that right there, even my non-sophisticated music brain could go, yeah, that's, that's still I

1:22:50 Thomas: Uh okay, yeah.

1:23:12 Thomas: You would be able to, yeah, no. I mean, it's, it's, and actually, if anything, the less musical you are, the more you will hear songs of different keys and not know that they're different keys because you're just latching on to the, to the melody, whereas somebody with, like, perfect pitch, I don't have perfect pitch, but I have a pretty good pitch, is like, nah, I know this is, uh, when people change the keys of songs, it really bothers me. People do it for performance a lot, cause, you know, to fit their voice, and I get it, but I noticed.

1:23:13 Andrew: Yep. Yeah that makes that makes total sense yeah we move into then the, the extrinsic test, right, the objective, what, what does Dr. Dr. Tomorrow have to say? Uh, the forensic musicologist, Dr. Tamara, found eight significant similarities shared by "That Girl" in "Some Things Never Change." Melodies and melodic structure, musical forms and musical gestures, rhythm section parts, tempos, chord progressions, cadences at the end of the choruses, the last are lyrics and arrangements and lyrical structures and that's the best case then you know people yeah people have wasted two hours of their lives listening to this podcast because it It is way less similar than the Carl Sagan and Douglas Adams bits. And I mean that in a very specific way, right? Because he's saying some people never change, which is repeated a lot, is like "Some Things Never Change" in the Some Things Never Change song. And it, yes, those words are similar, but that, that's

1:23:49 Thomas: Yeah.

1:24:11 Thomas: Well, let's talk about that. And that I think is actually the best case, even though it's terrible, well. The lyrics that's all that's happening yeah they both end

1:24:49 Andrew: Yeah they have some in it, right, like it's, sure. Three out of the four words are the same, but but contextually, right, they're meant very, very differently, yeah.

1:24:50 Thomas: In change, yeah. And they've got never, yeah, sometimes very different, not only that, we're not going to play at all because I think we're now allowed to, but if you listen to all, all the songs. Now, that girl, the entire song is monotone in terms of concept. All it is, and just to read some of the lyrics here, I I have, if somebody did this to my music from the 90s, it would be worse, I'll just say, but then again, I'm not saying Disney, about, um, the entire thing is about a girl not change, it's about a girl, you, having, uh, turned out to suck, and there's just nothing you can do because they're, you know, she might be pretending to have changed, but she can't, that's the entire think.

1:25:03 Andrew: Yeah she was there for me as long as there was a me, a statement so true, it's a fact, all right. That

1:25:45 Thomas: That was the one I was, good, I was so good

1:25:48 Andrew: Was that that line is, is, is perfection.

1:25:51 Thomas: I'm sorry a statement so true, it's a fact.

1:25:51 Andrew: Yeah yeah, no, that girl is about a girl that broke up with him, and she's awful, right, that's all it is, right, that girl played it up good, she really kept it up, she must have had a really good time, she'd be there for me as long as there, there was a me, a statement that's not worth a dime.

1:26:00 Thomas: Yeah and lie to you, fill your head with dreams. By the way, um, go back to my early point, does this seem like a kid's song to you?

1:26:08 Andrew: No no it's good, but it could be, but here's the important thing, right, only lyrics that are alleged to be similar are "some people never change" is similar to "some things never change" and but in style, inside they're still the same, is supposedly similar to "Some Things Stay the Same." That's the only, in the entirety of both songs, those are the only things that are highlighted. And again, as we've pointed out, the people and the things are different things.

1:26:26 Thomas: Yeah the yeah so the context of, where do I, okay, Frozen Two, where do I start, okay, have you seen Frozen One, let me go through Frozen One, okay, Elsa, she was born with power, no, I can't do all that, we're too long, um, so in the, in Frozen Two, the, the meaning of the song, like, what's happening is, it's, you, a sequel, they're, they're growing, they're changing, and the, it's lamenting kind of the fact that, like, you're growing, you're leaving behind people, you're whatever, and, uh, she's reassuring, uh, Olaf, who's the snowman, who's, my, I love Olaf so much, I would die for Olaf, and he was just created in the last movie, so he is, he's a funny character because he was essentially created by Elsa's magic, but he's new to everything, and so for him, even though he's been around like a minute, he's experiencing this, like, oh, he's growing older and things change kind of thing, so that's what this song's about, and so, as you point out, it's completely different meaning, it's about the things that stay the same, in a good way.

Like, it's like, yeah, sure, some things change, like this leaf is getting older, it just, it dissolved, the leaf saturn wiser, dissolves. But Like the Pumpkin Rots away. There's good visuals, but what doesn't change is the fact that we love each other, and you know, we get along just fine, and it's a beautiful lyrics.

I actually really love it. I love the lyrics of the chorus, um, and I love how it incorporates this is what good musicals do is incorporate character into the songs in the way, in a way that makes sense. My favorite verse is the second one. I love it so effing much.

I'll spare you, but it's, it's hilarious, um. It's Jonathan Groff as Kristoff, who is on my list of men I would actually marry, a longer list than you'd think as a straight-ish dude, but uh, no, he's on my list. I would, I would marry that man if, you know, him, if you, you know, maybe listen to the show, I don't know, you could, you could email.

Just anyway, that aside, he's fantastic, his voice is amazing, and his character, you talks to his reindeer, that so he sings part of the verse as the reindeer. All this is to say there is so much more going on than just, like, "Oh, that girl, she sucks, she's trying to be good now, but she just didn't change, it's terrible." There's just so much more happening.

1:27:42 Andrew: The pumpkin rots away. Yeah.

1:28:44 Thomas: So yes, you're we can dismiss that lyric part, but unfortunately, I mean, that's the whole case. You there are some musical similarities, and it is a striking coincidence, some of the structural things of the chorus structure, but the texture is the funniest thing in the world, it's one of the biggest sources of laughter for me, um. There's an argument about the structure, that Girl" and "Some Things Never Change" have identical song structure in terms of arrangement of sections. Below, similar lyrics set in similar structural forms are outlined in color. But are you ready for this, everybody? Here's the similarities, both songs: I guess they both put their intro at the beginning of the song, instead of, you know, at the end or in the middle.

Through the placement of the chorus and the placement of the ending or outro of the songs. So, I guess they put the outro at the end, both of them. This is where they put look, maybe it's trying to say from the beginning to the end, it's the same, but not really. Like, it says, "From the placement of the intro," as and then says, "through the placement of the chorus and the placement of the ending or outro," that has to be saying it's too similar that they both placed their intro at the beginning of the song. Am I is there any other way to read that?

1:29:19 Andrew: Which No,

1:29:51 Thomas: Andrew, that is the most hilarious thing, so the intro and outro were in the same, wouldn't, wouldn't you know it. And then Dr. Tomato completely ruins his credibility right here by saying the structure is quite complex and unusual for a pop song because pop songs generally flow a simpler pattern, such as verse, chorus, bridge, verse, chorus, chorus, ending, and the arrangement of the sections in both songs follow a unique pattern, yet one that is identical, which which they have, as music, intro, verse, chorus, first chorus, bridge one, bridge two, chorus, outro. But if you listen to it, the bridge part two for both songs actually is just another verse, but with a bit of a difference. So I, I wouldn't personally I wouldn't really even call that a bridge, I would call that another verse with a bit of a difference. Like, maybe you would say verse, and then you could say, like, I there's just a little bit added on the end of each of them. And when you look at in light of that

1:29:52 Andrew: That's how I Read that. And that right

1:30:42 Thomas: It's verse, chorus, verse, chorus, bridge, verse, chorus, which is like the most common possible structure of any song. This is every song. Literally the most, most common structure is, or one of the most common, is verse, chorus, verse, chorus, bridge, chorus, chorus. Okay, usually you end with two chorus, all right, I'll give them that. Like, instead of two choruses, it's a it's modified verse that he calls a bridge. It's such that is so baffling to me that you're trying to make that claim is the most comment song structure in the world.

1:30:49 Andrew: Well, Want so I agree with you with respect to song structure. And then, kind of transitioning back to the first of the expert, right, paragraph 45, the a point is the tempos of both songs are identical, quarter note equals 92 beats Per minute.

1:31:29 Thomas: This is meaningless. This is absolutely meaningless. I'm what you often do when you're, especially nowadays, in light of digital music, you set an integer on your freaking DAW. That's going to be somewhere from, I don't know, it could be as slow as 70, maybe, if it's super slow, up to, like, super fast, like a metal song. I don't know, it could be like 140, 150. I mean, they go a little higher than that. I do not know, because I do NOT write songs that are that extreme.

I kind of most people tend toward the middle of that. And, to like, 110, you know, that is just in the normal range of tempos, and it is an integer, but it is worse than that, Andrew, because this is one of the things that I wasted way too much time on. Like, literally, I'm not even joking, probably like six hours, I shouldn't have done this, but I got stuck on it because it was so funny. My software, what I can do is identify all the beats of the songs. It's a bit of a manual process to make sure it's done right, it has an automatic mode, but I didn't want to rely on that because what if it messes it up. And from there, it can extrapolate what the tempo is and the songs, and

1:32:32 Andrew: Uh, uh-huh.

1:32:33 Thomas: If actually, let me play this real quick. Let let me play this and tell me, just focus on tempo. Tell me what you think about this. Any thoughts there from a non-music person?

1:32:53 Andrew: No.

1:32:53 Thomas: I'm curious. It's okay if the answer is no. This is incredibly inconsistent tempo. It starts off when And look, let me say this. It's OK for a song to have inconsistent tempo that happens all the time. You actually want it to. And in fact, I was expecting that the Disney song, because it's done, I even, by the way, there's a documentary of them making this whole thing and it's on Disney Plus and I've watched it. It's great. And they use, you know, they're recording digitally as you would.

And I expected, oh, they would have just set a clicker, a metronome to 92. And it's going to be, no, it actually varies quite a bit. It, It's not 92 BPM. And here's what I'm wondering. I'm wondering if when they said, "Oh, we got the music only mode," they grabbed, like, a MIDI file that's just music, and it's at a set BPM of 92. I, I almost guarantee that's what happened, because the real song varies from, like, 88 to 92, but places of it and this is hard, because, you can you know, if you hit a single thing a little early, I'll throw you way off in terms of extrapolating the whole beat.

But by my measures, it, it varied into the hundreds at small times, but let's suffice to say, on average, somewhere from 88 to 92. And this song, uh, "That Girl," is played not with a metronome of any kind, and by a very, um, drummer that is not better than me

1:32:54 Andrew: Yeah. Okay. Huh. Uh. Yeah

1:34:12 Thomas: Is what I'll say. And I, I could play the drums, I could get by in a garage band, playing drums and, and it's, this person might be worse. Listen, if you can, Andrew, focus on the hi-hat. I'm going to play this one more time and just see if you can, just for fun, since we're here, how inconsistent this rhythm is.

1:34:17 Andrew: Yeah. Okay mm-hmm

1:34:38 Thomas: I don't know if you Can hear it specifically toward the end, the hi hat rushes like crazy. Like it, by my measure, it goes up, up to, like, 110 or something right there for a brief moment, just the end is, like it's very inconsistent. And so, when you look at it in that light, that this song is all over the effing place, sure, the average might be somewhere around 92, but it this is it could be like 85 to 95, and the Frozen song, something like 88 to 92. And you're saying they're identical, but and, uh, there's a more on the tempo. I actually skipped ahead, it's at the beginning too. "Comparing corresponding clips from the two songs compiled by Grigson, the tempo and rhythm are so similar that they kept time and rhythm without alterations." Okay, that's a testable claim, so right, so here's them, um, mashed up, just for fun, just with kind of nothing done to them, except matching them up, and

1:34:43 Andrew: I do

1:35:37 Thomas: I'll give it credit, it stays together for a decent amount of time

1:35:39 Clip: Guess the wind will be colder, getting older, every autumn feels sadder and wiser, that's why I rely on certain certainty, she would always have my back, she'd be there for me, as long as there

1:35:42 Thomas: Terms of tempo, but

1:36:00 Andrew: Yeah

1:35:58 Thomas: By now it's like totally gone yeah completely gone, so yeah stayed together for, you know, 20 seconds you know, and then completely gone. So yeah, they started around the same tempo, that that is, um, nothing, that's absolutely nothing, nothing, um, but very quickly gets out of, of sync, uh. So the idea that corresponding yeah clips, uh, the rhythm are so similar that they kept time and rhythm without alter-, alterations if you very, very much cherry pick your sections, you might get some mashup of that.

1:36:06 Andrew: Well While we're still looking at the expert's opinion, paragraph 45, um, there is, and I'm gonna butcher this, this is paragraph 45 c on page 14. It says, "In That Girl, the final chord in the phrase appears as C slash D, and sometimes d in Some Things Never Change, it is D7 sus. Although the chords are different, they both variations on a D chord and serve the function of a five chord." I have no idea what that sentence means.

1:37:02 Andrew: So can you translate that into English for me?

1:37:02 Thomas: Will Basically both songs are of the progression one four two five, and don't want to get into a whole music lesson, but all it is is relative to the scale, so like, you know, if you imagine do re mi fa so la ti do, you, it's putting it in those terms to universalize it rather than talking about the actual chords, because that way you can kind of compare it easily and reference the structure, chord structure, without being in a particular key. So even though they're in different key, they're following the same intervals, which is 1 4 2 5. The part about the C over D and sometimes D, that part is, I mean, it doesn't matter, it's kind of weird, That Girl, the bass note, so it's weird, the bass is playing a very plain one four two five pattern, and so I just took it for granted that it was one four two five, um, and therefore matches the somewhat the Frozen the song, but it actually actually plays a C a lot of the time.

1:37:19 Andrew: Yay

1:38:07 Thomas: And even though it says C over D, although the chords are different, they both are variations on a D chord. C over D is not, it's unfair in my musical opinion to call that a variation on a D chord, that's a variation On a C chord. That's a C cord with a D bass note. So that is in my music opinion, that is stretching the truth. However, because the bass line plays the one, four, two, five progression anyway, it is like like I'll give it to him, you know, like it is basically in the same thing. So what I did, Andrew, that's essentially suggesting that the chord pattern is the same, the chord progression. So I wanted to give you a few examples here that I thought would be fun. Now, granted, these are 90s songs that you won't know, probably, but listeners might. So to isolate what we're talking about, the, um, the chord progression is this

1:38:47 Andrew: Okay

1:38:53 Clip: I remember that girl, she was my best friend, she would always have my back, she'd be there for

1:38:57 Thomas: Basically That's That's the one four two five that I'm talking about that's basically how the chords go, just off the top of my head, I can think of a billion songs that are that, like I, it's, it's, that's nothing, you know, like, I, I thought of a couple just for fun, uh, here's a great one, I don't, you might know, do you know this song? Really?

1:39:03 Andrew: Got it, yeah Okay I Was just gonna say Blues Traveler, I was seriously, you will never believe me, so, so

1:39:23 Thomas: No I I, that's awesome, I wish you would have, you, that would have, Andrew, been Takes the Music Exam credit, yeah, that's a very common, and that song, um, effing rules, but it's the same chord pattern the entire time, which just goes to show that

1:39:30 Andrew: Um It is a good song Yeah It's The Same one four two two five, huh Also

1:39:41 Thomas: Yeah Basically the whole, even the chorus is the same, now, head here's another one, and this, this is funny because the, as a kid I didn't really listen to these much, so I actually thought these were the same song just because I had only heard them like once, and And whenever I would sing one, I would go into the other.

1:40:14 Thomas: So as you can see, having that chord progression is nothing, that doesn't mean you're the same song, it just doesn't. And a bunch of the rest of it we can skip because it's just puffery about that. So, like D, for example, and this is why this was so frustrating to me, this was essentially, Andrew, if you read a legal brief and the lawyer was just really, really exaggerating, like, what the case history said, in a way that you're like, "All right, I see that these words refer to things," but, but like, you're really stretching out your ass, it's, it's not sovereign citizen, citizen level, but it is a

1:40:14 Andrew: Yeah No But I get, I get the point, I get the point

1:40:49 Thomas: Yeah. And so this, for just a quick example, D, both chord progressions exhibit a similar harmonic movement and provide a similar harmonica background for the vocal melody that is sung over the progression. That's nothing. That's the same as saying they have the same chord progression, which he already said. And furthermore, when it gets to the chorus, they actually don't even have the same cord progression. Progression so listen To that girl chorus. And by the way, I don't hear two birds with one stone. Another thing I find so insulting is how simple this that girl song is relative to the frozen song, because the that girl course, which is where all the hay is trying to be made here, the fact that it's, "Oh, some girls never, whatever, change." Um, listen to how short and repetitive it is versus the frozen one. I'll play them back to back here. Here's the That Girl chorus.

1:41:12 Andrew: I

1:41:35 Clip: Some people never change, put on a different mask, or get contacts, but inside they're still the same, but some people never changed.

1:41:45 Thomas: Now this one is a different progression, this is G and then E minor and then C and then D, and so it's, um, you were to try to do the same thing, it's like Instead of the da na na na, it's da na. And so consider that progression while you listen to the frozen one. So, it kind of neglects that there's like to three more ideas in that chorus than in the other song

1:42:25 Clip: Like how I'm holding on tight to you.

1:42:33 Andrew: Finally heard the thing that, as an idiot, you meaning me, right, that you might say, okay, this is the familiar element, and that is just the acoustic strumming part, right, the dun dun dun dun dun like I, if that were the, the case, then you, every garage band of the 90s could, could sue Frozen, but

1:42:56 Thomas: Well I have that As well. Just, um, because it bothers me, when you talk about the harmonic movement it's providing, very clearly in the Frozen chorus, it's ascending. You feel the bass line kind of ascending, it's dum-dum, dum-tum, da-dump-dumb, da-dump-dumm, like that's kind of that harmonic background for the vocal melody. It's really ascending in that way, whereas the other song clearly is not. It's dum-DUM, dum dum, dum dumb. I know it's only one chord difference, but it actually, I think, makes a pretty big difference in how you feel that chord progression going.

1:42:56 Andrew: Oh that, what they mean in the paragraph 45b, where it says the chord progressions in the choruses are very similar, in that, girl, the second chord of the progressions is E major, or minor, sorry, E minor, in Some Things Never Change, it is A minor, okay

1:43:45 Thomas: That's that chord regression difference. So what I love, too, is there's a lot of language in this. And I don't know if I can come up with a law equivalent, Andrew, but a lot of it is, ah, yes, you see, these two things are very similar. Now, this part is completely different, but forgetting the part that's different, it's totally similar.

1:44:05 Thomas: Similar, and it's really egregious with the melody because it finds, there's a whole section, we don't have to get into it, but there's all section where it, like, circles notes of the melody and it cherry picks the notes to make the, like, there'd be these patterns, and it puts all this complicated music language that just amounts to BS. And one of them is like, as you can see, it's the same pattern but inverted, so it's descending. And it's like, yeah, but that matters, like, the fact. The fact that you changed

1:44:04 Andrew: That Felt Like it should matter to me too, yeah

1:44:34 Thomas: All the order of those notes, yes, if you put the songs in the same key, the melodies are going to consist of the same basic notes. That's just how songs work. Unless you get to some more complicated, maybe more dissonant sounding music, like stuff that I would like, melodies get more complicated. And the more different they are from the normal patterns, the more you could prove, like, oh, this is copying this because it's more unique.

But these are all staying well within kind of the the tonic structure of these chords. I mean, and to say, like, I, I wish I could do another whole half hour on this thing where they circle the melody notes, but just, just hum, your mouth, if you were to hum the that girl song, what would you even, even hum is the chorus melody. It's just like, that's nothing. There's no, it's so bad. Whereas the, The, it really is not, it's just crap. Look, okay. Here's the thing. Stravinsky once said, and this actually inspired me to track down the real quote, because I've heard people reference this. And I was like, I'm going to say this. Good. And so I found it. Stravinski said, said essentially that you can teach everything, but melody is how I normally hear and it, as a musician I think it's right, you can teacher virtually everything in music, you can learn everything except the capacity for melody.

And the actual quote is, "The capacity for melody is a gift. This means that is not within our power to develop it by study, but at least we can regulate its evolution by perspicacious self-criticism." Uh, and there's another quote he had, and just to read one part of it, melody, and I think this is important for this case, "Melody is the most accessible to the ear, as you know, the shower test, and the least capable of acquisition." And the point is,

1:45:28 Andrew: That's Nothing

1:46:18 Thomas: Sorry, Grigson, you're, you're not Robert Lopez, you don't have the gift for melody. You know that? Yes, you can point to how some of the notes are the same, but that if you, if you reduce every song to that, you're like, yeah, "Hey Jude" is just See, but that's the different, yeah, okay, those are the notes, but the magic of music is that there's a reason this melody is good and your melody is just Nobody likes that, whereas if you listen to this I mean It's just more interesting, I'm sorry, even though there's, yes, this, there's some of the same notes involved. Um, so only a couple more things, you reference the strumming melody, uh, and just for fun, uh, I can also prove to you that that's not very significant. So, uh, here's one, to just emphasize that the, uh, the strumbing pattern, so

1:46:47 Andrew: And

1:47:24 Thomas: One we played earlier, just off the top of my head it made me think of this song, now don't pay attention, the chords are different, but just here, listen for the, uh, strumming, Andrew, so That's just very common strumming pattern that Is "Drive" by Incubus, and It's just a very common strumming pattern, this is all nothing, this is off things that are incredibly common, here's another funny one that I had to do, by the, fun thing about this for me is that, and I don't know if this is everybody or what, but I I have a really like encyclopedic ability to go through the songs that I know, the thing is I don't know every song, I don t I hate most music, so I don't, I haven't heard every song, but of the songs I've heard, I'm able to like kind of just think of the components of the song and figure out where they're from, and so I thought this was funny, uh, this is the bridge of "That Girl," and

1:47:41 Andrew: And what song Was that? Wow. So

1:48:16 Clip: When they lie to you and fill your head with dreams, when they put you with words that bother everything, when they will look at you, their eyes will tell it all, when all these words ring true.

1:48:26 Thomas: I knew I had heard that background vocals before. It took me a minute. And it's funny. It's one of those things where if I'm trying to make myself remember, I can't. And then I quit last night at about 2 a.m. because I was just working too much. I go to brush my teeth. And as I'm brushing my teeth, it instantly comes to me.

1:48:44 Clip: I'll be like an old time, I'll tell you

1:48:52 Thomas: And that's when Phoebe came into the bathroom and said, Dad, that man stole the Love and Spoonful song, Do You Believe in Magic? Tears in her eyes. And Phoebe's name was Albert Einstein.

1:48:59 Andrew: Wow. Um, I know, that's, I'm, I'm humbled because, uh, like, That expected something equally bad, and instead

1:49:19 Thomas: Oh, I love this Love and Spoonful.

1:49:19 Andrew: No. I instead, you pulled a classic song, but it is the same

1:49:24 Thomas: It's exactly the same. Listen to the harmony. It's exatamente the same, but by the way, I would never say that this is a rip-off and Love And Spoontful. It's pretty common, but this is so much more identical than any of this is to the frozen song

1:49:33 Andrew: Yeah.

1:49:42 Clip: When they lie to you and fill your head with dreams when they I'll be like an old time, I'll tell you

1:49:45 Andrew: Yeah. That's That's the part, yep. He

1:49:50 Thomas: It's Yeah. That's so funny, the only other thing, they, they try to make a ton out of the fact that the chorus pauses and like, and pauses and says, and goes back into the thing, and that's also nothing, I have a bunch of examples, but it's boring, I've already, I've made my point, it's a bunch of things that are in a million songs, there's nothing here, this is terrible, but anyway, in conclusion, I would like to say that Alicia Vetchkin stole my slap shot technique and I'm suing him, my his goals record is actually mine as well, Andrew, I would like to work On that Case Every

1:50:24 Andrew: Should give You Writing credit On that, gonna pay you a royalty every time, you know There You Go Even

1:50:30 Thomas: Time He scores Yeah, all And That's our show, of, look forward to seeing us very soon on another episode of Opening Arguments, now that we're going all the time

1:50:40 Andrew: Am

1:50:41 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law-talkin' guy.

1:50:50 Andrew: Can I can, I get my Other Choice Would Have been red Hot chili Peppers I

1:50:51 Thomas: There's Sure Which

1:50:51 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com slash law.

1:50:55 Thomas: One You Can't just Say Red hot

1:50:59 Clip: If you can't support us financially, it would be a big help if you leave us a five-star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use.

1:50:55 Andrew: Don't Fucking know Fine All Right Never Mind They Probably Do But I don't know the name

1:50:59 Thomas: Chili Pepper In The Hopes That They Have A 1425 Song They Probably Do Because It's Very

1:51:05 Clip: And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki. Follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily

1:51:06 Andrew: Of it

1:51:43 Clip: And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.

1:51:51 Andrew: Can I, can I get my other choice would have been Red Hot Chili Peppers, I Don't fucking know, fine

1:51:54 Thomas: Which One, you Can't just say Red Hot Chili Pepper in The hopes that they have a 1425 Song They Probably Do Because It's Very

1:52:01 Andrew: All Right Never Mind They Probably Do But I don't know the name of it

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