When Helen Keller was only twelve years old, she stood accused of pla­gia­riz­ing a short sto­ry. A tri­bunal acquit­ted her of the charges, but when her dear friend Mark Twain read about the inci­dent years lat­er, he stren­u­ous­ly protest­ed, exclaim­ing in a 1903 let­ter, “the ker­nel, the soul—let us go fur­ther and say the sub­stance, the bulk, the actu­al and valu­able mate­r­i­al of all human utterance—is pla­gia­rism.”

Giv­en the finite num­ber of pos­si­ble nar­ra­tives, and com­bi­na­tions of phras­es, words, and syl­la­bles, he’s got a point, though it wouldn’t hold up in court where the ques­tion of intent comes into play.

Liti­gious artists and their estates fre­quent­ly sue oth­er artists whose work is too close to what they claim as their own inven­tion. Twain might say (his own copy­rights aside) that the idea of invent­ing art from scratch is an “owlish­ly idi­ot­ic and grotesque” fan­ta­sy. He might say so, for exam­ple, of the recent legal deci­sion that keeps Woody Guthrie’s “This Land is Your Land” a form of pri­vate prop­er­ty, despite its author’s desire for any­one and every­one to sing and record the song. (Guthrie’s daugh­ter Nora claims she is pro­tect­ing it from “evil forces” who would mis­use it.)

If lit­er­a­ture is most­ly pla­gia­rism, what about music? How is it pos­si­ble to copy­right melodies when they float through the cul­tur­al ether, appear­ing in sim­i­lar forms in song after song around the world? What would have become of the blues, blue­grass, and near­ly every form of tra­di­tion­al folk music from time immemo­r­i­al had copy­right law pre­vent­ed unau­tho­rized bor­row­ings? These are ques­tions judges and juries often pon­der when faced with two sim­i­lar sound­ing pieces of music.

In one recent case, for exam­ple, a jury found that pop star Katy Per­ry had “infringed upon the copy­right of Flame, a Chris­t­ian rap­per who’d post­ed a song” with the same melody as her song “Dark Horse,” even though Per­ry “insist­ed that she’d nev­er heard of the song or the rap­per” as Alex­is Madri­gal writes at The Atlantic. “For some musi­cians, musi­col­o­gists, and lawyers, the ver­dict felt scary; after all, large num­bers of songs now live on Sound­Cloud and YouTube. It became think­able to ask: Could the world run out of orig­i­nal melodies?”

This seems unlike­ly giv­en the “func­tion­al­ly infi­nite pos­si­bil­i­ties” for melodies result­ing from “all the notes and all the tra­di­tions of music around the world.” How­ev­er, when it comes to West­ern pop music and the more lim­it­ed para­me­ters that gov­ern its com­po­si­tion, the num­ber reach­es a more “com­pre­hen­si­ble part of fini­tude.” Pro­gram­mer, lawyer, and musi­cian Damien Riehl and his fel­low pro­gram­mer and musi­cian Noah Rubin decid­ed to “brute force” their way out of the prob­lem entire­ly, as Riehl tells Adam Neely above, using an algo­rithm that gen­er­at­ed all of the melodies in the range they’d seen in copy­right law­suits.

By gen­er­at­ing all pos­si­ble melodies above the middle‑C octave as MIDI files, the two artists hope to head off cost­ly infringe­ment lit­i­ga­tion that can hob­ble cre­ative free­dom. Riehl explains the inge­nious con­cept in the TEDx Min­neapo­lis talk at the top of the post, begin­ning with the issue of “sub­con­scious” copy­right infringe­ment that some­times forces artists to pay out mil­lions in dam­ages, as hap­pened to George Har­ri­son when he was sued for pla­gia­riz­ing “My Sweet Lord” from the Chif­fons’ “He’s So Fine.”

Maybe what the law has not con­sid­ered, says Riehl, is that “since the begin­ning of time, the num­ber of melodies is remark­ably finite.” Rather than invent­ing out of whole cloth, artists choose melodies from an already extant “melod­ic dataset” to which every­one poten­tial­ly has men­tal access. Now, every­one could poten­tial­ly have legal access. By com­mit­ting melod­ic data to a “tan­gi­ble for­mat,” Saman­tha Cole reports at Vice, “it’s con­sid­ered copy­right­ed.” Or as Riehl explains:

Under copy­right law, num­bers are facts, and under copy­right law, facts either have thin copy­right, almost no copy­right, or no copy­right at all. So maybe if these num­bers have exist­ed since the begin­ning of time and we’re just pluck­ing them out, maybe melodies are just math, which is just facts, which is not copy­rightable.

Riehl and Rubin have released their bil­lions of melodies under a Cre­ative Com­mons Zero license, mean­ing they have “no rights reserved” and are sim­i­lar to pub­lic domain. Avail­able as open-source down­loads on Github and the Inter­net Archive, along with the code for the algo­rithm the artists used to make them, the dataset might actu­al­ly have side­stepped the prob­lem of musi­cal copy­right infringe­ment with tech­nol­o­gy, though whether the law, writes Cole, with its “com­pli­cat­ed and often non­sen­si­cal” appli­ca­tion, will agree is anoth­er issue entire­ly.

via Vice

Relat­ed Con­tent:  

Zep­pelin Took My Blues Away: An Illus­trat­ed His­to­ry of Zeppelin’s “Copy­right Indis­cre­tions”

Down­load Theft! A His­to­ry of Music, a New Free Graph­ic Nov­el Explor­ing 2,000 Years of Musi­cal Bor­row­ing

Pub­lic Domain Day Is Final­ly Here!: Copy­right­ed Works Have Entered the Pub­lic Domain Today for the First Time in 21 Years

Josh Jones is a writer and musi­cian based in Durham, NC. Fol­low him at @jdmagness