Blurred Lines case: An analysis of the piano arrangements as they were presented to the jury

A couple weeks before the Blurred Lines verdict, I wrote a short analysis of a powerpoint slide used by Gayes’ musicologists regarding the similarity between specific melodic material in Blurred Lines and Got To Give It Up. The analysis showed that not only was the melodic material in question not novel, but it is basically the same melodic material that was used by Smokey Robinson over a decade before Gaye wrote his song. I used this to conclude that there was no way you could call this a case of copyright infringement.

The response to this analysis was more positive than I thought it would be, but one criticism I received is that I focused on only one element of the Gaye family’s argument. This was not intentional; at the time of writing the article I was unaware of any other materials from the case.

With the verdict out and the internet buzzing about its implications, it is prudent to look at the other materials presented in court, beginning with the most instantly recognizable similarity between the songs: the piano accompaniment.

Here’s the audio presented in court as Example 1: the melody to Blurred Lines placed over the piano part to Got To Give It Up pitch-matched to Blurred Lines:

This was accompanied in the courtroom by a powerpoint presentation with the following bullet points:

  • The melody to “Blurred Lines” matches with the accompaniment to “Got to Give it Up.”

  • Even where there are different chords, they resolve with no conflict.

  • The audio example matches because there are similarities in the melodies, harmonies, and phrase lengths of the two songs.

Here is example 2, the melody of Got To Give It Up placed on top of the keyboard part of Blurred Lines without pitch correction:

This was accompanied by a powerpoint slide with these bullet points:

1. Significant similarities in the melodies,harmonies, and phrase lengths result in the two works matching.

2. The accompaniment to Blurred lines is just a simplification of the “Got to Give it Up” accompaniment.

3. Based on these matches, it could be inferred that the accompaniment to “Blurred Lines” was performed while “Got to Give it Up” was playing in the background.

Because these bullet points were on a slide presented to the jury, I assume they were the basis of the Gayes’ argument regarding these clips. If I am wrong about this I will update this article accordingly.

There are several issues with these materials.

First: the audio does not match perfectly in either clip; In example one you can hear clashing of the melody and the harmony throughout the example even though they’ve been pitch matched, e.g. the major 3rd  clashing with the minor third at :32. There is not a ton of conflict, but this should not be confused with them “matching;” they work together because they were both pitch- and tempo matched. You could make many, many melodies work with that backing track the same way so long as you matched the pitch and tempo, so many so that it would probably be harder to find a song that would not fit at least as well.

Example 2 is even less “matching”; it sounds pretty ridiculous to me to have Gaye singing a whole step higher than I am used to, and I strongly suspect that a person who has heard neither song before would hear example 2 and sense something was wrong. The fact that they don’t completely clash is a result of the tunes both being in 4/4 and having rhythm at all.

These are also different songs harmonically:blurred-give-chords The Gaye uses a series of dominant 7th chords with an emphasis on the I7 chord. It also uses the II7 as a turnaround, which is very novel for a pop song, or any song, really. Blurred Lines just uses a I-V progression in its simplest form, without variation, on repeat, ad infinitum. These these two songs do share the tendency to sit on the I chord for a while rather than change chords frequently, but this is not a unique feature of the harmonies of these two tunes alone. These two songs don’t even have the same turnaround. They are not significantly harmonically similar and I could get behind the argument that they are actually harmonically dissimilar.

In terms of their phrase length, this is sort of a tricky thing to compare because of how clear and repetitive the phrases are in the case of Blurred Lines and how loose and over-the-barline the melody is in Got To Give It Up. I would say that the length of the harmonic phrase in Blurred Lines is 8 measures, and the melody is made up of a series of shorter phrases that are around 1 and 2 bars in length. For Got To Give It Up, the harmonic phrase is a full 16 measures, while the melody is sort of a snaky thing whose shorter phrases change slightly in length from verse-to-verse. Either way, even if you heard both songs as having the same longer phrase length, there is nothing novel about 8- and 16-measure phrases. These have been the dominant phrase lengths in American popular music for as long as such a thing has existed. Pointing out the similarity between two songs for having 8- or 16-measure phrases is like pointing out the similarity between a cat and a rabbit because they both have fur.

So there are no significant similarities in the melodies, harmonies and phrase lengths that would make these two songs work together more than most other two-song pairs would work together, which means that the Gaye family’s first powerpoint presentation and the accompanying audio are all pretty much irrelevant.

I highly doubt that the Harvard musicologist who put this first presentation together actually believed that there was plagiarism going on here. Her presentation hinges on the ignorance of the jury; the bullet-points are either factually incorrect or are so broad that they could be applied to almost anything. It’s like if you were trying to prove that one novelist plagiarized another novelist and as your proof you pointed to the fact that they both published books that contained chapters, and both books had a couple of reviews on the back cover, and both books were written in English. Would these three similarities prove that one author ripped of the other? No, they would prove that both authors published a book, and it would show that books tend to contain chapters, be in a language, and have reviews on their cover. And even if there were plagiarism issues with the text of the books, it does nothing to prove this by pointing out that both books have chapters and have reviews on the covers. To do this would be cynical; you would be assuming that the jury had never read a book before.

Bringing us to the statement that is at the root of this case: “The accompaniment to Blurred lines is just a simplification of the “Got to Give it Up” accompaniment.” This was addressed in great detail in a series of slides in the second Powerpoint presentation, which appears to have been compiled by the other musicologist.

Like she did with the melody, she broke the accompaniments apart and placed fragments from each song next to each other in order to draw attention to specific similarities between the two songs. Although there is no exact matching musical material, she makes it clear that there are some similar tendencies in the basslines and the right hand of the piano part:

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This is fairly compelling stuff even though it does not contain a “smoking gun” of a copied phrase, bassline or instrumental part. The most damning similarity is the one that everyone notices immediately: that bouncing electric piano figure (described in the powerpoint as a “Rhodes Organ,” which is not the name of an instrument.) Although the chords are different (I7 vs I,) the voicings have the same number of notes and are in the same register, and they revolve around the same bop-bop-bop off beat rhythm. The similarity is so striking that most people seem to pick up on it right away, and it doesn’t help Pharell and Robin Thicke’s case that they chose to use a very similar sounding electric piano.

But a this is hardly a novel element to a song, and Gaye was not the first to pair an off-beat piano rhythm with a I-chord dominated harmony. Here’s an example from The Skatelites:

Here’s an example of an even more similar groove from trombonist Don Drummond:

Both of these recordings predate the Gaye (I can’t verify the dates on each, but both are featured in collections of recordings from the 1960s,) and I am sure there are other recordings somewhere that are even closer. It would be very surprising if Gaye were not hip to the sounds of these first-wave ska artists when he sat down to record “Got To Give It Up” since Jamaican music had become pretty well-known by 1977.

The irony is that in cutting these songs up and comparing their most similar fragments in an attempt to prove sameness, the musicologist also highlighted the clear differences — though at times fairly subtle — between the two songs. She left the door wide open for a thorough rebuttal by the defense. Even the one part that is the most similar between the two songs is still slightly different, and can be proven to not have been novel. And without an outright copying of some element, I don’t understand how this could be a case of copyright infringement.

Analyzing the case against “Blurred Lines”

Update (Mar 13 9:15 AM): This article is now somewhat out of date; with the verdict came reports that these melodies were not the only things compared at trial. Stay tuned. In the mean time, this analysis is still accurate. 

Update (Mar 13 4:30 PM): There is now a part 2.

Court has been called back into session in the Blurred Lines plagiarism lawsuit, and as far as I can tell, the plaintiffs are currently making their case. Gaye’s camp does not have much to go on, since the judge ruled that the full recordings of the original songs could not be played in court, but their case looks stronger than I thought it would. According to Kate Conger at Ratter, the musicologist hired by the Gaye family presented the following slide in court last week:


With this slide the musicologist puts both melodies in the same context; and proves that they share the following elements:

  • a: a melodic fragment of three repeated notes (but not on the same scale degree)
  • b: a melodic fragment consisting of the 5th, 6th, and 1st scale degree in upwards motion in eighth notes
  • c: a rhythm of six repeated eighth notes preceded by a rest
  • d: a melisma (a phrase where one vowel sound is continued over more than one note) that contains a descending fourth (the second b)

Although this is a much more compelling case than I was expecting, these elements are far from novel, and I can’t see how this case could be won by the Gaye family without opening the door to a wave of lawsuits and copyright trolling. Take those a and b melody fragments of Got To Get It Up, for example, notated here as “5-5-5” and “5-6-1.” Together they are also the melody of the opening phrase of the chorus to Janet Jackson’s song Runaway:


They’re also basically the opening piano melody to Smokey Robinson’s You Really Got a Hold On Me:


(*In this case phrase a is reduced to one note on the 5th scale degree, however phrase b continues onto the 2nd and then 1st scale degree, as is the case of Got To Give It Up.)

That eighth note rhythm indicated as is also extremely common,which makes me wonder why it’s even being considered as part of the lawsuit. Here it is in Beauty and The Beast:


Here it is in Old Time Rock and Roll:


And in the opening phrase of Beethoven’s Waldstein Sonata:


So even though the musical material labeled a, b and c is all relevant to the case, I don’t think there is enough here to warrant a verdict in favor of Gaye’s family. These are common melodic and rhythmic ideas. I have only been working at this for about an hour and have already came up with one example that is an exact match for the Gaye a, b and c; one match for b and c that contains a fragment of a, and three rhythmic matches for c. This can be contrasted with the Sam Smith / Tom Petty plagiarism case, where my $180 prize for a third exact match that predates those songs has yet to be claimed despite a response from my friends that would lead me to estimate at least 15 man-hours have been spent looking for one.

You may be asking “what about the musical material labeled d and the second b?” The fragments that the musicologist is labeling d and the second b are irrelevant, I think; melismas are frequently improvised, and besides, they are different melismas. You can’t copyright the broad idea of including a melisma that contains a descending fourth.

Bright Tunes Music v. Harrisongs involved two recordings that had the same three- and five-note melodic fragments. In his ruling the judge in that case decided that using the same three- and five-note fragments on their own was not novel enough to be copyright infringement, but that “the four repetitions of A, followed by four repetitions of B, is a highly unique pattern.” So the copyright was violated not because a few notes were the same but because each of those fragments were repeated in the same way in each song for a total of twenty-seven shared notes in a row between the two songs. This is clearly not happening with Blurred Lines; there are only three (arguably five) notes that match each other exactly, and they are not repeated.

All things being said, this case is a lot closer than I thought it was going to be, and the Gaye family’s chances depend on on the jury’s perception of all of this. We are in fairly murky waters, but based on my understanding of our copyright laws and the precedent set by Bright Music v. Harrisongs, this is not a case of plagiarism. If the jury does rule in favor of the Gaye family, things are about to get very interesting. The Gayes’ musicologist has chopped the music up into pieces that are so small that it would fundamentally change the process of songwriting if they won. If three common notes within a single similarly-shaped phrase is all that is needed to successfully sue someone, then the floodgates of litigation are about to swing wide open. Stay tuned.

Pharell and Robin Thicke did not plagiarize Marvin Gaye

Last August, Robin Thicke sued the estate of Marvin Gaye, who had been harassing him regarding the similarities between his hit Blurred Lines and Gaye’s 1977 record Got To Give It Up. The lawsuit accused Gaye’s family of making an invalid copyright claim because the similarities that do exist between the two recordings fall outside of what can legally be copyrighted. In response, Marvin Gaye’s family formally sued Thicke and Pharell Williams, the producer and primary songwriter of Blurred Lines, for copyright infringement. The judge in the case allowed it to go to trial, the first date of which took place last week.

In the United States, you can copyright a melody, lyrics, a piece of sheet music and an audio recording. You cannot copyright a style, a chord progression, a song title, a groove, or a studio production technique. This is why no one has ever sued anyone over the similarities highlighted in the famous 4-Chord Song Youtube video, or why no bebop rhythm section will ever be sued for pairing a walking bass line with a swinging cymbal pattern. Only the lyrics of a song, the recording of the song itself, its sheet-music arrangement and its melody, defined as a rhythmically organized sequence of single tones so related to one another as to make up a particular phrase or idea, can be copyrighted.

The test of whether two songs are the same can be diluted to this: If the songs were sung side-by side, in the same key and at the same tempo, would the melodies match?

In the famous case of George Harrison’s My Sweet Lord vs. He’s So Fine by the Chiffons, the judge ruled that the songs were structurally the same even though there are slight variations between the two, and when you put the songs side-by-side this is very apparent:

Same is true for Twinkle Twinkle Little Star and The Alphabet Song: they are basically the same song with slight rhythmic variations, a fact that can be used to the delight of toddlers (thank you Annie Moor for providing the vocals:)

In the case of Sam Smith’s tune Stay With Me and Tom Petty’s I Won’t Back Down, the verdict is even more clear: these are the same melody, without variation, for three of the four phrases, as you can clearly hear when the songs are sung side-by-side. You’ll hear a slight clashing in the harmonies, but you’ll notice that they are otherwise the same melody for those phrases:

This is not the case for Got To Give It Up and Blurred Lines. Not only are the melodies different, but they operate with different phrase lengths, chord progressions and melodic contour. You will hear a ton of clashing. These are not the same song by any definition, and it’s not even close:

(note: in the last three examples each song is isolated on the left or right channel so you can compare them and also hear them separately. You will also notice I am not Marvin Gaye.)

Despite how clear it is that these are two different songs, there is no debate over the fact that the recording of Blurred Lines sounds similar to Got To Give It Up. Both recordings feature a double-time, off-beat electric piano pattern superimposed over a fairly straight-forward 4/4 drum pattern that includes a rapid cowbell rhythm and a bass line that anticipates the downbeat. This produces a unique sound for a pop song, so the similarity between these two recordings is pretty noticeable, and Pharell and Robin Thicke are open about the fact that they modeled their backing track on the Marvin Gaye recording. But even though they acknowledge that this was purposeful, what they did wasn’t plagiarism. It is not even copying or ripping-off; it’s emulation, and people are regularly praised for the way they emulate certain styles or the way they incorporate certain musical ideas into their playing or recording. Mark Ronson and Bruno Mars certainly borrowed from turn-of-the-1980s funk artists like Cameo and Rick James for their megahit Uptown Funk but you won’t hear any accusations of plagiarism unless it’s found that they lifted a melody or lyrics verbatim from one of those earlier recordings. No such case exists. The same rules apply to Blurred Lines.

A lot of people that should know better are reporting and commenting on this issue as if it were a cut-and-dry case of plagiarism. In response to the initial lawsuit, Nicholas Payton posted an open letter to Pharell in which he viciously berated the producer for what Payton believed was a case of brazen musical theft. “Just because you and Thicke lowered the key a whole step from A to G and removed the Blues doesn’t mean you didn’t steal it,” Payton wrote. “If that monotonous piece of trash you call a song had a bridge, you probably would have stolen it, too.” This completely disregards the fact that the two songs have different melodies, lyrics, phrase lengths, forms, and chord progressions. He even attacked Pharell for (correctly) saying that these two tunes would look different on sheet music: “What sheet music are you talking about? From some wack publishing company that did a transcription of Marvin Gaye’s work?” This is an odd series of statements when you consider that he is one of the world’s more renowned horn players in an idiom that is built upon emulating, honoring, and appropriating the work of other artists. How does Mr. Payton feel about playing contrafacts such as Hot House? What about the fact that he straight lifted the opening phrase of Louis Armstrong’s “West End Blues” cadenza when he recorded that tune a few years ago? It is not a stretch to say that Nicholas Payton is one of the most highly respected trumpet players of our time. Someone with his clout and musical knowledge should know better.

Court reconvenes next week. The jury will not hear the audio recording of Marvin Gaye’s song due to the fact that Gaye’s family does not own it. Because it is the recordings that sound similar, not the compositions, it is almost certain that the Gayes will lose this copyright suit. Still, according to the New York Daily News “each side has retained high-priced musicologists who will give opinions about what’s similar and peck away at keyboard keys in court.” It is baffling to think there is such thing as a high-priced musicologist, and it makes you wonder what case any credible musicologist would try to make regarding the legal similarity between these two songs. Maybe they’ll argue that one specific phrase is copied? I’ve listened to the tunes several times and cannot find one. 

There’s no way that Blurred Lines could lose this battle without opening the door for thousands of lawsuits. Could Michael Jackson’s estate sue Madonna because the background track to Like a Virgin is basically a major-key emulation of Billie Jean with synthesizers instead of live instruments? Could AC/DC sue Metallica for the similarities between the bells that open For Whom The Bell Tolls and Hell’s Bells? What about the hundreds of pop-punk bands that sound almost exactly like one another? Could the first one of those sue the rest of them? And for that matter, what about all of the bebop drummers and their spang-spang-a-lang cymbal pattern? If emulating the style of an earlier musical performance becomes the new legal standard for plagiarism, we are all in a lot of trouble.

CONTEST: Find a third song that matches “I Won’t Back Down” and win $180

By now we are all aware that the chorus of Sam Smith’s Grammy-winning song “Stay With Me” is melodically identical to the verse of Tom Petty’s 1989 hit “I Won’t Back Down,” with the exception of the third phrases. In case you’ve missed this story, here is the Youtube video that lays it all out:

Even though the recordings sound very different on their own, the melodies themselves are identical, so those bits of Sam Smith’s tune are legally the same song as the corresponding bits of “I Won’t Back Down.” This is pretty much indisputable, and it is in contrast to the ocean of sound-alike songs out there — for example the recent hits “Tik Tok” and “California Girls” — that seem like copies of each other but that are ultimately one or two notches removed from exactness to legally be the same song.

When news broke that Tom Petty would begin receiving royalties for Sam Smith’s song, many people — myself included — thought it was a little unfair to Sam Smith. Yes, these two songs are identical in a way that one couldn’t legally argue that the songs are different, but this particular melody is so simple and so universal that it is hard to imagine that Petty was the first person to write it, and Sam Smith’s recording unique enough that it feels like its own song. In an oft-cited article for Slate defending Sam Smith, Adam Ragusea went so far as to claim that he could find “a lot of songs that would be similarly simpatico,” which would mean that not only was Tom Petty not the first person to publish or record a song with that melody, but there would have to be many examples out there. Half-jokingly, I offered $80 to my first Facebook friend that found a perfect match that was published or recorded before “I Won’t Back Down,” thinking that it would only take a few music experts working for a few hours on their day off before one was found. But, two weeks later I am writing this and there have been no matches. This is an important issue, one that hits at the heart of what it means to be a musician in 2015, so I am doubling-down on the contest. 

The Contest: I will give one hundred and eighty dollars ($180) to the first person who provides evidence of a song that was written before “I won’t back down” that contains the following ten-note melody in any key: 10943638_10102217121328038_1055595378907470437_oIt can appear any place in the song but it has to be exact, in the same way that Sam Smith’s song is exact. It must appear that way in a published version or a released recording (not a live version or outtake.) You have to submit it here and you have to be first.

This is not intended as a knock on Tom Petty nor as a dig at his detractors; if we can’t find another song with the exact same melody, we should all lay off of Mr. Petty and let him collect his deserved royalties in peace. Likewise, if it is proven that the melody is older than 1989, the year that “I Won’t Back Down” was released, Sam Smith should not have to share writing credit or royalties with Mr. Petty; in fact, we may discover an earlier songwriter that deserves his or her own cut of both of these songs.

The full terms of the contest are as follows:

  1. Submissions to the contest must be in the form of a comment on this blog post or on my personal facebook page. The timestamp of your comment will be the official timestamp of your entry.
  2. The submission must be verified by a recording or published sheet music. If a recording it must be cataloged on the Allmusic Guide as being released before “I Won’t Back Down” (April 1989.) If sheet music, it must be proven to have been published before “I Won’t Back Down.” If you submit a song title without proof, your timestamp remains valid for twelve (12) hours to give you time to provide proof. In the case of a dispute or an ambiguity the burden of proof is on the submitter.
  3. The melody can appear anywhere in the song, but all ten pitches and rhythms must be an exact match. The rhythms must fall on the same beats as the given example, including the rest on beat one of bars 1 and 3, and the melody should function the same way in terms of solfege (e.g. that last note, in whatever key, must function as “do.”)
  4. If I (Dan Reitz) become aware of a matching song before a matching song is submitted, the contest is over. If this happens I will announce it in the comments of this blog post.
  5. If you win the contest you agree to refrain from blogging about it or mentioning it on media until I have announced the win on my blog, for a maximum of 3 days (I will likely announce it immediately.)
  6. You will receive your prize after the announcement has been made.
  7. I am the ultimate judge of this contest and reserve the right to full authority over it. I reserve the right to cancel the contest for any reason or to disqualify a person for any reason.

This is a real contest with real implications, so feel free to take it seriously. I would be surprised if there is not a matching song somewhere in the bowels of recorded and published music, but I don’t think it will be easy to find. It may even be older than copyright law itself. Happy sleuthing.

It’s time to get rid of your Real Book.


Some exposition, briefly: The Real Book is a fake book that was most likely compiled by anonymous Berklee students in the 1970s. It contains lead sheets for over a thousand songs across three handwritten volumes that went through 5 bootleg revisions before being legitimized as the “Sixth Edition” by Hal Leonard in 2003. Despite being 40 years old – and having been underground most of its life – it’s the most common fake book that I know of. You can find it at gigs, in high schools and colleges, at jam sessions, and in people’s homes for their personal practice and reference. I would guess that every “jazz” musician reading this has had access to a copy of The Real Book at some point. 

Some people are against using fake books like The Real Book because people think they are a crutch, or a cheap ways to learn tunes, and books like The Real Book are frequently unwelcome at jam sessions because Come On Dude, Learn The Tune. I can’t argue with that last bit. It’s a bad look to read from a book at a jam session. But lead sheets are good for a number of reasons and I appreciate having them around. I am not out to convince anyone not to use fake books or lead sheets.

I am writing this to convince you to stop using The Real Book, specifically. The charts in the bootleg version – widely available on the internet and still very common in print form among musicians my age and older – are inconsistent, sloppy and frequently inaccurate. The legal Sixth Edition fixed many of these problems, but in doing so the new editors have made the Sixth Edition incompatible with older versions, and the Sixth Edition still contains more than a few questionably transcribed chord changes and melodies. It also does not include the lyrics of any tunes, so if you are working with a singer who also wants to read the tune, you’re going to need a different book anyway.

We’ll talk about the Sixth Edition in a bit. But first we need to address those bootleg editions. They are still everywhere, and we need to be done with them. The closest nonmusical analogy I can think of is if a poorly transcribed collection of poems became the standard versions of those poems in English, even though the original poems were also in English. Why would anyone want to use that book? And it’s not that The Real Book wanted to simplify songs for people to learn, like a Cliff’s Notes thing for musicians; in fact, the original Real Book’s charts were typically more complicated than the original tunes, sometimes in ways that were completely arbitrary. 

In some cases, a standard tune was presented in The Real Book with alternate chord changes in place of the original chord progression with no indication that they are alternate changes. This could pose a problem if someone was reading from the book while another person was playing or singing from memory, or if someone was using the book as a reference. Here is the chart for the Jimmy Van Heusen tune Like Someone In Love:

Like Someone In Love

These are great chord changes, but they’re not the chord changes that Jimmy Van Heusen wrote. John Coltrane, I assume, created these alternate chord changes, which means this isn’t a very good reference for someone who wants to learn the song. Assuming the key of Eb major, measure six should be Bb7 followed by Bb+7, and measure 7 should be some form of Eb major. Those are the original chords of the song, and they are the chords that are most commonly played on recordings from the 1950s and 1960s. This is not to say that the altered chords are “wrong.” This is also not to say that people shouldn’t play alternate changes. But if a book is going to be the main book that people use, the original chords for a tune should be at the very least included, and any alternate chord changes should be indicated as such.

In other cases, the melody for an older standard was written out as someone might freely interpret it, instead of how it is was published, or how it generally thought to exist in its pure form. One example of this is Basin St. Blues, from the original Real Book Vol. 2:

This is a mess. I think someone playing this chart note-for-note could sound pretty swinging, but this is clearly not the melody for Basin Street Blues. It’s not even close. Whoever prepared this chart has done the interpreting for you, and it’s a very loose, boozy interpretation. As a reference it is pretty much useless: the rhythm doesn’t match the unprinted lyrics at all (e.g. the 4th measure of B) and there’s no indication that the A section is a call and response. For this chart to work, everyone on stage would have to already know the song. And if everyone already knows the song, they probably don’t need a chart. 

Not every older tune was embellished like this; a lot of standards and showtunes were transcribed in those bootleg Real Books with only minor deviations from their original melodies and original chord progressions. This doesn’t mean the charts are useful. Take Rodgers and Hart’s I Could Write A Book, from Pal Joey:

I Could Write A Book

The tune is marked as a Ballad, but the song I Could Write A Book was written as a medium-tempo bounce, and it’s almost always played as a medium- or up-tempo swing. And even though it says I Could Write A Book is a ballad, the Real Book didn’t recommend any of the great ballad recordings of the tune; instead it recommended a single recording: the Miles Davis recording from his Prestige years, which was recorded at a pretty fast tempo. This tune is a great ballad, and a great burner, and a great mid-tempo tune, but it doesn’t do anyone any good to call a tune a ballad and recommend an uptempo recording on the same page.

It would be understandable that a book written by jazz musicians would have mistakes or inconsistencies when it comes to the old popular standards and showtunes. But The Real Book didn’t just get the old standards wrong. It got many “jazz standards” written by jazz musicians wrong, too. A perfect example of this Blue Train, or “Blue Trane,” as it was famously mis-titled in the Real Book. Blue Train is the title track of one of the most enduring LPs of its era. Here is its page from the bootleg The Real Book:

Blue Trane

Here is the original recording:

It shouldn’t take a seasoned musician more than a moment to notice several problems. For one, the title of this song should be Blue Train. Blue Train is the name of the song and the name of the album it appeared on. That’s an unacceptable error. Also, the original recording song was performed in the key of Eb, not C, and even though the melody is minor, the solos happen over a standard jazz blues, which means the first chord of the solos should be notated  C7, not C-. Even if you accept C minor as the key of the tune, there are all of those invented harmonies in the Real Book’s “Blue Trane” that have no correlation to chords played on the original Blue Train recording, like the phantom F-7 Bb7 notated under the pickup measure and the arbitrary A-7 D7 in measure 8. Where did they come from? Even the melody is incorrect: compare measure 8 of the original recording to measure 8 of “Blue Trane” in The Real Book. Assuming a tonality of C minor, that pickup riff should be notated G – Bb – Eb – C – Bb. Most importantly, The Real Book completely disregards the “dun — dun” response figure that defines this song, even though rhythmic figures like that are indicated for other songs (e.g. Maiden Voyage) and  in some cases the arrangement of a tune is completely written out (e.g. Peaches In Regalia.)

The Sixth Edition fixes all of these problems, and dozens more, so in addition to being legal it’s a much better reference than those bootleg Real Books. But by fixing the biggest problems in the book, they made certain tunes (like Blue Train) incompatible with the earlier edition, so you can’t just bring your new book to an old book party. And even though it was thoroughly edited, the Sixth Edition doesn’t fix all the problems that were present in the original books; there are still a few head-scratchers and face-palmers in there. For an example, let’s consider the chart for Orbits, a Wayne Shorter tune written for the Miles Davis Quintet. Here is the original recording of the tune on the album Miles Smiles:

Orbits is sort of a free tune; in this original recording, any harmony is implied by the relationship of the melody and the bass. The melody itself is sort of a freeform thing, and the band doesn’t seem to lock into time until several phrases into the song. There’s no set harmonic progression, and on this original recording, Herbie Hancock doesn’t play a single chord. Wayne Shorter has recorded Orbits two other times since this original recording, and each one is very different from the others. I have never spoken to Wayne Shorter about this tune, but I would bet anything I own that this is not what he wrote:


I have to say that whoever transcribed this chart for Orbits tried hard to make it fit into bar lines. That half-note triplet? That quarter-note quintuplet? Wow! But there aren’t any chords being played during the melody on the recording, so where did The Real Book’s chords come from? Did the person transcribing just make them up? I think they did, and that should not be acceptable.

For example: In the recording, the bass plays C, A, Ab and G in the first phrase. So what’s with that Eb-7 in measure 2? There is a G in the bass at the same point as the Bb in the melody, so if that chord is Eb anything it’s Eb major. And the bass plays the exact same figure twice, so why are the chord changes different between measures 1-3 and 4-6? This is a mess.

Edit, September 2017: Since this was written, the session reel from this recording session has been released by Columbia Records as part of Miles Davis: Freedom Jazz Dance: The Bootleg Series Vol. 5. The lead sheet is indeed very wrong; Miles practices the melody slowly at one point which clarifies the melody of the first phrase; at another point there is discussion of a 6/4 bar and a 5/4 bar; and Herbie Hancock plays actual chords at one point after Miles tells him to “just play the chords, man.” There are enough consistencies between takes that it’s probably possible to create a correct lead sheet for this song. Hal Leonard, give me a call pls! Or you could just ask Wayne Shorter. 

On Shorter’s most recent recording of the tune (Wayne Shorter Quartet: Without a Net,) Danilo Perez plays the second half of the head alone on piano, with chords underneath, and it seems to be mostly quartal harmony. It’s hard to tell exactly what keys he’s pressing because of all the overtones on the grand piano, but here is a general transcription of what I hear for the phrase correlating to measures 24 – 28 in The Real Book:


The chords from this transcription do not correlate to the ones in the Real Book at all. in that second measure, notated in The Real Book as F-7, the chord played on the recording is a white-key quartal harmony with an A natural in the bass voice. Whichever way you want to interpret this harmony, any chord built on an A natural is pretty much the opposite of F-7, which is what is written in the Real Book. The other chords don’t match The Real Book’s changes, either, unless you want to argue that they may be correct and Perez was playing some sophisticated rootless voicings. But I would think that since this is is transcribed from a Wayne Shorter Quartet recording, the truth is probably that either the quartal chords played by Danilo Perez were intended by the composer, or that the harmony is intended to be interpreted freely and those voicings were choices made by Mr. Perez. Chances are it’s the latter. Either way, this Sixth Edition Real Book chart is not a good reference or lead sheet for Orbits.

The sixth edition also does not solve the problem of including alternate chord changes without the original chord changes indicated. Here is the last section of All The Things You Are as it appears in the legal Sixth Edition Real Book:

Jerome Kern’s original chord changes are mostly intact with one glaring exception: the Gb7(13) chord. The original chord was Bbø; this is the chord in the original sheet music and also on the earliest recordings of the song. The Eb in Kern’s melody is not an added 13; it is actually a glorious, tense appoggiatura. This Gb7(13) chord in The Real Book transforms the entire nature of the passage, and is even more incompatible with the correct harmony than Db-7, the other wrong chord that people learn for that measure. 

You might say I am being too harsh with my criticism of The Real Book, and you might want to remind me that most of the tunes in it are mostly accurate, and that it was much better than what else was out there when it was first compiled in the 1970s. The Real Book does get a lot of common tunes mostly right, like Cherokee and Footprints. And it sure beats a lot of other fake books from the era it came from, such as The Jazz Fakebook, which includes this practically unrecognizable transcription of Airegin:

But I don’t think I’m being too harsh. The Real Book is the single most common gig book for jazz musicians, yet way too many charts in The Real Book are inaccurately transcribed or unnecessarily complicated.

This is not to knock on the kids who put The Real Book together and the folks who continued to edit it through the years. It’s very impressive when you think about what they had to work with. It’s also the book I was given when I started my jazz trombone studies, so I’ve definitely spent a good amount of time with it. But it’s 2014, and The Real Book is not good enough anymore.

You’re probably thinking: Okay, Mr. Smartso. You want me to ditch my Real Book? What do you recommend I replace it with? For now, like most things in life, it comes down to your individual needs. If you’re looking for a straight-out replacement for The Real Book, I highly recommend getting a copy of The New Real Book, which has been around for a while now and has several volumes. It’s widely available, is easy to use, contains lyrics, has tunes in their most common keys with common and alternate changes, and is well edited and annotated. It’s not 100% accurate if you’re into the original chord changes like I am, but it’s a book you can bring to a gig and trust. If your main use for The Real Book is to learn tunes and you don’t necessarily want to buy another book, you can visit and explore their resources. And if all you want is a quick chord chart to practice with or to read on a gig, there’s an app for that. The iReal app has a strong community and you can get pretty much everything you need on it, aside from melodies.

Updated September 2017: I’ve added an extra paragraph about All The Things You Are, and revisited the section about Orbits. In fact, a lot has changed since I wrote this. A new article is coming soon. Get in touch with me (dan at danreitz dot com) if you’re interested in learning more. 

Spotify? Not much better than piracy.

Spotify claims that it is better than piracy and that it generates revenue for recording artists. But is it? And does it?

If you are a frequent Spotify user, you’ve probably heard the ad that says “Piracy is so last year. Every time you listen to music on Spotify, you make money for the rightsholders and artists.” If you haven’t, you will;  it is aired about once every two hours.

I am a frequent Spotify user, and I think it’s a fantastic service, offering free access to an ocean of recorded music, including recordings that are hard to find in record stores. It has revolutionized the way that people consume music and will likely be around for a long time.

But Spotify is a young product and a young company, and Spotify’s claim that it generates revenue for artists deserves thorough scrutiny. Does listening to music on Spotify really help support your favorite artists? Is Spotify really a better distribution channel than the best illegal filesharing services?

The short answer to both of these questions: Sort of, but only barely, at least right now.

Until Spotify came around, the best digital music distribution service had been Napster,  the short-lived filesharing service that let users share their entire digital music library – for free – with everyone who was logged in at the same time. This provided users with a virtually limitless music library. It was wild. At one point, I had 22 days worth of music downloaded to my college computer, including rare Beach Boys outtakes, out-of-print jazz records, and new music that was not available at the mainstream record stores. But Napster did not generate any revenue for rightsholders on its own, and was successfully sued by the Recording Industry Association of America and shut down in 2001.

Napster’s longest-lasting impact on the music business is that it showed that online distribution of digital music was the future of the industry. Several online services came about in Napster’s wake, but it wasn’t until Apple introduced the iTunes Store that consumers had a stable, safe, industry-sanctioned online music distribution service that rivalled Napster in its ease of use and breadth of content. Like Napster, iTunes Store users had hundreds of thousands of individual tracks they could search for and download. But unlike Napster, a user had to pay about a buck for each download. The success of iTunes’ pay-per download model created a swamp of copycat services including Rhapsody, eMusic, and a pay-service run by Roxio that was given the Napster brand after Roxio aquired it in bankruptcy liquidation.

Spotify operates as a bridge between the two models. Users can have free, ad-supported access to stream the entire Spotify catalogue, or they can pay about $10 a month to be able to download an unlimited number tracks from Spotify to their computer. Tracks downloaded through Spotify can’t leave the Spotify application, so there’s no risk of them being distributed any further, and rightsholders are paid a nominal rate every time someone plays one of their tracks using the Spotify service. This rate is exponentially less than what would be received for one iTunes download of the same track, but Spotify still has the full support of the Recording Industry Association of America, meaning it’s legal and it’s probably here to stay.

To give you an idea of Spotify’s payout versus iTunes and similar services, here’s the first revenue report for Don’t Punch Your Friend in the Head, a song my band Ramforinkus added to several internet music services last April.

The report above shows the different revenue that 28 sales and 104 streams generated across five different services. Not a great start, for sure, but not too bad considering we hadn’t really promoted the song yet. Since the band doesn’t have a record label or any other stakeholder taking a cut of the revenue, we receive the entire payout from each service:

iTunes (UK/EU)     ~$1.22 / sale

iTunes (US)               ~$.76 / sale

eMusic                            $.40 / sale

Rhapsody                      $.01 / stream

Spotify                            $.00378 / stream

So if you live in the US and purchased a copy of Friend in the Head on iTunes for 99 cents, we would receive about 77% of the sale. This could add up pretty quickly; if we end up selling 9,900 copies of our song on iTunes, we’ll receive about $7600. That would finance a short tour for sure. 

Spotify has a completely different business model than iTunes in that it is a streaming music service, not an online store. As such, it pays rightsholders based on individual plays, not downloads, and its current rate is a little less than four-tenths of one cent per stream. That means an individual user would have to stream our song two hundred times in order for my band to receive the same 76-cent payout that would come from a single purchase on iTunes. This won’t add up in any meaningful way until our song receives hundreds of thousands of streams, and my guess is it is unlikely that someone would listen to any individual track by any independent artist on Spotify enough times to match the revenue of a single iTunes purchase.

For the record: Four-tenths of a cent per stream is a marked improvement over the way artists were initially compensated by Spotify; Lady Gaga famously received only $167 after her song “Poker Face” was the first track to hit 1 million streams on Spotify in 2009, which amounted to 1.67 thousandths of a cent per stream.

This figure – .38 cents per stream – shocks a lot of people at first because Spotify’s entire business model rests on the fact that it’s supposed to generate revenue for rightsholders, and they vigorously refute the idea that they are anything other than the next great revenue source for artists. In a recent interview, a Spotify spokesperson said “Spotify is now generating serious revenues for rights holders; since our launch just three years ago, we have paid over $100 million to labels and publishers, who, in turn, pass this on to the artists, composers and authors they represent. Indeed, a top Swedish music executive was recently quoted as saying that Spotify is currently the biggest single revenue source for the music industry in Scandinavia.”

That claim is certainly impressive, but there’s a serious disconnect here between what Spotify says and what artists end up receiving per-play on the service. Most major labels keep a considerable cut of that less-than-four-tenths-a-cent payout, and independent artists who release their own material generally don’t attract the number of listeners it would take to make Spotify a better revenue generator than iTunes.

In fact, I might argue that fans who pirated Don’t Punch Your Friend in the Head could do more for us than had they used Spotify to listen to it. If 103 people had pirated Friend in the Head instead of streaming it through Spotify, those 103 people would possess a digital copy of the song, which means there are dozens of extra ways they could pass it along to others. They could burn it to a mix CD; They could listen to it using any audio player, in any setting, and could easily transfer it between devices; They could convert it to any format, they could add it to a video, they could sample it, they could make it their ringtone, they could play it as house music at a theater or club, and they could broadcast it on their radio show. By listening to Friend in the Head in Spotify instead of pirating it, those 103 people could have shared the tune with other Spotify users and could have added it to their Spotify playlists, but there’s not much else they could have done that would help the song reach new people since music on Spotify can’t leave the Spotify application, and you can’t take the Spotify application with you without paying $10 a month for it. So as an artist in several independent bands, I don’t see how Spotify is really better for us than an equally accessible piracy channel would be.

I don’t mean to complain about Spotify as a service. Spotify represents the future of music consumption. We are a culture of convenience, and nothing is more convenient than immediate, cost-free access to every song you’ve ever wanted to hear.  And I was always okay with small-scale music piracy, whether it meant taping songs off the radio, ripping a library CD to your computer, or making mix CDs for friends, so I am not writing this article to complain about music consumers who do not pay for all of the music they listen to. I am not only happy that Spotify is an option for my own music but I also use it several hours a day, both for fun and for work. The problem, as I see it, is that Spotify boasts that they have surpassed piracy and that you, the Spotify user, are supporting artists by using their service. I find this hard to swallow because they’ve released no data or projections to support these claims and their defense of their payout model is always presented in general terms. Spotify should not be advertising that their listeners generate revenue for artists; this could lead to someone choosing to listen to a song on Spotify instead of purchasing it on iTunes with the idea that they were supporting the artist either way. In reality, it takes nearly 300 Spotify streams for one member of an independent band to be able to buy a cup of coffee at a bodega, and probably many many more times if an artist has a record label.

If Spotify wants to change my mind, they’ll need to publicly release their payout model, and I’ll need to see concrete, verifiable data that can confirm that Spotify users listen to individual songs at a rate that will eventually surpass iTunes revenue. Until that happens, I will continue to look at Spotify as a free music service, like Napster and Grooveshark before it, and it should be known that the best way to support your favorite artists is to purchase their music at full-price – especially their self-released material – and to go to their shows when they’re in town.

Update (12/2012): In response to a few comments, I’ve expanded this article and have clarified some of the language. 

Pro Wrestling and the Individual Mandate

What do Hulk Hogan, Newt Gingrich and Mitt Romney have in common? It has something to do with Obamacare.

Remember Hulk Hogan? In the 1980s he was the world’s most popular professional wrestler. At the height of his fame, he had his own TV show, his own cereal, his own record deal, and was cheered wildly by sold-out crowds everywhere he went. To pre-teen boys in the 1980s, Hulk Hogan was Oprah Winfrey, The Beatles and Batman in one package. His character was wholesome but strong. He wrestled with integrity and made the bad guys pay. For almost two decades, he was the most consistent good-guy wrestler, fighting for the fans and the forces of good even as other wrestlers changed allegances. But after taking a few years off to pursue a failed movie career, and having mounted a less-than-meteoric comeback in the mid 1990s, his character did something completely unexpected.

You see, there was this pay-per-view wrestling match in 1996 between three “Good Guys” and two “Bad Guys.” On the surface that seems uneven, but the Bad Guys said they had a third man, and refused to say who he was. Despite being out-manned, the Bad Guys cheated their way to a stalemate, and all five wrestlers ended up knocked out on the ground. (Watch the video now if you want to avoid the spoiler.) Just as the referee began counting everyone out, Hulk Hogan entered the arena to thunderous applause. At first it looked like he was there to support his friends – the good guys – but to everyone’s surprise, instead of laying the thunder upon the bad guys, he delivered two crushing leg-drops on the Macho Man, a good-guy and his one-time friend. After high-fiving the “bad guys,” Hogan threw the referee out of the ring – a classic Bad Guy move – and delivered one final leg-drop upon the Macho Man before picking up the microphone and berating the audience (an even more classic Bad Guy move.) The announcers couldn’t believe it. No one could believe it. Hulk Hogan was supposed to be the ultimate good guy. Within a minute, he became the ultimate bad guy.

In wrestling, this phenomenon is called a turn: a good-guy suddenly becomes a bad-guy, or a bad-guy inexplicably becomes a good-guy.  (Google “heel and face” if you want an in-depth analysis.) It’s a frequent occurrence, and most pro wrestling characters turn multiple times over the course of their careers. The best pro-wrestling turns are both instantaneous and absolute: once a good guy has turned heel, he immediately assumes all of the characteristics of his new persona. There is always a justification given for a heel turn – usually a wrestler is fed up with something backstage, or he feels the fans don’t respect him enough – but the reasons behind a face or heel turn are always flimsy and end up being dropped as soon as it’s convenient. If done well, by the next time he’s on TV, a turned heel should seem like he was never a good guy at all, and a turned face should be an instant fan favorite.

Of course, Pro Wrestling is not a sport. It’s a scripted spectacle, one which thrives on sensationalism and immediacy. It doesn’t matter what each character did last week; the announcers will always let you know what the current storyline is, and each character’s back-story is constantly modified to fit whatever narrative is being pushed at the given moment. Heel turns and other sudden changes in a wrestler’s storyline are just part of the Pro Wrestling experience, and most people lose interest in Pro Wrestling once they realize how fake it is. Hulk Hogan’s heel turn was epic, but completely inconsequential.

A similar phenomenon occurs in politics: the flip-flop. Like a pro-wrestling turn, a politician commits a flip-flop when he not only changes position on an issue, but does so brazenly, with little regard for his previous views. Like a “good guy” or a “bad guy” pro-wrestler who has just turned, a politician who has flip-flopped will usually assume his new position without sufficiently justifying his change of mind. When pressured for an explanation, he usually jumps through hoops to show that his new opinion doesn’t conflict with his old opinion, or he claims that he has “always” had his position, despite a mountain of evidence to the contrary.

The recent excitement over the individual health insurance mandate has created a wave of flip-flop allegations regarding the major 2012 presidential candidates. On the surface, these allegations appear correct; everyone involved, it seems, had the opposite opinion one election cycle ago. Newt Gingrich and Mitt Romney were both strong advocates of an individual healthcare mandate until they each switched their position on the issue at the start of their current presidential campaigns, while President Obama was firmly against the individual mandate during his first presidential campaign, and was skeptical of its constitutionality even while the “Obamacare” legislation was being developed. Politicians and pundits love calling each other out for their flip flops; like pro wrestling announcers, they operate with the two-dimensional mindset of a playground bully. You are either one thing or you are something else, and if you change your mind you have clearly flip-flopped.

But in the case of the individual mandate, there are stark differences between the way that Obama and his Republican challengers are handling their new positions on the issue. Obama’s position barely qualifies as a flip-flop, while Gingrich and Romney are in full-on Pro-Wrestling mode.

Don’t believe me? I have the video to prove it.

In President Obama’s case, his fundamental message has remained consistent despite having changed his mind regarding the individual mandate. His prior criticism of the individual mandate was that penalties would drive up costs to some uninsured citizens. His current support of the mandate is also within the framework of keeping costs down for the uninsured and underinsured, and he’s doing a great job of explaining why the mandate is a good idea.”There are only two ways to cover people with pre-existing conditions,” Obama said at an AP luncheon on Tuesday. “One way is a single payer plan, where everybody is under a single system, like Medicare. The other way is to set up a system in which you don’t have people who are healthy, but don’t bother to get health insurance, and then we all have to pay for them in the emergency room. We have to make sure those folks are taking their responsibilities seriously.” This is a change of policy, but is not a flip-flop, because he still embraces his previous position and clearly explains how the individual mandate is the next-best thing.

But what of Romney and Gingrich? That last point made by Obama – that the individual mandate is needed to make sure that everyone is playing fairly in the healthcare market – is hauntingly similar to a speech given by Newt Gingrich in 2009 on behalf of The Center For Healthcare Transformation, a lobbying group he founded in 2003. “We believe that everybody should have health insurance,” he said. “We would not allow people to be ‘free riders’ failing to insure themselves and then showing up in the emergency room with no means of payment.” It also echoes Mitt Romney’s position during the 2008 presidential debates, in which he said “I like mandates. They work.” He continued: “If somebody can afford insurance and decides not to buy it, and then they get sick, they ought to pay their own way, as opposed to expect the government to pay their way.”

Seeing that both Gingrich and Romney were fully in support of the individual mandate as recently as one election cycle ago, it is extremely noteworthy that they not only changed their position on the issue within a few months of becoming candidates; they strongly railed against it as soon as they faced political pressure from their party’s current base. “A mandate is clearly unconstitutional because it means that congress could require you to do anything with your money under any circumstance,” Gingrich said to ABC news this past December. When he pressed on why he supported it as recently as six months before the interview, Gingrich responded “there was a time, in opposition to Hillarycare, the Heritage foundation and lots of folks supported it [the individual mandate.] The more we looked at it, the clearer it became that it would lead the politicians to redesign the entire system to support the mandate.” This is completely counter to any sense of honesty. Throughout the entirety of the 2000s, and as recently as an appearance last May, 2011, on Meet the Press, Gingrich was an active advocate for the health insurance mandate. In fact, in that Meet the Press interview, he minced no words in his support of the mandate: “I am for people, individuals–exactly like automobile insurance–individuals having health insurance and being required to have health insurance.”

So what happened to Newt Gingrich between May and December 2011? This video explains everything:

In the clip, you can clearly see Newt Gingrich tried his best to resist the Tea Party, but was too overpowered by their insistence and finally gave in. Once he gave in, the Tea Party hoisted Gingrich in the air and he let out a primal scream of acceptance. It was a powerful and chilling moment. I’m glad they got it on video.

And what of Romney, the man who was not only an advocate of the individual mandate, but made it the centerpiece of his own health care plan while he was Governor of Massachusetts? “There’s a big difference between what we did and what president Obama’s doing,” Romney said on Fox News last month. “We said people had to take responsibility for getting insurance if they can afford it, or paying their own way. No more free riders. And we solved this at the state level. Not a federal plan, but a state plan. This is a federalist nation. States should be able to solve their own problems.” Romney repeats this distinction every chance he gets: his Massachusetts plan is fundamentally different than Obama’s, and his was a state plan, and States have the right to determine their own health care. This is a pretty strong defense, until you consider that Romney strongly urged the president to model the national health care system on his Massachusetts system in a 2009 op-ed, and explicitly mentioned the individual mandate as one of the aspects of his plan that worked: “Getting every citizen insured doesn’t have to break the bank,” he said. “Using tax penalties encourages ‘free riders’ to take responsibility for themselves rather than pass their medical costs on to others.”

Romney now vows to “stop [Obamacare] in its tracks on day one” and attacks the president, saying “as I look at this administration I see Obamacare as one more example of a president pursuing his attack on economic and personal liberty.” Forget that Obamacare is basically Romney’s plan, and that he clearly would be in favor of this plan if it were proposed by a Republican. For Romney, this issue is no longer about affordability and covering the uninsured. It’s about freedom! It’s about resisting a government takeover! It’s about red-blooded, patriotic Americans fighting a clandestine Communist threat! As disingenuous and short-sighted as Romney is being, you have to at least admire his tenacity and his fire on the stump:

What power and umbrage! Not to mention face-paint! If that’s how Candidate Mitt feels about Obama, think of how President Mitt would stick it to the Iranians and the Russians come Summerslam!

Dan Reitz lives in Brooklyn, NY