Plagiarizing a song that itself “plagiarizes” a classical composition

Last Eurovision song festival [an event I normally pay no attention to] was won by Israel, with a tune called “Toy” by a very Rubenesque DJ and singer named Neta Barzilay.

Some people at the time noted the striking similarity between a phrase in the composition (such as it is) and the main riff of The White Stripes’s 2003 chart-topper “Seven Nation Army”. [Apparently, the title is how TWS frontman Jack White misheard “Salvation Army” as a child.] I didn’t think much of it — as I thought that riff pretty clichéd to begin with — But Universal Music Group subsequently sued Neta Barzilay on “behalf” of Jack White.

Now Mrs. Arbel forwarded me an article from Haaretz English Edition [archive link] according to which a settlement has been reached. The financial terms are undisclosed, but Jack White will receive a co-writing credit.

However, the Haaretz article [*] also points out that a very similar phrase appears in Bruckner’s 5th symphony. Listen to the YouTube below at 21:30 (the video embed should start playing 1 second before that if clicked):

Yup, substantially the same phrase, in Bb minor instead of E. Does this make it “plagiarism of plagiarism”? In the eyes of a random observer, perhaps yes. In the eyes of the law, no — because Bruckner’s composition passed into the public domain long ago, and hence Jack White [**] quoting it does not amount to a rights violation. (I would not want to feed all the rock and pop composers who have recycled bits of Bach, Mozart, Beethoven, Borodin,… as main melodies or riffs without as much as a hat tip. I am not talking about brief “salute” or “tribute” quotes in passing.)

So this adds a very interesting wrinkle to the case. I would have assumed that a song element that is itself lifted from a public domain source would not be copyrightable as such — the whole (which would be a derivative or [presumably in this case] a transformative work) would be, or any original material in the song. Perhaps that is the argument the defendants should have made—I am not a lawyer, but it would seem that this case would be winnable in court. (It is quite possible, however, that the defendants feared being bankrupted by a protracted legal battle against a plaintiff with very deep pockets and a “seven-nation army of copyright lawyers” on retainer.)

I cannot help being reminded of an anecdote from my HS years. A punk rocker was caught shoplifting from a record store. When the beat cop caught and arrested him, his defense was: “That record is mine! I stole it fair and square!” [Dutch original: “Die plaat is van mij! Ik heb ze eerlijk gestolen!”]

Some will rightly point out that composers like J. S. Bach had a much breezier attitude about quoting material than today’s music industry. However, here is the catch: when Bach recycled a popular song as a fugue theme, the material recycled was maybe 1% of the composition, and the contrapuntal edifice he built upon it the other 99%. Tchaikovsky’s “1812 Overture” makes broader use of borrowed material (a Russian Orthodox hymn as the theme for the Russian defenders, and the Marseillaise as the theme for Napoleon’s invasion troops) — but again, there was a ton more music to it.

Bands like Dream Theater quote/steal bits of thematic material like magpies, but again use them as jumpoff points for more elaborate compositions and virtuoso improvisations.

But when your whole composition (such as it is) consists of a simplistic song built up from repeating one or two riffs and/snatches of melody —and then you are then discovered to have “borrowed” them — then I think the true problem is the simplistic, formulaic, and inspiration-less character of the “products” of today’s music industry, not plagiarism.

[*] credit where credit is due — regardless of my disgust with Haaretz’s editorial stance and general oikophobia, this was a good catch.
[**] According to Jack White’s wiki bio, he was a classical music aficionado before turning to rock. It is thus quite probable that he was familiar with the Bruckner original. (1970s German progressive rock band Novalis recorded this tribute to Bruckner’s 5th.) And again, I wouldn’t want to feed all the classically-raised musician turned rockers who mined classical compositions for riffs and hooks. I often quip that J. S. Bach was the greatest jazz cat in history, Mozart the greatest pop composer, and Beethoven the greatest hard rocker 🙂

“Black Propaganda” during WW II

I used to think that “black propaganda” was something like “propaganda pushing a black legend” or “libelous propaganda”. But like so often, there is a difference between (often vaguely defined) usage of a phrase in ordinary conversation, and its precise definition as a “term of art”.

This paper on propaganda during WW II was highly informative. Briefly, in the “business”, “white propaganda” is defined as propaganda “under true flag”: it reveals its origin and does not purport to come from a neutral or opposing side. Examples on the Axis side are the Tokyo Rose and Axis Sally radio broadcasts, as well as the “Germany Calling” broadcasts of the pseudonymous Lord Haw-Haw.

In contrast, “Black Propaganda” is defined as propaganda under false flag: originating from the opponent’s side but disguising itself as friendly, for the purpose of sowing misinformation, confusion, demoralization, or all of the above. The term “Grey Propaganda” is used for cases where allegiance of the propagandist is deliberately made vague or ambiguous.

The uncontested masters of the art of black propaganda/”false flag” propaganda in WW II were Sefton Delmer and his PWE (Political Warfare Executive). Delmer was born and mostly raised in Berlin: his Australian father had been a professor of English literature there until he and his parents were interned as enemy aliens during WW I, then released to England in a prisoner exchange. After getting a degree in modern languages at Oxford and working as a freelance journalist, he was recruited as the Berlin bureau chief for the Daily Express (1990-1933). There, he befriended top nazis (particularly SA leader Ernst Röhm) and in fact became the first British journalist to be allowed to interview Hitler (y”sh). He was also present at the scene of the Reichstag Fire (and kept arguing all his life that it was a Nazi “false flag attack”): shortly after, he was reposted to Paris, and later reported on the Spanish civil war as well as on the invasions of Poland and France. In the nick of time, he and his wife made it to England, where he briefly worked as an announcer for the BBC German-language service.

Delmer spoke flawless German, both formal and colloquial, and was intimately familiar with German mores. These qualities came to serve him well when he was recruited by the PWE to run psychological warfare broadcasts.

After a few false starts, GS-1 or (in the German radio alphabet of the day) Gustav Siegfried Eins emerged. In modern net-speak, it was what we would nowadays call a massive “concern trolling” operation. GS-1 was a shortwave station on which “Der Chef” supposedly reached out to his network of “patriotic opposition”. Supposedly, Der Chef was an old-school senior army officer who was loyal to Germany and even to the Führer, but disgusted with the corruption and perversion of party and SS officials, which he collectively referred to as the Parteikommune. From his perch, he told tales of nest-feathering, pocket-lining, living high on the hog while troops and regular citizens suffered, as well as of sexual licentiousness, orgies. and “Violations of Paragraph 175” (i.e., homosexuality). (While a fair amount of this was written by amateur and professional pornographers, not all of this was fictional: Sefton Delmer was privy to many a dirty secret the Nazis wished he wasn’t.)

Eventually, when GS-1 had outlived its usefulness, “Der Chef”s lair was supposedly overrun, live on the air, by the Gestapo, with the broadcasts ending in bursts of sub-machinegun fire.[**]

GS-1 made way for Delmer’s greatest achievement: the creation and operation of two subtle “false flag” radio stations working in tandem: the high-powered Soldatensender Calais on the AM band, and its shortwave companion station Deutscher Kurzwellensender Atlantik (targeted primarily at German naval personnel, which by that stage primarily meant U-boot crews.)

Soldatensender Calais purported to be a German military entertainment broadcaster operating from Calais in occupied Northern France: in fact, it was being broadcast from a 500 kW (!!) station Aspidistra [*] in Southern England. Its programming consisted of what Sefton Delmer would later describe as “cover, cover, cover, dirt, dirt, cover”: a mixture of music popular with the German troops, sports coverage, and — for additional cover — speeches by Hitler and other top Nazi officials, the better to make the listeners receptive to disinformation and demoralizing propaganda items. For example, a broadcaster posting as a soldier would give tips on how to be declared unfit for onerous duty, how to avoid being transferred to the Eastern Front, etc., while others would detail scams Wehrmacht men might fall prey to, or arouse the age-old anxiety of the deployed soldier about his wife’s fidelity, his family’s welfare, or both.
The station made its last broadcast on April 30, 1945, the day Hitler committed suicide.

After the war, Delmer served as chief foreign affairs correspondent for the Daily Express for fifteen years, until forced into retirement over an expenses dispute. He would go on to write several volumes of memoirs, an archive of which can be found here.

I cannot resist mentioning that when Labour MP (and British ambassador to Moscow) Stafford Cripps found out about Delmer’s operations, he was so scandalized that he wrote to Anthony Eden (Foreign Secretary and de facto Churchill’s deputy) that “If this is the sort of thing that is needed to win the war, why, I’d rather lose it.” This is of course precisely the sort of thing that inspired Churchill’s famous quip about the ascetic Cripps: “He has all the virtues I dislike and none of the vices I admire.”

[*] This has originally been built for WJZ radio in Newark, NJ — yes, Steely Dan fans, the station namechecked in “The Nightfly” — until an FCC regulation limited individual stations’ broadcasting power to 50kw. RCA was only too happy to resell it to the British government.

[**] Unfortunately, the broadcast technician, who did not understand German, ran the segment twice.

Can you legally use a historical classical music recording in a video or book trailer?

I have previously blogged about “fair use”  in copyright law, and mentioned there in passing that both law and jurisprudence are much more permissive about short textual excerpts from long written works than about, especially, audio or images. If you want to use a Beatles song (or a Rush song) for a book trailer, you’d better pay the licensing fee (which can range from reasonable to astronomical) or be prepared to fight a lawsuit. (Noncommercial music theory/appreciation videos, which include an element of scholarship or criticism about the music itself, tick off a couple more boxes and are comparatively safe. Even so, veteran record producer Rick Beato has suffered DMCA takedowns for some of his marvelous “What makes this song great?” episodes on YouTube.)

But what about a classical piece of music — and specifically, a composer who has been dead for over 70 years? The music itself — i.e., “just the notes, ma’am” — is without a doubt in the public domain. But what about a historical performance? Say, you’ve decided a theme from a Beethoven or Bruckner symphony is just what you need for a book trailer.  It is quite easy to find an online source for a performance by, say, the Berlin Philharmonic under Wilhelm Furtwängler from the 1940s — for example, this gem here. Better still: in Europe, recordings that old have passed in the public domain.

Under German law, the copyright term for recordings which were made prior to January 1, 1963 has expired, meaning they have entered the public domain. Recordings taken after that date were given extended protection in 2013 and thus cannot be digitized. Aware of this rule, I only undertook to upload recordings which were taken before the 1963 date in order to fully comply with the law. Despite that precaution, the process that followed presented a number of unexpected challenges[…]

The 1963 cutoff date would imply that, for instance, Herbert von Karajan’s 1962 Deutsche Grammophon recordings of Beethoven’s nine symphonies are now in the public domain, at least in Germany (and the rest of the EU, presumably).

However, as discussed here at great length, the situation in the US is rather different. Audio recordings were treated very differently from other media, and public domain for them effectively did not exist in the US (except, of course, if the artists themselves placed the work there and the composition was not otherwise copyrighted). Only very recently was a form of public domain established (following a 3-year transition period to end in 2021) for recordings prior to 1922.

1923-1946 recordings will have an effective copyright term of 100 years (95+5), and 1947-1956 recordings a 110 year term (95+15). Recordings made between 1957-1972 will go into the public domain in 2067, as previously.

For so-called “orphaned works” (i.e, works for which no copyright owner can be located or identified, e.g., the record label is long out of business and nobody else picked up the rights at auction), the new law

Includes provisions to allow non-profit streaming of recordings which are verified to be out-of- print. This is a start …

But we are still out of luck for our hypothetical example. So what are your options?

If you have a specific reason to use that historical recording, you may need to go through the process of buying the license rights.

But if any decent performance of that specific piece of orchestral (or choral) classical music will do, then your options are basically:

(a) Try to locate a modern recording released under a Creative Commons license. (That would usually be an amateur orchestra.)

(b) Try to locate a “library music” recording for purchase from a site like PremiumBeat or Pond5. Such sites work much like stock photo sites: you pay a onetime fee, and the recording is a “work for hire” from a copyright point of view: once you’ve paid the fee, you own the recording and may do with it as you please. (Usually, this is a non-exclusive license: exclusive licenses will set you back more money.)

(c) Produce your own synthesized version using digital music production software. This requires at least some musical skill though, and the result may sound, well, “synthetic”, but this may actually be quite OK for a book trailer.

(d) If you have some experience conducting, assemble a pickup orchestra from a local conservatory and produce your own amateur recording. (This is hard work but not as hard as it sounds, since typically you could limit rehearsals and recordings to a short excerpt of the whole work.)

(e) As a last resort, find and buy a piece of library music that is similar in mood.

Solo instrumental or chamber pieces are much less of a challenge, since you are more likely to find it under (a,b), while option (d) — hiring one or a few students from your local conservatory to play a couple of takes for you to record — is much more practical than for something that requires a whole symphony orchestra. And of course, if it’s a solo piano, violin,… piece and you can passably play the piece yourself, recording yourself and (if need be) cleaning up the recording a bit in GarageBand or Logic Pro may be the simplest and cheapest option of them all.

Embedding Spotify playlists on WordPress

Hmm, thanks to this article (via Instapundit), I went digging in the support database and found this helpful explanation. Basically, you just need to enclose the link to the track or playlist in HTML view with leftsquarebracketspotify yourlinkrightsquarebracket. Examples below, taken from the WP support article:

UPDATE: and here is one of my own:

Book of note: “The Personalized Diet” by Eran Segal and Eran Elinav

I have blogged earlier about the book by neuroscientist Sandra Aamodt and have discussed there in passing the pioneering work by Weizmann Institute scientists Eran Segal and Eran Elinav on the individual microbiome (our “gut bacteria population”) and how it affects blood sugar levels. Now the duo has teamed up with editor Eve Adamson, and together they have put out a popularized book:

I am familiar with some of the original papers in top scientific journals—the book is of course much more readable, and the authors and editors have done a good job of presenting their work in lay language while preserving the broad strokes of their work.

The bottom line of their research is this: each of us carries a whole ecosystem of bacteria in our intestines, which help us digest and absorb food. The specific mix of bacteria varies between individuals, and hence so do our responses to different foods. While weight gain/loss is best seen as an outcome—one aspect of overall health—glycemic response, the changes in blood sugar levels after a meal (“postprandial glucose response”) are sufficiently rapid that they can be monitored in real time (e.g. with a continuous glucose monitor) and correlated with what the person ate (logged in a smartphone app). Doing this for thousands of people is a big-data project par excellence, and this is how computer scientist Segal teamed up with gastroenterologist Elinav.

But this isn’t where it ends. Gut bacteria populations can of course be obtained from stool samples, and subjected to analysis—another aspect of the massive big-data puzzle. Moreover, some of what they infer from the data can be checked in an animal model—for instance, certain gut bacteria can be administered to sterile mice and their weight gain (or lack thereof) in response to certain food mixtures tested on a much shorter time scale than would be possible in slow, relatively large, and long-lived mammals like us.

The duo brought different, complementary perspectives to the problem, not just scientifically but personally. Elinav always loved to take machines apart and see how they fit together (fittingly, he did his military service aboard a submarine), then became fascinated with living organisms. He ended up studying medicine, then specializing in internal medicine. During his residency, he was exposed to the human suffering caused by “metabolic syndrome” (the term given to the combination of severe obesity, adult-onset diabetes, fatty liver, hyperlipidemia, and the complications thereof). He realized that they spent all their time as doctors dealing with the consequences and complications rather than with the root cause.

Segal, on the other hand, was an avid long-distance runner in his spare time. He started experimenting with different nutritional approaches to improve his endurance as a runner, assisted in this pursuit by his wife, a clinical dietitian. As he dove deeper into this and observed diets of fellow runners, it became increasingly clear to him that there was no one-size-fits-all, and that recommendations that were held to be gospel truth (or Torah from Sinai, in our case) were, in fact, counterproductive for some. Why do some runners who eat dates before a run become energized and others exhausted? Who do some do best with carb-loading, and indeed thrive on high-carb diets, while others quickly pack on the pounds and suffer from low energy?

Segal was already involved in the computational study of the human genome at the time and then started reading about the emergent field of study of the microbiome. One thing led to another, a mutual acquaintance put Segal and Elinav in touch with each other, and together they embarked on the collaboration that eventually morphed into the personalized nutrition project.

One factor that facilitated their research was that rapid, reliable, and minimally-invasive blood glucose monitoring technology has become relatively inexpensive. And here some of their first surprises came. Anybody who has followed a Gary Taubes-type diet, or who is trying to manage diabetes, is aware of the ‘glycemic index’ (GI) of foods—the increase in blood sugar levels caused by eating a given amount of the food, compared to the same amount of pure glucose (for which GI=100 by definition). But how uniform are these values really?

Segal and Elinav found that the GI for some foods (e.g., bananas) differed very little between their test subjects (say, 60-65), while others (e.g., apples) were all over the place (40-90). Moreover, the variation was not random but correlated with the person.

One would expect glycemic response to go up more or less linearly with the amount of the food consumed was a given. They found that this is indeed true for smaller amounts, but at some point saturation sets in as the body manufactures more insulin, and the glucose response levels off. (This, of course, does not mean you can just eat ten times as much: the insulin will cause the excess energy to be stored as fat!)

More surprising, however, was that higher fat content in the meal on average caused a minor decrease in glycemic response. For a nontrivial number of their participants, eating toast with butter or olive oil actually did less glycemic harm than eating the toast on its own.

Now trying to keep blood sugar levels on a more even keel has two major benefits. In the short term, yo-yoing blood sugar levels lead to a reduction in energy, a feeling of exhaustion as the body pumps out insulin in response to a sugar spike and blood sugar dips. As for the long term: Segal and Elinav found across their sample that glycemic response after habitual meals is strongly correlated with BMI. Keeping blood sugar levels on a more even keel turns out to be a win-win on all counts.

And here’s the catch—”thanks” to our microbiome, glycemic response is highly individual. Segal himself ‘spikes’ after eating rice, while Elinav does not. One person spikes after ice cream, while another does not—and the same person who spikes after an evening snack of ice cream can safely have chocolate instead, go figure.

This addresses a seeming paradox. It’s not that diets don’t work—in fact, many do for some people, though long-term compliance can be an issue—it’s that there is no diet that will work for everyone, or even for most people.

So the next step, then, was to have a computer analyze the data for some of the participants in depth, and have it plan out a personalized diet that would keep blood sugar levels as steady as possible for that patient. Guess what? Yup, you guessed it.

Now some people might be discouraged by the idea of carrying around a blood sugar monitor for two weeks and carefully logging every meal (and physical activity). But once a large enough dataset has been established, and correlated to analyses of the gut flora composition in all the test persons, it becomes possible to predict glycemic responses to different foods with reasonable accuracy based on a bacterial population analysis of stool samples. A startup company named DayTwo is offering to do exactly that. [Full disclosure: I have no financial interest in DayTwo or in any of Drs. Segal and Elinav’s ventures.]

We are at the dawn of a major revolution in healthcare—a shift away from a paradigm of statistical averages to one of detailed monitoring of individual patients. Call it ‘personalized medicine’ or any other buzzword: it does seem poised to radically change healthcare and individual health outcomes for the better.


Saturday musical delight: Well-Tempered Clavier in MuseScore animation

Via YouTube channel “gerubach”, which has been presenting “scrolling score” youtube videos of musical compositions for many years, I stumbled upon the following gem of a playlist:

All of Book I of Bach’s Well-Tempered Clavier is being rendered there in MuseScore animation: as you hear the audio, not only do you see the score on screen (two systems at a time) and a pointer scrolling across the notes being played, but at the bottom of the screen, you see the notes currently sounding displayed on a piano keyboard.

Especially in combination with YouTube’s ability to play back videos at reduced speed without altering the pitch, this is a marvelous self-tutoring tool for keyboard playing as well as music theory.

The audio is taken from the performance by pianist (and former competitive weight lifter!) Kimiko Ishizaka [official website]. The MuseScore team could legally do so as the (IMHO excellent) performance was released in the public domain (!)

The onetime child prodigy pre-funds her recordings through Kickstarter campaigns (most recently, she ran one for a “Libre”recording of Bach’s The Art of Fugue), then releases them online under PD or Creative Commons licenses. The word “Libre” she uses has some currency in the open source software developer community: It refers to one of the two words in French (and other Romance languages) that correspond to the English “free”, namely libre (without restrictions, “free as in speech”) vs. gratis (without cost, “free as in lunch”).  She does not work gratis, but on what I have been calling a “massively distributed commissioning” model, and what is becoming known as a “threshold pledge” model: she sets a funding goal, solicits pledges from patrons on Kickstarter, and if her threshold is met, the work is performed and the money collected. For her last campaign, the threshold she set was 20,000 Euro, and the minimum pledge was 10 Euro — the price of an album at a CD store (remember those). Larger pledge amounts (20 Euro, 50 Euro, 100 Euro) get various extra goodies, such as live recordings from recent concerts, a physical CD of the music, and admission to one of three “meatspace” live concerts.

D. Jason Fleming has been talking a lot about the “Open Culture Movement”. I believe this is an interesting example, and may actually point a way toward the future for classical performers. The big losers here, of course, are the classical music labels, who in this model are about as profitable as illegal CD bootleggers….