Want to more efficiently get at the emotion you’re looking to convey with music, more effectively communicate with music people, and reduce infringement risk? In this article I explain a few music fundamentals to make work easier – and hopefully help set your mind at ease.
In the realm of avoiding infringement, musicological analysis is inextricably tied to copyright law*. In the past there were certain aspects of music that could reliably be assumed not to be areas of infringement risk, but in just the last decade it’s come to be that even these things can be a moving target. The infamous 2015 “Blurred Lines” case pitted Robin Thicke and Pharell Williams against the estate of Marvin Gaye over what amounted to, essentially, an infringement upon a “musical style.” This assertion by the Gaye estate was upheld, and it was awarded over $7M plus royalties on “Blurred Lines” going forward, upending decades of assumptions about what constitutes safe territory.
“Oh great,” you may be thinking. What if you’re not a lawyer or a musicologist and you don’t have millions to lose in litigation, but you have a creative vision that needs music, and want to use a reference track to help get you there? I can offer some guidance on that question, informed by experience as both a composer and an analyst of music, working with creatives. The goal is to help draw your focus to the things about music that actually matter to your production, while steering clear of common infringement landmines.
Before we dive in, it’s important to recognize that music’s most important job is conveying emotion. In selecting reference tracks or temp music for the person who’s creating original music for your project, you’re of course reacting to how that music makes you feel, and by extension how you would like the audience to feel. But the exact causality for emotion is a hard thing to pin down; often the emotion evoked by certain music for a certain individual is associative (this song was in a movie I liked, or it was on the radio when I met my spouse, etc) or, in the case of a hit song, the sheer familiarity can be an emotion in itself. It’s no surprise “temp love” is a thing – it’s natural to get attached to music that makes us feel so strongly, and conclude that nothing but that song will do.
So here it’s useful to take a look at some of the basic building blocks that make up this collection of sounds we call “music,” their potential as conductors of emotion, as well as their pertinence to originality and infringement risk. These terms and concepts will help you gain a clearer sense of what aspects of a reference track are actually important to the emotion you’re after, and the vocabulary to better articulate them to your composer. Because ultimately emotion is what matters – and emotion, thankfully, is not subject to copyright.
Tempo
Tempo is the musical term for a song’s “speed” measured in beats per minute (BPM). Tempo might be very important to a song’s emotional content, or, somewhat counter-intuitively, not all that important. Note the tempos of songs you’re considering as a reference – are they similar? If so, at about what BPM do they hover? If you’ve landed on a particular song, check and see if there’s an alternative version done at a slower or faster tempo. Does it work just as well, or does the tempo difference completely disconnect it from the emotion you’re seeking? If the latter is the case, the tempo is probably important and you’ll want to convey that to the composer. But if you find the song works even at another tempo, the emotion it’s evoking is likely coming from some other aspect of the song – perhaps the lyrics, instrumentation, or performance.
It’s worth downloading a free metronome app so you can easily find the tempos of the music you come across. Eventually you’ll develop a familiarity with what different tempos feel like and be able to estimate them on the fly, which is very helpful in communicating with music folks. You’re likely already familiar with a couple of tempos in particular: an average resting heart rate is about 60 BPM – a very common ballad tempo – and double that, 120 BPM, is one of the most common dance music tempos.
Tempo, on its own, is not an area of infringement risk.
Chords and Chord Progressions
A chord is simply a collection of notes played simultaneously. Chords frame the melody, if there is one, and set the mood for the piece overall. You could think of chords as the background or location of a scene, and the melody as the action in the foreground. There are numerous kinds of chords and infinite ways every chord can be rendered, but without delving into a lot of theory, familiarity with major and minor chords is a good start. In the most general sense, major is often associated with contented/happy and minor with concerned/sad – for example, “Mrs. Robinson” is in E major, while “Eleanor Rigby” is in E minor. Of course emotion is always more nuanced than that so this is a vast oversimplification, but still useful as a rough descriptor in communicating with a composer.
A chord progression is a series of chords, usually repeating, that occur in a song. Lots of songs use the same chord progression (No Woman No Cry by Bob Marley, She Will be Loved by Maroon 5, Someone Like You by Adele, and One Day by Matisyahu among literally thousands of others, use the same chord progression), so certain sequences of chords seem to carry some emotional charge that draws many composers to the same well.
As you can already surmise, chord progressions, taken independently of the rest of a composition, are not subject to copyright protection. So you’re generally safe experimenting with creating a new composition over a chord progression from an existing work, as long as you steer clear of other signature elements of that work, most notably…
Melody
Melody, a series of single notes presented in a distinct rhythm and usually the top line of a piece of music, is of course a familiar concept. I include it here not because anyone needs help recognizing it, but because it is an area of elevated infringement risk. Melody, even taken entirely independently of the rest of a composition, is well-protected by copyright law. Indeed, the similarity of one melody to another is one of the more straightforward concepts for an expert witness (such a musicologist) to demonstrate to a judge hearing an infringement case. Melodies can be both notated and performed, inviting comparisons that even the least musically-informed juror can understand. Even in cases where a similarity in melody is entirely unintentional, copyright protections still apply. In the infringement suit involving Sam Smith’s “Stay With Me” and Tom Petty’s “I Won’t Back Down,” Smith swore he’d never even heard “I Won’t Back Down” – and in fact Petty believed him – but Petty still won a 12.5% royalty on “Stay With Me.” So while melody is of course a huge component of music’s emotional power, it’s an area to tread carefully when you’re looking to replicate that emotion in an original composition.
Instrumentation
Instrumentation is traditionally thought of as the assortment of musical instruments that appear in a piece of music. In the modern era I would extend this concept to encompass sounds in general that make up a composition, since today literally any sound is available to include in a music production, including samples and new sounds a composer or sound designer might create. However, there’s a reason that film score and other music for visual media so often returns to an instrumental palette that dates back some 400 years – the orchestra. Because as amazing as the options offered by technology are, it can’t yet offer the breadth of emotional expression inherent in delicate wooden instruments being plucked or bowed by human hands, or hand-crafted brass horns that can produce anywhere from a purr to a roar under the power of human breath.
Volumes could be written on the emotional associations with different instruments, and I’ll go into more in depth on this in a future article. What I’ll mention here is that the more familiarity you have with different instruments, the more efficiently you can communicate with a composer. What’s more, you’ll begin to form your own emotional associations with instruments, which gives you insight into where to look for references and further enhances the level of nuance in conversations with your composer. If you weren’t exposed to instruments somewhere along the way, a great place to start is by getting to know, just broadly, the instrument families – strings, woodwinds, brass, and percussion. Even if you’re not a big classical music fan, you’ve heard these instrument families many times in your favorite movies. From here, simply start to notice them more when you’re watching films. What kind of instruments are playing when you feel certain emotions? Does it seem like the composer uses a certain instrument family in association with a specific character or situation? These sorts of observations will contribute to your own ideas for music in your productions, and give you more precise vocabulary with which to convey them.
Instrumentation is generally not a risk factor for infringement, barring some specific signature sound in conjunction with other problematically similar musical elements – Blurred Lines perhaps being an example of that.
Conclusion
Just these four concepts cover a lot of ground in terms of how we think about music and, importantly, compare musical compositions. Indeed, I would argue that the “Blurred Lines” verdict was a convergence of slightly-derivative references in each of these four categories, with top-dollar lawyers bringing persuasive expert witnesses. The good news is that by being mindful of these four concepts we can take precautions to avoid this convergence from happening to us.
Obviously with music, hearing is better than reading, so in subsequent articles I’ll include some links to examples of the concepts I’ve described here. For now, just being more observant of tempo, major and minor chords, melody, and instrumentation will go a long way toward getting the music results you’re looking for, faster and with less worry about legal trouble.
*Disclaimer: I am not a lawyer, and this article is not intended, nor should it be construed, as legal advice.
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