David, you may actually have the stronger argument. That doesn't keep me from stomping my feet and representing the defense.

The use of "melody" in that second definition is not part of the definition. It's an example of the word in usage. Minor point, but noted. There are surely better definitions than those, but those suffice for the average listener.

A jury, or a judge, who either are or can, from life experience represent the "average listener" has only one sense as a LISTENER. While he/she may be able to be educated as to how this melody was arrived at, the average LISTENER only has their sense of hearing to go by.

There are apparently people who can smell music, but they are hardly AVERAGE. There are more who have a very highly developed sense of relative or absolute pitch who can mentally work out this series of inverted intervals. But with that degree of natural or developed "listening", they are very likely to notice innumerable examples between various songs. There are, after all, only 11 notes (or is it tones?) in "standard" western European music and 12TET. Regardless, they are hardly AVERAGE.

The question ultimately hangs on whether the work was copied. In an arrangement, sticking with music, enough of the characteristics of the primary work remain to make the arrangement a derivative work. It would hardly be a good arrangement (or really strong jazz) if these elements were not copied.

I don't know what the law says about ownership and royalties pursuant--except that the arranger does not now own the primary, and the primary holder does not now own the arrangement.

In the videos Noel posted. In Rachmaninoff's 18th variation on a theme by Paganinni, the composer used only a few notes--a motif?--and substantially changed many elements--most notably tempo. He also clearly stated in the title that this was a "variation on a theme"--one of twenty-four, I think. (Worth noting though that Paganinni's piece was not laid out like a modern pop song form with repeating verses and choruses).

His was not a copy and not an arrangement. His was an original work begun with a rote process.

Had this Beatle's inversion not had so many elements in common with the original, there'd be no case at all. There may be enough elements actually copied in the Beatle's inversion to convince a jury that infringement took place. I just don't think that "melody" is one of them. How can something that does not resemble another thing be said to be a copy of it? Added to the pile? Perhaps, in establishing intent. But alone? I don't think so, and neither would an average listener.

I'd argue that inverting a melody is not copying. It's a method of arriving at a completely (or at least hugely variant) new melody. The "new" no longer resembles the old in most (if not all) ways that matter to the average listener. And if said average listener is the arbiter of copyright infringement, I wouldn't want to argue for the plaintiff, in the interest of music as an art.

Last edited by Tangmo; 08/21/21 07:29 PM.

BIAB 2021 Audiophile. Windows 10 64bit. Songwriter, lyricist, composer(?) loving all styles. Some pre-BIAB music from Farfetched Tangmo Band's first CD. https://alonetone.com/tangmo/playlists/close-to-the-ground