A Musician and Attorney Says He Has Computer Generated Every Possible Melody In Existence and Injected Them Into The Public Domain. Will This Stop Infringement Suits?

This story from Vice/Motherboard caught my eye:

Musicians Algorithmically Generate Every Possible Melody, Release Them to Public Domain 1

According to the article:

“Two programmer-musicians wrote every possible MIDI melody in existence to a hard drive, copyrighted the whole thing, and then released it all to the public in an attempt to stop musicians from getting sued.

Programmer, musician, and copyright attorney Damien Riehl, along with fellow musician/programmer Noah Rubin, sought to stop copyright lawsuits that they believe stifle the creative freedom of artists.

Riehl explained that to get their melody database, they algorithmically determined every melody contained within a single octave.

To determine the finite nature of melodies, Riehl and Rubin developed an algorithm that recorded every possible 8-note, 12-beat melody combo. This used the same basic tactic some hackers use to guess passwords: Churning through every possible combination of notes until none remained. Riehl says this algorithm works at a rate of 300,000 melodies per second.” 2

They then registered the database with the copyright office and then attempted to inject the results into the public domain by granting a Creative Commons Zero License, which reserves no rights. 3 The theory then goes, “if all possible melodies have been injected into the public domain, can any new song really said to be infringing?”

Having watched the TED Talk which accompanies the article, Riehl has significant experience in both copyright law and music and puts forward a very intriguing proposition.

But from where I sit, it doesn’t work.

The first problem is that Riehl and Rubin are not authors and cannot claim a copyright in the database. Under the rules of the Copyright Office, in order for a work to be copyrightable it must have a human author. As noted previously on this blog:

“The authority for this is the U.S. Copyright Office’s Compendium of US Copyright Office Practices, Section 305:

U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being. The copyright law only protects ‘the fruits of intellectual labor’ that ‘are founded in the creative powers of the mind.’ (citation omitted) Because copyright law is limited to ‘original intellectual conceptions of the author,’ the Office will refuse to register a claim if it determines that a human being did not create the work.” 4

Riehl and Rubin wrote a program. It did all the work. Recall their claim that the program “created” 300,000 melodies per second. This is far beyond the point where there is any meaningful human interaction in the creative process.

So, not having a copyright in the first place, there is no way that they could have “injected” the work into the public domain, because there was no copyright to begin with. Now, since the database lacks a human author, it may be instantly in the public domain, and they get where they want to go, albeit by taking a different route.

But it still doesn’t work.

Note the limiting factor of only 8 notes within a single octave. Granted, many pop songs are within that range, mainly because they’re easier to sing, and in many cases the singer is not a particularly adept vocalist.

But I didn’t have to dig very far to find a very popular song that greatly exceeded the octave limit. Consider Elton John’s “Goodbye Yellow Brick Road.” The lyric

…too young to be singing the blues

Starts on F and then soars a minor 14th to D Flat. Way over an octave.

“Goodbye Yellow Brick Road” is full of large jumps. Take the lyric:

I should have stayed on the farm, I should have listened to my old man

The first note is E flat. The last note is F. This is a distance of a major 9th, which, again, is over an octave. When we get to the very next line

You know you can’t hold me forever

The words “…know you can’t hold…” are sung to a B Flat, a major 12th above the E Flat.

In addition, the limitation of just 8 notes make the database notably smaller than actual melodic practice, as the last two samples demonstrate.

Suffice to say, Riehl’s and Rubin’s database does not contain the melody of “Goodbye Yellow Brick Road.”

Or how about Tears For Fears “Head Over Heels”? The very first line

I wanted to be with you alone

Starts on A and on the eighth note soars up to B, a major 9th above where the melody started.

And let’s not even get started on “Bohemian Rhapsody” (Galileo! Galileo!)

I fully understand that there’s a bit of media puffery going on here, and as Riehl notes in his TED Talk, this is merely a question of expanding the variables to the entire piano keyboard and enlarging the number of bars until an even bigger database is generated. This article in The Atlantic posits that number to be 216 sextillion melodies. 5

So, this database, even with 69 billion melodies, 6 is not every possible melody.

But does this stop, or even slow down, copyright infringement suits?

I don’t think so. And the problem lies with access, namely you must have heard the song in order to have copied it. Clearly Riehl, being a copyright attorney, understands the concept of access very well, and clearly has a lot of sympathy for George Harrison, who famously got tagged for over a million dollars for copying “He’s So Fine” with “My Sweet Lord.” But the problem was that Harrison admitted that he had heard the song. He hardly could have plausibly denied it. It was a worldwide hit, as recounted in the Judge’s opinion.

But just because someone previously came up with the same melody, and that melody is now in the public domain, does not mean you are off the hook for copyright infringement. If you copied it from a work under copyright, you’re an infringer. If you copied it from the public domain, you are not. Two people can, and have, come up with vastly similar melodies, totally independent of each other.

Therein lies the problem. The database does not infringe any existing melodies, because it created them without any reference to the prior melodies. This is the doctrine of independent creation at work. But conversely, being independently created does not have the effect of placing the prior melody in the public domain, or prevent copyright in a melody created later that does not copy it from the database.

So, even though there is now a database of 68 billion melodies that are claimed to be in the public domain, a Defendant in a copyright suit would have to show that it went to the database and copied it from there. This is the only way you could foreclose the possibility of access and copying, especially where the song in question is a song that is famous as “He’s So Fine,” or “I Won’t Back Down,” or “Got to Give It Up,” or “Stairway To Heaven.”

It’s an interesting exercise, but one that I think ultimately does not work. Plus, as a musician myself, I would be much more inclined to sit down at my (musical) keyboard than try to plow through a 68 billion melody database in search of something useable.

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