REPORT RE: SELL YOUR SOUL and TAKE A PICTURE SUMMARY

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1 LAWRENCE FERRARA, Ph. D. PROFESSOR AND CHAIR DEPARTMENT OF MUSIC AND PERFORMING ARTS NEW YORK UNIVERSITY 35 WEST 4 TH STREET/SUITE 777 tel. (212) fax. (212) lawrence.ferara@nyu.edu REPORT RE: SELL YOUR SOUL and TAKE A PICTURE This report is in four parts: 1. Summary (page 1) 2. Analysis (pages 1-4) 3. Related Musical Works (pages 4-5) 4. Conclusion (pages 5-6). SUMMARY I have analyzed and compared the musical compositions Sell Your Soul (SYS) recorded by Blue Dahlia and Take a Picture (TAP) recorded by Filter. It is my conclusion that these two songs do not share any significant component of original musical creation. There are notable differences between the two songs. Moreover, the only similarities between the two songs are so common and generic to the pop-rock genre that they cannot possibly support a claim that TAP was influenced by SYS. I have identified a number of popular pop-rock songs which pre-date TAP which contain the common musical elements upon which plaintiff s claims are based. In addition, other songs recorded by Filter establish musical fingerprints that support the conclusion that TAP was independently created. ANALYSIS Music is composed of certain distinct and identifiable components that can be isolated and described separately. These components are used by musicologists to compare the differences or similarities, as the case may be, in separate songs. The four primary musical elements of a composition are: (1) structure; (2) melody; (3) harmony; and (4) rhythm. The structure of a musical composition is the organization of musical units or groups. The larger portions or sections are generally referred to as verses, choruses, or bridges. The material within each section begins with the smallest musical unit (musical ideas or motives) moving into larger groups called phrases. Melody is a single line of music (what an individual sings or hums), which consists of pitch, rhythm and structure. Pitch is the specific high or low placement of a musical sound within the musical scale. Each pitch in the melody has a time value, i.e. the 1

2 length of time for which it is played on an instrument. Rhythm is the organization of the time values of pitches and silences, i.e., how long a sound or silence (rest) lasts. Harmony refers to the use and the organization of chords. A chord is a specific combination of pitches. The sequence of chords is referred to as a harmonic progression. Comparison of Sell Your Soul and Take a Picture Using the four musical components described above, I have compared SYS and TAP. For my analysis, I have reviewed: (1) a non-commercial compact disc recording which includes SYS in its entirety, TAP in its entirety, the introduction of SYS and the introduction of TAP; (2) a commercially released compact disc recorded by Filter entitled Short Bus (c1995); (3) a commercially released compact disc recorded by Filter entitled Title of Record (c1999); (4) a commercially released compact disc entitled Songs In The Key Of X; (5) a non-commercial compact disc recording with examples of prior art; (6) a non-commercial compact disc with the song, Stand, recorded by the band Poison; (7) a non-commercial compact disc with various individual tracks from the master mix of TAP; and (8) the published sheet music of TAP in a piano arrangement with lead sheet format. In keeping with musicological practice, I have compared SYS and TAP by using the methodology of reviewing each of the songs in its entirety, then reviewing each of the component elements of the songs and then returning once again to review the songs in their entirety in the context of their component parts. My comparison of the component parts of SYS and TAP is set forth below. Structure There are no notable structural similarities between the two songs. To the extent that the two songs share any structural similarities, those similarities are not significant because they are uniformly shared with most modern popular rock music, i.e., both songs employ a standard usage of Introduction, Verse, Chorus and Bridge sections. Moreover, the construction of the Verse in both songs is significantly different. In addition, there is a section that can be termed a Closing in TAP that is not found in SYS. Finally, the duration of both songs (SYS 2' 51" TAP 5' 59") is different. (SYS and TAP are presented in their entirety respectively on tracks 1 and 2 in the compact disc marked Exhibit B, annexed to this report as Exhibit B) Harmony There are notable differences in the harmony in SYS and TAP. The harmonies throughout TAP are much more complex and dissonant than in SYS, which make them sound different. Throughout the Introduction and Verse sections in TAP, a B note (repeatedly played by the guitar) is present in almost every chord, which provides a harmonic glue that connects and defines the harmonic progression. No comparable or defining harmonic device is used in SYS. 2

3 Although both songs are in the key of A major, this similarity is meaningless, as thousands upon thousands of songs in all genres of music are also in the key of A major. In addition, although both songs feature (in their respective Introductions and Verses) a basic I-IV" harmonic progression, which is built on the first and fourth steps of the scale (from the A chord to the D chord), this harmonic progression also can be found in thousands of songs in all genres. Because this I-IV progression is so commonly found, its use in both SYS and TAP is insignificant. In addition, there are significant differences within the I-IV" harmonic progressions found in TAP and SYS. First, Plaintiff s music expert inaccurately states on page one, item #3 of his report that the four chords upon which both songs are based are the same: A (A7 and A9); D with a 4 th suspended; D major. In fact, the chords in the Chorus section in both songs are very different from the four chord progression described by Plaintiff s music expert. In addition, while the four chord progression he delineates (A(A7 and A9), Dsus4, D) does occur in the Introduction and Verse in SYS, it does not occur anywhere in TAP. Harmonic progressions found in TAP s respective Introduction and Verse are charted as follows: 5-8: A AAsus4A Dsus4D Dsus4D 9-12: Asus2 Aadd2 Asus2 Asus4(add2) Aadd2 Dsus4(add6) D6 Dsus4(add6) D : Asus2 Aadd2 Asus2 Asus4(add2) Aadd2 Dsus4(add6) D6 Dsus4(add6) D6 Because of the different chords used in TAP as charted above, this song s harmony is more complex, nuanced, and dissonant than the harmony of SYS, producing a different musical sound. Although the bottom notes in the harmonies charted above are the same (A and D), the use in each song of the name or root of the chord as the bottom note for such chords is extremely common. Plaintiff s music expert also inaccurately states on page one, item #5 of his report: the top (or melody) notes for all chords are the same. As demonstrated in Musical Examples #1 and #2, 1 and charted immediately below, the contour of the upper voicing or top notes for the chords in their respective Introductions is different: SYS measures 1-8: B C# G F# G F# B C# F# TAP measures 9-16: B C# B D C# G F# G F# B C# B D C# G F# G F# 1 Musical Examples #1-14 are annexed to this report hereto as Exhibit C. 3

4 In sum, given the harmonic differences as well as the insignificant similar use of a common two-chord progression (A to D), one cannot possibly conclude that TAP was influenced by SYS by virtue of any shared harmonic component. Rhythm The two songs, in their entirety, provide different rhythmic impressions. In SYS sixteenth notes are played evenly on a high hat cymbal and quarter notes are played on a bass drum. In addition, a tambourine and drum play on the second and fourth beats. This basic percussion rhythm is extremely common in the pop rock genre. The percussion parts in TAP are much more complex. TAP employs world music rhythms and sounds with the use of uneven sixteenth notes and other patterns played by a percussion instrument known as a shaker, as well as contrasting rhythms played by a conga. In addition, as the song progresses, TAP layers multiple percussion tracks, which create complex and highly syncopated rhythms. These rhythms are associated with tribal music (a term used by ethnomusicologists). No similar rhythmic ethnicity or complexity can be found in SYS. The guitar rhythm, as well, is different in both songs. Multiple guitar tracks are layered in TAP, which create a more complex guitar rhythm than in SYS. Further differences in the guitar rhythm are illustrated by sheet Musical Examples #1 and # 2, which distill the salient guitar rhythm components in each song s Introduction. As these musical transcriptions demonstrate, the guitar rhythm in the first eight measures of SYS differs in several significant ways from the guitar rhythm in the correlative measures of TAP. The most prominent rhythmic difference is each song s approach to the fourth beat in each measure. In SYS, three sixteenths notes approach the fourth beat. By contrast, in TAP, one sixteenth note followed by one eighth note approaches the fourth beat. A lay listener may hear a basic similarity between the guitar rhythm of both songs. This results from the fact that the guitar rhythm in both songs are primarily based on four basic accents per measure. This rhythmic similarity is not significant, however, because this guitar rhythm is common in the pop rock genre, and is also featured in Eastern European folk music. Accordingly, this is not original to either SYS or TAP. For example, the sheet music for Musical Examples #3 and #4 (annexed hereto as Exhibit C ) which correlate to tracks 3 and 4 of the compact disc entitled Examples of Prior Art Exhibit A (annexed hereto as Exhibit A ), highlights numerous examples of this guitar rhythm found in the pop rock genre. Considering the significant rhythmic differences as well as the insignificant common use of basic and commonplace rhythm, one cannot possibly conclude that TAP was influenced by 4

5 SYS by virtue of the rhythms found in each song. Melody The melody in TAP does not share any notable similarities with the melody in SYS. Examples of Prior Art Related Musical Works As indicated above, the harmonic and rhythmic similarities in SYS and TAP are common, and are found in many genres of music including the pop rock genre. This is illustrated by the music contained on tracks 5-14 on the compact disc entitled Examples of Prior Art Exhibit A, which is annexed to this report as Exhibit A, and the correlative transcriptions of this music presented as Musical Examples 5-14 in Exhibit C. Each of these related musical works are in the pop rock genre, and have similar harmonies and/or rhythms to the guitar introductions (and verse) in SYS and TAP. All ten of these Musical Examples pre-date TAP. 2 The best way to demonstrate the common use of the harmonic and rhythmic similarities between TAP and SYS is to listen to tracks 5-14 on Exhibit A, and to review the correlative transcriptions to that music in Musical Examples 5-14 in Exhibit C. It is evident from such a review that the harmonic progression and basic rhythm at issue have been used by many pop rock artists. Many of the songs included on Exhibit A were written and performed by major artists, including The Pretenders, U2, Eurythmics, Peter Gabriel, Neil Diamond and Bon Jovi. Other Recorded Works by Filter As noted above, I have also reviewed two commercially released compact discs recorded by Filter and a third commercially released compact disc containing a Filter song, which includes a total of 23 songs by Filter including TAP. Contrary to the assertions of Plaintiff s music expert, pages 1-2, item #8, I conclude that many of TAP s most memorable characteristics stand out as musical fingerprints shared by many songs written and performed by Filter. 2 The compact disc entitled Examples of Prior Art Exhibit A contains edited portions of these related musical works, some of which have been transposed into the key of A major (the key of SYS and TAP), consistent with standard musicological practice. The songs in their entirety are included on a companion compact disc entitled Examples of Prior Art Exhibit B, which is annexed to this report as Exhibit B. 5

6 For example, a prominent feature in TAP is the fusion of pop rock and world music styles. This is achieved in TAP through the use of rhythmic patterns, musical instruments (such as the shaker and conga) and melodic formulae which provide a flavor of tribal music. On the Filter album Title of Record, several songs share these characteristics with TAP: Sand (track 1), It s Gonna Kill Me (track 4 especially at 1' 23" and 2' 04"), The Best Things (track 5) and Miss Blue (track 11). Each of these songs use rhythms and/or melodies which provide a fusion of world music with pop rock music. Another distinguishing characteristic in TAP is the enormous increase in its dynamics and rhythmic complexity as the song develops and flows to its ending. The songs Skinny (track 7) and I m Not the Only One (track 10) have similar build-ups to the end. In addition, close to the end of TAP (with the lyrics, Hey, dad, what do you think about your son now? ) the vocal range is very high, singing high B s (just a half step below the high C s that classical tenors are famous for singing). Similarly, the ending sections of I m Not the Only One (track 10) and Miss Blue (track 11) are marked by a very high vocal range. While other similarities exist between TAP and other songs written and performed by Filter, only one more similarity will be mentioned here. Plaintiff s expert emphasizes that both TAP and SYS are based upon the same basic harmonic progression. Not only is this progression commonly used in many genres, but it is present in other Filter songs. The songs, Skinny (track 11), which is in the key of A, features the chord progression - - A Dsus4 D - - at 28 seconds into the song. Similarly, So Cool (track 11 on the Filter album Short Bus), which is in the key of D, and (at 1" 18" and 2' 45" into the song) features the same chord progression in the key of D. Like TAP, So Cool has a closing section constituted of electronic synthesis, which is absent in SYS. Plaintiff s music expert states Patrick s style is almost always hard-driving, distorted guitar rock -- but not Take A Picture. In fact, several of the songs written and recorded by Filter other than TAP (Skinny, I m Not The Only One and Miss Blue (found on the Filter album Title of Record) and Stuck In Here and So Cool (found on the Filter album Short Bus) and Thanks Bro (found on the soundtrack album for the film X-Files entitled Songs In The Key Of X)) are not hard-driving, distorted guitar rock. In view of the numerous similarities that TAP shares with the other songs recorded by Filter, one must conclude that TAP is consistent with Filter s other musical works. Moreover, many of the similarities between TAP and the other songs recorded by Filter are not shared by SYS. 6

7 CONCLUSION SYS and TAP manifest significant differences in structure, rhythm, harmony and melody. The most memorable characteristics in TAP (which include complex rhythms, multi-layered guitar and percussion tracks, harmonic dissonance, vocal melody, a dynamic build up to the end, and a world music flavor) are absent in SYS. To the extent that there are any similarities between the two songs, those similarities are insignificant and incidental and can be attributed to common musical practices. Therefore, I have concluded that TAP was created without any reference to SYS, and a claim of copyright infringement predicated on such an alleged reference is not justified. Dated: March 6, 2000 Lawrence Ferrara, Ph.D. Professor and Chair Department of Music and Performing Arts New York University 7