That probably sounds like a minor detail, but I really don’t think we would want to underestimate what a radical effect this would have on music. As it stands getting a license can be prohibitively difficult, there’s generally a lot of expensive legal wrangling involved. That the copyright owner has a veto means they have a really strong hand in negotiations, and often it’s difficult or impossible just figuring out who owns a copyright. Which is kind of funny in and of itself, if you think about it.

At this point you might be wondering if there’s a catch. There’s always a catch with these things, or my logic is flawed somewhere, otherwise wouldn’t we of changed the law already? Well, the catch here is that this would do exactly what it says it would do. If I wanted to take the melody from whatever hit song and do my own song around it, I could just go ahead and do that, then put it on the radio. All the great classic melodies would be re-appearing in all sorts of strange new songs, third-rate musicians would be trying to score hits butchering all your favorites, there would be a blooming of thousands of the singing Sweet Home Alabama song. Listening to music could become a constant guessing game, what’s that bassline from!

I assume there would be all sorts of complicated issues to resolve and unintended consequences. I don’t know how they would calculate the royalty rate – a standard % based on how many seconds of a song a melody was playing for, or how different it is, if it would be higher for melodies from more popular songs. We could at least block songs based on recycled melodies from being used in things like movies or advertisements – that’s how licensing works for cover songs now.

Compulsory licensing could benefit existing copyright holders financially. It could go either way – on one hand having a veto means they can probably get much more for each individual license they give. But with a compulsory license, a much higher % of songs would probably be re-using melodies, so a higher % would be paying royalties.

Generally there are always winners and losers with these things. Maybe people would stop listening to old recordings if new songs were being made with their best melodies. But that can happen with the existing system for covers we have now. Scoring a hit with a reused melody would probably also generate interest in the original.

Sitting down and doing the math, it could be that the group who loses out would be future musicians who write original songs. They would have more competition from music that was reusing old melodies, a higher % of total music profits would end up as royalties paid to existing copyright holders. Just structurally, future musicians aren’t as influential – they’re still writing songs in their parent’s basements, they can’t really throw their weight around as a group. And they would probably be combining their new innovations with old melodies, so it might just work out they write better songs and pay royalties.

 

But one way or another, those accidental uses do seem to happen often enough, and the history of music is a story of borrowing and improving. My feeling is that the issue here is a taboo against using other people’s melodies. It’s funny how sampling is seen as much more legitimate. Samples are a reference, a piece of musical collage, creating something new with the old. If they still do want you to get a license. But reusing a melody is seen as straight up theft, and sneaky theft at that, like you were hoping you could just say it was ‘accidental’ if anybody noticed.

So maybe the root issue – if there is a root issue – is a culture of only using melodies once. And maybe that’s ok, maybe they are unique expressions, maybe they only need to exist in their original usage. It could be that the nature of melodies is that they are born perfectly formed. Generally changing a few notes in a melody will either create something that doesn’t sound as good, or will be something that the original songwriter has already done during the original song. You don’t have to change a melody too much for it to be something new – Jethro Tull never sued the Eagles.

Although even then it would be nice to recombine melodies in new songs, or build on top of melodies. How much of the psychological effects of music are single key melodies, and how much of it is the combination of melodies into the different sections of a complete song? Do you get in the ‘Hotel California’ mood just straight from the fingerpicked chords it opens with, is it the interplay of the chord progression and the sung melody, would it have a different psychological effect with a different chorus? It’s a nuanced point, but I also wonder how unique each melody is. Can you just listen to whatever bluesy rock song and get pumped into a rock mood, or does each individual melody inspire a certain individual specific psycho-emotional state?

Changing the laws to allow compulsory licensing would probably direct us towards a culture that was more friendly to reuse. There might be some pushback to start, but in the end people would be writing good new songs with old melodies, and I assume it would become more acceptable.

Maybe it could even make cross-cultural pollination more acceptable as well. Aside from music made by Afrodescendant people, there seems to be a slight taboo against using melodic patterns from cultures outside your own. Cultural appropriation is just one side of the coin, there’s also cultural monopolization. As it stands whole groups of musical patterns do seem to be strongly associated with particular ethnicities. Just not being able to change lyrics can make it harder to do covers of songs in foreign languages.

Even if the ball got rolling for something like that, it would still be an opt-in system, however. So a lot of the best melodies might still not be available. While I generally think opt-in systems are much more feasible and realistic, people do tend not to opt-in.

I feel like there’s a risk of us going in a bad direction in general for those things. If you want access to the full buffet of TV and movies, you have to get a subscription to Netflix, HBO, Disney+, Amazon Prime, and even then that doesn’t cover everything. We could have compulsory licensing for news stories, academic journals, any number of things. Canada used to have compulsory licensing for pharmaceutical drugs, for example. Companies could manufacture generic versions of drugs that were still under patent, they just had to pay royalties. Don’t necessarily expect the above-mentioned industries to go out and campaign for compulsory licensing, though.

Those are examples of compulsory licensing for end products. Taking it still another direction, how about a legal right to remake and market documentaries with extra scenes added? People could comment on anything they might feel needed clearing up. There could be a whole aisle in the bookstore dedicated to new versions of Harry Potter with different endings, you could download extra levels for all your favorite video games.

Some of that is probably going a little too far. It’s certainly veering further and further off topic. The arguments I have been making here are about something very specific, the legal right to reuse melodies from existing songs. Melody is something unique, it doesn’t have a lot of direct parallels. As it stands you can legally write novels about debonair British Secret agents fighting supervillains in ways that you just can’t reuse the ‘Seven Nation Army’ riff.

Maybe this is a realistic enough cause. This is specifically an example of a very small legal change that would have huge implications. All I’m talking about here is BASICALLY some minor adjustments to the existing laws for cover songs. It could be approached in a minimalistic way. Maximum lengths for samples, prohibitions against obscene or commercial uses, high royalty rates.

Published August 30th, 2021