CHAPTER 10
What’s in a Tune?
Musicians usually go to much better parties than music scholars, and as a natural result of this, there have always been resentful, power-hungry musicologists trying to impose their will on the musicians by inventing rules. They have, for example, tried to ban certain harmonies because they were “wrong.” But these rules have always failed as new fashions take over from the old ones. For instance, back in 1890 it was considered wrong to fix your left hand in a particular chord shape and move it up and down the piano keyboard to produce what are known as parallel chords. What you were supposed to do was keep changing the type of chord you played as you moved your left hand from one chord to another. But the innovative young Parisian composer Claude Debussy liked the rather ethereal sound of parallel chords, and used them in several of his compositions. His professor’s response is a great example of a bossy musicologist in action:
“I am not saying that what you do isn’t beautiful, but it’s theoretically absurd.”
Thankfully Debussy wasn’t put off. He simply replied:
“There is no theory. You have merely to listen. Pleasure is the law.”1
At which point the professor probably gave him a C-minus for composition and Debussy huffed off to the nearest bar to write “Clair de Lune,” one of the most beautiful pieces of piano music ever written—even if it is theoretically absurd by 1890 standards.
And Debussy was right: there are no hard-and-fast rules governing music; there are merely observations about what has worked in the past. Typically some scholar or other notices a pattern—for example, that pieces of music often end with a particular sequence of chords—and so they let it be known that “this sequence of chords creates a convincing ending.” Meanwhile, musicians are using that pattern of chords without caring whether or not the musicologists are giving them the thumbs-up. This is how music theory has worked for the past several hundred years. The scholars and musicologists always follow in the footsteps of the musicians, simply analyzing what they have been up to. The music comes first, then the theory (except for one daft exception that I will be ranting on about later in this chapter).
So, the rules of how a standard melody is constructed are simply observations developed by looking at what happens in most tunes. Here are some of the more important ones2 for Western music:
1. Most tunes are written in a major key.
2. Most tunes start on the keynote (e.g., B in B major).
3. Most tunes rise before falling back to the keynote again (although there will be some fluctuations within this overall “arch”).
4. Tunes generally involve lots small jumps in pitch and very few big jumps. (More than half of the jumps will be to the note one step above or below in the key being used.3 Repeating the note you are on—i.e., no step at all—is also fairly common. Jumps involving three, four, or five steps or more are progressively more unusual.)
5. A small step downwards in pitch is usually followed by another small step downwards.
6. If a big step is made in the tune, it will probably be upwards.
7. After a big step, the next step will probably be smaller and in the reverse direction.
8. There is a pecking order of how often the different notes in the key are used. For example, the keynote and fifth note in the key are used very frequently, but the note just below the keynote is used very rarely.
9. The keynote and the fifth note in the key are often used at points of rhythmic emphasis.
10. Notes that occur at a point where the melody changes direction (from rising to falling or vice versa) will often be emphasized rhythmically.
11. A melody will usually contain only one example of its highest note.
I have been trying all morning to write tunes that follow all of these rules at once—but it’s almost impossible. Looking at my morning’s output, I can tell you that as far as emotional content goes, they range from dull to very dull. Even the best one sounds like a cross between a not very popular nursery rhyme and an uninspiring hymn—a hymn for the patron saint of porridge manufacturers or something along those lines.
In practice, of course, most tunes follow only most of these rules.
For example, “Baa, Baa, Black Sheep”:
1. Is in a major key.
2. Starts on the keynote.
3. Follows an upward arch and descends back to the keynote.
4. Uses far more small steps than big ones.
5. Uses small steps downwards followed by more small steps downwards.
6. Has only one big step, which is upwards (“baa—black”).
8. Follows the usual pecking order of note usage.
10. Uses the keynote and fifth note at points of rhythmic emphasis.
11. Has only one instance of its highest note.
But it doesn’t obey rule 9. The change in direction in this tune happens on the first syllable of “any,” which isn’t particularly strongly emphasized in the rhythm. It also doesn’t obey rule 7 about bouncing back a bit after a big jump.* There is a big jump right at the beginning of the tune—between the words “baa” and “black”—but instead of relaxing back to a note in the middle of this jump, the tune repeats the same note and then continues upwards. Naughty tune.
My attempts at rigid rule-following show that the rules do not automatically deliver beauty—it’s just that a lot of beautiful stuff happens to follow most of these rules. We can use humor as an analogy to music here. You could put together a set of observations about the similarities among the acts of several comedians, and although the rules you develop might be true and useful, they won’t necessarily help you to write something funny.
This is all pretty obvious when you think about it. If there were a formula for producing beautiful tunes, everyone would use it and all beautiful tunes would have a lot more in common than they do in reality. But this isn’t to say that a tune formula hasn’t been attempted; there are several computerized “melody generators” on the Internet. Unfortunately, the results are—to go back to the humor analogy—rather like hearing a “funny” speech written by a twelve-year-old who has read a book on writing funny speeches.
I’m not denigrating folks who write these melody generators. It’s an extraordinary intellectual feat to get a computer to turn out even second-rate tunes. But the fact remains that they are second-rate—and, actually, I’m rather glad about that.
Listening to a tune for the first time
When I say “we are all expert listeners,” you might think I’m exaggerating, because from your point of view all you’re doing is listening to the music and enjoying it. But if you want proof of your level of expertise, all you have to do is look at what’s going on in your brain every time you listen to a piece of music you haven’t heard before.
When you listen to a piece of music for the first time, you do so with a set of expectations. If you are familiar with the type of music involved (pop, 1940s jazz, reggae, etc.), you will know that certain note patterns and combinations are probable, and others are unlikely. Sometimes you will even be able to guess what the next two or three notes of the melody will be. There will be times, however, when your forecast of how the notes are going to progress turns out to be wrong, and you’ll need to reassess the past few notes you’ve heard in order to continue making sense of the music. All this subconscious forecasting and checking is driven by our continual need to make sense of what’s going on around us.
You might think this all sounds rather complicated. Isn’t listening to music generally a passive activity? Don’t we just follow the music and soak it up? Well, it depends on circumstances. If music is playing in the background when we’re chatting with friends, we just let it wash over us, but what I’m talking about here is listening to a new piece by your favorite band or composer. In this case you are listening to the music, not just hearing it. Listening is a much more focused activity than hearing.
Let’s assume you are a Western listener hearing (for the first time) a typical Western tune in a genre of music you are familiar with.
The first note starts. You don’t know how long it’s going to last or where it fits into the scale being used, but you’ll already be making assumptions. You’ll assume that it’s part of a major key because most Western music is written in a major key. You’ll also assume that the note is most likely to be the keynote, and if it’s not, then it’s likely to be either the fifth or third note in the scale.4 Chances are you’ll be right, because your assumptions are based on previous experience. You don’t need to know consciously what a major key is or know anything about fifth and third notes in scales to make these assumptions. They are all made subconsciously.
Once the first note has finished, you will start making assumptions about the rhythm of the music. From now on, not only will you be making guesses about which notes are most likely to occur next, but also you’ll be making assumptions about when they are likely to occur and how long they are going to last.
As far as rhythm goes, once the second note begins, you’ll guess that it will be the same length as the first, or twice as long, or half as long, and you will often be correct, because that’s how Western music is usually put together (although there will be occasional instances of notes that are one third as long, three times as long, or something else altogether). Western music is generally rather simple as far as rhythm goes, so these simple ratios (1, 2, and 3) cover most of it. You’ll also assume that the overall pulse of the music will emphasize the first beat of groups of four or two—“ONE two three four, ONE two three four” or “ONE two, ONE two.”5 Once again this will usually be right, but if the music happens to be a waltz, this expectation will be wrong, because waltz rhythms are organized in groups of three—“ONE two three, ONE two three”—and if it’s a traditional Irish jig, the overall pulse will repeat in groups of six or nine.
Except in the very simplest cases, we don’t absorb an entire tune as a stream of notes; we divide it up into shorter phrases: “Baa, baa, black sheep”… “have you any wool?”… “Yes sir, yes sir”… “three bags full”… and so on. In some cases the notes are all the same length (as in “Baa, baa, black sheep” and “Yes sir, yes sir”), but phrases with different-length notes in them will usually end on a long note: “wool,” “full.”6
Our subconscious forecasts about phrases (e.g., “This phrase is coming to an end”) and notes (“This will be the highest note in this phrase”) are confirmed or contradicted only retrospectively, as the tune moves along. We can’t even be sure how long any single note is until it stops. Sometimes we have to rapidly change our opinion of what we’ve just heard in order to make sense of a piece, in the same way that we instantly rethink the last few words of a conversation once we realize we’ve misunderstood something.7
Recognizing and remembering a tune from its contour
After we’ve heard something many times, we get a full appreciation of the rhythm and the notes involved, but we build up this accurate picture from an initial sketch or contour, which we memorize after just the first few hearings. The contour of a tune tells you the rhythm involved and whether the tune goes up or down in pitch at any point.
For example, the contour for “Baa, Baa, Black Sheep” can easily be seen in the written music:
There’s a big jump from “baa” to “black,” then the tune rises in single steps up to “an-.…” From “an-…” there is a moderate-sized jump down to “-y,” and then the melody comes down in single steps to the note it started on. When you first hear a new tune, your brain doesn’t pay much attention to the size of the pitch steps; it just concentrates on whether the steps are upwards or downwards, and on the timing of the notes—the rhythm.
The importance of rhythm
Contours are the first step to remembering a tune—but they are also the main route to recognizing them. Obviously, if someone hums a tune with the proper rhythm and the right-sized up-and-down jumps, anyone familiar with the melody will recognize it immediately. But the odd thing is that the rhythm is more important than the size of the pitch steps. If you keep the rhythm correct and go up and down in the right places, the tune will often still be recognizable even if you get the sizes of the jumps wrong. And I don’t mean slightly wrong. You could double the size of some of the jumps or make all the jumps the same size and the tune remains identifiable in many cases.8 And thus was the drunken sing-along invented.
If, however, you keep the pitches correct and mess about with the rhythm, it’s fairly easy to make even a well-known tune unrecognizable. Many tunes become difficult to identify if you simply employ the trick of making all the notes the same length. This wouldn’t work too well with “Baa, Baa, Black Sheep” because the first four notes are all the same length, but try humming something with a bit more rhythm as a set of equal-length notes—“My Way,” for example. It still sounds tuneful, but it’s not easy to recognize. This is not something you can test on your own—you’ll always recognize a tune you are trying to hide from yourself—but you can ask others if they can recognize tunes hummed with a different rhythm. (Warning: it’s difficult to stop yourself reverting to the usual rhythm for whichever tune you try.)
After the first few hearings of a melody, we memorize the contour of ups and downs and the rhythms involved. The more complicated detail—the exact sizes of the pitch jumps—is dealt with by a different part of the brain after several hearings.9 Young children find the details of the pitch jumps difficult, but they generally get the contour right, which is why their renditions of half-learned nursery songs sound weird but identifiable. So now we know that drunks and small children have more in common than just being unsteady on their feet and having a propensity for bursting into tears for no apparent reason.
Listening to unfamiliar types of music
To an enthusiast of any of the Western musical styles—from opera to heavy metal—most Indian classical music sounds rather baffling the first time you hear it. Similarly, heavy metal would be a shock to the system for someone who’s only ever listened to Indian classical. When we hear a new kind of music, our brain needs to develop a tool kit of expectations to aid our understanding and increase our enjoyment. If you want to embrace a new genre, you’ll need to acquire the appropriate tool kit. Fortunately this doesn’t involve doing any conscious work. If you play just one typical piece of an unfamiliar type of music over and over in the background whenever you do the dishes, you’ll find that, as the basic rules of the genre sink in to your subconscious, the “strange” music gets easier to understand and enjoy.
Every human culture engages in music of one form or another. There is an enormously wide variety, and we generally prefer the types of music we have been brought up with. But these predilections are not inborn; a baby from anywhere in the world could be whisked off to join another culture and would grow up preferring that culture’s music.10 Not surprisingly, we are at our most flexible as infants—and children brought up in two cultures can easily become bi-musical in the same way they become bilingual.
One investigation into bi-musicality, carried out in 2009, looked at people’s ability to remember Indian and Western melodies that they hadn’t heard before. Three groups of people were tested: North Americans, Indians, and a bicultural group with backgrounds in both cultures. The Americans and the Indians both remembered new tunes more easily if they were dealing with melodies from their own musical culture. The bi-musical folk, however, performed equally well for both types of music.11 Having developed bi-musicality early on in life, these lucky people found it easy to fully appreciate two musical cultures.
Brain scans have demonstrated that your brain has to work harder when it’s processing an unfamiliar type of music,12 and as our brain doesn’t like working particularly hard, we often dismiss unfamiliar music as unpleasant. But we have a choice: we can either deliberately seek out the new and unusual so it becomes easier to process, or we can avoid any type of music we find unusual. I think it’s great that young people today are using technology to access far more types of music than we ever did (or could) when I was young. Nowadays it would be no surprise to find African drumming, bluegrass banjo, and Sinatra on the same playlist.
When tunes became unfashionable…
Some things develop and progress as time goes on. Passenger aircraft, for example, have definitely improved, decade by decade, since the 1930s.
Other things, such as spoons, don’t progress. Spoons are useful as they are, and even advertising executives can’t see any clear development route, which is why we don’t have a spoon marketing board, or any spoonocentric research centers.
So, which one is music? Does it follow the airplane trajectory of development or the spoonish flat line?
Many years ago my girlfriend of the time gave me a crappy old CD with a heavily scratched case and no sleeve notes. You’ll be glad to hear that the condition of the CD was no reflection on the state of our relationship. Tracy (a librarian) sometimes brought home CDs that the library planned to throw away because they were in too poor a state for lending to the public.
Sometime later I put the CD on as background music while doing some work in the kitchen. It was pleasant, modern-ish orchestral music written by a composer who was clearly fond of a good tune—just the sort of thing to listen to while you are trying to fix your toaster. About halfway through the second movement my attention drifted away from recalcitrant kitchen appliances… this music was beautiful… similar in mood to that famous Adagietto by Mahler (the one used in the film Death in Venice)… who was this composer? Was it anyone famous? Why hadn’t I heard this before?
A quick perusal of the torn and scabby notes on the back of the case revealed that I was listening to the second movement of George Lloyd’s Seventh Symphony. Who was George Lloyd, and why hadn’t I ever heard of him? Or his music? These questions interested me for a few minutes, but faded to the back of my mind as I walked into town to look for a toaster shop.
So why was George Lloyd neglected by history?
The main outlet for new classical music in the UK is BBC Radio 3. The announcers of Radio 3 live in a marvelous world where only music is important. Their final broadcast will probably be something along the lines of “We interrupt this program to announce that World War Three has just been declared, and the human race will be wiped out in seven minutes, which just gives us time to listen to two of Schubert’s shorter songs…”
Anyway, if you want to be a successful classical composer in the UK, it’s vitally important to get your stuff played on Radio 3, but back in the 1960s this was a difficult prospect if your music was considered too tuneful. The intellectual trend of that time was that tunes in older music were fine, but tunefulness was getting a bit old-fashioned and new classical music should be more intellectually demanding. George Lloyd’s music was one of the victims of this fashion. The committees who chose the new music for Radio 3 considered his melodious offerings out of date because they thought that music should be progressing from simple beginnings to a more complex future.
But music doesn’t follow the aircraft model of development. Nor, on the other hand, is it spoon-oid and devoid of progress.
Music grows; it develops by accepting new ideas without necessarily rejecting old ones.
The way music has developed is rather like the way cooking progressed as people discovered and imported new ingredients and spices from other countries. Older elements aren’t discarded; they are just incorporated into the growing number of options.
George Lloyd knew this, and used a combination of long-established ideas (tunes should be easy to follow) and newer techniques (harmonies can be complicated and occasionally vague) to produce his symphonies. But he and several other twentieth-century composers were rejected by radio stations and concert halls because they embraced both the past and the future. An intellectual movement had begun earlier in the century that had effectively banned tunes. And oddly enough, it all started in the city where most of the famous classical tunes had come from in the first place.
Although various clerics and politicians have tried to impose their will on composers throughout history, there was only one twentieth-century case of classical composers themselves saying, “Let’s abandon this older stuff and create a new set of rules.” The deluded folk who set off on this path in 1920s Vienna were led by a shiny-pated intellectual called Arnold Schoenberg, and they are collectively known as the “Second Viennese School” (the first Viennese School having consisted of Haydn, Mozart, and Beethoven). The composition style Schoenberg invented was called serialism—or twelve-tone—and it’s bonkers, for reasons I will explain in a minute. Schoenberg was an established composer of normal-sounding classical music before he had his big idea, which he described with endearing modesty during a walk with his friend Josef Rufer: “I have made a discovery which will ensure the supremacy of German music for the next hundred years.”13
In fact Schoenberg’s ideas never achieved the wide popularity he hoped for because the musical system he designed was completely out of step with human psychology. Serialism itself is a musical backwater, but a quick look at the reasons why it failed can tell us a lot about the psychology of how we appreciate other types of music.
I have already described how “normal” Western music is put together: you pick your team of seven (or so) notes from the twelve different ones available. This is your key, and you use it to produce your tunes and harmonies—sometimes sprinkling in notes that aren’t in the key for extra interest and also changing from one key to another whenever you want to. Within any one key certain notes will tend to be used more than others, and the strongest members of the team will also be used often, at points of rhythmic emphasis.
Put like this, it does all sound a bit predictable and boring—which is exactly what Schoenberg thought. Any normal, conventional rebel would have decided to abandon the rules and just compose whatever he wanted to hear. That’s what fellow shiny-pated intellectual Igor Stravinsky did, and we all know what a success he turned out to be. Schoenberg had other ideas though. For him, ignoring the existing rules wasn’t enough; he was going to invent a completely different set of rules.
Schoenberg looked at the key system, which he found so dull, and decided that the only way to avoid keys was not to pick a team of seven notes. Your team had to involve all twelve. Stravinsky and others, following in the footsteps of Debussy, were already using all twelve notes to produce atonal (keyless) music. But in any piece, some notes would be used more than others, and the music would settle into keys from time to time. But this was all too wishy-washy for Schoenberg. He wanted an absolute absence of keys, so he decided that the answer was to use all twelve notes to produce a series—or tone row.
As decreed by Schoenberg, the composer would begin working on a piece by first deciding what order he was going to use all twelve notes in.
Like this, for example: C, F#, A#, D, E, D#, G, F, G#, A, C#, B.
Having decided on your series, you then had to use it for all your tunes and harmonies. If a note had just been played in the “melody,” it would have to wait its turn until all eleven others had been played—in the order fixed by the row.
Shortly after coming up with this basic rule, even Schoenberg saw that it was far too restrictive—so he created add-ons. You were, for example, allowed to use your row backwards, or upside down (i.e., if the original row went “down a tone, up a semitone,” your upside-down version could go “up a tone, down a semitone”).
I mentioned earlier that “rules” in music are simply observations put together at a later date by scholars who are working out what the musicians have been doing. Stating the rules beforehand, as Schoenberg did, is putting the cart before the horse, and much of the music produced by the serial techniques sounded pretty much as if it had been composed by a carthorse—although perhaps I’m being a bit harsh on carthorses here.
Howard Goodall, in his excellent book The Story of Music, puts it well:
Schoenberg’s theoretical rebellion, which later acquired the labels “serialism” or “atonality,” produced decades of scholarly hot air, books, debates and seminars, and—in its purest, strictest form—not one piece of music, in a hundred years’ worth of effort, that a normal person could understand or enjoy.14
A defender of strict serialism might say that if people were exposed to more of it, they would start to understand it and love it more. But the problem is deeper than that. Serialism presents us poor humans with a number of intractable psychological difficulties.
First of all there’s the difficulty of remembering the “melody” of the row. All the world’s music systems involve having only about seven notes in play at any one time. (There are systems like the Indian one, which appears to have more at first glance, but a closer look reveals that there are actually about seven, although some of them have variants that are slightly lower or higher in pitch.) The clue to how many different notes could be in play at any one time was revealed back in 1956, when the psychologist George Miller wrote a landmark paper titled “The Magical Number Seven, Plus or Minus Two: Some Limits on Our Capacity for Processing Information,” in which he explained that the human short-term memory can cope with only about seven different things at any one time.15
The “only about seven things at a time” rule for your short-term memory applies to a wide variety of things, from remembering new names at a wedding party to recalling the items on that grocery list you left at home. It also applies to musical notes. It’s why, although we have twelve different notes in an octave, we generally use only a selection (or key) of about seven at a time. If you use Schoenberg’s serialism technique for composing music, every melody has twelve different notes. Although you might be able to remember the contour of such a melody, the chances of accurately remembering all those up-and-down jumps in pitch are very small.
Then there’s the harmony. In standard music a lot of the ebb and flow of the emotional content depends on the buildup of tension in the harmony followed by relaxation. Relaxed harmonies rely upon chords built up of notes that have strong interrelationships. Chords of this sort are plentiful in music that is based on keys but are scarce in the serial system. The serial composer can easily provide tension but can’t offer the relaxation that gives the tension context.
Finally, as I said earlier, there is the difficulty in building up expectations. As you know, we gain a lot of pleasure from the frustration or reward of our expectations of what the music will do next. If we encounter a new type of music from a different culture, then we start off finding it rather difficult to deal with. After listening to the new genre for several hours spread over several days or weeks, we start to “get it.” Once we have a handle on how this new music works, we can build up expectations and a new source of musical pleasure becomes available. The problem with serialism is that the rules are completely obscure from the listener’s point of view. Serialism rules are easy to write down on paper, but you can’t hear them in the music. So the listener can’t build up a system of expectations for the genre.
It’s not surprising that serialism didn’t thrive. What’s surprising is that any high-quality music was produced at all. Some pieces composed by the members of the Second Viennese School have become part of the general repertoire of classical music and are considered by many (including myself) to be beautiful—but these pieces always involve a relaxation of the rules. Berg’s Violin Concerto, for example, succeeds as a piece of music—but wouldn’t get a pass mark in a serial music composition exam because it is only loosely based on the rules.16
Nowadays serialism has largely been abandoned, but it has left an unfortunate legacy. A lot of modern classical composers still think that whistle-able tunes are something to be sneered at. So it’s no surprise that the most popular branch of modern orchestral music is movie music, most of which is very melodic. There is, however, one branch of classical music that is thriving even though it is not melody-driven in the traditional way. Minimalist music concentrates on textures and repeated patterns to build up a hypnotic experience that can be very emotionally moving. (If you’ve never heard any, you could start with Steve Reich’s “Variations for Winds, Strings, and Keyboards.”) The rhythmic repetitions and harmonic changes of this type of music seem to produce a continuous sequence of melodies out of thin air. This is a return to the pre-serialism pattern of musical growth because the minimalist style builds on musical techniques of the past (harmonic progressions, repetition, etc.) to produce a new sound.
Tunes, plagiarism, and copyright
Tunes are the most important feature of many types of music. In fact, the melody is so important that, apart from the lyrics to a song, it’s the only aspect of a piece of music that you can copyright. A tune is the legal property of the composer—and where there’s property there’ll be cash, and where there is cash there’ll be lawyers…
Plagiarism is, of course, just another name for stealing other people’s ideas and pretending that you thought them up yourself. In music, the most frequently plagiarized ideas are melodies. But the level of wrongdoing ranges from truly criminal activity to innocently imagining that you have invented a tune when in fact you have subconsciously remembered it from a film you watched last year.
As I just mentioned, melodies can be copyrighted, and you can get into legal trouble if you use a melody that is still under copyright. Even if you do so accidentally. Even if you are the Rolling Stones.
Keith Richards and Mick Jagger have a long history of writing songs together, and Keith is well aware that Mick absorbs music wherever he goes, and sometimes thinks he has written a melody when in fact he just heard it somewhere. This is usually no problem because the original source is easily spotted. But in his autobiography Life, Keith tells the story of what happened when he took their recently completed Bridges to Babylon album home. The Richards family were sitting around listening to the album and all was going well until the track “Anybody Seen My Baby?” During the chorus Keith’s daughter Angela and her friend started to sing different words. Wearing a facial expression typical of a British-millionaire-rock-star-father-of-a-possibly-sarcastic-daughter, Keith asked for an explanation of this unsupportive behavior and was shocked when Angela told him that the melody of the chorus was exactly the same as “Constant Craving” by k. d. lang. With only a week to go before the album came out, Keith took swift action, and now, if you look at the album notes, you will find k. d. lang and her collaborator Ben Mink mentioned in the writing credits.17
On a less glamorous level, I nearly fell afoul of the lawyers myself when I was writing my last book, How Music Works. I had decided to use only two tunes for all my musical examples in the book: “Baa, Baa, Black Sheep” and “Happy Birthday to You.” The book was peppered with references to these two songs to explain various rhythmic techniques, the size of intervals, and lots of other stuff. Various editors and friends were reading draft chapters and I was finally getting toward the end of the project when someone said, “Isn’t ‘Happy Birthday’ still under copyright?” This seemed very unlikely to me. I hadn’t realized a song like that could ever have been under copyright. But I did some research and found that this most innocent of songs was the focal point of a story of corporate greed and lawyerly behavior worthy of a John Grisham novel.
There are an awful of a lot of rumors and anecdotes about the song “Happy Birthday to You,” but thankfully there is also a comprehensive, reliable piece of academic work on the subject by Robert Brauneis, a law professor at George Washington University. In his excellent paper “Copyright and the World’s Most Popular Song,” Professor Brauneis covers the whole story in great depth,18 but here is a quick review of the highlights and lowlights.
The “Happy Birthday” song was written (with different words) sometime around 1889 by a couple of American sisters, Mildred and Patty Hill, who were both kindergarten teachers.
Now, please don’t make the same mistake I did by conjuring up an image of a pair of little old ladies in lace bonnets stumbling across a tune one evening while cooking supper. At the time the song was written, Patty was twenty-two years old and her sister Mildred was thirty. And they didn’t just happen upon the tune. It was carefully composed as part of an experiment in the musical education of young children.
Mildred was a composer of popular songs and also a musicologist who specialized in African American music. Patty was just beginning a career in education that would eventually culminate in a professorship at Columbia University. So what we are dealing with here are a couple of young, intelligent, highly motivated specialists involved in a musicological project.
The aim of the project was to develop a collection of songs that would be musically and emotionally suitable for small children. Mildred wrote the music and Patty wrote the lyrics. They would write a draft of a song and, in Patty’s words:
I would take it into school the next morning and test it with the little children. If the register was beyond the children we went back home at night and altered it, and I would go back the next morning and try it again and again until we secured a song that even the youngest children could learn with perfect ease.19
The songs that came out of this work were published in 1893 as Song Stories for the Kindergarten. One of the songs had the same tune as “Happy Birthday to You,” but the words were completely different. The song was originally composed and published as “Good Morning to All” and repeated that phrase, with no mention of birthdays.
Toward the end of the 1800s there were no standard birthday songs in the United States because people had only recently begun to celebrate birthdays in the way we do today. But at some point after “Good Morning to All” was published, people started to sing “Happy Birthday to You” instead of the original words. In the early years of the twentieth century the song took off as the standard birthday song, and by 1937 filmmakers knew that even a short instrumental extract of the tune would tell the audience that it was someone’s birthday.
The song, with its new “Happy Birthday” words, was supposedly copyrighted by the two sisters in 1935. Through the years several people have claimed that Mildred didn’t write the tune, but these accusations don’t hold up. None of the “identical” or “very similar” tunes the accusers go on about is actually similar, so I think it’s fair to say that Mildred is the composer. But no one knows who invented the “Happy Birthday” lyric. Maybe it was Patty, maybe it was one of the kids at the school—or someone else entirely.
Nowadays “Happy Birthday to You” is the world’s most popular song. So popular, in fact, that in the time it will take me to type this sentence, it would have earned the copyright holders about $2. That’s $5,000 a day—or about $2 million a year.
Which is why Warner Chappell Music were so keen to keep it under copyright. By 2013 they were claiming that they’d managed to extend the copyright until 2030! Having watched Beverly Hills Cop three times, I have an in-depth understanding of the American legal system and, from the point of view of my advanced training, I must say that ninety-five years of copyright seems a little excessive.
Professor Brauneis made a good case that the song wasn’t really under copyright, and, using his work as a starting point, Jennifer Nelson’s tiny filmmaking company (Good Morning to You Productions) started a lawsuit challenging the copyright in June 2013. And the drama doesn’t end there. On April 27, 2013, a band called Rupa & the April Fishes gave a concert in San Francisco on Rupa’s birthday. The live album of the concert includes a recording of the audience singing “Happy Birthday” to Rupa. Faced with a $455 license fee for “using” the song, Rupa joined the legal challenge—as did filmmaker Robert Siegel, who was charged $3,000 for using the song in one of his films. The ensuing David and Goliath court battle came to an end on September 22, 2015, when Judge George H. King declared that Warner Chappell had never owned a valid copyright on the song. There’s even talk that they might have to pay back some of the millions they’ve raked in over the years. So now, if you want to sing “Happy Birthday” to your grandmother in a restaurant, you can do so without fear of the legal consequences.
When it’s inspiration, not plagiarism
You might be familiar with the saying “Good artists borrow; great artists steal.” It’s a good quote, so good in fact that it has been variously attributed to Oscar Wilde, T. S. Eliot, Picasso, Stravinsky, and several others. Of these luminaries only Eliot seems to have actually written something along similar lines: “Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different.”20
If you go hunting for plagiarism in music you’ll find apparent traces of it everywhere. But insisting on 100 percent originality in every piece of music would be pointless and very restricting. Without some overlap in the harmonies, rhythms, timbres, and textures used, it would be impossible to create or recognize a genre. For example, a lot of 1960s Motown tracks are similar to one another, and it’s this similarity that makes the genre recognizable.
Music is propelled forward as new songs and genres grow out of previous styles. It’s easy to hear the seeds of Iggy Pop’s 1977 hit “Lust for Life” in the first few seconds of two songs from 1966 written by Lamont Dozier, Brian Holland, and Eddie Holland: “I’m Ready for Love” by Martha and the Vandellas and “You Can’t Hurry Love” by the Supremes. But this isn’t plagiarism; Iggy was creating a new sound, drawing inspiration (consciously or subconsciously) from an earlier style. This sort of thing has been going on forever of course. Brahms’s First Symphony was finished in 1854, thirty years after Beethoven’s Ninth, but you can hear echoes of the earlier work in the later one. It’s good fun spotting links between older pieces and newer ones,* and unless someone really is trying to steal someone else’s work, it’s all just part of the natural progression of music.