Can someone copyright every possible melody?

The project only includes one octave.

Two musicians have written a computer program that recorded in MIDI format every possible 8-note and 12-beat melody combination, resulting in 68.7 billion tunes. They claim that by doing this, they have managed to copyright every such musical combination with the stated purpose of pre-empting music copyright lawsuits in the future. They have released the data under a CC0 licence, and the code on Github so that others can replicate the project and include more melody combinations.

The reasoning behind this project is explained by Damien Riehl in a TEDx talk, and in more legal detail in an interview with Adam Neely. Riehl is also an attorney, and he became worried about a crop of bad music copyright decisions in the US that started with Williams v Gaye (the “Blurred lines” case), passing through the Tom Petty v Sam Smith royalties dispute, and ending with the atrocious Katy Perry Dark Horse copyright decision. Here’s another fantastic video from Adam Neely explaining why the Katy Perry ruling makes no musical sense, and not much legal sense for that matter.

Disturbed by these bad decisions that seem to seriously curb musical creativity in the United States, Riehl got together with programmer friend Noah Rubin, and they devised an algorithm that would replicate every musical composition comprising 8 notes and 12 beats, which they claim spans most of current pop music. By recording this in MIDI format, they claim that this has copyright because as soon as it is put in a tangible medium, the melodies will have copyright automatically. By releasing all of these 68 billion melodies to the public, they claim that they are pre-empting all future copyright cases, as any plaintiff will have to prove that they did not have access to the database, and therefore they did not copy those melodies. In a sense, they have tried to free all available musical creativity by protecting it.

While I thoroughly empathise with Riehl and Rubin, and I share their discomfort with the current state of music copyright in the US, I find some of the legal arguments to be a bit tenuous. I’m sure US copyright scholars will give their opinion on the legal merits of the argument, but from my limited understanding of the originality requirement in US law, I have some doubt that the output from this algorithm has copyright. For comparison, I think that the music would have copyright in the UK and Ireland, but not in the rest of Europe. Similarly, I find the claim that future defendants could use the music contained in the database as evidence that all future melodies have already been discovered to be unconvincing. Pamela Samuelson made this comment, and I have little doubt that it is correct:

Nice idea but copyright recognizes independent creation. If you copy an artist’s song rather than the public domain version, this defense is unavailable. https://t.co/lIXjLfHg3i

— Pamela Samuelson (@PamelaSamuelson) February 27, 2020

As a music geek, I also think that the chosen combination of one octave and 12 beats to be limited, something that the authors admit, and why they have offered the algorithm’s source code for other researchers to expand upon. This might be vital, assuming that the outputs have copyright, and also assuming that these melodies can be used to pre-emptively defend against future copyright lawsuits (big ifs), Allthemusic project will have to include at least one more octave and 16 beats. (16 x 16 has a nice ring to it). Undoubtedly some music will be included. Using the excellent HookTheory. I checked three of my favourite melodies. Lovesong by The Cure would probably be included, as the tune is a bit repetitive:

But some melodies fall short of the 8 x 12. Here are the notes for one of my favourite songs, Strangelove by Depeche Mode, the tune seems to be repetitive, but the very vital lift comes in the 15th beat.

And some melodies are just too complex for the current parameters, here is the melody for Friday I’m in Love by The Cure:

Still, this is a very nice idea, and it is sad that musicians feel like they need to do something like this in order to protect musical creation from unscrupulous people who want to claim ownership over basic elements of musical creativity.

Strange highs and strange lows…

Edited

There’s also another interesting legal question, are Riehl and Rubin infringing copyright of every melody contained in their database. That’s a question for another time, stay tuned.