these are my photo`s and prints (cannon fodder etc)Friday, April 25, 2008
cannon fodder,candy coated war series
cannonfodder,candycoated war series,solar print ink on paper, A5
fish, embossing a4 ink on paper
Tuesday, April 22, 2008
Friday, April 18, 2008
Case Study 2
http://www.benedict.com/visual/monkeys/monkeys.aspx
yes i think the chair in 12 monkeys was the same chair that Woods had drawn, exactly
yes i think the chair in 12 monkeys was the same chair that Woods had drawn, exactly
Saturday, April 12, 2008
internet research for essay on the rise of science as new religion through the period 1845 to 1960 and its influence and presence in art
http://en.wikipedia.org/wiki/4th_dimension
http://en.wikipedia.org/wiki/Marcel_Duchamp#http://
www.marcelduchamp.net/who_is_md03.php
http://en.wikipedia.org/wiki/Marcel_Duchamp#http://
www.marcelduchamp.net/who_is_md03.php
Wednesday, April 9, 2008
Case Study 1
4. very similar and in some parts exactly the same.
i think plageurism cases are always difficult, especially in the creative fields.
i must say in this case apart the difference in sound , my Sweet Lord has a psychedelic sound going on where He`s So Fine is a lot cleaner and the lyrics are different apart from this, the songs are extremely similar and in some parts the same.
george harrison claims that he was subconsciously influenced.and didnt remember where he had found the song,.... this could be true...these things happen
he was not a literate songwriter he could`ve heard the song and forgotten he had heard it(there was a time lapse of quite few years between them)
a literate songwriter would be more likely to be conscious of where they are influenced in their songwriting.... apparently....
i have to say that what i do find interesting is that the whole band heard it including the extremely experienced and literate songwriters john lennon and paul mcartney and no-one picked up on the similarity between my sweet lord and he`s so fine.
not mention all the people involved in recording etc etc.
perhaps they were all just too scared to mention it! they didnt want to hurt georges feelings
or maybe the lord was stepping on in and protecting hmmmm or perhaps it was the drugs ...... its hard to know really .. but whatever the truth is, i don`t know, i would rather believe these things to be unintentional ...as is possible, but the cynic in me just thinks well ...what did you get out of that?
and then i guess at the end of the day does it matter really, they are different songs with very different intentions, they all made money out of it, they all got kudos from their songs, who was harmed?
the case needed to go to court.
even when there isn`t money to be made,(which adds a whole level of its own to the debate) it`s a basic courtesy to ask or acknowledge other peoples ideas if you decide to use them.
a basic respect and acknowledgement for other peoples ideas is necessary for an industry or group of any kind to function on a healthy level
i think plageurism cases are always difficult, especially in the creative fields.
i must say in this case apart the difference in sound , my Sweet Lord has a psychedelic sound going on where He`s So Fine is a lot cleaner and the lyrics are different apart from this, the songs are extremely similar and in some parts the same.
george harrison claims that he was subconsciously influenced.and didnt remember where he had found the song,.... this could be true...these things happen
he was not a literate songwriter he could`ve heard the song and forgotten he had heard it(there was a time lapse of quite few years between them)
a literate songwriter would be more likely to be conscious of where they are influenced in their songwriting.... apparently....
i have to say that what i do find interesting is that the whole band heard it including the extremely experienced and literate songwriters john lennon and paul mcartney and no-one picked up on the similarity between my sweet lord and he`s so fine.
not mention all the people involved in recording etc etc.
perhaps they were all just too scared to mention it! they didnt want to hurt georges feelings
or maybe the lord was stepping on in and protecting hmmmm or perhaps it was the drugs ...... its hard to know really .. but whatever the truth is, i don`t know, i would rather believe these things to be unintentional ...as is possible, but the cynic in me just thinks well ...what did you get out of that?
and then i guess at the end of the day does it matter really, they are different songs with very different intentions, they all made money out of it, they all got kudos from their songs, who was harmed?
the case needed to go to court.
even when there isn`t money to be made,(which adds a whole level of its own to the debate) it`s a basic courtesy to ask or acknowledge other peoples ideas if you decide to use them.
a basic respect and acknowledgement for other peoples ideas is necessary for an industry or group of any kind to function on a healthy level
more research references only
http://cip.law.ucla.edu/cases/case_brightharrisongs.html
http://www.studentweb.law.ttu.edu/cochran/cochran/Cases%20&%20Readings/Copyright-UNT/bright_tunes_music_corp_v.htm
http://www.studentweb.law.ttu.edu/cochran/cochran/Cases%20&%20Readings/Copyright-UNT/bright_tunes_music_corp_v.htm
research for the plaguerism case against john lennon to do with the songs 'he`s so fine ' and 'my sweet lord'
http://abbeyrd.best.vwh.net/mysweet.htm
THE "MY SWEET LORD"/"HE'S SO FINE" PLAGIARISM SUIT
by Joseph C. Self
[ This article was first published in The 910 magazine in 1993. It is being reprinted here with the permission of Doug Sulpy, editor of The 910, and with the author's permission. It has not been updated, except to move the "footnotes" in the original article to "endnotes." These are designated by "(footnotes #)". This article is copyrighted by Joseph C. Self, 1993 and The 910, 1993. All rights reserved. In the words of the author, reproduction without the express written consent of major league baseball . . . wait, I think I goofed up on this part! ]
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In an interview published in the November 27, 1992 issue of Goldmine magazine, George Harrison stated that the events that occurred during the litigation of a claim that he had plagiarized the melody for his worldwide smash hit, "My Sweet Lord" from a hit single from 1963 called "He's So Fine" would fill a book. Maybe so, but this article is designed to boil down what happened in the court proceedings to a concise and understandable account of several years of litigation.
As with my prior article on the Lennon-Levy suit, I have gone to what I consider the primary source for my information: the written opinions published by the courts that passed judgment on the facts presented to it. (footnote 1) The court had to decide if Harrison had infringed the copyright of "He's So Fine" (or HSF) in composing "My Sweet Lord" (or MSL) and if so, then a determination as to the damages due to the holder of the copyright would have to be made.
HISTORICAL BACKGROUND OF THE CASE
The story starts in 1962, when "He's So Fine" was recorded. It was composed by Ronald Mack, recorded by the Chiffons, and was owned by Bright Tunes Music Corp. in 1971 (the opinion does not say if the song was originally published by Bright; however, as Paul McCartney can tell you, ownership of song copyrights can be transferred from one publishing company to another). It was a big hit in the United States, hitting the top of the Billboard charts for five weeks. (footnote 2) It was moderately successful in England, reaching Number 12 on one chart on June 1, 1963, a week that saw "From Me To You" topping the charts. Harrison acknowledged that he was familiar with "He's So Fine".
During the next seven years, "He's So Fine" was little more than a song that was played on the "golden oldies" request lines. Harrison had gone on with the Beatles to become wildly successful, and in 1970 was embarking on a solo career.
In December, 1969, George was playing in Copenhagen, Denmark, with Delaney and Bonnie and Friends. Billy Preston was part of that group. Harrison told the court that the song that became "My Sweet Lord" was conceived when he slipped away from a press conference and began "vamping" some guitar chords, fitting the chords to the words "Hallelujah" and "Hare Krishna." Later, members of the band joined in and lyrics were developed.
Harrison took the idea further during the following week. Upon returning to London, Preston went into the studio to make an album, and while George was not playing on the record, he was supervising the work. The unfinished "My Sweet Lord" was brought up, and was worked into a finished version. Part of this completed song included a second section that differed significantly from the first section (more on this below). Although the song apparently had many mid-wives, Harrison is solely credited with the birth of "My Sweet Lord". (footnote 3) The Preston recording was issued by Apple Records, and a "lead sheet" containing the melody, words and harmony was submitted for the United States copyright application.
However, it was not the version recorded and released by Billy Preston that led to two decades of litigation. George Harrison recorded a version of "My Sweet Lord" for his album, "All Things Must Pass," and released MSL as the first single from that album. It was released on November 28, 1970 in the United States and was a number one hit shortly thereafter.
On February 10, 1971, before it even completed its fourteen-week run on the chart, Bright Tunes filed suit against George, his English and American companies, (Harrisongs Music, Ltd. and Harrisongs Music, Inc., respectively), Apple Records, BMI, and Hansen Publications. For sake of ease of reading, a reference to Harrison is meant to refer to all defendants in the suit unless otherwise stated.
Very soon after the suit against Harrison was filed, Allen Klein, who was then acting as manager for Harrison, met with Seymour Barash, the president and major stockholder of Bright Tunes to try to resolve the dispute. (footnote 4)
Klein suggested that Harrison would be willing to purchase the entire Bright catalog; Barash had countered with a proposal that the copyright to MSL be surrendered to Bright, and Harrison would receive half of the proceeds derived from MSL.
No further progress was made toward a settlement, and preparations were made to defend the case. Klein assisted Harrison in finding musicologist Harold Barlow to give an opinion as to the lack of merit of the lawsuit and it was Klein that engaged the attorneys that defended Harrison.
The case was delayed on the court's docket when Bright Tunes was placed in receivership. During the interim, Harrison's contract with Klein was terminated in what proved to be a bitter parting of the ways (and another lawsuit involving the Beatles). After Bright's affairs were put in order so as to enable it to continue the case, settlement negotiations between Bright and Harrison resumed.
After much discussion, Harrison's best offer of $148,000 was made in January 1976, a few week's prior to the trial on the issue of whether or not MSL was too similar to HSF. That sum represented 40% of the writer and publisher's royalties earned in the United States by MSL, and further provided that Harrison would retain the copyright for MSL. The attorney for Bright viewed the offer as "a good one", but did not accept the offer, but rather raised its demand from 50% of the U.S. royalties to 75% of the worldwide receipts, and surrender of the MSL copyright.
Why did Bright turn down what was viewed as a good offer and make a counter that was so harsh to Harrison? What Harrison didn't know was that Klein had again entered into discussions with Bright Tunes to purchase all of Bright's stock, except at this time, he was not attempting to buy the stock for Harrison, but rather for ABKCO.
Seymour Barash, then the ex-president of Bright, wrote a letter to Howard Sheldon, the man overseeing the receivership of Bright, in which Barash noted that Klein's interest in purchasing Bright indicated that Klein, as a former insider, had little doubt as the outcome of the pending litigation. Klein's offer was a bit different than Harrison's, as he was to purchase the entire company that held the copyright, thus putting himself in Bright's position in the lawsuit.
Klein's offer prior to the determination of liability was a bit complicated. He offered to pay $100,000 for the right to purchase the company after the judge's ruling for an additional $160,000. (This procedure is termed "buying a call" on the stock. If Harrison won the suit, there would no incentive for Klein to finish the deal, or in trading parlance, "exercise his option".)
As part of his offer, Klein furnished Bright with information regarding the domestic royalties generated by MSL, and his own estimate on the overseas earnings as well as his estimate on the present and future value of the copyright.
Needless to say, Barash and the other stockholders weighed this offer carefully in deciding how to respond to the two offers they received. Barash remarked in a letter to Sheldon that since Klein was "in a position to know the true earnings of MSL, R offer should give all of us an indication of the true value of this copyright and litigation". Barash viewed the Klein offer as a starting point in negotiations, and armed with the additional financial information Klein provided, demanded that Harrison update his total sales figures before continuing settlement negotiations with Harrison. (footnote 5) As it turned out, neither Harrison nor Klein could reach a settlement with Bright before trial.
THE QUESTION OF LIABILITY FOR INFRINGEMENT
The suit was conducted in two phases, which makes perfectly good sense in litigation of this type. (footnote 6) It would be a waste of time for Harrison to prepare and deliver the financial information necessary to determine the amount due to Bright unless the judge found that Harrison had plagiarized, at least in part, HSF. The trial on the issue of liability was conducted on February 23-25, 1976. At that trial, the judge was called upon to make an analysis of the music of both HSF and MSL. (footnote 7) Both sides called expert witnesses to support their contentions, and Harrison himself testified about the process that occurred in writing MSL. After hearing the testimony and considering the evidence, the judge found MSL did indeed infringe upon HSF's copyright.
The Court noted that HSF incorporated two basic musical phrases, which were called "motif A" and "motif B". Motif A consisted of four repetitions of the notes "G-E-D" or "sol-mi- re"; B was "G-A-C-A-C" or "sol-la-do-la-do", and in the second use of motif B, a grace note was inserted after the second A, making the phrase "sol-la-do-la-re-do". The experts for each party agreed that this was a highly unusual pattern.
Harrison's own expert testified that although the individual motifs were common enough to be in the public domain, the combination here was so unique that he had never come across another piece of music that used this particular sequence, and certainly not one that inserted a grace note as described above.
Harrison's composition used the same motif A four times, which was then followed by motif B, but only three times, not four. Instead of a fourth repetition of motif B, there was a transitional phrase of the same approximate length. The original composition as performed by Billy Preston also contained the grace note after the second repetition of the line in motif B, but Harrison's version did not have this grace note.
Harrison's experts could not contest the basic findings of the Court, but did attempt to point out differences in the two songs. However, the judge found that while there may have been modest alterations to accommodate different words with a different number of syllables, the essential musical piece was not changed significantly. The experts also pointed out that Harrison's version of MSL omitted the grace note, but the judge ruled that this minor change did not change the genesis of the song as that which previously occurred in HSF.
With all the evidence pointing out the similarities between the two songs, the judge said it was "perfectly obvious . . . the two songs are virtually identical". The judge was convinced that neither Harrison nor Preston consciously set out to appropriate the melody of HSF for their own use, but such was not a defense.
Harrison conceded that he had heard HSF prior to writing MSL, and therefore, his subconscious knew the combination of sounds he put to the words of MSL would work, because they had already done so. Terming what occurred as subconscious plagiarism, the judge found that the case should be re-set for a trial on the issue of damages.
This ruling as to the copyright infringement was upheld on appeal with little comment. The appellate court noted that an infringement can be established when the holder of the copyright demonstrates that the second work is substantially similar to the protected work and the second composer had "access" to the first work. Harrison conceded that he had indeed heard HSF when it was popular, thus establishing the second point.
Harrison's main argument on appeal was that it was unsound policy to allow a finding of plagiarism based on subconscious copying, as there was no evidence that he purposely appropriated the melody of HSF for use in a composition he claimed as his own. This position was rejected by the appellate court, which pointed out that the Copyright Act did not require a showing of "intent to infringe" to support a finding of infringement.
THE DAMAGES PORTION OF THE CASE
After deciding that Harrison had indeed improperly used the property of the holder of HSF's copyright, the judge then had to decide how much money to award Bright Tunes in damages for this infringement. In order to do that, he had to find what sum was generated by MSL, and then decide the portion of that sum that was attributable to the melody from HSF.
To determine the earnings for MSL, the court looked at four principal sources of revenue for compositions: Mechanical royalties (footnote 8), performance royalties (footnote 9), sale of sheet music and folios, and the profits of Apple Records, Inc. Two of these were easy to calculate, as the judge needed only look at the accounting numbers for the performance royalty provided by BMI to learn that MSL earned $359,794 in such royalties, and another $67,675 in sheet music sales. The remaining two factors, however, proved to be a bit more of a problem to determine.
In deciding what figure to use for the mechanical royalties generated by MSL, the judge first noted that the amount attributable solely to that song was $260,103. This figure used the royalty earned solely by MSL as a single, and as an album track on both "All Things Must Pass" and "The Best Of George Harrison," totalled $260,103.
However, Bright also contended that the enormous success of MSL generated revenue for Harrison's other compositions on "All Things Must Pass" beyond that which they would have otherwise earned. The judge noted that on the single 45 RPM record, MSL was backed by "Isn't It A Pity" (footnote 10) which was not a hit single in its own right (footnote 11), and on the album, MSL was one of twenty-two Harrison songs, and only one of the other songs ("What Is Life") achieved any significant degree of popularity.
Even though the earnings for MSL due to sales of All Things Must Pass was only 1/22 of the total mechanical royalties paid for the songs on that album, the judge agreed that the inclusion of MSL on the album did in fact boost the revenues of the "less-than-memorable" songs, and set out to devise a formula by which he could determine just how much revenue Harrison earned from his plagiarized song.
To make this determination, the court relied heavily, but not solely, on the amount of American airplay received by each song from "All Things Must Pass." Of the 22 songs on that album, only nine received enough airplay to be assigned a percentage of the total. "Wah-Wah", "Beware of Darkness", "Apple Scruffs", "Awaiting On You All", "All Things Must Pass", and "I Dig Love" were each found to have received one (1%) percent of the total airplay; "Isn't It A Pity" had four (4%) percent and "What Is Life" received twenty (20%) percent. Therefore, whenever a song from "All Things Must Pass" was played by a radio station, seventy (70%) percent of the time, the song was "My Sweet Lord". The judge thus ruled that seventy (70%) of the total mechanical royalties from the single, and fifty (50%) of the mechanical royalties earned by the album "All Things Must Pass" were attributable to MSL.
However, as far as "The Best of George Harrison" was concerned, the trial judge was unpersuaded that the earnings of that album were greatly enhanced by the inclusion of MSL, and since that album contained other songs which were relatively popular, the judge did not attribute any more than the actual mechanical royalties of MSL to the earnings of "The Best of George Harrison." Thus, using the formula as set forth for each release, the judge found that the gross earnings for the single attributable to MSL was $54,526; from "All Things Must Pass", $588,188; and from "The Best of George Harrison", $6,887, for a total of $646,601. (footnote 12)
The final piece of this financial puzzle was provided by examining the profits of Apple Records from MSL. Apple Records had a "spread" on the manufacturing of records. Boiled down to its simplest terms, the "spread" worked like this: Capitol Records had the facilities for making records. Apple Records paid Capitol Records a certain price to press its records, and then turned around and sold the finished product, which Capitol had just "delivered" to Apple, to Capitol Records Distributing Corp., for a higher price. The difference between what Apple paid Capitol for the production of its records and what Capitol paid Apple for the right to distribute the Apple product was the "spread". The judge applied his same formula to Apple's earnings from the "spread" and found those earnings attributable to MSL were: from the single, $130,629; from "All Things Must Pass", $925,731; from "The Best of George Harrison", $21,598, for a total of $1,077,958.
For those that don't have a calculator handy, the judge's figures for the total gross earnings of MSL were $2,152,028. This sum was reduced to $2,133,316 by the court allowing an offset for some agent's fees which Harrison had paid. However, before ordering that the entire earnings from MSL was due to Bright Tunes, the judge pointed out that there were some other factors present in this case. Harrison was an internationally known artist and he did provide a new lyric for the song. Had he been guilty of intentional plagiarism, even of the melody alone, the entire $2,133,316 would have been awarded to Bright.
After considering all the factors in the case, and conceding that this was not an area where precise measurement could be made, the judge found that three-fourth's of the success of MSL was due to the plagiarized tune, and one-fourth of that success was due to Harrison's name and the new words to the tune. The judge found that the introductory musical passage (the "hook") was a minimal factor in the popularity of this song, and pointed out that this unique melody had already demonstrated its appeal when it carried an otherwise unexceptional love song to the top of the charts in 1963. Therefore, the trial judge concluded that $1,599,987 of the earnings of MSL were reasonably attributable to the music of "He's So Fine".
THE EFFECT OF KLEIN'S ENTRY INTO THE CASE
The damages portion of the case was originally scheduled for trial in November, 1976. However, it was not until February, 1981 that this case was decided by the district judge. The reason for the delay was that Bright Tunes sold its copyright and its rights in this litigation to ABKCO. Upon ABKCO entering the lawsuit, Harrison amended his pleading to assert that Klein had acted improperly in purchasing this company, so much so that he should be disqualified from recovering anything from Harrison. (Again, for sake of ease of reading, a reference to Klein also includes his company ABKCO.)
The ruling by the district judge, and upheld in large part by the appeals court, was that Klein was not entitled to profit from his purchase of Bright Tunes' rights in HSF. The judge ruled that Harrison need only prove that his former manager's intrusion into the settlement of the lawsuit prior to the trial on the issue of liability were to his "probable detriment"; Harrison was not required to show that a settlement would have been reached. The court cited that Klein's proposals to Bright were viewed as highly credible, due to Klein's unique position to know the value of the MSL copyright. The court also found that Klein acted improperly in giving financial information about MSL to Bright prior to the decision on the question of liability. The court held that it would not reward Klein for his breach of the fiduciary duty owed to Harrison, a duty that continued even after the principal-agent relationship ended.
However, rather than just have Klein hand over his ill-gotten gains, the judge ordered that Klein hold the rights to HSF in trust for Harrison, and those interests would be transferred to Harrison upon payment of $587,000, plus interest, thus allowing Klein to "break even" on his purchase. This decision was upheld on appeal.
THE CURRENT STATUS OF THIS CASE
Even though the case had been in litigation for twelve years at the time the appellate court rendered its decision, the matter was far from over. The case lingered on for an additional eight years, as the parties contested just what rights Klein has purchased in 1978, how the settlement of a similar suit brought in England should be figured into Klein's purchase price, whether Klein should be allowed to deduct administrative fees from the song revenues (those revenues for HSF that were collected for Harrison under the terms of the trust), and other such accounting matters. The case was again in the appellate court in 1991, which ruled which credits against the original $587,000 award would be allowed, and sent the case back to Judge Owen's court for further proceedings.
A check with the judge's clerk in July, 1993, revealed that in April, 1993, an agreed order (meaning that all parties consented to the entry of the order) was entered at the trial court level, allowing certain funds to be dispersed to Harrison without having to be first placed in the registry of the court.
At the risk of sounding overly optimistic, all indications are that this case will finally be resolved before the end of the 20th century!
AUTHOR'S OBSERVATIONS
While I was in law school, I didn't take any courses specifically in copyright law, and had very little exposure to this field in my other courses. However, almost a dozen years later, I do recall one example that was used to illustrate a point in a course that surveyed the various remedies that are allowed in lawsuits. The professor brought a cassette tape with snippets of "My Sweet Lord" and "He's So Fine" into class and played them for us. I had owned the Harrison single for ten years at that point, had heard "He's So Fine" a few times, and was aware that there was a claim made that MSL had violated some copyright, but had never made the connection between the two songs. Hearing them in that context impressed upon me that the two songs were very similar, and I have never had any quarrel with the finding of Judge Owen that Harrison, however unwittingly, violated the copyright of HSF. As stated earlier, one that holds a copyright is not required to prove that an infringement was intentional.
I do take issue with a few things that Judge Owen did find in the area of damages. Before making these remarks, though, I should emphasize that Judge Owen and the judges who heard the appeals had the benefit of the briefs from the lawyers, and legal research into these areas that I have not done. If what follows sounds like second guessing, it is not so intended.
First, regarding the finding that 75% of the earnings of MSL could be attributed to the melody of HSF, Judge Owen admitted that making such an apportionment was an inexact science. Even so, giving only 25% credit to the success of MSL to the new lyrics and the fact that it was performed by one of the most popular musicians on the face of the earth in the early '70's seems to be unjustifiably low. The internal evidence of this is the lack of success of Billy Preston's version of the song. If the melody was such an integral part of the success of the song, then anyone that heard Preston's version should have been just as overwhelmed as they were by Harrison's. The fact that Harrison, not the relatively unknown (at that time) Preston, had the "hit" with MSL indicates that it was a lot more than a catchy melody that drove this song to the top of the charts.
Second, the decision that one-half of the mechanical royalties of the album "All Things Must Pass" were due to the plagiarized song is hard to understand. In my opinion, the fact that this was GEORGE HARRISON's first solo effort after the break-up of the Beatles was not given enough weight, nor was the fact that the critics who wrote for the rock press almost uniformly gave this record high marks. Whether or not MSL was included on this album, "All Things Must Pass" was going to sell very well. And there exists an argument that the "hit single" didn't propel this particular album to the heights that hit singles sometime do, because this was a triple record set, priced at twice the normal rate for a single album.
Third, while there was a lot of speculation on the percentages to be applied to Harrison's sales attributed to the plagiarized melody, there was an area of the damages that could have been resolved more fairly, and with less speculation. Klein was allowed to "break even" on the deal he made to buy the rights to HSF, and I'm not sure why. Judge Owen set out in great detail the series of events that transpired after Klein entered the picture acting on his own behalf, and based on these improper activities, Klein was not going to be allowed to profit from his wrongdoing.
But, in refusing to order that Klein forfeit the cost of the acquisition, the judge said "Had it been shown that Bright Tunes and Harrison were realistically close to a specific figure in their settlement negotiations, I could have utilized that figure for the resolution of the issue here". It was overlooked at this point in the opinion that the primary reason that Harrison and Bright Tunes weren't closer together was the fact that Klein was outbidding Harrison, and Harrison didn't know he was in a bidding war. It was only when Klein offered almost twice that which Harrison had put on the table that Bright Tunes concluded that the level of negotiation with Harrison was too low. As long as the judge was willing to speculate that the earnings of the song MSL were 75% due to the melody of HSF, and was further willing to guess that one-half of the earnings of "All Things Must Pass" were due to the inclusion of MSL on that album, I am at a loss as to why he was unable to apportion how much of the increase in the ultimate purchase price was due to Klein, guaranteeing that the case would not be settled prior to a ruling in Bright's favor on the issue of liability and thus driving up the purchase price. I would have thought that given the statement from Bright's attorney that Harrison's $148,000 offer to settle, prior to trial and prior to Klein's involvement, was "a good one" would have been ample evidence to reach a figure that would have been substantially lower than the $587,000 price Klein paid for Bright Tunes. Finding a lower figure to be appropriate would have left Klein in a situation where he lost money on his dealings, a conclusion that would have certainly been justified (and quite humorous as well).
Still, I find it funny that in after purchasing the rights to HSF, Klein offered to sell some of the rights to the song to his former client for $700,000. It is not clear that all rights Klein obtained would have been part of this deal, but Klein did Harrison a big favor, otherwise Harrison would have found himself facing payment of a judgment in the amount of $1.6 million dollars, and would not own the rights to HSF. While the legal expenses in this case are undoubtedly astronomical, Harrison should be able to take some comfort in the fact that Klein has had to pay his own fees, and has nothing to show for it, except a part in, without question, one of the longest running legal battles ever to be litigated in this country.
And there was one other benefit for Harrison; a second hit single entitled "This Song" which chronicled some of the travails of this litigation with lines like "This song has nothing Bright about it", and "as far as I know, don't infringe on anyone's copyright, so . . ." "This Song" wasn't as big a hit as MSL, but the revenue from it should have helped offset the costs of the litigation of the HSF suit.
My thanks to Allan Kozinn, for his help with some of the research and his input after reading the rough draft, and Professor Howard Brill of the University of Arkansas Law School, for exposing me to this case "all those years ago".
ENDNOTES
1. The various cases are: Bright Tunes Music Corp. v. Harrisongs Music, Ltd. et al, 420 F. Supp 177 (1976); ABKCO Music, Inc. v. Harrisongs Music, et al, 508 F. Supp. 798 (1981); same case on appeal, 722 F.2d. 988 (1983); again after remand, 841 F.2d. 494, and yet again 944 F.2d 971 (1991). I'll explain more about the changes in the party bringing this case later in the body of this article.
2. All chart references herein will be to Billboard, except as otherwise noted.
3. The reader will note that Harrison "gave" this extremely successful song to Preston, which might tell us that Harrison didn't recognize it as a hit single. If that's true, that would have been the second time he tossed a monster hit to a lesser artist. In his book I, Me, Mine, Harrison revealed that he "gave" the song "Something" to Joe Cocker before it was recorded for Abbey Road. It is also possible that Harrison, while taking sole credit for the song, recognized Preston's contributions by letting Preston record it first. The Court noted as much: "I treat Harrison as the composer, although it appears that Billy Preston may have been the composer as to part".
4. It is beyond the scope of this article to try to explain the intricacies of Klein's relationship to Harrison and the other Beatles. There are numerous books that account, at least in part, how the relationship began, functioned, and ended. My choice as the best book as to the genesis of this relationship is the 1972 paperback, Apple To The Core by Peter McCabe and Robert D. Schonfeld, which is regrettably out of print (and in dire need of an update). Philip Norman's Shout! is more readily available and does a pretty good job in setting forth the connection Klein had with the Beatles during their last months together.
5. As will be pointed out below, it is unlikely that Harrison had turned over detailed financial information to Bright, since there had not been a finding that Harrison was liable to Bright for infringement at this point.
6. This procedure is not uncommon in conducting a trial of this nature. It is usually discretionary with the judge as to whether or not to divide the case in this manner. This method differs from other types of litigation. For example, in automobile accident cases or product liability cases, the plaintiff may put on several days of testimony that go to the damages that the plaintiff maintains he or she suffered, but receive nothing when the jury or judge finds that there is no negligence on which to base liability.
7. While I take issue with part of the judge's ruling on the damages aspect of this case, the litigants could not have found themselves before a more able jurist in determining the question involving the music of the two compositions. Judge Richard Owen, the district court trial judge, has also composed music, and among his compositions is a three-act opera entitled Mary Dyer. He has also conducted orchestras, and his wife, Mary Owen, has appeared with the Metropolitan Opera Company in New York.
8. A mechanical royalty is the amount paid by the record company to the music publisher who licenses the use of the song on the record. The old vinyl singles had two songs which each earned a royalty, and each song on an album earned the same royalty, whether or not it was a memorable song or a throwaway track.
9. The performance royalty is most closely associated with radio play. These are monies payable to the publisher and the writer as a result of the composition being publicly performed or broadcast. BMI was responsible for collecting the royalty from those that owed it, and paying it to Harrison's publishing company.
10. Actually, "My Sweet Lord" and "Isn't It A Pity" may have been intended as equals on the record. The original Apple single used the green label on each side of the record; normally, the B-side had the dissected apple with the white core showing.
11. The judge found that "My Sweet Lord" received sixteen times as much airplay as did its flip side. Unlike many of the Beatles' singles released in the sixties, "Isn't It A Pity" did not have a chart history separate from "My Sweet Lord", at least not on Billboard. Billboard stopped giving separate chart listings for each side of a single on November 29, 1969, during the chart run of another Harrison composition, "Something".
12. These figures were for the U.S. and Canada. Since the lacquer masters, art work, packaging and licenses were all prepared in the United States, the judge included Canadian royalties in his computations.
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THE "MY SWEET LORD"/"HE'S SO FINE" PLAGIARISM SUIT
by Joseph C. Self
[ This article was first published in The 910 magazine in 1993. It is being reprinted here with the permission of Doug Sulpy, editor of The 910, and with the author's permission. It has not been updated, except to move the "footnotes" in the original article to "endnotes." These are designated by "(footnotes #)". This article is copyrighted by Joseph C. Self, 1993 and The 910, 1993. All rights reserved. In the words of the author, reproduction without the express written consent of major league baseball . . . wait, I think I goofed up on this part! ]
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In an interview published in the November 27, 1992 issue of Goldmine magazine, George Harrison stated that the events that occurred during the litigation of a claim that he had plagiarized the melody for his worldwide smash hit, "My Sweet Lord" from a hit single from 1963 called "He's So Fine" would fill a book. Maybe so, but this article is designed to boil down what happened in the court proceedings to a concise and understandable account of several years of litigation.
As with my prior article on the Lennon-Levy suit, I have gone to what I consider the primary source for my information: the written opinions published by the courts that passed judgment on the facts presented to it. (footnote 1) The court had to decide if Harrison had infringed the copyright of "He's So Fine" (or HSF) in composing "My Sweet Lord" (or MSL) and if so, then a determination as to the damages due to the holder of the copyright would have to be made.
HISTORICAL BACKGROUND OF THE CASE
The story starts in 1962, when "He's So Fine" was recorded. It was composed by Ronald Mack, recorded by the Chiffons, and was owned by Bright Tunes Music Corp. in 1971 (the opinion does not say if the song was originally published by Bright; however, as Paul McCartney can tell you, ownership of song copyrights can be transferred from one publishing company to another). It was a big hit in the United States, hitting the top of the Billboard charts for five weeks. (footnote 2) It was moderately successful in England, reaching Number 12 on one chart on June 1, 1963, a week that saw "From Me To You" topping the charts. Harrison acknowledged that he was familiar with "He's So Fine".
During the next seven years, "He's So Fine" was little more than a song that was played on the "golden oldies" request lines. Harrison had gone on with the Beatles to become wildly successful, and in 1970 was embarking on a solo career.
In December, 1969, George was playing in Copenhagen, Denmark, with Delaney and Bonnie and Friends. Billy Preston was part of that group. Harrison told the court that the song that became "My Sweet Lord" was conceived when he slipped away from a press conference and began "vamping" some guitar chords, fitting the chords to the words "Hallelujah" and "Hare Krishna." Later, members of the band joined in and lyrics were developed.
Harrison took the idea further during the following week. Upon returning to London, Preston went into the studio to make an album, and while George was not playing on the record, he was supervising the work. The unfinished "My Sweet Lord" was brought up, and was worked into a finished version. Part of this completed song included a second section that differed significantly from the first section (more on this below). Although the song apparently had many mid-wives, Harrison is solely credited with the birth of "My Sweet Lord". (footnote 3) The Preston recording was issued by Apple Records, and a "lead sheet" containing the melody, words and harmony was submitted for the United States copyright application.
However, it was not the version recorded and released by Billy Preston that led to two decades of litigation. George Harrison recorded a version of "My Sweet Lord" for his album, "All Things Must Pass," and released MSL as the first single from that album. It was released on November 28, 1970 in the United States and was a number one hit shortly thereafter.
On February 10, 1971, before it even completed its fourteen-week run on the chart, Bright Tunes filed suit against George, his English and American companies, (Harrisongs Music, Ltd. and Harrisongs Music, Inc., respectively), Apple Records, BMI, and Hansen Publications. For sake of ease of reading, a reference to Harrison is meant to refer to all defendants in the suit unless otherwise stated.
Very soon after the suit against Harrison was filed, Allen Klein, who was then acting as manager for Harrison, met with Seymour Barash, the president and major stockholder of Bright Tunes to try to resolve the dispute. (footnote 4)
Klein suggested that Harrison would be willing to purchase the entire Bright catalog; Barash had countered with a proposal that the copyright to MSL be surrendered to Bright, and Harrison would receive half of the proceeds derived from MSL.
No further progress was made toward a settlement, and preparations were made to defend the case. Klein assisted Harrison in finding musicologist Harold Barlow to give an opinion as to the lack of merit of the lawsuit and it was Klein that engaged the attorneys that defended Harrison.
The case was delayed on the court's docket when Bright Tunes was placed in receivership. During the interim, Harrison's contract with Klein was terminated in what proved to be a bitter parting of the ways (and another lawsuit involving the Beatles). After Bright's affairs were put in order so as to enable it to continue the case, settlement negotiations between Bright and Harrison resumed.
After much discussion, Harrison's best offer of $148,000 was made in January 1976, a few week's prior to the trial on the issue of whether or not MSL was too similar to HSF. That sum represented 40% of the writer and publisher's royalties earned in the United States by MSL, and further provided that Harrison would retain the copyright for MSL. The attorney for Bright viewed the offer as "a good one", but did not accept the offer, but rather raised its demand from 50% of the U.S. royalties to 75% of the worldwide receipts, and surrender of the MSL copyright.
Why did Bright turn down what was viewed as a good offer and make a counter that was so harsh to Harrison? What Harrison didn't know was that Klein had again entered into discussions with Bright Tunes to purchase all of Bright's stock, except at this time, he was not attempting to buy the stock for Harrison, but rather for ABKCO.
Seymour Barash, then the ex-president of Bright, wrote a letter to Howard Sheldon, the man overseeing the receivership of Bright, in which Barash noted that Klein's interest in purchasing Bright indicated that Klein, as a former insider, had little doubt as the outcome of the pending litigation. Klein's offer was a bit different than Harrison's, as he was to purchase the entire company that held the copyright, thus putting himself in Bright's position in the lawsuit.
Klein's offer prior to the determination of liability was a bit complicated. He offered to pay $100,000 for the right to purchase the company after the judge's ruling for an additional $160,000. (This procedure is termed "buying a call" on the stock. If Harrison won the suit, there would no incentive for Klein to finish the deal, or in trading parlance, "exercise his option".)
As part of his offer, Klein furnished Bright with information regarding the domestic royalties generated by MSL, and his own estimate on the overseas earnings as well as his estimate on the present and future value of the copyright.
Needless to say, Barash and the other stockholders weighed this offer carefully in deciding how to respond to the two offers they received. Barash remarked in a letter to Sheldon that since Klein was "in a position to know the true earnings of MSL, R offer should give all of us an indication of the true value of this copyright and litigation". Barash viewed the Klein offer as a starting point in negotiations, and armed with the additional financial information Klein provided, demanded that Harrison update his total sales figures before continuing settlement negotiations with Harrison. (footnote 5) As it turned out, neither Harrison nor Klein could reach a settlement with Bright before trial.
THE QUESTION OF LIABILITY FOR INFRINGEMENT
The suit was conducted in two phases, which makes perfectly good sense in litigation of this type. (footnote 6) It would be a waste of time for Harrison to prepare and deliver the financial information necessary to determine the amount due to Bright unless the judge found that Harrison had plagiarized, at least in part, HSF. The trial on the issue of liability was conducted on February 23-25, 1976. At that trial, the judge was called upon to make an analysis of the music of both HSF and MSL. (footnote 7) Both sides called expert witnesses to support their contentions, and Harrison himself testified about the process that occurred in writing MSL. After hearing the testimony and considering the evidence, the judge found MSL did indeed infringe upon HSF's copyright.
The Court noted that HSF incorporated two basic musical phrases, which were called "motif A" and "motif B". Motif A consisted of four repetitions of the notes "G-E-D" or "sol-mi- re"; B was "G-A-C-A-C" or "sol-la-do-la-do", and in the second use of motif B, a grace note was inserted after the second A, making the phrase "sol-la-do-la-re-do". The experts for each party agreed that this was a highly unusual pattern.
Harrison's own expert testified that although the individual motifs were common enough to be in the public domain, the combination here was so unique that he had never come across another piece of music that used this particular sequence, and certainly not one that inserted a grace note as described above.
Harrison's composition used the same motif A four times, which was then followed by motif B, but only three times, not four. Instead of a fourth repetition of motif B, there was a transitional phrase of the same approximate length. The original composition as performed by Billy Preston also contained the grace note after the second repetition of the line in motif B, but Harrison's version did not have this grace note.
Harrison's experts could not contest the basic findings of the Court, but did attempt to point out differences in the two songs. However, the judge found that while there may have been modest alterations to accommodate different words with a different number of syllables, the essential musical piece was not changed significantly. The experts also pointed out that Harrison's version of MSL omitted the grace note, but the judge ruled that this minor change did not change the genesis of the song as that which previously occurred in HSF.
With all the evidence pointing out the similarities between the two songs, the judge said it was "perfectly obvious . . . the two songs are virtually identical". The judge was convinced that neither Harrison nor Preston consciously set out to appropriate the melody of HSF for their own use, but such was not a defense.
Harrison conceded that he had heard HSF prior to writing MSL, and therefore, his subconscious knew the combination of sounds he put to the words of MSL would work, because they had already done so. Terming what occurred as subconscious plagiarism, the judge found that the case should be re-set for a trial on the issue of damages.
This ruling as to the copyright infringement was upheld on appeal with little comment. The appellate court noted that an infringement can be established when the holder of the copyright demonstrates that the second work is substantially similar to the protected work and the second composer had "access" to the first work. Harrison conceded that he had indeed heard HSF when it was popular, thus establishing the second point.
Harrison's main argument on appeal was that it was unsound policy to allow a finding of plagiarism based on subconscious copying, as there was no evidence that he purposely appropriated the melody of HSF for use in a composition he claimed as his own. This position was rejected by the appellate court, which pointed out that the Copyright Act did not require a showing of "intent to infringe" to support a finding of infringement.
THE DAMAGES PORTION OF THE CASE
After deciding that Harrison had indeed improperly used the property of the holder of HSF's copyright, the judge then had to decide how much money to award Bright Tunes in damages for this infringement. In order to do that, he had to find what sum was generated by MSL, and then decide the portion of that sum that was attributable to the melody from HSF.
To determine the earnings for MSL, the court looked at four principal sources of revenue for compositions: Mechanical royalties (footnote 8), performance royalties (footnote 9), sale of sheet music and folios, and the profits of Apple Records, Inc. Two of these were easy to calculate, as the judge needed only look at the accounting numbers for the performance royalty provided by BMI to learn that MSL earned $359,794 in such royalties, and another $67,675 in sheet music sales. The remaining two factors, however, proved to be a bit more of a problem to determine.
In deciding what figure to use for the mechanical royalties generated by MSL, the judge first noted that the amount attributable solely to that song was $260,103. This figure used the royalty earned solely by MSL as a single, and as an album track on both "All Things Must Pass" and "The Best Of George Harrison," totalled $260,103.
However, Bright also contended that the enormous success of MSL generated revenue for Harrison's other compositions on "All Things Must Pass" beyond that which they would have otherwise earned. The judge noted that on the single 45 RPM record, MSL was backed by "Isn't It A Pity" (footnote 10) which was not a hit single in its own right (footnote 11), and on the album, MSL was one of twenty-two Harrison songs, and only one of the other songs ("What Is Life") achieved any significant degree of popularity.
Even though the earnings for MSL due to sales of All Things Must Pass was only 1/22 of the total mechanical royalties paid for the songs on that album, the judge agreed that the inclusion of MSL on the album did in fact boost the revenues of the "less-than-memorable" songs, and set out to devise a formula by which he could determine just how much revenue Harrison earned from his plagiarized song.
To make this determination, the court relied heavily, but not solely, on the amount of American airplay received by each song from "All Things Must Pass." Of the 22 songs on that album, only nine received enough airplay to be assigned a percentage of the total. "Wah-Wah", "Beware of Darkness", "Apple Scruffs", "Awaiting On You All", "All Things Must Pass", and "I Dig Love" were each found to have received one (1%) percent of the total airplay; "Isn't It A Pity" had four (4%) percent and "What Is Life" received twenty (20%) percent. Therefore, whenever a song from "All Things Must Pass" was played by a radio station, seventy (70%) percent of the time, the song was "My Sweet Lord". The judge thus ruled that seventy (70%) of the total mechanical royalties from the single, and fifty (50%) of the mechanical royalties earned by the album "All Things Must Pass" were attributable to MSL.
However, as far as "The Best of George Harrison" was concerned, the trial judge was unpersuaded that the earnings of that album were greatly enhanced by the inclusion of MSL, and since that album contained other songs which were relatively popular, the judge did not attribute any more than the actual mechanical royalties of MSL to the earnings of "The Best of George Harrison." Thus, using the formula as set forth for each release, the judge found that the gross earnings for the single attributable to MSL was $54,526; from "All Things Must Pass", $588,188; and from "The Best of George Harrison", $6,887, for a total of $646,601. (footnote 12)
The final piece of this financial puzzle was provided by examining the profits of Apple Records from MSL. Apple Records had a "spread" on the manufacturing of records. Boiled down to its simplest terms, the "spread" worked like this: Capitol Records had the facilities for making records. Apple Records paid Capitol Records a certain price to press its records, and then turned around and sold the finished product, which Capitol had just "delivered" to Apple, to Capitol Records Distributing Corp., for a higher price. The difference between what Apple paid Capitol for the production of its records and what Capitol paid Apple for the right to distribute the Apple product was the "spread". The judge applied his same formula to Apple's earnings from the "spread" and found those earnings attributable to MSL were: from the single, $130,629; from "All Things Must Pass", $925,731; from "The Best of George Harrison", $21,598, for a total of $1,077,958.
For those that don't have a calculator handy, the judge's figures for the total gross earnings of MSL were $2,152,028. This sum was reduced to $2,133,316 by the court allowing an offset for some agent's fees which Harrison had paid. However, before ordering that the entire earnings from MSL was due to Bright Tunes, the judge pointed out that there were some other factors present in this case. Harrison was an internationally known artist and he did provide a new lyric for the song. Had he been guilty of intentional plagiarism, even of the melody alone, the entire $2,133,316 would have been awarded to Bright.
After considering all the factors in the case, and conceding that this was not an area where precise measurement could be made, the judge found that three-fourth's of the success of MSL was due to the plagiarized tune, and one-fourth of that success was due to Harrison's name and the new words to the tune. The judge found that the introductory musical passage (the "hook") was a minimal factor in the popularity of this song, and pointed out that this unique melody had already demonstrated its appeal when it carried an otherwise unexceptional love song to the top of the charts in 1963. Therefore, the trial judge concluded that $1,599,987 of the earnings of MSL were reasonably attributable to the music of "He's So Fine".
THE EFFECT OF KLEIN'S ENTRY INTO THE CASE
The damages portion of the case was originally scheduled for trial in November, 1976. However, it was not until February, 1981 that this case was decided by the district judge. The reason for the delay was that Bright Tunes sold its copyright and its rights in this litigation to ABKCO. Upon ABKCO entering the lawsuit, Harrison amended his pleading to assert that Klein had acted improperly in purchasing this company, so much so that he should be disqualified from recovering anything from Harrison. (Again, for sake of ease of reading, a reference to Klein also includes his company ABKCO.)
The ruling by the district judge, and upheld in large part by the appeals court, was that Klein was not entitled to profit from his purchase of Bright Tunes' rights in HSF. The judge ruled that Harrison need only prove that his former manager's intrusion into the settlement of the lawsuit prior to the trial on the issue of liability were to his "probable detriment"; Harrison was not required to show that a settlement would have been reached. The court cited that Klein's proposals to Bright were viewed as highly credible, due to Klein's unique position to know the value of the MSL copyright. The court also found that Klein acted improperly in giving financial information about MSL to Bright prior to the decision on the question of liability. The court held that it would not reward Klein for his breach of the fiduciary duty owed to Harrison, a duty that continued even after the principal-agent relationship ended.
However, rather than just have Klein hand over his ill-gotten gains, the judge ordered that Klein hold the rights to HSF in trust for Harrison, and those interests would be transferred to Harrison upon payment of $587,000, plus interest, thus allowing Klein to "break even" on his purchase. This decision was upheld on appeal.
THE CURRENT STATUS OF THIS CASE
Even though the case had been in litigation for twelve years at the time the appellate court rendered its decision, the matter was far from over. The case lingered on for an additional eight years, as the parties contested just what rights Klein has purchased in 1978, how the settlement of a similar suit brought in England should be figured into Klein's purchase price, whether Klein should be allowed to deduct administrative fees from the song revenues (those revenues for HSF that were collected for Harrison under the terms of the trust), and other such accounting matters. The case was again in the appellate court in 1991, which ruled which credits against the original $587,000 award would be allowed, and sent the case back to Judge Owen's court for further proceedings.
A check with the judge's clerk in July, 1993, revealed that in April, 1993, an agreed order (meaning that all parties consented to the entry of the order) was entered at the trial court level, allowing certain funds to be dispersed to Harrison without having to be first placed in the registry of the court.
At the risk of sounding overly optimistic, all indications are that this case will finally be resolved before the end of the 20th century!
AUTHOR'S OBSERVATIONS
While I was in law school, I didn't take any courses specifically in copyright law, and had very little exposure to this field in my other courses. However, almost a dozen years later, I do recall one example that was used to illustrate a point in a course that surveyed the various remedies that are allowed in lawsuits. The professor brought a cassette tape with snippets of "My Sweet Lord" and "He's So Fine" into class and played them for us. I had owned the Harrison single for ten years at that point, had heard "He's So Fine" a few times, and was aware that there was a claim made that MSL had violated some copyright, but had never made the connection between the two songs. Hearing them in that context impressed upon me that the two songs were very similar, and I have never had any quarrel with the finding of Judge Owen that Harrison, however unwittingly, violated the copyright of HSF. As stated earlier, one that holds a copyright is not required to prove that an infringement was intentional.
I do take issue with a few things that Judge Owen did find in the area of damages. Before making these remarks, though, I should emphasize that Judge Owen and the judges who heard the appeals had the benefit of the briefs from the lawyers, and legal research into these areas that I have not done. If what follows sounds like second guessing, it is not so intended.
First, regarding the finding that 75% of the earnings of MSL could be attributed to the melody of HSF, Judge Owen admitted that making such an apportionment was an inexact science. Even so, giving only 25% credit to the success of MSL to the new lyrics and the fact that it was performed by one of the most popular musicians on the face of the earth in the early '70's seems to be unjustifiably low. The internal evidence of this is the lack of success of Billy Preston's version of the song. If the melody was such an integral part of the success of the song, then anyone that heard Preston's version should have been just as overwhelmed as they were by Harrison's. The fact that Harrison, not the relatively unknown (at that time) Preston, had the "hit" with MSL indicates that it was a lot more than a catchy melody that drove this song to the top of the charts.
Second, the decision that one-half of the mechanical royalties of the album "All Things Must Pass" were due to the plagiarized song is hard to understand. In my opinion, the fact that this was GEORGE HARRISON's first solo effort after the break-up of the Beatles was not given enough weight, nor was the fact that the critics who wrote for the rock press almost uniformly gave this record high marks. Whether or not MSL was included on this album, "All Things Must Pass" was going to sell very well. And there exists an argument that the "hit single" didn't propel this particular album to the heights that hit singles sometime do, because this was a triple record set, priced at twice the normal rate for a single album.
Third, while there was a lot of speculation on the percentages to be applied to Harrison's sales attributed to the plagiarized melody, there was an area of the damages that could have been resolved more fairly, and with less speculation. Klein was allowed to "break even" on the deal he made to buy the rights to HSF, and I'm not sure why. Judge Owen set out in great detail the series of events that transpired after Klein entered the picture acting on his own behalf, and based on these improper activities, Klein was not going to be allowed to profit from his wrongdoing.
But, in refusing to order that Klein forfeit the cost of the acquisition, the judge said "Had it been shown that Bright Tunes and Harrison were realistically close to a specific figure in their settlement negotiations, I could have utilized that figure for the resolution of the issue here". It was overlooked at this point in the opinion that the primary reason that Harrison and Bright Tunes weren't closer together was the fact that Klein was outbidding Harrison, and Harrison didn't know he was in a bidding war. It was only when Klein offered almost twice that which Harrison had put on the table that Bright Tunes concluded that the level of negotiation with Harrison was too low. As long as the judge was willing to speculate that the earnings of the song MSL were 75% due to the melody of HSF, and was further willing to guess that one-half of the earnings of "All Things Must Pass" were due to the inclusion of MSL on that album, I am at a loss as to why he was unable to apportion how much of the increase in the ultimate purchase price was due to Klein, guaranteeing that the case would not be settled prior to a ruling in Bright's favor on the issue of liability and thus driving up the purchase price. I would have thought that given the statement from Bright's attorney that Harrison's $148,000 offer to settle, prior to trial and prior to Klein's involvement, was "a good one" would have been ample evidence to reach a figure that would have been substantially lower than the $587,000 price Klein paid for Bright Tunes. Finding a lower figure to be appropriate would have left Klein in a situation where he lost money on his dealings, a conclusion that would have certainly been justified (and quite humorous as well).
Still, I find it funny that in after purchasing the rights to HSF, Klein offered to sell some of the rights to the song to his former client for $700,000. It is not clear that all rights Klein obtained would have been part of this deal, but Klein did Harrison a big favor, otherwise Harrison would have found himself facing payment of a judgment in the amount of $1.6 million dollars, and would not own the rights to HSF. While the legal expenses in this case are undoubtedly astronomical, Harrison should be able to take some comfort in the fact that Klein has had to pay his own fees, and has nothing to show for it, except a part in, without question, one of the longest running legal battles ever to be litigated in this country.
And there was one other benefit for Harrison; a second hit single entitled "This Song" which chronicled some of the travails of this litigation with lines like "This song has nothing Bright about it", and "as far as I know, don't infringe on anyone's copyright, so . . ." "This Song" wasn't as big a hit as MSL, but the revenue from it should have helped offset the costs of the litigation of the HSF suit.
My thanks to Allan Kozinn, for his help with some of the research and his input after reading the rough draft, and Professor Howard Brill of the University of Arkansas Law School, for exposing me to this case "all those years ago".
ENDNOTES
1. The various cases are: Bright Tunes Music Corp. v. Harrisongs Music, Ltd. et al, 420 F. Supp 177 (1976); ABKCO Music, Inc. v. Harrisongs Music, et al, 508 F. Supp. 798 (1981); same case on appeal, 722 F.2d. 988 (1983); again after remand, 841 F.2d. 494, and yet again 944 F.2d 971 (1991). I'll explain more about the changes in the party bringing this case later in the body of this article.
2. All chart references herein will be to Billboard, except as otherwise noted.
3. The reader will note that Harrison "gave" this extremely successful song to Preston, which might tell us that Harrison didn't recognize it as a hit single. If that's true, that would have been the second time he tossed a monster hit to a lesser artist. In his book I, Me, Mine, Harrison revealed that he "gave" the song "Something" to Joe Cocker before it was recorded for Abbey Road. It is also possible that Harrison, while taking sole credit for the song, recognized Preston's contributions by letting Preston record it first. The Court noted as much: "I treat Harrison as the composer, although it appears that Billy Preston may have been the composer as to part".
4. It is beyond the scope of this article to try to explain the intricacies of Klein's relationship to Harrison and the other Beatles. There are numerous books that account, at least in part, how the relationship began, functioned, and ended. My choice as the best book as to the genesis of this relationship is the 1972 paperback, Apple To The Core by Peter McCabe and Robert D. Schonfeld, which is regrettably out of print (and in dire need of an update). Philip Norman's Shout! is more readily available and does a pretty good job in setting forth the connection Klein had with the Beatles during their last months together.
5. As will be pointed out below, it is unlikely that Harrison had turned over detailed financial information to Bright, since there had not been a finding that Harrison was liable to Bright for infringement at this point.
6. This procedure is not uncommon in conducting a trial of this nature. It is usually discretionary with the judge as to whether or not to divide the case in this manner. This method differs from other types of litigation. For example, in automobile accident cases or product liability cases, the plaintiff may put on several days of testimony that go to the damages that the plaintiff maintains he or she suffered, but receive nothing when the jury or judge finds that there is no negligence on which to base liability.
7. While I take issue with part of the judge's ruling on the damages aspect of this case, the litigants could not have found themselves before a more able jurist in determining the question involving the music of the two compositions. Judge Richard Owen, the district court trial judge, has also composed music, and among his compositions is a three-act opera entitled Mary Dyer. He has also conducted orchestras, and his wife, Mary Owen, has appeared with the Metropolitan Opera Company in New York.
8. A mechanical royalty is the amount paid by the record company to the music publisher who licenses the use of the song on the record. The old vinyl singles had two songs which each earned a royalty, and each song on an album earned the same royalty, whether or not it was a memorable song or a throwaway track.
9. The performance royalty is most closely associated with radio play. These are monies payable to the publisher and the writer as a result of the composition being publicly performed or broadcast. BMI was responsible for collecting the royalty from those that owed it, and paying it to Harrison's publishing company.
10. Actually, "My Sweet Lord" and "Isn't It A Pity" may have been intended as equals on the record. The original Apple single used the green label on each side of the record; normally, the B-side had the dissected apple with the white core showing.
11. The judge found that "My Sweet Lord" received sixteen times as much airplay as did its flip side. Unlike many of the Beatles' singles released in the sixties, "Isn't It A Pity" did not have a chart history separate from "My Sweet Lord", at least not on Billboard. Billboard stopped giving separate chart listings for each side of a single on November 29, 1969, during the chart run of another Harrison composition, "Something".
12. These figures were for the U.S. and Canada. Since the lacquer masters, art work, packaging and licenses were all prepared in the United States, the judge included Canadian royalties in his computations.
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Sunday, April 6, 2008
F:\the physics classroom\Geometry in Art & Architecture Unit 3.mht
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Description and Requirements
The Book
Bibliography
Syllabus
Introduction
The Great Pyramid
Music of the Spheres
Number Symbolism
Polygons and Tilings
The Platonic Solids
Roman Architecture
Number Symbolism in the Middle Ages
The Wheel of Fortune
Celestial Themes in Art
Origins of Perspective
What Shape Frame?
Piero della Francesca
Leonardo
Façade measurement by Trigonometry
Early Twentieth Century Art
Dynamic symmetry & The Spiral
The Geometric Art of M.C. Escher
Later Twentieth Century Geometry Art
Art and the Computer
Chaos & Fractals
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Pythagoras
&
Music of the Spheres
There is geometry in the humming of the strings
... there is music in the spacing of the spheres.
Pythagoras.
The History of Philosophy (c.1660) by Thomas Stanley.
Outline: Pythagoras
The Pythagoreans
Pythagorean Number Symbolism
Music of the Spheres
Summary
Reading
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Pythagoras
From Egypt we move across the Mediterranean Sea to the Greek island of Samos, the birthplace of Pythagoras, whose ideas dominate most of the material in this course. We'll introduce Pythagoras and his secret society of the Pythagoreans.
We'll look at the Pythagoreans' ideas about numbers, as a prelude to our next unit on number symbolism. Finally, we'll introduce a new idea that will be recurring theme throughout this course, the musical ratios, which will reappear in discussions of the architecture of the Renaissance.
Our main link between Egypt and Greece seems to be Thales c 640-550 BC, father of Greek mathematics, astronomy, and Philosophy, and was one of the Seven Sages of Greece. A rich merchant, his duties as a merchant took him to Egypt, and so became one of the main sources of Egyptian mathematical information in Greece. It was Thales advised his student to visit Egypt, and that student was Pythagoras.
--------------------------------------------------------------------------------
Raphael's School of Athens
Slide 3-1: Raphael's School of Athens 1510-11.
Janson, H. W. History of Art. Fifth Edition. NY: Abrams, 1995. p.497
Pythagoras is shown in this famous painting, done by Raphael in 1510-11, which also shows most of the Greek philosophers.
Socrates sprawls on the steps at their feet, the hemlock cup nearby.
His student Plato the idealist is on the left, pointing upwards to divine inspiration. He holds his Timaeus, a book we'll talk about soon.
Plato's student Aristotle, the man of good sense, stands next to him. He is holding his Ethics in one hand and holding out the other in a gesture of moderation, the golden mean.
Euclid is shown with compass, lower right. He is the Greek mathematician whose Elements we'll mention often.
Slide 3-2: Pythagoras in Raphael's School of Athens
Janson, H. W. History of Art. Fifth Edition. NY: Abrams, 1995. p.497
Finally, we see Pythagoras (582?-500? BC), Greek philosopher and mathematician, in the lower-left corner.
--------------------------------------------------------------------------------
The Pythagoreans
Pythagoras was born in Ionia on the island of Sámos, and eventually settled in Crotone, a Dorian Greek colony in southern Italy, in 529 B.C.E. There he lectured in philosophy and mathematics.
He started an academy which gradually formed into a society or brotherhood called the Order of the Pythagoreans.
--------------------------------------------------------------------------------
Disciplines of the Pythagoreans included:
silence music incenses physical and moral purifications
rigid cleanliness a mild ascetisicm utter loyalty common possessions
secrecy daily self-examinations
(whatever that means)
pure linen clothes
We see here the roots of later monastic orders.
For badges and symbols, the Pythagoreans had the Sacred Tetractys and the Star Pentagram, both of which we'll talk about later.
There were three degrees of membership:
1. novices or "Politics"
2. Nomothets, or first degree of initiation
3. Mathematicians
The Pythagoreans relied on oral teaching, perhaps due to their pledge of secrecy, but their ideas were eventually committed to writing. Pythagoras' philosophy is known only through the work of his disciples, and it's impossible to know how much of the "Pythagorean" discoveries were made by Pythagoras himself. It was the tradition of later Pythagoreans to ascribe everything to the Master himself.
--------------------------------------------------------------------------------
Pythagorean Number Symbolism
The Pythagoreans adored numbers. Aristotle, in his Metaphysica, sums up the Pythagorean's attitude towards numbers.
"The (Pythagoreans were) ... the first to take up mathematics ... (and) thought its principles were the principles of all things. Since, of these principles, numbers ... are the first, ... in numbers they seemed to see many resemblances to things that exist ... more than [just] air, fire and earth and water, (but things such as) justice, soul, reason, opportunity ..."
The Pythagoreans knew just the positive whole numbers. Zero, negative numbers, and irrational numbers didn't exist in their system. Here are some Pythagorean ideas about numbers.
--------------------------------------------------------------------------------
Masculine and Feminine Numbers
Odd numbers were considered masculine; even numbers feminine because they are weaker than the odd. When divided they have, unlike the odd, nothing in the center. Further, the odds are the master, because odd + even always give odd. And two evens can never produce an odd, while two odds produce an even.
Since the birth of a son was considered more fortunate than birth of a daughter, odd numbers became associated with good luck. "The gods delight in odd numbers," wrote Virgil.
--------------------------------------------------------------------------------
1 Monad. Point. The source of all numbers. Good, desirable, essential, indivisible.
2 Dyad. Line. Diversity, a loss of unity, the number of excess and defect. The first feminine number. Duality.
3 Triad. Plane. By virtue of the triad, unity and diversity of which it is composed are restored to harmony. The first odd, masculine number.
4 Tetrad. Solid. The first feminine square. Justice, steadfast and square. The number of the square, the elements, the seasons, ages of man, lunar phases, virtues.
5 Pentad. The masculine marriage number, uniting the first female number and the first male number by addition.
The number of fingers or toes on each limb.
The number of regular solids or polyhedra.
Incorruptible: Multiples of 5 end in 5.
6 The first feminine marriage number, uniting 2 and 3 by multiplication.
The first perfect number (One equal to the sum of its aliquot parts, IE, exact divisors or factors, except itself. Thus, (1 + 2 + 3 = 6).
The area of a 3-4-5 triangle
7 Heptad. The maiden goddess Athene, the virgin number, because 7 alone has neither factors or product. Also, a circle cannot be divided into seven parts by any known construction).
8 The first cube.
9 The first masculine square.
Incorruptible - however often multiplied, reproduces itself.
10 Decad. Number of fingers or toes.
Contains all the numbers, because after 10 the numbers merely repeat themselves.
The sum of the archetypal numbers (1 + 2 + 3 + 4 = 10)
27 The first masculine cube.
28 Astrologically significant as the lunar cycle.
It's the second perfect number (1 + 2 + 4 + 7 + 14 = 28).
It's also the sum of the first 7 numbers (1 + 2 + 3 + 4 + 5 + 6 + 7 = 28)!
35 Sum of the first feminine and masculine cubes (8+27)
36 Product of the first square numbers (4 x 9)
Sum of the first three cubes (1 + 8 + 27)
Sum of the first 8 numbers (1 + 2 + 3 + 4 + 5 + 6 + 7 + 8)
--------------------------------------------------------------------------------
Figured Numbers
The Pythagoreans represented numbers by patterns of dots, probably a result of arranging pebbles into patterns. The resulting figures have given us the present word figures.
Thus 9 pebbles can be arranged into 3 rows with 3 pebbles per row, forming a square.
Similarly, 10 pebbles can be arranged into four rows, containing 1, 2, 3, and 4 pebbles per row, forming a triangle.
From these they derived relationships between numbers. For example, noting that a square number can be subdivided by a diagonal line into two triangular numbers, we can say that a square number is always the sum of two triangular numbers.
Thus the square number 25 is the sum of the triangular number 10 and the triangular number 15.
--------------------------------------------------------------------------------
Sacred Tetractys
One particular triangular number that they especially liked was the number ten. It was called a Tetractys, meaning a set of four things, a word attributed to the Greek Mathematician and astronomer Theon (c. 100 CE). The Pythagoreans identified ten such sets.
Ten Sets of Four Things
Numbers 1 2 3 4
Magnitudes point line surface solid
Elements fire air water earth
Figures pyramid octahedron icosahedron cube
Living Things seed growth in length in breadth in thickness
Societies man village city nation
Faculties reason knowledge opinion sensation
Seasons spring summer autumn winter
Ages of a Person infancy youth adulthood old age
Parts of living things body three parts of the soul
--------------------------------------------------------------------------------
Gnomons
Gnomon means carpenter's square in Greek. Its the name given to the upright stick on a sundial. For the Pythagoreans, the gnomons were the odd integers, the masculine numbers. Starting with the monad, a square number could be obtained by adding an L-shaped border, called a gnomon.
Thus, the sum of the monad and any consecutive number of gnomons is a square number.
1 + 3 = 4
1 + 3 + 5 = 9
1 + 3 + 5 + 7 = 16
and so on.
--------------------------------------------------------------------------------
The Quadrivium
While speaking of groups of four, we owe another one to the Pythagoreans, the division of mathematics into four groups,
giving the famous Quadrivium of knowledge, the four subjects needed for a bachelor's degree in the Middle Ages.
--------------------------------------------------------------------------------
Music of the Spheres
Jubal and Pythagoras
Slide 3-4: Theorica Musica
F. Gaffurio, Milan, 1492
Lawlor, Robert. Sacred Geometry. NY: Thames & Hudson, 1982. p.7
So the Pythagoreans in their love of numbers built up this elaborate number lore, but it may be that the numbers that impressed them most were those found in the musical ratios.
Lets start with this frontispiece from a 1492 book on music theory.
The upper left frame shows Lubal or Jubal, from the Old Testament, "father of all who play the lyre and the pipe" and 6 guys whacking on an anvil with hammers numbered 4, 6, 8, 9, 12, 16.
The frames in the upper right and lower left show Pithagoras hitting bells, plucking strings under different tensions, tapping glasses filled to different lengths with water, all marked 4, 6, 8, 9, 12, 16. In each frame he sounds the ones marked 8 and 16, an interval of 1:2 called the octave, or diapason.
In the lower right, he and Philolaos, another Pythagorean, blow pipes of lengths 8 and 16, again giving the octave, but Pythagoras holds pipes 9 and 12, giving the ratio 3:4, called the fourth or diatesseron while Philolaos holds 4 and 6, giving the ratio 2:3, called the fifth or diapente.
They are:
8 : 16 or 1 : 2 Octave diapason
4 : 6 or 2 : 3 Fifth diapente
9 : 12 or 3 : 4 Fourth diatesseron
These were the only intervals considered harmonious by the Greeks. The Pythagoreans supposedly found them by experimenting with a single string with a moveable bridge, and found these pleasant intervals could be expressed as the ratio of whole numbers.
--------------------------------------------------------------------------------
Pythagoras in the School of Athens
Slide 3-3: Closeup of Tablet
Bouleau
Janson, H. W. History of Art. Fifth Edition. NY: Abrams, 1995. p.497
Raphael's School of Athens shows Pythagoras is explaining the musical ratios to a pupil.
Notice the tablet. It shows:
The words diatessaron, diapente, diapason.
The roman numerals for 6, 8, 9, and 12, showing the ratio of the intervals, same as in the music book frontispiece.
The word for the tone, EPOGLOWN, at the top.
Under the tablet is a triangular number 10 called the sacred tetractys, that we mentioned earlier.
--------------------------------------------------------------------------------
The Harmonic Scale
Slide 3-5: Gafurio Lecturing
F. Gafurio, De Harmonia musicorum instrumentorum, 1518, Wittkower, Rudolf. Architectural Principles in the Age of Humanism. NY: Random, 1965. 43a.
This diagram from a book written in 1518 shows the famous Renaissance musical theorist Franchino Gafurio with three organ pipes and 3 strings marked 3 , 4, 6. This indicates the octave, 3 : 6 divided by the harmonic mean 4, into the fourth, 3 : 4, and the fifth, 4 : 6 or 2 : 3.
The banner reads, "Harmonia est discordia concors" or Harmony is discordant concord, propounding the thesis that harmony results from two unequal intervals drawn from dissimilar proportions. The diagram shows compasses, suggesting a link between geometry and music.
--------------------------------------------------------------------------------
So What?
So after experimenting with plucked strings the Pythagoreans discovered that the intervals that pleased people's ears were
octave 1 : 2
fifth 2 : 3
fourth 3 : 4
and we can add the two Greek composite consonances, not mentioned before . . .
octave plus fifth 1 : 2 : 3
double octave 1 : 2 : 4
Now bear in mind that we're dealing with people that were so nuts about numbers that they made up little stories about them and arranged pebbles to make little pictures of them. Then they discovered that all the musical intervals they felt was beautiful, these five sets of ratios, were all contained in the simple numbers
1, 2, 3, 4
and that these were the very numbers in their beloved sacred tetractys that added up to the number of fingers. They must have felt they had discovered some basic laws of the universe.
Quoting Aristotle again ... "[the Pythagoreans] saw that the ... ratios of musical scales were expressible in numbers [and that] .. all things seemed to be modeled on numbers, and numbers seemed to be the first things in the whole of nature, they supposed the elements of number to be the elements of all things, and the whole heaven to be a musical scale and a number."
--------------------------------------------------------------------------------
Music of the Spheres
Slide 3-6: Kepler's Model of the Universe
Lawlor, Robert. Sacred Geometry. NY: Thames & Hudson, 1982. p. 106
"... and the whole heaven to be a musical scale and a number... "
It seemed clear to the Pythagoreans that the distances between the planets would have the same ratios as produced harmonious sounds in a plucked string. To them, the solar system consisted of ten spheres revolving in circles about a central fire, each sphere giving off a sound the way a projectile makes a sound as it swished through the air; the closer spheres gave lower tones while the farther moved faster and gave higher pitched sounds. All combined into a beautiful harmony, the music of the spheres.
This idea was picked up by Plato, who in his Republic says of the cosmos; ". . . Upon each of its circles stood a siren who was carried round with its movements, uttering the concords of a single scale," and who, in his Timaeus, describes the circles of heaven subdivided according to the musical ratios.
Kepler, 20 centuries later, wrote in his Harmonice Munde (1619) says that he wishes "to erect the magnificent edifice of the harmonic system of the musical scale . . . as God, the Creator Himself, has expressed it in harmonizing the heavenly motions."
And later, "I grant you that no sounds are given forth, but I affirm . . . that the movements of the planets are modulated according to harmonic proportions."
--------------------------------------------------------------------------------
Systems of Proportions based on the Musical Ratios
Slide 17-1: Villa Capra Rotunda
citatation
What does this have to do with art or architecture? The idea that the same ratios that are pleasing to the ear would also be pleasing to the eye appears in the writings of Plato, Plotinus, St. Augustine, and St. Aquinas. But the most direct statement comes from the renaissance architect Leone Battista Alberti (1404-1472), "[I am] convinced of the truth of Pythagoras' saying, that Nature is sure to act consistently . . . I conclude that the same numbers by means of which the agreement of sounds affect our ears with delight are the very same which please our eyes and our minds."
Alberti then gives a list of ratios permissible, which include those found by Pythagoras. We'll encounter Alberti again for he is a central figure in the development of perspective in painting.
We'll also discuss another architect who used musical ratios, Andrea Palladio (1518-1580), who designed the Villa Capra Rotunda shown here.
--------------------------------------------------------------------------------
Summary
Slide 3-7: Correspondence School in Crotone
W. S. Anglin. Mathematical Intelligence V19, No. 1, 1997
I always wanted to make a pilgrimage to Crotone, site of the Pythagorean cult, but this is all that's there to mark their presence. Pythagoras and his followers died when their meetinghouse was torched. We'll have more on the Pythagoreans later, in particular their fondness for the star pentagram.
In this unit we've had some Pythagorean number lore and soon we'll add to it by talking about number symbolism in general, especially numbers in astrology and the Old Testament.
Somewhere I had read that one answer to the question, Why study history? was To keep Pythagoras alive! I've forgotten where I read that, but anyway, it makes a nice goal for this course.
Reading
Newman, p. 78-89
Bell article, Art Bulletin December '95
Richter, p. 8-12
Clark, Civilization, p. 131-132
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©Paul Calter, 1998. All Rights Reserved. Dartmouth College.
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Description and Requirements
The Book
Bibliography
Syllabus
Introduction
The Great Pyramid
Music of the Spheres
Number Symbolism
Polygons and Tilings
The Platonic Solids
Roman Architecture
Number Symbolism in the Middle Ages
The Wheel of Fortune
Celestial Themes in Art
Origins of Perspective
What Shape Frame?
Piero della Francesca
Leonardo
Façade measurement by Trigonometry
Early Twentieth Century Art
Dynamic symmetry & The Spiral
The Geometric Art of M.C. Escher
Later Twentieth Century Geometry Art
Art and the Computer
Chaos & Fractals
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Pythagoras
&
Music of the Spheres
There is geometry in the humming of the strings
... there is music in the spacing of the spheres.
Pythagoras.
The History of Philosophy (c.1660) by Thomas Stanley.
Outline: Pythagoras
The Pythagoreans
Pythagorean Number Symbolism
Music of the Spheres
Summary
Reading
--------------------------------------------------------------------------------
Pythagoras
From Egypt we move across the Mediterranean Sea to the Greek island of Samos, the birthplace of Pythagoras, whose ideas dominate most of the material in this course. We'll introduce Pythagoras and his secret society of the Pythagoreans.
We'll look at the Pythagoreans' ideas about numbers, as a prelude to our next unit on number symbolism. Finally, we'll introduce a new idea that will be recurring theme throughout this course, the musical ratios, which will reappear in discussions of the architecture of the Renaissance.
Our main link between Egypt and Greece seems to be Thales c 640-550 BC, father of Greek mathematics, astronomy, and Philosophy, and was one of the Seven Sages of Greece. A rich merchant, his duties as a merchant took him to Egypt, and so became one of the main sources of Egyptian mathematical information in Greece. It was Thales advised his student to visit Egypt, and that student was Pythagoras.
--------------------------------------------------------------------------------
Raphael's School of Athens
Slide 3-1: Raphael's School of Athens 1510-11.
Janson, H. W. History of Art. Fifth Edition. NY: Abrams, 1995. p.497
Pythagoras is shown in this famous painting, done by Raphael in 1510-11, which also shows most of the Greek philosophers.
Socrates sprawls on the steps at their feet, the hemlock cup nearby.
His student Plato the idealist is on the left, pointing upwards to divine inspiration. He holds his Timaeus, a book we'll talk about soon.
Plato's student Aristotle, the man of good sense, stands next to him. He is holding his Ethics in one hand and holding out the other in a gesture of moderation, the golden mean.
Euclid is shown with compass, lower right. He is the Greek mathematician whose Elements we'll mention often.
Slide 3-2: Pythagoras in Raphael's School of Athens
Janson, H. W. History of Art. Fifth Edition. NY: Abrams, 1995. p.497
Finally, we see Pythagoras (582?-500? BC), Greek philosopher and mathematician, in the lower-left corner.
--------------------------------------------------------------------------------
The Pythagoreans
Pythagoras was born in Ionia on the island of Sámos, and eventually settled in Crotone, a Dorian Greek colony in southern Italy, in 529 B.C.E. There he lectured in philosophy and mathematics.
He started an academy which gradually formed into a society or brotherhood called the Order of the Pythagoreans.
--------------------------------------------------------------------------------
Disciplines of the Pythagoreans included:
silence music incenses physical and moral purifications
rigid cleanliness a mild ascetisicm utter loyalty common possessions
secrecy daily self-examinations
(whatever that means)
pure linen clothes
We see here the roots of later monastic orders.
For badges and symbols, the Pythagoreans had the Sacred Tetractys and the Star Pentagram, both of which we'll talk about later.
There were three degrees of membership:
1. novices or "Politics"
2. Nomothets, or first degree of initiation
3. Mathematicians
The Pythagoreans relied on oral teaching, perhaps due to their pledge of secrecy, but their ideas were eventually committed to writing. Pythagoras' philosophy is known only through the work of his disciples, and it's impossible to know how much of the "Pythagorean" discoveries were made by Pythagoras himself. It was the tradition of later Pythagoreans to ascribe everything to the Master himself.
--------------------------------------------------------------------------------
Pythagorean Number Symbolism
The Pythagoreans adored numbers. Aristotle, in his Metaphysica, sums up the Pythagorean's attitude towards numbers.
"The (Pythagoreans were) ... the first to take up mathematics ... (and) thought its principles were the principles of all things. Since, of these principles, numbers ... are the first, ... in numbers they seemed to see many resemblances to things that exist ... more than [just] air, fire and earth and water, (but things such as) justice, soul, reason, opportunity ..."
The Pythagoreans knew just the positive whole numbers. Zero, negative numbers, and irrational numbers didn't exist in their system. Here are some Pythagorean ideas about numbers.
--------------------------------------------------------------------------------
Masculine and Feminine Numbers
Odd numbers were considered masculine; even numbers feminine because they are weaker than the odd. When divided they have, unlike the odd, nothing in the center. Further, the odds are the master, because odd + even always give odd. And two evens can never produce an odd, while two odds produce an even.
Since the birth of a son was considered more fortunate than birth of a daughter, odd numbers became associated with good luck. "The gods delight in odd numbers," wrote Virgil.
--------------------------------------------------------------------------------
1 Monad. Point. The source of all numbers. Good, desirable, essential, indivisible.
2 Dyad. Line. Diversity, a loss of unity, the number of excess and defect. The first feminine number. Duality.
3 Triad. Plane. By virtue of the triad, unity and diversity of which it is composed are restored to harmony. The first odd, masculine number.
4 Tetrad. Solid. The first feminine square. Justice, steadfast and square. The number of the square, the elements, the seasons, ages of man, lunar phases, virtues.
5 Pentad. The masculine marriage number, uniting the first female number and the first male number by addition.
The number of fingers or toes on each limb.
The number of regular solids or polyhedra.
Incorruptible: Multiples of 5 end in 5.
6 The first feminine marriage number, uniting 2 and 3 by multiplication.
The first perfect number (One equal to the sum of its aliquot parts, IE, exact divisors or factors, except itself. Thus, (1 + 2 + 3 = 6).
The area of a 3-4-5 triangle
7 Heptad. The maiden goddess Athene, the virgin number, because 7 alone has neither factors or product. Also, a circle cannot be divided into seven parts by any known construction).
8 The first cube.
9 The first masculine square.
Incorruptible - however often multiplied, reproduces itself.
10 Decad. Number of fingers or toes.
Contains all the numbers, because after 10 the numbers merely repeat themselves.
The sum of the archetypal numbers (1 + 2 + 3 + 4 = 10)
27 The first masculine cube.
28 Astrologically significant as the lunar cycle.
It's the second perfect number (1 + 2 + 4 + 7 + 14 = 28).
It's also the sum of the first 7 numbers (1 + 2 + 3 + 4 + 5 + 6 + 7 = 28)!
35 Sum of the first feminine and masculine cubes (8+27)
36 Product of the first square numbers (4 x 9)
Sum of the first three cubes (1 + 8 + 27)
Sum of the first 8 numbers (1 + 2 + 3 + 4 + 5 + 6 + 7 + 8)
--------------------------------------------------------------------------------
Figured Numbers
The Pythagoreans represented numbers by patterns of dots, probably a result of arranging pebbles into patterns. The resulting figures have given us the present word figures.
Thus 9 pebbles can be arranged into 3 rows with 3 pebbles per row, forming a square.
Similarly, 10 pebbles can be arranged into four rows, containing 1, 2, 3, and 4 pebbles per row, forming a triangle.
From these they derived relationships between numbers. For example, noting that a square number can be subdivided by a diagonal line into two triangular numbers, we can say that a square number is always the sum of two triangular numbers.
Thus the square number 25 is the sum of the triangular number 10 and the triangular number 15.
--------------------------------------------------------------------------------
Sacred Tetractys
One particular triangular number that they especially liked was the number ten. It was called a Tetractys, meaning a set of four things, a word attributed to the Greek Mathematician and astronomer Theon (c. 100 CE). The Pythagoreans identified ten such sets.
Ten Sets of Four Things
Numbers 1 2 3 4
Magnitudes point line surface solid
Elements fire air water earth
Figures pyramid octahedron icosahedron cube
Living Things seed growth in length in breadth in thickness
Societies man village city nation
Faculties reason knowledge opinion sensation
Seasons spring summer autumn winter
Ages of a Person infancy youth adulthood old age
Parts of living things body three parts of the soul
--------------------------------------------------------------------------------
Gnomons
Gnomon means carpenter's square in Greek. Its the name given to the upright stick on a sundial. For the Pythagoreans, the gnomons were the odd integers, the masculine numbers. Starting with the monad, a square number could be obtained by adding an L-shaped border, called a gnomon.
Thus, the sum of the monad and any consecutive number of gnomons is a square number.
1 + 3 = 4
1 + 3 + 5 = 9
1 + 3 + 5 + 7 = 16
and so on.
--------------------------------------------------------------------------------
The Quadrivium
While speaking of groups of four, we owe another one to the Pythagoreans, the division of mathematics into four groups,
giving the famous Quadrivium of knowledge, the four subjects needed for a bachelor's degree in the Middle Ages.
--------------------------------------------------------------------------------
Music of the Spheres
Jubal and Pythagoras
Slide 3-4: Theorica Musica
F. Gaffurio, Milan, 1492
Lawlor, Robert. Sacred Geometry. NY: Thames & Hudson, 1982. p.7
So the Pythagoreans in their love of numbers built up this elaborate number lore, but it may be that the numbers that impressed them most were those found in the musical ratios.
Lets start with this frontispiece from a 1492 book on music theory.
The upper left frame shows Lubal or Jubal, from the Old Testament, "father of all who play the lyre and the pipe" and 6 guys whacking on an anvil with hammers numbered 4, 6, 8, 9, 12, 16.
The frames in the upper right and lower left show Pithagoras hitting bells, plucking strings under different tensions, tapping glasses filled to different lengths with water, all marked 4, 6, 8, 9, 12, 16. In each frame he sounds the ones marked 8 and 16, an interval of 1:2 called the octave, or diapason.
In the lower right, he and Philolaos, another Pythagorean, blow pipes of lengths 8 and 16, again giving the octave, but Pythagoras holds pipes 9 and 12, giving the ratio 3:4, called the fourth or diatesseron while Philolaos holds 4 and 6, giving the ratio 2:3, called the fifth or diapente.
They are:
8 : 16 or 1 : 2 Octave diapason
4 : 6 or 2 : 3 Fifth diapente
9 : 12 or 3 : 4 Fourth diatesseron
These were the only intervals considered harmonious by the Greeks. The Pythagoreans supposedly found them by experimenting with a single string with a moveable bridge, and found these pleasant intervals could be expressed as the ratio of whole numbers.
--------------------------------------------------------------------------------
Pythagoras in the School of Athens
Slide 3-3: Closeup of Tablet
Bouleau
Janson, H. W. History of Art. Fifth Edition. NY: Abrams, 1995. p.497
Raphael's School of Athens shows Pythagoras is explaining the musical ratios to a pupil.
Notice the tablet. It shows:
The words diatessaron, diapente, diapason.
The roman numerals for 6, 8, 9, and 12, showing the ratio of the intervals, same as in the music book frontispiece.
The word for the tone, EPOGLOWN, at the top.
Under the tablet is a triangular number 10 called the sacred tetractys, that we mentioned earlier.
--------------------------------------------------------------------------------
The Harmonic Scale
Slide 3-5: Gafurio Lecturing
F. Gafurio, De Harmonia musicorum instrumentorum, 1518, Wittkower, Rudolf. Architectural Principles in the Age of Humanism. NY: Random, 1965. 43a.
This diagram from a book written in 1518 shows the famous Renaissance musical theorist Franchino Gafurio with three organ pipes and 3 strings marked 3 , 4, 6. This indicates the octave, 3 : 6 divided by the harmonic mean 4, into the fourth, 3 : 4, and the fifth, 4 : 6 or 2 : 3.
The banner reads, "Harmonia est discordia concors" or Harmony is discordant concord, propounding the thesis that harmony results from two unequal intervals drawn from dissimilar proportions. The diagram shows compasses, suggesting a link between geometry and music.
--------------------------------------------------------------------------------
So What?
So after experimenting with plucked strings the Pythagoreans discovered that the intervals that pleased people's ears were
octave 1 : 2
fifth 2 : 3
fourth 3 : 4
and we can add the two Greek composite consonances, not mentioned before . . .
octave plus fifth 1 : 2 : 3
double octave 1 : 2 : 4
Now bear in mind that we're dealing with people that were so nuts about numbers that they made up little stories about them and arranged pebbles to make little pictures of them. Then they discovered that all the musical intervals they felt was beautiful, these five sets of ratios, were all contained in the simple numbers
1, 2, 3, 4
and that these were the very numbers in their beloved sacred tetractys that added up to the number of fingers. They must have felt they had discovered some basic laws of the universe.
Quoting Aristotle again ... "[the Pythagoreans] saw that the ... ratios of musical scales were expressible in numbers [and that] .. all things seemed to be modeled on numbers, and numbers seemed to be the first things in the whole of nature, they supposed the elements of number to be the elements of all things, and the whole heaven to be a musical scale and a number."
--------------------------------------------------------------------------------
Music of the Spheres
Slide 3-6: Kepler's Model of the Universe
Lawlor, Robert. Sacred Geometry. NY: Thames & Hudson, 1982. p. 106
"... and the whole heaven to be a musical scale and a number... "
It seemed clear to the Pythagoreans that the distances between the planets would have the same ratios as produced harmonious sounds in a plucked string. To them, the solar system consisted of ten spheres revolving in circles about a central fire, each sphere giving off a sound the way a projectile makes a sound as it swished through the air; the closer spheres gave lower tones while the farther moved faster and gave higher pitched sounds. All combined into a beautiful harmony, the music of the spheres.
This idea was picked up by Plato, who in his Republic says of the cosmos; ". . . Upon each of its circles stood a siren who was carried round with its movements, uttering the concords of a single scale," and who, in his Timaeus, describes the circles of heaven subdivided according to the musical ratios.
Kepler, 20 centuries later, wrote in his Harmonice Munde (1619) says that he wishes "to erect the magnificent edifice of the harmonic system of the musical scale . . . as God, the Creator Himself, has expressed it in harmonizing the heavenly motions."
And later, "I grant you that no sounds are given forth, but I affirm . . . that the movements of the planets are modulated according to harmonic proportions."
--------------------------------------------------------------------------------
Systems of Proportions based on the Musical Ratios
Slide 17-1: Villa Capra Rotunda
citatation
What does this have to do with art or architecture? The idea that the same ratios that are pleasing to the ear would also be pleasing to the eye appears in the writings of Plato, Plotinus, St. Augustine, and St. Aquinas. But the most direct statement comes from the renaissance architect Leone Battista Alberti (1404-1472), "[I am] convinced of the truth of Pythagoras' saying, that Nature is sure to act consistently . . . I conclude that the same numbers by means of which the agreement of sounds affect our ears with delight are the very same which please our eyes and our minds."
Alberti then gives a list of ratios permissible, which include those found by Pythagoras. We'll encounter Alberti again for he is a central figure in the development of perspective in painting.
We'll also discuss another architect who used musical ratios, Andrea Palladio (1518-1580), who designed the Villa Capra Rotunda shown here.
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Summary
Slide 3-7: Correspondence School in Crotone
W. S. Anglin. Mathematical Intelligence V19, No. 1, 1997
I always wanted to make a pilgrimage to Crotone, site of the Pythagorean cult, but this is all that's there to mark their presence. Pythagoras and his followers died when their meetinghouse was torched. We'll have more on the Pythagoreans later, in particular their fondness for the star pentagram.
In this unit we've had some Pythagorean number lore and soon we'll add to it by talking about number symbolism in general, especially numbers in astrology and the Old Testament.
Somewhere I had read that one answer to the question, Why study history? was To keep Pythagoras alive! I've forgotten where I read that, but anyway, it makes a nice goal for this course.
Reading
Newman, p. 78-89
Bell article, Art Bulletin December '95
Richter, p. 8-12
Clark, Civilization, p. 131-132
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©Paul Calter, 1998. All Rights Reserved. Dartmouth College.
stephen jones and the brain project
http://www.culture.com.au/brain_proj/
i saw stephen jones speak in Auckland Art Gallery early last year and found him to be one of the most inspiring people i have ever heard speak apart from the brain project he was also in a band called 'severed heads'which began in the 1980`s
these are my notes
video art and the history of video.
he showed mainly his own art including music (electronic) video`s
"video has always been an interdisciplinary force, partaking of a wide range of approaches from the deconstruction of television to the documentation of performances to visual music to installation to narritive"
conceptual background: the Systems Theory derived from the similarity and inter-relationship of cybernetics and biology
(#i must say it took me a good few days to truly absorb or decipher what he said because every sentence just seemed so jam packed with concepts and i was computor literate disabled...hmmm is that politcally correct should i say... disadvantaged.... isnt that worse? anyway)
video is written across the screen, as opposed to film being scanned narratively (slide by slide) which produces a storyline.
video is interactive and is a communication between the artist and the video...
(so i figured that this must be to do with video being a form of computor and our ability to go inside and rewrite programmes etc? if you think i`m wrong let me know, it took a long time of pondering to come up with that one!)
Stephen Jones was one of the first people to use video as a form of art - and to use video.
he was inspired by people like Nicholas Sheen (the first video artist in Australia amd Buckminster Fulla in the 1970`s (German)
i saw stephen jones speak in Auckland Art Gallery early last year and found him to be one of the most inspiring people i have ever heard speak apart from the brain project he was also in a band called 'severed heads'which began in the 1980`s
these are my notes
video art and the history of video.
he showed mainly his own art including music (electronic) video`s
"video has always been an interdisciplinary force, partaking of a wide range of approaches from the deconstruction of television to the documentation of performances to visual music to installation to narritive"
conceptual background: the Systems Theory derived from the similarity and inter-relationship of cybernetics and biology
(#i must say it took me a good few days to truly absorb or decipher what he said because every sentence just seemed so jam packed with concepts and i was computor literate disabled...hmmm is that politcally correct should i say... disadvantaged.... isnt that worse? anyway)
video is written across the screen, as opposed to film being scanned narratively (slide by slide) which produces a storyline.
video is interactive and is a communication between the artist and the video...
(so i figured that this must be to do with video being a form of computor and our ability to go inside and rewrite programmes etc? if you think i`m wrong let me know, it took a long time of pondering to come up with that one!)
Stephen Jones was one of the first people to use video as a form of art - and to use video.
he was inspired by people like Nicholas Sheen (the first video artist in Australia amd Buckminster Fulla in the 1970`s (German)
digital art
http://www.wrigleyvideo.com/videotutorial/tutdes_colorpass.htm
a tutorial on using colorpass on premiere pro it takes a while to load tho
a tutorial on using colorpass on premiere pro it takes a while to load tho
Wednesday, April 2, 2008
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