American artists Robin Thicke and Pharrell Williams have been forced to fork out 7.4 million to the family of Marvin Gaye after a courtroom deemed that their 2013 pop steamer, ‘Blurred Lines’ borrowed too much from Gaye’s 1977 tune, ‘Got to Give it Up’.
Cases of high profile musical copyright infringement aren’t new—in popular memory, Vanilla Ice’s delusional rip off of Queen’s “Under Pressure”; Ray Parker Jnr’s ghostbust of Huey Lewis’s “I Want a New Drug”; Rod Stewart and Jorge Ben; Cat Stevens and the Flaming Lips. Men at Work and the ill-fated Kookaburra. Too many Led Zeppelin tracks to mention. The list goes on.
More recently, in an amicable out of court settlement UK singer, Sam Smith agreed to dish out a co-writer credit to Tom Petty when he worked out the chorus for Stay with Me was almost identical to Petty’s I Won’t Back Down.
Right or wrong, these and most other cases of musical infringement concern the lifting of a clearly recognisable and copyrightable song element—a lyric, a top-line melody, or a chord progression.
Here’s where the Blurred Lines case stands apart. Thicke and Williams were found guilty of copying “a constellation of distinctive and significant compositional elements.” Or, put more bluntly: ripping off a ‘feel’.
Some things may be protectable under copyright law, but feeling is not one of them. It’s like patenting groove, or vibe. As LA Weekly’s Andy Hermann put it: “you can’t copy a rhythm (If you could, Bo Diddley would have died a billionaire)”.
Hermann is one of many critics arguing that the recent decision sets a chilling precedent for the industry—that lowering the threshold for what counts as infringement could open the floodgates for more parties seeking questionable lucrative recourse. Even worse, it could stifle the organic creative process that musicians and artists need like oxygen: the freedom to be inspired by others.
Amidst the hoopla of the trial, an old question once again reared itself:
In a world where everyone is inspired by someone else, where is the line between plagiarism and influence?
In the realm of ideas, nothing is truly original and music, like all art forms, is a never-ending conversation. Every artist takes their cues from those who came before, sponging pre-existing ideas and using them as building blocks to create the new. It’s how art evolves.
In “Everything is a Remix”, Kirby Ferguson points out that all creativity is a process of copying, transforming, and combining:
Creativity comes from without, not within…we are dependent on one another…admitting this to ourselves isn’t an embrace of mediocrity or derivativeness…it’s a liberation.
Piedmont bluesman, Blind Willie McTell knew all about it: “I jump ‘em from other writers, but I arrange ‘em my own way”. Every songwriter has done the same since.
It doesn’t mean legislation shouldn’t protect artists and their contributions—nor should protection come at the expense of cultural evolution. It’s worth remembering that copyright law was originally designed to incentivise creativity, not hamper it.
Copyright now covers a period of 70 years after an artist’s death. It used to be 14 years, locking material away from the public domain, often to the financial betterment of copyright owners. This is something Nicolas Suzor and Kylie Pappalardo see as a tax on creativity:
No amount of money now will encourage Marvin Gaye to make more music. What this case does do, though, is discourage future artists from revealing their influences and reworking our culture.
Pharrell and Thicke weren’t shy of declaring Gaye’s influence on their offering:
“Pharrell and I were in the studio and […] I was like, ‘Damn, we should make something like that [“Got to Give It Up”], something with that groove.”
The similarities are obvious—the groove, the bassline, the syncopated cowbell. Does that inficate inspiration or infringement? Questlove of The Roots echoes the sentiment of many other musicians shocked by the court’s decision, Nile Rodgers, John Legend and Keith Urban included:
We all know it’s derivative…Everything that Pharrell produces is derivative of another song…it’s an homage.
Should we go with Kirby Ferguson’s ‘copy, transform, combine’ rule, then the line between homage and theft shimmies around whether or not the work allegedly copied was adequately transformed into something fresh. Regardless of whether you think Thicke and Pharrell’s work was of any merit, or whether you, like Rob Sheffield, think it’s the worst song of 2013 or any other year, no matter how similar in feel or vibe to Gaye’s tune it is, it’s difficult to not class Blurred Lines as a work in its own right—however cheesy, classless or rapey, the melodies, vocal lines, chord progression and lyrics are unique enough to make it stand alone.
In any event, copyright law grooves to its own beat. The ‘similarity test’ remains the clincher: whether or not the average listener can tell if a song has been copied from another, what Danny Cevallos calls ‘the collective smell test’. Here, that line remains blurry still; a difficult, and probably unfair benchmark—as veteran copyright lawyer, Paul Fakler attests, unlike in literature and film, “it’s actually pretty hard for the average juror to tell whether two songs have substantial similarities or not.”
When we absorb the influences around us, so too we synthesise though a subjective scrim. In cases like these where the line is especially blurred, subjectivity plays a huge role.
But then, this was a strange case—jurors weren’t even allowed to listen to the original recording of Gaye’s tune, only a stripped back version featuring keyboard and an isolated vocal track. Despite the absence of the audible elements that actually make Blurred Lines sound so similar to Gaye’s, they still decided that it bore substantial similarity.
In the end the decision fell on the competing testimonies of two musicologists. The eight-person jury sided with the Gaye’s.
As Thicke and Williams consider their next moves, the Gaye family is seeking an injunction to halt all sales and performances of Blurred Lines. It’ll be interesting to see if the verdict stands; it’s anyone’s guess what happens from here—Ed Sheeran, you may be next.
Meanwhile, as the infectious groove fades to silence, a soft falsetto croons from a grave high up in the Hollywood Hills. Whether it’s singing “Let’s get it on” or “What’s going on?” no one’s really sure.