In 2013, R&B singer Robin Thicke became a household name. “Blurred Lines” was Thicke’s fortuitous soul-disco-funk-influenced “pop” collaboration with producer Pharrell Williams and rapper Clifford Harris, Jr. (aka “T.I.”). It became the top-selling single of the year globally (selling over 14.8 million units), spent the longest time at the top of the Billboard’s Hot 100, set the all-time record for reaching the largest US radio audience, and also reached no. 1 in 80 countries.
Since then, however, “Blurred Lines” and Thicke’s overwhelming success have been eclipsed by the recent federal court case, in which a jury decided that its creators infringed upon the copyright of Marvin Gaye’s 1977 Billboard Hot 100 chart topper, “Got to Give It Up.” In an unprecedented verdict and after two years of litigation in various courts, the Gaye estate was awarded $7.4 million in recuperative damages.
While many debates have been sparked about the precedence this case and its verdict set for copyright law and artistic freedom, one of the more striking observations worth consideration is how the legal proceedings of the trial reflect the complex evolution of and relationship between sound, intellectual property, and (recorded) music from the advent of copyright law in the United States until the present. This grounding of copyright law in the context of US history might also help to unpack both the legal and cultural contentions that arise from the case. It might also point towards ways in which law and creativity—particularly within the popular music industry—might productively interconnect. Such a consideration might help to ground how we understand the idea of positing sound as intellectual property.
From Copyright to Intellectual Property in the United States
The nation’s first copyright law was passed in 1710, and was the first time an author could claim the right to their own written work beyond the printing guilds that published them. It was not until 1831 that music legally became the first “creative” work under protection. Still, the protection was based on the written document, the musical score in this case, and it was the publishers who gained copyright protection for their scores, not the author of the tune or music.
It was not until the International Copyright Act of 1891 that authors of musical works retained exclusive rights to their copyrighted scores, and publishers were required to obtain permission from them for printing. To whom the law granted property ownership, however, was restricted. Throughout most of the 19th century, as African Americans were structurally denied access to many civic, economic, and political rights, Irish-, Jewish-, and Anglo-American publishers and performers gained unprecedented success in the establishment of the nascent popular music industry through blackface minstrelsy—the first original and popular form of mass entertainment in North America. The founders of the US popular music industry—and those who would begin to claim copyrights through its sheet music—were mostly (white) men who, in blackface, “appropriated” real and imagined performances of black culture and blended them with others (classical, Irish folk music, etc.) during enslavement, emancipation, and Jim Crow, into a complexly amalgamated popular style.
To protect their “intellectual property,” composers in the 1890s began to lobby for greater legal protection of written and scored works, as the cultural autonomy of the “author” continued to develop in the late 19th century. After the intense lobbying efforts of Tin Pan Alley-based composers, due to then recent developments in recording and reproduction technologies, the passage of the Copyright Act of 1909 allowed them to claim authorship of their scores for mechanical reproduction, and record companies were required to either ask permission for the initial recording, or a flat fee for subsequent ones. These protections, however, were still based on the written score—leaving the sounds that went into their live realizations up for legal grabs.
The latest revision of copyright law did not occur until 1976, after music (and film) piracy became widespread with the mass introduction of tape and cassettes in the 1960s, threatening the pockets of the entertainment industry. Fortunately, the new Act included revisions that also extended the terms of ownership for authors, and extended the general rights of ownership for publishers and authors alike. This Act also confirmed that the “original” sound of sound recordings—as produced by those involved in the recording’s creation—became copyrightable material. After almost two centuries of copyright law and practice, ideas and laws of intellectual property began to extended beyond the “text,” or written score and lyrics, to include its performance and realization.
The Case of “Blurred Lines”
Coincidentally, it was a legal loophole from the 1976 Act, the cultural expansion of what constitutes “intellectual property,” and the limitations of our current copyright system that set the stage for how the “Blurred Lines” case was argued and adjudicated in the US District Court of California.
After the Marvin Gaye estate formally requested some sort of recompense from Thicke, Williams, Harris, and the distributors of “Blurred Lines” for its sonic similarity and “feel” to Gaye’s “Got to Give It Up” in 2013, the trio launched a “Complaint for Declamatory Relief” against the Gaye estate. In this case, the creators of “Blurred Lines” claimed, “Defendants continue to insist that plaintiff’s massively successful composition, ‘Blurred Lines’…and ‘Got to Give It Up’ ‘feel’ or ‘sound’ the same. Being reminiscent of a ‘sound’ is not copyright infringement. The intent in producing ‘Blurred Lines’ was to evoke an era. In reality, the Gaye defendants are claiming ownership of an entire genre, as opposed to a specific work.” After sufficient evidence was produced to suggest a discrepancy between the plaintiff and defendant’s claims, however, the summary judgment was denied, and the historical court case was initiated.
There are two basic matters that must be proved to establish copyright infringement under our current law.
- Ownership of a valid copyright, and
- copying of “original” constituent elements of the copyrighted work.
As the case’s court instructions indicate, to prove infringement under copyright law, one has to prove the copying of an expression of an idea, and not just an idea itself.
The legal loophole found in copyright law by the Thicke/Williams camp was that Gaye’s commercial sound recording of “Got to Give It Up”—which contains many of the sonic and performative elements that suggest the “groove” and “feel” of the song, including Gaye’s voice—was not admissible court evidence. The lead sheet (a truncated score that contains limited musical indications) and commercial recording to Marvin Gaye’s “Got to Give It Up” were deposited for copyright before the new 1976 Copyright Act went into effect in 1978. This loophole suggested that Gaye only owned the copyright to the lead sheet and did not legally own any rights to the recording of “Got to Give It Up,” and it therefore could not be used in court. This required both camps to provide sufficient competing evidence, through a cyber forensic analysis of digital sound and the analysis of expert music scholars, to show whether the relationship between the songs was one of inspiration or exploitation.
While many (including Thicke in his early discussions of his song) have admitted to the relationship between the “feel” or “groove” of the two pieces, the language and tools for proving such claims are limited under copyright law. Because the law is still primarily steeped in assigning copyright to “original” written works, lyrics, or recordings generally owned by record companies, a legal discussion of “groove” or “feel” leads to what musicologists call “structural listening/analysis”—where musical elements are singled out by the chosen examiner to show how what we hear might be quantified. In doing so, the experts in this case were charged with providing evidence to convince the jury of the following questions on their verdict form:
- Do you find by a preponderance of evidence that the Thicke parties infringed the Gay Parties’ copyright in the musical composition “Got to Give It Up” and “Blurred Lines”?
- Do you find by a preponderance of the evidence that the Thicke parties’ infringement of the copyright in “Got to Give It Up” was willful?
- Do you find by a preponderance of the evidence that the Thicke parties’ infringement of the copyright in “Got to Give It Up” was innocent?
With only the limited lead sheet that Gaye deposited for copyright, an edited recording of the copyrighted elements (sans Gaye’s voice) of “Got to Give It Up,” statements made by the creators, and the music analysis, the Gaye party and its expert witnesses relied on an expanded understanding of sound as intellectual property in order to make the musical case that “Blurred Lines” went beyond mere homage to illegal imitation. In accordance with copyright law, the “similarities” under consideration had to be proven independently of one another in order to show infringement.
However, it was not the actual discussion of “groove” or “feel,” or a legal consideration of these concepts as copyrightable elements (e.g., sources of intellectual property) beyond what the court deems as “scènes à faire” (or “generic ideas”). It was the way in which groove was broken down into a traditional structural analysis, something that could be proven as a copyrightable text, something “scientifically quantifiable,” that effectively convinced the jurors that there was “direct and circumstantial evidence” that “Blurred Lines” was in some part derived from Gaye’s work.
The Future of Copyright Law
The verdict is a huge win for the Gaye estate. Symbolically, it is also a win for the many artists, especially African American artists in the United States, who have historically suffered unfair use of and unequal compensation for works, or who have been denied access to copyright their original creations. The verdict is also a victory for those whose creative intellectual property—particularly of the sonic and corporeal variety—has only recently been valued and upheld by law.
On the other hand, because of the traditional and structural approach to presenting the case, the verdict could also lead to some artists feeling limited by their creative license to explore sounds and styles of previous eras, or it might encourage shrill industry executives to create practices that exploit both the freedoms and limitations of copyrighted and potentially copyrightable material.
Albeit a difficult task, this significant case begs for new considerations of what constitutes intellectual property in music, for interrogating the full-range of music’s constituent components beyond structural listening, and for how we understand the copyright potential of music beyond its textual and recorded basis. If artists, musicologists, litigators, and lawmakers begin to reorient themselves around the history and recent developments in copyright, as well as ideas of what might constitute intellectual property in music (i.e., sound and groove), we might find ourselves lobbying for changes to the 1976 Copyright Act that reflect 21st century needs, rather than trying to find ways around outdated laws and procedures in contentious litigations on sound.
Feature Image: CC0 Public Domain via Pixabay.