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The “Blurred Lines” of music and copyright: Part one

Possibly the highest-profile copyright case of the past 12 months centered on a trial between the creators of the catchy tune, “Blurred Lines”, and the Marvin Gaye estate over the song’s supposed similarities to the 1977 hit, “Got to Give it up”. The jury’s decision to award the Gaye family $7.4 million has been met with some consternation in both law and music circles, with Pharrell Williams reportedly telling the media that this verdict spells disaster for the creative industries. We asked two Oxford authors to give their opinions on the case in this two-part blog, which will look at the jury’s decision from a musical perspective, as well as a law perspective. First, the author of Democracy of Sound, Alex Sayf Cummings discusses the interaction between music and copyright.

A peppy beat and bassline. Cowbell. An ecstatic whoop in the background. Make a note, because all these elements now belong to family of Marvin Gaye. Or do they?

The recent verdict against Robin Thicke and Pharrell Williams in the “Blurred Lines” case has perplexed followers of the music industry. One might think the ruling was a vindication of the rights of artists, but composers like Bonnie McKee see it differently. “It’s definitely striking fear into the hearts of songwriters,” McKee, the woman behind many important pop hits, recently told NPR’s Tom Ashbrook. Will they have to look over their shoulders with every lyric they write and chord they compose, fearing that a publishing company or pop star’s estate will come after them?

Thicke himself has muddied the issue, and not just because of his odd and evasive behavior during the trial (claiming not to have actually written the song, for instance). Critics who otherwise dislike the ruling might not be inclined to rally to the defense of the singer, whose song sounds to some ears like a breezy endorsement of date rape. Yet the unsavory Thicke could be right about copyright even if he was wrong about consent.

Marvin Gaye, 1966, bby J. Edward Bailey. Public domain via Wikimedia Commons.
Marvin Gaye, 1966, by J. Edward Bailey. Public domain via Wikimedia Commons.

Such cases capture the public imagination in part because they speak to deep-seated convictions about work, originality, and fairness. We all know how it feels to see someone getting credit for work they didn’t really do, and American cultural history is full of examples of white artists appropriating the genius of their less privileged black competitors and predecessors. Isn’t the ‘Blurred Lines’ verdict a welcome victory in a longer war?

As is so often the case with copyright, the lines between right and wrong are no more clear-cut than those between original and unoriginal—a distinction that no higher power has ever sufficiently explained to us mere mortals. The Gaye family decried the fact that “Blurred Lines” imitated the “feel” and “sound” of Marvin Gaye’s 1977 hit “Got to Give It Up,” and the court instructed jurors in the case to determine whether “Blurred Lines” shared the “total concept and feel” of the original — an arguably vague bit of advice for jurors unfamiliar with the intricacies of copyright.

No doubt the two recordings share a “groove.” Thicke and Williams deliberately set out to capture the funky, winsome feel of late 1970s R&B when they wrote and recorded the song. Thicke admitted as much in interviews prior to the suit, seeming to lend credence to claims that he was a shameless and inveterate copycat.

But is it wrong to name your influences? Every artist is inspired by those who came before them, and it strikes me as odd that musicians would have to police what they say about their music when talking to the press. (U2’s Bono once said that “every song we’ve ever written was a rip-off of a Lou Reed song.”) And does sharing a “sound” or “feel” constitute copyright infringement? Can infringement hinge entirely on a gut feeling about resemblance?

In fact, American copyright has never protected these elements of music. Traditionally, the law protected only what could be written down on the page—the lyrics and melody of a song—not its rhythm, timbre, or tone. The Copyright Act did not even cover sound recordings until 1971, when an explosion of tape piracy finally motivated Congress to provide a separate copyright for the recorded performance of a song, rather than just the written composition.

Take, for instance, a complex case about jazz in the late 1940s. Chicago pianist Jimmy Yancey helped develop the genre of boogie woogie, a type of jazz that often features frenetic improvisation around a chugging piano line of melody.  He influenced fellow musician Meade Lux Lewis, who went on to write “Yancey Special” as a tribute to his inspiration.

“The unsavory Robin Thicke could be right about copyright even if he was wrong about consent.”

Lewis, however, later sued Alphonso Tompkins and Lewis Simpkins for infringing the composition. Soon enough, Yancey himself got involved.  He argued that Lewis’s “Yancey Special” was actually a copy of his own work—meaning that Lewis had no grounds to sue someone else for infringing his song since it was, in fact, not original.

In his 1950 decision, Justice Michael Igoe waved away these competing claims. What the songs shared was simply “a mechanical application of a simple harmonious chord.” Like “Blurred Lines” and “Got to Give It Up,” they may have had a similar sound, but that did not amount to copyright infringement. “The purpose of copyright law,” Igoe intoned, “is to protect creation, not mechanical skill.”

One can doubt Igoe’s ear for jazz, but he was simply following the law when he ruled that there was nothing copyrightable to plagiarize in the “Yancey Special” case. Some innovations of jazz in the 1940s fell outside the ambit of copyright, which did not protect the sound, feel, or style of the performance.

As the Yancey case shows, the battle over copyright is not necessarily between right and wrong, or geniuses and thieves, but often between different artists. Such fights are about their competing claims about the nature of creativity—not to mention disputes over the almighty dollar.

Indeed, the issue in “Blurred Lines” is whether the heirs to a pop fortune can extract rents from a new (and, admittedly, also very rich) group of musicians. Marvin Gaye’s daughter Nona told the press that she was finally “free from … Pharrell Williams and Robin Thicke’s chains” when the court ordered a $7.4 million payout to her family. But following this ruling it may be future songwriters and musicians who find themselves enchained.

Featured Image: “Robin Thicke performing” by Melissa Rose. CC BY 2.0 via Wikimedia Commons.

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