November 8, 2014
What’s the difference between being influenced by a song and stealing one outright? A case involving a dispute between some very well known tunes took an interesting turn this week and suggested this question may be much harder to answer than you think.
One of the biggest songs of the past couple of years was “Blurred Lines” by Robin Thicke. Thicke was one of those oft-ignored fixtures of pop music’s B-list who in an attempt to branch out from adult-contemporary radio started working with Pharrell Williams. The result was a massive radio hit and the unquestionable Song of the Summer in 2013, stealing the mantle from another Pharrell fronted track in Daft Punk’s “Get Lucky.” The song went on to sell 6M copies and spent 12 weeks at #1. It was a career boon for Thicke who went on to enjoy a moment in the spotlight that few ever get, and even less are prepared for.
Extreme popularity can bring extreme amounts of scrutiny, and “Blurred Lines” was immediately under fire for the perceived misogyny in its lyrics and video, which featured a besuited Thicke and Parrell surrounded by scads of topless women. While that storyline will inevitably remain as an important part of the legacy of both “Blurred Lines” and Thicke as an artist, nothing will cause a re-evaluation of the song’s stature as a bona-fide zeitgeist hit like what came next.
This next chapter began in the most bizarre way possible: Robin Thicke filed a lawsuit against the estate of Marvin Gaye. Why? Because he’d heard they were planning on suing him. Wait… what? Marvin Gaye’s family was planning on (and eventually ended up) suing Thicke and Pharrell for copyright infringement, alleging there were some uncanny similarities between “Blurred Lines” and Gaye’s 1977 Disco classic “Got To Give It Up.”
Fast forward about a year to October 30th, 2014 where a judge ruled that the case against Thicke and Williams actually has sufficient merit to stand trial by jury to determine if infringement occurred and if so, what damages may be assessed to the family of Marvin Gaye. This was in response to a motion by the two to have the Gaye family’s suit dismissed, and there was a great deal of testimony heard from the writers and expert musicologists. The expert testimony was most revealing in that it didn’t point to meaningful similarities at all at the composition level. Musicologist Sandy Wilbur testified that there are no two consecutive notes in a measure of “Blurred Lines” that have the same pitch, duration or placement as “Got To Give It Up,” yet the case moves on.
The fact that the case is progressing despite there being no definitive technical similarities proven between the two songs opens the door to speculating about some of the non-musical aspects of the case such as context, intent, and good old fashioned gut instinct, which may end up having a larger than expected influence on the jury’s eventual decision (assuming they don’t settle beforehand).
First, let’s look at context. Thicke claimed in his preemptive suit that he loves Marvin Gaye and only sought to capture the sound of an era with “Blurred Lines.” Could that explain the aesthetic similarities in the sound of the recordings? As “Got To Give It Up” was released in 1977 and is widely regarded as a Disco classic, let’s assume he’s taking about the Disco era. Interestingly though, the recording’s most distinctive features are the things that differentiate it from the genre, the shout out ad-lib vocals, percussion arrangement, and beat all lend themselves to funk and soul as much as disco. Unfortunately for Thicke’s argument, these differentiators also represent some of the most similar aspects between “Blurred Lines” and “Got To Give It Up” and can hardly be considered staples of Disco music. To Thicke though, these were distinctive elements of an era of music, not just one song, and it just so happens that the first several seconds of each recording are hardly discernible from one another. Compelling though this may sound, these contextual elements are not a material factor in this case. The Gaye family is limited by the current ruling to litigating on similarities in the sheet music only, and not in similarities in the sound recordings, which is where these aesthetics are present. Will the jury be able to fine-tune their understanding of the difference between composition and recording to exclude the latter entirely, despite how well known each recording is? In my experience as both a publisher and music supervisor, I can say the average listener tends to see a music composition, and that composition’s most famous recording, as one in the same and this could be very difficult for the defense to untangle.
Next, let’s look at intent. Did Thicke and Williams intend to copy “Got To Give It Up?” Intent sounds like it’s extremely hard to prove because it’s almost impossible to have insight into a songwriter’s thought process to see how one song might have influenced another. Impossible that is, until something makes is completely possible. In June 2013, Thick spoke to GQ, months before there was any talk of a lawsuit of infringement, and said the following words out loud to someone who was paid to accurately write down and publish the words he said:
GQ: What’s the origin story behind your new single “Blurred Lines?”
Robin Thicke: Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s “Got To Give It Up.” I was like, “Damn, we should make something like that, something with that groove.” Then he started playing a little something and we literally wrote the song in about a half hour and recorded it. The whole thing was done in a couple hours.
Though he later claimed under oath that this statement was a lie (and that he didn’t remember the session at all because he was high), Thicke placed “Got To Give It Up” in the same room, at the exact moment of the creation of “Blurred Lines,” which immediately makes intent a factor to consider here. Williams and Thicke had already “conceded access” to the song (meaning they admitted that they’d heard it before) but placing it in the recording session makes it much easier to believe that they had intent. Does intent matter if the songs are not the same musically? What I can speculate here is that if there is a belief that there was intent to copy the song, the jury may (consciously or unconsciously) add weight to the small technical similarities that do exist between the songs, and this is bad for Thicke and Williams.
Then there’s the question of gut instinct. What do you think when you hear it? Did they steal it, or is it homage? Legally speaking, this argument has no standing whatsoever, but it may still be a factor. Gut instinct is relevant because the case will be argued in front of a jury of laypeople, where the intangibles are going to matter much more than to a judge well versed in the nuances of copyright law. The musical analysis of both compositions is highly technical and both sides will make compelling arguments in their own favor. The jury will be hard-pressed not to be influenced by their own opinions of whether Thicke and Williams are credible when they say they had no intent to copy the song. This is complicated by their bizarre behavior since before the story broke and continuing throughout the recent proceedings. There was cringe-worthy interview from GQ, the preemptive lawsuit, Williams testifying that he could read music then failing to do so when shown some sheet music, Thicke testifying that he didn’t remember the recording session because he was drunk and high on Vicodin. None of this is compelling evidence of intent, bad will or infringement itself, but it may have an impact on the jury’s mindset and ultimate decision.
The title of this article is not original, it’s actually the name of a website set up by the Icelandic band Sigur Ros, a band is well known for, among other things, refusing to place their music in commercials. This policy has frustrated many advertisers who would love to license their music to help sell their products. Not to be deterred, many have gone out and commissioned replicas of Sigur Ros songs to use in their commercials, many of which can only be described as willful infringements on Sigur Ros’ copyrights. The band can’t afford to litigate these cases so they set up this site to at least shame the brands in a public forum. In my opinion, many of the pieces on display are very cut and dry examples of infringements that demonstrate clear intent by using one specific song as the basis for the creation of another. Was this the case with Thicke and Williams? Right now, it’s still a little blurry.
[This article was written by Rob Filomena, CD Baby’s Director of Music Publishing.]