On March 10, 2015 a shockwave hit the music world. In a high profile copyright infringement case, Marvin Gaye’s heirs were awarded $7.4 million after a jury ruled Pharell Williams and Robin Thicke infringed on Gaye’s composition ‘Got to give it up’. The particular way the groove of Gaye’s song was copied in Blurred Lines constitutes infringement. In the press musicians and legal scholars expressed their fear the verdict would stifle creativity in such a way that sonic references to the classics are no longer allowed. The verdict would stifle creativity if the new legal standard for copyright infringement would be ‘reminds me off’instead of ‘substantial similarity’.
Under US Copyright law, a plaintiff must establish (1) ownership of a valid copyright, and (2) copying of protected elements of the plaintiff’s work. As evidence of direct copying is usually absent, the proof of infringement must come from the fact that the defendant had access to the plaintiffs work and that both works are substantially similar. First a proper assessment of the musical content is necessary. From the musical facts, the legal arguments must be distilled. In the Blurred Lines-case something evidently went wrong.
What is protectable?
Although the Blurred Lines case was tried under US law, and US law is not my jurisdiction, the legal concept of originality is the same under Dutch law.
Not everything composers create is copyrightable. Copyright only protects concrete musical expressions and not (musical) ideas or (musical) concepts. The ‘groove’ or ‘feel’ of a composition is a common place element, which is not protected by copyright. Non-copyrightable elements are free for everyone to use. A few examples:
- the Edge (U2) can not forbid the use of delays on guitarlicks;
- Black Sabbath can not forbid the use of heavy powerchord riffs;
- Nile Rodgers can not forbid the use funky guitars in our tracks;
A concrete – and hence – protectable expression can not only be found in single compositional elements such as a specific melody, harmony, rhythm or lyrics but also in a combination of such compositional elements. This protectable combination could consist of both protectable or unprotectable compositional elements.
In order to succeed, Marvin Gaye’s heirs had to prove that Got to Give it Up was copyrightable and that the copied elements in Blurred Lines are substantially similar to the original track. The Gaye-family claimed that Williams/Thicke copied eight significant and substantially similar compositional elements:
- Signature Phrase in Main Vocal Melodies;
- Hooks : take a good girl vs keep on dancin’
- Hooks with backup vocals;
- Core theme in blurred and backup hook in Give it up: if you can’t hear vs dancin’ lady;
- Backup hooks;
- Bass melodies;
- Keyboard parts;
- Unusual percussion choices: cowbell.
- Both songs use distinctive falsetto in their vocal parts.2 Both songs deviate from the norm in their instrumental scoring by omitting a guitar. 39. Both songs contain party noises as one of the accompanimental elements throughout the song;
- The above traits enhance the perception of similarity between “Give It Up”; and
- “Blurred” and represent additional shared creative choices made by the composers of both songs.
Is it original?
The first question that needs to be addressed is the originality of the alleged copied compositional elements from Gaye’s track.
My friend Joe Bennett analyzed some of the musical facts in his excellent blogpost which you can find [here]. Joe transcribed some parts and sheds some light on the matter. He concludes as follows:
- Blurred Lines is 120 beats per minute.
- Got To Give It Up is 122 beats per minute.
- Both songs feature a syncopated cowbell part and an electric piano (Gaye’s bassline is actually played on a 1976 RMI harmonic synthesizer).
- The vocal melodies and lyrics of the songs are very obviously different from one another.
- The songs have different chord patterns from each other.
- The recordings are in different keys; ‘Blurred Lines’ is in G; ‘Got To Give It Up’ is in A.
The 8-bar bassline loops identically throughout the song .Blurred Lines (Robin Thicke). This 8-bar bass line is looped throughout the song.
When compared note for note like this, the dissimilarity is obvious. These basslines use different notes, rhythms and phrasing from each other. They’re even taken from different musical scales. Thicke’s bass notes are all taken from the mixolydian mode; the Gaye bassline is based around the pentatonic minor scale.
Got To Give It Up (Marvin Gaye) – transcribed from bar 5 [0:14]. This bassline employs substantial rhythmic variations throughout the song.
Blurred Lines (Robin Thicke). This 8-bar bass line is looped throughout the song.
Now let’s look at that cowbell. Gaye uses the following cowbell riff, which plays pretty consistently through the track. Thicke’s song has more cowbell. The upper one (panned right in the mix) plays a specific pattern, with a different rhythm from the Gaye song; the lower one (panned left) plays an off-beat, like a reggae ‘skank guitar’ groove. The lower one drops in and out periodically during the track. Thicke’s cowbells (actually a cowbell and another percussion instrument that sounds to me more like an electronic clave) syncopate on the 16th notes (a semiquaver groove); Gaye’s song is very clearly an 8 groove. The only similarity is that each riff plays the first three 8th notes (quavers) of the bar.
An unprotectable combination of unprotectable compositional elements
Many of the claimed similarities can be attributed to commonplace elements. In music there are musical buildings blocks. In songwriting there are song structures, ways to arrange backing vocals that make sense musically and are pleasing to the ear. Song structure or the concept of arranging a backing vocal is not copyrightable. These commonplace elements are free to use for everyone in order to stimulate creative progress.
This means that some of the claimed copyrightable elements from Gaye’s track are not copyrightable. The hooks with and without backup vocals should have been examined on originality. The signature phrase in main vocal melody were claimed to be crucial elements of the song’s identity. A signature phrase or sound is about recognition and not about originality in the sense of the Copyright Act.
The bass and keyboard parts may be original, considering the low threshold of originality. The bassline however seems pretty straightforward, following the tritons of an A-chord. Prior art research could prove the contrary however. Perhaps Pharrells’ musicologist tried to argue this exact point.
About the cowbell…it is not an original compositional element. War’s Low Rider (1975), which predates Gaye’s track, also contains a cowbell. In the 70’s cowbells were hot. Instrumentation, which is common within a certain genre is also not copyrightable. Only concrete expressions can be protected. In this respect the claim of the Gaye-heirs also is debatable: the cowbell is not an unusual percussion choice.
None of the additional similarities summed up by the Gaye-family constitute concrete expressions but are mere musical concepts, which are not copyrightable.
In conclusion, it is highly debatable if the claimed copyrightable elements are in fact original in the sense of the Copyright Act.
The tracks are not substantially similar
The criterion for infringement is ‘substantial similarity’ not ‘intent’or ‘reminds me off’ or ‘sounds like’. From a copyright point of view there is no substantial similarity between Blurred Lines and Got to give it up. This follows directly from the musical facts. The so-called substantial similarities are far fetched.
The compositional elements which were allegedly copied are either not original and hence are not copyright protected; or too different in both tracks.
The similarity between Blurred Lines and Got to give it up mainly stems from the sonic reference to Gaye’s track. Yes, both tracks share the Seventies vibe. The jury had to rule substantial similarity from the lead sheets of Gaye’s track. The sonic reference is something which cannot be assessed from the lead sheet but from the sound recording. The sound recording however was not admitted in the trial. Gaye only had a copyright in the lead sheet of the composition. The comparison between the two litigious songs would have mainly considered notes. The notes of Got to Give it Up have not been copied in Blurred Lines. Nevertheless, the jury seems to conclude that the combination of an electric piano and a cowbell (among other of the above mentioned elements) is substantially similar in the lead sheet of both tracks. As my friend Joe Bennett pointed out and I certainly agree with him after comparing scores of both track, the dissimilarity in both tracks is undeniable. To the extent that some compositional elements may reoccur in Blurred Lines, it is insufficient to conclude substantial similarity. The intrinsic test, which is applied by the Ninth Circuit (jurisdiction in Los Angeles) is tricky at best to apply in a musical context. The ‘total concept and feel’ of a song may be attributed to unprotectable elements such as in Gaye’s track. It is not surprising that the lay jurors felt that the total concept and feel of both tracks was similar.
How did Pharell and Thicke lose their case?
Jury trials are unpredictable. Jurors are generally not knowledgeable in either the law or music. This means that they have only the lawyers’ words to rely on. The jury may have disliked Thicke’s flip flopping about the songwriting process of Blurred Lines. The jury may have interpreted Pharrell’s admission to copying the Seventies feel of Gaye’s track as arrogant: a little bit of stealing is not stealing? Perhaps the jury found the Gaye’s estate’s lawyer more convincing. Who had the better performing musicologist? Perhaps the underbelly feeling of the jury that if one ‘steals from Marvin Gaye’ one should be punished, set the tone? Blurred Lines was a monster hit which the jurors can be assumed to have heard numerous times before the trial. Perhaps they watched the YouTube comparisons with Gaye’s track? Who knows? In conclusion there could be a number of factors attributing to the verdict. Some of these factors would have very little to do with copyright law and everything with litigation and the fact that jurors are people too.
Music copyright is not an easy subject. When one fails to correctly assess originality in music, we will be stuck with rulings just like the Blurred Lines verdict. The problem with the verdict is that 1) protection was granted to a unprotectable combination of compositional elements and 2) incorrect assessment that both track were substantially similar. When copyright protection is granted to unprotectable elements and mere association between tracks constitutes infringement, that is applying the wrong legal criterion. Team Pharrell has in the meantime announced it would appeal the decision.
Will the verdict stifle creativity as many musicians and lawyers fear? Musicians will always create first and then worry about the legal complications. In that respect, creativity will still roam free. The verdict may however impact the behavior of record labels and publishers being more reluctant to sign deals. If a deals gets signed, it may contain extra guarantee and indemnity clauses.
Thanks to Joe Bennett for letting me quote from his post. Pay a visit to his blog here.