The line between musical emulation and theft can be fuzzy.
All the heat accompanying charges Pharrell Williams plagiarized Marvin Gaye’s “Got to Give it Up ” in creating the hit, “Blurred Lines,” might lead some to think this a new phenomenon. It’s not. Musical borrowing and outright theft have been with us for a very long time. But this case raises some interesting questions about just how far you can go in borrowing musical elements.
Often, separating emulation and adaptation from outright robbery is a tricky business. Factor in human nature as well as judges, lawyers and juries who don’t really get songwriting, and it’s easy to see how some of pop music’s biggest thefts have gone unpunished while other artists and songwriters have been unfairly accused. The “Blurred Lines” case brings into sharp focus just how fuzzy copyright law can be.
In a soft 2013 music market, the 7.3 million copies “Blurred Lines” sold in the U.S. alone was a breath of fresh air. What wasn’t so fresh, perhaps, was the rhythmic groove of the song.
Old-school soul fans quickly identified it as being pretty much identical to the rhythm structure of Marvin Gaye’s 1977 hit, “Got to Give it Up”. While the lyrics, instrumentation and melodic lines only bore modest resemblances to Gaye’s song, his estate cried plagiarism and sued.
When Marvin Gaye’s heirs heard the groove in Robin Thicke’s “Blurred Lines,” they cried foul and a jury agreed.
On March 11 of this year a jury awarded the Gaye estate $7.4 million for copyright infringement. The court found that songwriter Pharrell Williams had gone over the line in mimicking Gaye, who, by Williams’ own admission, was a part of his music landscape growing up.
Was Pharrell Williams ripping off his musical hero or perhaps unconsciously paying tribute to him?
One thing is clear: The judgment will be appealed and will likely take years to be finally adjudicated. What’s also clear is that the verdict hinged on a comparison of the sheet music for the Gaye song versus the Thicke recording. Had the two recordings been compared instead, they would reveal more similarities beyond the obvious drum and bass grooves: the falsetto male vocal, upbeat party atmosphere, tempo, and overall “vibe” are all strongly suggestive of “Got to Give it Up.”
You might ask why such a comparison wasn’t made. It all goes back to Gaye’s original copyright registration. The handwritten score he submitted doesn’t refer to such matters as his falsetto vocal, mood and so on. Due to legal wrangling, the jury only heard a rendition of Gaye’s song created from the score expressly made for the trial as well as a greatly simplified, edited version of the sound recording. Despite this the jury was clear in its verdict.
A little copying is cool
Like so many things in life, the law about copyrights is fuzzy in spots, and the “Blurred Lines” case is a poster child for that fuzziness. In our legal system, your claim has to pass two tests to win a copyright case. The first question is, “did they copy?” The second, and far more complicated question is, “was their copying legal under the law?”
There are lots of examples of legal copying. When Weird Al Yankovic parodies a totally familiar song, everybody knows it and nobody sues. But things get legally squishier when the song’s intent as a tribute or parody is less obvious. Courts use murky terms like “improper appropriation” and “substantial similarity” to describe this second test.
As with any other case, jurors need to understand the law, and “Blurred Lines” was no exception. The trial judge gave the jury 44 separate instructions to follow in arriving at their verdict, one of which has been roundly criticized by copyright law expert. Instruction 27 reads, “Anyone who copies original elements of a copyrighted work during the term of the copyright without the owner’s permission infringes the copyright.”
The instruction is uncharacteristically cut and dried—and according to experts, wrong. Interpreting that instruction strictly, copyright holders would be lining up to sue Weird Al, and they’re not. But in cases not involving parodies, there’s a legal concept called “substantial copying.”
Borrowing other musician’s ideas is inevitable. Anyone playing rock, reggae, blues, country, soul, metal—you name it—will consciously or subconsciously copy riffs and song structures they’ve been influenced by. To commit “substantial copying” usually entails not just copying an idea or stray lick, but also mimicking the original author’s expression and technique. Getting to a judgment that the copying is “substantial” usually involves an accumulation of evidence pointing to obvious similarities between the original and new song.
Many copyright lawyers now worry that in the wake of the “Blurred Lines” case, artists will be more reluctant to build on and adapt musical elements from the past, fearing big judgments by copyright holders. In their minds, the case sets up a precedent that will ultimately stifle creativity and put a chill on music that draws extensively on earlier recordings for inspiration.
When does borrowing turn into outright theft? Weigh in below.