In creating “Blurred Lines,” Robin Thicke and Pharrell Williams admitted to capturing the feel of the Marvin Gaye song “Got To Give It Up.”
DID Pharrell Williams and Robin Thicke get a fair trial in their litigation with Marvin Gaye’s estate over their song “Blurred Lines” and Gaye’s “Got To Give It Up”? Some copyright scholars don’t think so, and Williams and Thicke are now requesting a retrial. They claim that jurors were misled about copyright law and by the evidence about Gaye’s copyright.
We disagree. Not only is the decision consistent with copyright law and Gaye’s composition, it may also be the most important legal victory for artists of color in decades.
In the 1970s, Gaye created a new style of R&B typified as much by his innovative orchestration of voices and instruments as by any particular melodic elements. “Got To Give It Up” is a great example.
In creating “Blurred Lines,” Thicke and Williams admitted trying to capture the feel of “Got To Give It Up.” Music critics remarked on the similarities to Gaye’s song while DJs around the world made “mash-ups” of the two songs. When the Gaye estate contacted Thicke and Williams about possible infringement claims, the latter pre-emptively sued the estate, seeking a court declaration clearing them of liability. The Gaye estate countersued.
Thicke’s and Williams’ musicologist argued against infringement because no two consecutive notes in the songs have the same pitch and duration. However, this was based on a narrow reading of the “lead sheet” submitted to the U.S. Copyright Office for registration of Gaye’s copyright. The musicologist asserted that any perceived similarities between the two songs were solely from elements in the recording that were not in the lead sheet.
But the musicologists for Gaye’s estate argued that the songs shared “a constellation of eight substantially similar features” that “surpass the realm of generic coincidence, reaching to the very essence of each work.” Essentially, they claimed that comparison should not be limited to the traditional European focus on a “lead” melody.
Instead, they argued, rhythmic, harmonic and orchestration elements are important in musical compositions. The arrangement of these elements creates a “total concept and feel” that can be protectable as well. The musicologists testified that some of these elements and the overall feel could be inferred from the limited lead sheets, and that “Blurred Lines” improperly copied much of this. The jury ruled for Gaye’s estate.
So what’s all the fuss about?
Critics argue that this approach is inconsistent with customary music copyright infringement analysis. According to them, elements other than direct melodic similarities are unprotectable as “genre” or “style.” Likewise, “total concept and feel” should not be recognized. Finally, they argue the jury was misled by a new performance of Gaye’s song played from the lead sheet created for the trial.
However, none of this is precluded by copyright law. While music copyright cases up to the mid-20th century often focused on catchy melodies, contemporary cases consider harmonic and rhythmic elements as well. The older view derived from a white, European — often “high brow” — approach to music. This marginalized the influential harmonic and rhythmic innovations of artists of color from jazz on through rock and hip-hop. While black artists complained about these issues for decades, it is only when the tradition of white misappropriation of black musical innovation is threatened that the system comes under thunderous scrutiny.
Further, a narrow interpretation of lead sheets is inappropriate. Like many composers in modern pop music genres, Gaye did not read or write European music notation. Instead, he composed the song in the studio, directing performances and the recording. Afterward, as frequently happened in these cases, someone from the record label or music publisher fluent in music notation created the lead sheet, writing down only the lead melody, lyrics, names of chords and, thankfully, at least the key bass riff.
Thus, allowing the jury to hear the interpretation of “Got To Give It Up” from the lead sheet was entirely appropriate. As the judge pointed out, “The ordinary person presumably cannot sight-read [sheet] music and determine its sound.” Further, this ruling benefited Thicke and Williams more than Gaye’s estate. The travesty of the old lead-sheet system means that distinctive parts of Gaye’s composition, especially percussion and backing vocal parts, were not before the jury.
The older focus on literal melodic copying systematically disfavored artists of color. Relying on this presumed exclusion of harmonic and rhythmic elements, record companies perennially promoted white artists from Elvis Presley to Iggy Azalea who could perform songs imitating artistic innovations of black artists. Many copyright experts have been content to live with this system, so long as marginalized artists of color were the ones to suffer the inequity.
With its victory, the Gaye estate may have finally found a way to legal recognition and respect for the valuable musical contributions of artists of color. This shift in who benefits from copyright may be what the fuss is really all about.