You may not like the song “Blurred Lines” much. But if you find that tune grating, you may find the inability of US copyright law to differentiate degrees of copying even more painful.

Here’s the latest strangeness. When we last joined the American courts finding extreme interpretations of copyright, an appeals court decided to blow away the de minimis doctrine for sampling. That’s “de minimis” (Latin), as in “size matters not” (um… Yoda).

The idea was, there was no need to measure the significance or size of a sample in the N.W.A. song “100 Miles and Runnin’.” The court helpfully offered at the time, “Get a license or do not sample. We do not see this as stifling creativity in any significant way.” Here’s a reasonable summary (my Keyboard article I think is not online):

Bridgeport Music, Inc. v. Dimension Films

In fact, many at the time thought that stifling creativity is exactly what could happen. Without a de minimis standard, or “bright line test,” any sample becomes infringement. A common sense law wouldn’t do that: almost any logic of justice looks at harm and amount. (Imagine if shoplifting counted stealing a corner of a leaf from a strawberry.) With digital sampling, just working out where sounds have come from can be a challenge. As if to illustrate that point, you’ll notice that the N.W.A. case involved Dimension Films. The N.W.A. sample was licensed – it just lacked mechanical rights, so Bridgeport descended on an unauthorized use of the sample (by way of the song) in a film.

Here’s the irony: the Bridgeport case was so over the top that it didn’t stifle creativity. It stifled any lawsuit that would dare cite such a dangerous precedent. Germany, the other country you can count on to be more or less totally insane when it comes to licensing (hello, GEMA overlords), reached a similar case later, but that was it.

In 2005, when the case was decided, I was researching the article for Keyboard. Back then, recording and publishing entities were already scared of the Bridgeport Music precedent. Why? Because it massively expanded potential liability. If a sample could be unrecognizable but still infringement, any material could infringe. A rights owner wouldn’t want to bring a case using that argument over one piece of music, because they might face similar suits.

In other words, the court going nuclear meant mutually assured destruction for everyone.

Well, if you’ve caught the case over Robin Thicke’s “Blurred Lines,” my view is that we now essentially get the same level of absurdity for musical content.

Musical similarity is supposed to be different. If digital laws have failed, that is actual mechanical sampling of another song, laws around musical content itself – the stuff you put to score or perform – at least still has an established precedent of substantiality.

So, how exactly did the musicians behind “Blurred Lines” lose this case?

Robin Thicke, Pharrell Lose Multi-Million Dollar ‘Blurred Lines’ Lawsuit [Rolling Stone]

The question is not whether “Blurred Lines” is a good song, or even whether it’s original. Truth be told, it isn’t. It is clearly a tune that borrows heavily from the earlier Marvin Gaye song – it’s essentially a new song written in the old template. And if it comes to taste, many of us would choose Marvin Gaye over Robin Thicke. Ahem. (Even before we get to the ridiculously sexist video.) But taste isn’t what’s an issue. The question is what constitutes infringement in the eyes of the law.

The good news is, the case brought by the Marvin Gaye estate at least does apply some kind of de minimis logic. Musicologist Judith Finell apparently diagrammed some eight similarities in the song, and the closing arguments by the Gaye estate lawyer leaned heavily on that fact. You can follow the closing arguments in the excellent blow-by-blog coverage The Hollywood Reporter has been doing:
‘Blurred Lines’ Trial: Marvin Gaye’s Family Seeks $25 Million in Closing Argument

The bad news is, the actual material isn’t a sample – not in the digital sense as in the N.W.A. song, but not even in the literal musical sense. There are musical gestures and structures that are similar in “Blurred Lines” to those in “Got to Give it Up.” What I can’t see is any sense that the actual details would warrant the multimillion-dollar award the Gaye estate just won.

I’m not sure I’d be able to wax poetic about the originality of Robin Thicke, Pharrell Williams and T.I. in the way that their lawyer Howard King does. That’s why I’m not a lawyer. (It didn’t help that Thicke actually testified he was drunk and high on Vicodin at the time.)

But I agree with King’s argument says that “the Gaye defendants are claiming ownership of an entire genre, as opposed to a specific work.” (See Rolling Stone at the time, covering a pre-emptive lawsuit by the “Blurred Lines” creators under the threat of a lawsuit.) For kicks, our friends at Bridgeport Music were again involved in the suit (those parties reached an agreement).

Never heard of Bridgeport Music? That’s with good reason. The sole existence of this company is a musical equivalent of the patent troll – call it a sample troll. It’s an entity that exists solely to sue.

You can listen to the comparison at top and get a sense of just how wild this gets. This is essentially a formally similar, structurally similar song, yes, but with a different melody and different rhythmic parts. Whether the results are sufficiently original to be good music or not, they do seem to be the level of variation one would associate with most musical creations in a genre context.

And if those are now fair game for litigation, it’s a little scary. Ironically, as lawsuits around samples first started to pile up in the hip hop world, as those artists were essentially punished for using digital sampling hardware, the solution was to simply play a part on an instrument.

And it’s not as though any of this sort of copyright law or sampling is always helping original artists. Years of “Amen, Break” samples left the actual drummer to die penniless – the very thing intellectual property law is supposed to keep from happening. By the standard of this decision, the opposite extreme is true: you couldn’t even play your own breakbeat ever again, because someone else could sue you.

Imagine the history of music if, not only you couldn’t “sample” a few notes by playing them again, but you couldn’t make any musical gestures with similar grooves, rhythmic structures, chord structures, or forms.

Congratulations: you’ve broken music.

Even worse, it seems that the solution would be to make music so generically similar that it wouldn’t sound like anything – you know, more or less a lot of the chart-topping music you hear today. Compare the history of jazz and blues, for instance, which produced creativity partly because so many of the stock elements of the songs were intentionally copied from one piece to another.

To that, the likes of the Gaye heirs now say to any new music, all the things you are, are mine.

And yes, that counts as a chilling precedent if this sort of interpretation is repeated..

You don’t really think you’re going to get away, do you? Good luck, brothers.

Hey, the infringing song was pretty damned good, right?

Update:

For a great comparison of the two songs (thank you, Facebook friends), turn to musicologist Joe Bennett, who transcribes the two songs.

Did Robin Thicke steal ‘Blurred Lines’ from Marvin Gaye?

(Spoiler alert – but these excerpts are almost comical to read, if this case weren’t so stupidly tragic.)

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.

And regarding the Thicke song (chortles all around):

Thicke’s song has more cowbell.

And here’s the best bit, from the legal team behind the Gaye children: “[Thicke has copied] the defining funk of the cowbell accents.”

Cowbell2

Hilarious. So, that makes essentially all music illegal.

If you make music, I would read this case to say you have almost certainly infringed copyright. In fact, if you haven’t, you’re probably terrible at music.

But see my comments above about Bridgeport. It’s such a stupid idea, it’d be insane to ever apply it.

Regarding precedent / copyright law: I should be clear, this is a district court decision but not a legal precedent. Unlike the Bridgeport Music case I mentioned (or that Kraftwerk case in Germany), it’s not the law of the land. It can be appealed, in the specific – and hopefully for the sake of legal precedent, the Thicke/Williams team does just that. When the Thicke/Williams lawyer worried about setting a precedent, he apparently doesn’t mean in the legal sense.

The question I would have is the ongoing failure of the law (as in the Bridgeport Music case) to determine degree of infringement. That ultimately hurts both ways. One one hand, it can allow “sample trolls” to stifle creativity, by being too broadly defined – anyone becomes potentially exposed to litigation. And that doesn’t necessarily just have to include superstars; Dimension Films got burned just because the unlicensed mechanical rights were missing.

On the other, a law so broadly defined that makes everyone liable might make it undesirable to bring any litigation in the first place – and if you can’t do that, if there isn’t a defined area of infringement, artists can’t defend themselves when they’re ripped off.

This doesn’t shift precedent, in other words, but the absurdity of the process here should still give pause.

And the question is, do we have a copyright framework in which sufficient substantiality requirements protects creativity – or do we need to revise the underlying law? Did the jury (and “Blurred Lines” lawyers) get it wrong here? Or do we need to do more with the law they followed? (Or, possibly, all of the above?)

How it’s supposed to work:

Nice reading here. But the law of the land on music generally (not including sampling, which is by definition an explicit copy) does have a substantiality requirement – a tough one. So I’m willing to accept one possibility here is that some ill-advised choices by the defense and unusually horrible testimony by Thicke may be to blame, and not US copyright law.

http://www.pattishall.com/pdf/UnderstandingSubstantailSim.pdf

That’s a legal explanation. Here, LA Weekly seems to agree with me – whether this is legal precedent or not, it sets an example for other frivolous lawsuits that attack songs for “ripping off” another song on style.

Basically, the songs were similar in basic elements like the “thematic” quality of the song (great, so if you write a breakup song you’re ripping off another breakup song?), and similar melodic/rhythmic elements. But similar isn’t identical. It doesn’t copy the song; it sounds sorta kinda like the song. Or in other words, by allowing Robin Thicke to come off “like an asshole,” the flood gates are open for anyone to sue anything based on “feel”:
GREAT, NOW “BLURRED LINES” HAS RUINED THE ENTIRE MUSIC INDUSTRY [LA Weekly – Andy Hermann]

That writer also notes that part of what the jury punished Thicke for was admitting influence. That alone is a dangerous case: “Musicians admit their influences all the time. And they should. There are only so many notes on the scale, only so many tempos and drum patterns, only so many harmonics pleasing to the human ear. Every song, no matter how great or how terrible, builds on the work of past artists.”

A nice line here: “It may have been a terrible, tacky, derivative homage, but just as the First Amendment protects the most offensive language, copyright law should protect the lamest ripoffs if they fall short of the legal definition of infringement.”

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  • damn! who started copying them blues chords?

  • dabravanel

    well-stated! This sets a really unfortunate precedent.

  • damn! who started copying them blues chords?

  • dabravanel

    well-stated! This sets a really unfortunate precedent.

  • Kinetic Monkey

    I’m just sat here enjoying making music and receiving no money in return. Come at me, lawyers, but it really won’t be worth your while. The benefits of total obscurity!

  • Kinetic Monkey

    I’m just sat here enjoying making music and receiving no money in return. Come at me, lawyers, but it really won’t be worth your while. The benefits of total obscurity!

  • chaircrusher

    All this lawsuit proves is that a smart lawyer can seat a sufficiently ignorant jury and proceed to baffle them with bullshit. The average persons eyes glaze over when musicologists start talking; I’m betting some of the jury would have a hard time telling you whether a song is in 3 or in 4, or in a predominantly minor or predominantly major mode.

    The law — I thought — was clear: LYRICS, MELODY, ARRANGEMENT. All 3 are demonstrably different in these two songs.

    • That’s correct. As the LA Weekly story I added suggests, though, it wasn’t that the jury was not only convinced of the musicological argument so much as the lawyers for the estate leaned heavily on the fact that everyone thinks Robin Thicke was an asshole. 😉

      I wonder why the defendants’ lawyer closed his argument without attacking the case on musical merits and why he *did* try to hold up the creative genius of his clients. That … seems like a mistake.

      • just passing

        It’s not the first time a defence lawyer has misread the zeitgeist, and it won’t be the last. But what I find interesting is that we seem, as a civilisation, to be moving away from the old Enlightenment idea of “never mind the asshole who made it, feel the art!” into a world where the personality of the creator has a direct bearing on how the creations are interpreted. Maybe this judgement, following on the defence lawyer’s appeal to creativity, is another reflection of that.

        Also, the irony of the writers of a song about taking what you want without consent being found to have taken what they wanted without consent while writing it? That’s just too delicious for a jury to pass up, surely. 😉

  • chaircrusher

    All this lawsuit proves is that a smart lawyer can seat a sufficiently ignorant jury and proceed to baffle them with bullshit. The average persons eyes glaze over when musicologists start talking; I’m betting some of the jury would have a hard time telling you whether a song is in 3 or in 4, or in a predominantly minor or predominantly major mode.

    The law — I thought — was clear: LYRICS, MELODY, ARRANGEMENT. All 3 are demonstrably different in these two songs.

    • That’s correct. As the LA Weekly story I added suggests, though, it wasn’t that the jury was not only convinced of the musicological argument so much as the lawyers for the estate leaned heavily on the fact that everyone thinks Robin Thicke was an asshole. 😉

      I wonder why the defendants’ lawyer closed his argument without attacking the case on musical merits and why he *did* try to hold up the creative genius of his clients. That … seems like a mistake.

      • just passing

        It’s not the first time a defence lawyer has misread the zeitgeist, and it won’t be the last. But what I find interesting is that we seem, as a civilisation, to be moving away from the old Enlightenment idea of “never mind the asshole who made it, feel the art!” into a world where the personality of the creator has a direct bearing on how the creations are interpreted. Maybe this judgement, following on the defence lawyer’s appeal to creativity, is another reflection of that.

        Also, the irony of the writers of a song about taking what you want without consent being found to have taken what they wanted without consent while writing it? That’s just too delicious for a jury to pass up, surely. 😉

  • wishniak

    i don’t know – i haven’t closely followed the prosecution or defence, but musicologists are generally not great at analysing pop/electronic/”studio” music. and i think most of your readers would agree that they “ripped off” the original without paying tribute or contributing to the original creativity. i agree its legally a bit tricky, but it feels good to me to see these guys have to pay up and i think its a step in the right direction to protecting original music makers.

    • Kinetic Monkey

      Really? It feels good? Is that just because you like classic funk and soul and you’re not a fan of Robin “I KNOW you want it.” Thicke?

      • wishniak

        exactly!

    • Not necessarily – not least of which because the original music maker isn’t alive.

      Compare the Amen break drummer, who got nothing.

      And the original partner in this case was a copyright “troll” that had just bought up rights and gone after folks like Dimension Films – not the Gaye estate.

      And I think “ripped off” is questionable. The musicologist I linked transcribed the performance. Making a new bassline with new notes in the same groove is an awfully broad category for defining theft. It covers all kinds of things, almost anything made in the same genre. So, for that, I agree with the legal defense. (As for letting your client say he wrote the song in a Vicodin-induced haze he can’t remember, well, that’s a bit strange.)

      • Nick

        Thank goodness there’s not enough money in techno to warrant going after all that four-to-the-floor infringement!

        • Hmmm… but, in fact, there’s quite a lot of money in techno.

          Never say never. That was my concern. Maybe the legal precedent didn’t shift, but this could inspire copycat suits – and it could go after genre.

          Most of us are just fine, thank you, but … who knows…

          That said, I do think musically speaking the similarity here is more pronounced. And on specific samples, big techno acts are doing the proper clearance.

          • just passing

            The real problem isn’t just the copycat suits, but that if the next lawsuit in this vein gets appealed and lost by the plaintiffs, that WILL set a legal precedent. Will anyone risk that just to avoid handing over some chump change? Appealing the sum and letting the (isolated, legally) judgement stand looks far safer.

            Mind, if Thicke/Williams do appeal, and lose, THEN we can blame them for ruining music. So let’s hope they don’t. 😉

      • wishniak

        the amen break is a perfect example of what shouldn’t be happening. i still find it hard to stomach the fact that most of the music we hear on the radio is built out samples of musicians who got paid by the hour or session and almost never retained any publishing / distribution rights.

        its a hard argument to make that things should be regulated more, because i think (hope) most of them respect other music makers and would rather pay homage (fair use) to creators, or pay up, but there are also those who are too desperate to make a hit ..

        re: musicology – transcribing these grooves is just ridiculous, play that back as a midi file and it has none of the character (groove / mojo whatever) that created the original. and if i remember my modes correctly, the difference between the mixolydian and min. pent. is a flatted third anyway!

        id be interested to see a poll of contemporary music makers (instrumentalists, producers, song writers) weighing in on how much marvin was ripped off 😉

        • naughtyo

          Plagiarism, is an infringement and or a copy of eight bars of any given song or piece of music. This talk about beats and downloads has nothing to do with the melody.

    • DPrty

      Oh please .. 53% Agree with me that these songs don’t sound the same (see this page and the survey http://www.telegraph.co.uk/culture/music/rockandpopmusic/11463948/How-can-you-copyright-a-shuffle.html

      The basic DNA of music is a world heritage and Marvin Gaye nor his family own the soul style, they also may not have souls.

      Marvin Gaye is undoubtedly rolling in his grave. There are only so many beats in a bar, 12 notes in a scale and a limited amount of chord structures that truly sound great together. Lets just get it over with and start charging people for air, patent the smiley face and copyright the number 2 so nobody can do math.

      This verdict must be fought by anyone that loves music.

      • James

        That’s pretty compelling-I definitely heard the similarities, and flags when up when I first heard the tune. But going back to the side-by-side, it’s clear to me that I recognized the mode/key, the syncopation, but it’s clearly not a sample, as I assumed when I heard it, and they’re not even at the same tempo (okay the same tempo range).

        • DPrty

          Well they are not in the same key and from some of my reading it seems the Jury based part of their decision on the Cowbell beat locations …. so the drummer can now get your band sued.

  • wishniak

    i don’t know – i haven’t closely followed the prosecution or defence, but musicologists are generally not great at analysing pop/electronic/”studio” music. and i think most of your readers would agree that they “ripped off” the original without paying tribute or contributing to the original creativity. i agree its legally a bit tricky, but it feels good to me to see these guys have to pay up and i think its a step in the right direction to protecting original music makers.

    • Kinetic Monkey

      Really? It feels good? Is that just because you like classic funk and soul and you’re not a fan of Robin “I KNOW you want it.” Thicke?

      • wishniak

        exactly!

    • Not necessarily – not least of which because the original music maker isn’t alive.

      Compare the Amen break drummer, who got nothing.

      And the original partner in this case was a copyright “troll” that had just bought up rights and gone after folks like Dimension Films – not the Gaye estate.

      And I think “ripped off” is questionable. The musicologist I linked transcribed the performance. Making a new bassline with new notes in the same groove is an awfully broad category for defining theft. It covers all kinds of things, almost anything made in the same genre. So, for that, I agree with the legal defense. (As for letting your client say he wrote the song in a Vicodin-induced haze he can’t remember, well, that’s a bit strange.)

      • Nick

        Thank goodness there’s not enough money in techno to warrant going after all that four-to-the-floor infringement!

        • Hmmm… but, in fact, there’s quite a lot of money in techno.

          Never say never. That was my concern. Maybe the legal precedent didn’t shift, but this could inspire copycat suits – and it could go after genre.

          Most of us are just fine, thank you, but … who knows…

          That said, I do think musically speaking the similarity here is more pronounced. And on specific samples, big techno acts are doing the proper clearance.

          • just passing

            The real problem isn’t just the copycat suits, but that if the next lawsuit in this vein gets appealed and lost by the plaintiffs, that WILL set a legal precedent. Will anyone risk that just to avoid handing over some chump change? Appealing the sum and letting the (isolated, legally) judgement stand looks far safer.

            Mind, if Thicke/Williams do appeal, and lose, THEN we can blame them for ruining music. So let’s hope they don’t. 😉

      • wishniak

        the amen break is a perfect example of what shouldn’t be happening. i still find it hard to stomach the fact that most of the music we hear on the radio is built out samples of musicians who got paid by the hour or session and almost never retained any publishing / distribution rights.

        its a hard argument to make that things should be regulated more, because i think (hope) most of them respect other music makers and would rather pay homage (fair use) to creators, or pay up, but there are also those who are too desperate to make a hit ..

        re: musicology – transcribing these grooves is just ridiculous, play that back as a midi file and it has none of the character (groove / mojo whatever) that created the original. and if i remember my modes correctly, the difference between the mixolydian and min. pent. is a flatted third anyway!

        id be interested to see a poll of contemporary music makers (instrumentalists, producers, song writers) weighing in on how much marvin was ripped off 😉

        • naughtyo

          Plagiarism, is an infringement and or a copy of eight bars of any given song or piece of music. This talk about beats and downloads has nothing to do with the melody.

    • DPrty

      Oh please .. 53% Agree with me that these songs don’t sound the same (see this page and the survey http://www.telegraph.co.uk/culture/music/rockandpopmusic/11463948/How-can-you-copyright-a-shuffle.html

      The basic DNA of music is a world heritage and Marvin Gaye nor his family own the soul style, they also may not have souls.

      Marvin Gaye is undoubtedly rolling in his grave. There are only so many beats in a bar, 12 notes in a scale and a limited amount of chord structures that truly sound great together. Lets just get it over with and start charging people for air, patent the smiley face and copyright the number 2 so nobody can do math.

      This verdict must be fought by anyone that loves music.

      • James

        That’s pretty compelling-I definitely heard the similarities, and flags went up when I first heard the tune. But going back to the side-by-side, it’s clear to me that I recognized the mode/key, the syncopation, but it’s not a sample, as I assumed when I heard it, and they’re not even at the same tempo (okay the same tempo range).

        • DPrty

          Well they are not in the same key and from some of my reading it seems the Jury based part of their decision on the Cowbell beat locations …. so the drummer can now get your band sued.

  • Edward On-Robinson

    Let’s get one thing clear: the outcomes of jury trials do *not* set legal precedent, and yesterday’s verdict would have no legal bearing whatsoever on a similar trial that takes place today.

    Only the judgments of appeal courts establish precedent which must be followed. This is because judges are required to articulate their legal reasoning, whereas juries do not have to account for their decisions and so any individual jury verdict could be regarded as perverse. I’m not a practicing lawyer but I did go to law school and I work in the film business, so I run in rights clearance issues all the time; don’t take my opinion as legal advice, but it does arise out of a long interest in and a good understanding of intellectual property issues and legal procedure.

    Williams and Thicke are free to appeal this decision and I hope they will as they can easily afford to do so. Far more relevant for the future of sampling is the outcome of Cariou v. Prince in the 2nd circuit, a visual art case which resulted in a surprising (but somewhat problematic) expansion of what constitutes an artistically acceptable transformation for artistic purposes: http://en.wikipedia.org/wiki/Cariou_v._Prince

    In this case, the jury read way too much into the narrow (and in my view, strained) claims of a single musicologist, whose report you can read here – sorry about the news org watermark on some pages – http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/musicologyblurred.pdf

    Williams/Thicke can certainly invite the 9th circuit to adopt the reasoning of the second and emphasize the transformative nature of the work in purely objective terms, but the difficulties they will face are a) overcoming the deficiencies of their own testimony, where the Gaye’s lawyer led them around like cattle and got them to make statements that hugely undermined their position, and b) in arguing that the jury’s verdict was not reasonable, ie that it could not have followed by a process of logical reasoning from the combination of facts as applied to existing law, which is a tricky determination to make due to the non-utilitarian nature of artistic expression, as distinct from patent law where you have a concept of prior art. ‘Reasonable’ doesn’t mean ‘average’ or ‘common-sensical’ in law; it’s the process of applying logical inferences to admitted facts, and that includes some ill-advised testimony from Williams and Thicke, as well as the foolish decision to pre-emptively sue the Gaye estate instead of waiting for them to make the first move.

    • Thanks for adding some actual informed opinion to this (with your permission, I would copy it above… will go ahead and feature it in comments).

      Some thoughts/questions, though:

      I don’t mean binding precedent. This is presumably a precedent in lower cases, however, though, right?

      When I previously spoke to one of the people testifying in similar sampling cases ten years ago, this kind of expert testimony was fairly common – and could lead to similarly strained understandings by juries. I guess another question is why the Williams/Thicke team didn’t have their own musicologist / analyst? What happened there? The argument to me is weak (though I *do* have musicology training, unlike law)…

      Also, I would side with people who say part of the reason this keeps happening is an ill-defined region of some notion of fair use. Without that, a clever lawyer can do what this team just did – with or without someone testifying they were high on Vicodin the whole time. (That was… strange.)

      • Edward On-Robinson

        Be my guest, but as I said I’m not a practicing lawyer. You might be better off waiting a few days for legal blogs to get around to publishing articles discussing this case, as they’ll likely include additional valuable information.

        To answer your questions – no, there’s no precedent in ‘lower cases’ – that phrase doesn’t mean anything, legally speaking. I don’t know whether you meant ‘lower courts’ or ‘later cases’. Very very breifly, in federal law, you have trial courts, known as district courts (which is where this trial took place); they’re organized into regional groups called circuits (going back to when senior judges used to tour around hearing appeals, repeatedly following the same routes), within which appeal courts listen to legal arguments about the validity or deficiency of individual trials. Appeals courts pay attention to each other, so for obvious issues they stay mostly on the same page, but sometimes two different circuits yield conflicting opinions about how the law should be interpreted. When that happens it’s called a circuit split and the case may then go to the Supreme Court. All copyright cases in the US are Federal matters by Constitutional assignment of power to Congress, so state courts don’t hear copyright infringement cases and can be ignored here.

        As I said earlier, trial courts listen to facts. The only legal information that comes out of a trial court is a binary determination by a jury or occasionally a single judge of who was right or wrong. *Occasionally* you see a ‘bench trial’ where both sides agree to have the decision rendered by a judge, usually because the issue is very complex. In cases like that the judge will usually write an elaborate opinion and that can be very influential on higher judges if the reasoning is sound; that’s what happened with gay marriage in California. But only the decisions of appeal courts (and the Supreme Courts, which is an appellate court) have any precedential value. Now, of course other copyright lawyers will study this trial to learn how best to persuade a jury to agree with them – but that’s just courtroom lawyering technique, which is a matter of salesmanship as much as legal knowledge. If you were hauled into court tomorrow by someone claiming that you infringed upon their musical copyright, the plaintiff’s lawyers would have to make the argument from first principles, and references to the outcome of the Williams/Thicke trial would be inadmissible.

        Yes, people rely far too much on expert testimony. This is a big problem in criminal trials because forensic experts are often far more confident than they are competent, but law enforcement, prosecutors, and juries mistake the former for the latter. Forgive me for sounding cynical, but defense lawyers often underestimate how stupid people are and don’t prepare for the possibility that they will be swayed by expert argument, even though Pharrell Williams has more musical ability in his little finger than most musicologists. Personally, if I were ever wrongfully arrested on criminal charges, I would *not* want a jury trial. Most people are easily manipulated and tend to believe that accusations are well-founded. I would want my case heard by a judge who is trained to think analytically *and* who has to justify his/her conclusions in writing, so that they can be challenged if they’re incorrect.

        You are right about the poor definition of what constitutes Fair Use; it’s a slippery concept (especially in aesthetic spheres, as distinct from straightforward literary plagiarism) and we will keep running into this because the excessively long copyright terms in the law today make it economically attractive for rights holders to sue. That’s why the Cariou v. Prince case mentioned above is potentially so significant.

        You should also keep an eye on the ongoing trial proceedings involving the song ‘Happy Birthday’ – would you believe that this song is worth ~$2 million *a year* in licensing fees to Warner/Chapell? http://en.wikipedia.org/wiki/Happy_Birthday_to_You#2013_lawsuit

        I have been following this one closely because I’ve written a screenplay in which characters have to sing ‘Happy birthday’ on two separate occasions. On the small production budget of an indie movie, it makes a big difference to me if I have to shell out $3000 in licensing fees before I can submit it to film festivals or get a distribution deal – about the same as the cost of food or the camera rental for a 3-week shoot.

        Finally, you might like (or not) reading the Gaye family’s lawyer’s explanation of how he won at trial: http://www.hollywoodreporter.com/thr-esq/marvin-gaye-family-lawyer-how-780743

        You can contact me via anigbrowl at gmail dot com if need be, though as I said earlier I’m not qualified to give legal advice, only opinion.

        • Sorry, I should have been clear about the difference between “this sort of decision could set a dangerous precedent” and “this specific decision sets a dangerous precedent” – yes, legally, it’s the former, not the latter.

          My recollection is incidentally that the lower judge did write an opinion in Bridgeport, by the way. But I don’t want to conflate digital sampling with this sort of musical infringement. So, yes, I think it’ll be worth following up on whatever investigations happen. Hollywood Reporter is covering the trial in detail but didn’t deal with the larger legal picture, necessarily.

          Based on what I read, I’m kind of wondering what the deal was with the Blurred Lines lawyer, generally. Maybe I missed something. 😉

          • I do want to add, though:

            I think the Thicke lawyer has an argument for saying this is a bad precedent in the general sense, which is what I intended to argue – whether that’s technical a legal precedent in the technical sense or not.

            If you demonstrate that you can win a big award like this just by pointing out features of genre, you could well assume some other “sample trolls” as that 2006 article called Bridgeport might come out of the woodwork.

            And that could have a chilling effect.

            So my point in the Bridgeport comparison is that it’s absurd not to have some kind of standard for substantiality as part of the framework of copyright. And absent some kind of measurable notion of that, it seems fair use has simply eroded away.

          • I’m seeing this writer make the same argument:

            http://www.laweekly.com/music/great-now-blurred-lines-has-ruined-the-entire-music-industry-5427407

            So us non-lawyers are using the word “precedent” not in the legal sense.

            I meant, and this writer means, precedent as in “example.” This sets an example for other frivolous lawsuits to go after songs based on feel. And, actually, that could be more dangerous than legal precedent.

            We’ll see… that’s speculative. Maybe this case was so phenomenally poorly run by Thicke et al’s legal team that it will in the long run prove to have been a fluke. I hope so.

        • Thank you so much for your replies to Mr. Kirn’s article. I am definitely learning a lot tonight from both of you!

  • Edward On-Robinson

    Let’s get one thing clear: the outcomes of jury trials do *not* set legal precedent, and yesterday’s verdict would have no legal bearing whatsoever on a similar trial that takes place today.

    Only the judgments of appeal courts establish precedent which must be followed. This is because judges are required to articulate their legal reasoning, whereas juries do not have to account for their decisions and so any individual jury verdict could be regarded as perverse. (Edit for clarity:) Basically, trial courts decide matters of fact, appeal courts decide matters of law. Sosometimes appeals courts will send a case back for a new trial if it decides that the trial judge didn’t properly explain the law to the jury, and so many appeals revolve around the content of jury instructions. I’m not a practicing lawyer but I did go to law school and I work in the film business, so I run in rights clearance issues all the time; don’t take my opinion as legal advice, but it does arise out of a long interest in and a good understanding of intellectual property issues and legal procedure.

    Williams and Thicke are free to appeal this decision and I hope they will as they can easily afford to do so. Far more relevant for the future of sampling is the outcome of Cariou v. Prince in the 2nd circuit, a visual art case which resulted in a surprising (but somewhat problematic) expansion of what constitutes an artistically acceptable transformation for artistic purposes: http://en.wikipedia.org/wiki/Cariou_v._Prince

    In this case, the jury read way too much into the narrow (and in my view, strained) claims of a single musicologist, whose report you can read here – sorry about the news org watermark on some pages – http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/musicologyblurred.pdf

    Williams/Thicke can certainly invite the 9th circuit to adopt the reasoning of the second and emphasize the transformative nature of the work in purely objective terms, but the difficulties they will face are a) overcoming the deficiencies of their own testimony, where the Gaye’s lawyer led them around like cattle and got them to make statements that hugely undermined their position, and b) in arguing that the jury’s verdict was not reasonable, ie that it could not have followed by a process of logical reasoning from the combination of facts as applied to existing law, which is a tricky determination to make due to the non-utilitarian nature of artistic expression, as distinct from patent law where you have a concept of prior art. ‘Reasonable’ doesn’t mean ‘average’ or ‘common-sensical’ in law; it’s the process of applying logical inferences to admitted facts, and that includes some ill-advised testimony from Williams and Thicke, as well as the foolish decision to pre-emptively sue the Gaye estate instead of waiting for them to make the first move.

    • Thanks for adding some actual informed opinion to this (with your permission, I would copy it above… will go ahead and feature it in comments).

      Some thoughts/questions, though:

      I don’t mean binding precedent. This is presumably a precedent in lower cases, however, though, right?

      When I previously spoke to one of the people testifying in similar sampling cases ten years ago, this kind of expert testimony was fairly common – and could lead to similarly strained understandings by juries. I guess another question is why the Williams/Thicke team didn’t have their own musicologist / analyst? What happened there? The argument to me is weak (though I *do* have musicology training, unlike law)…

      Also, I would side with people who say part of the reason this keeps happening is an ill-defined region of some notion of fair use. Without that, a clever lawyer can do what this team just did – with or without someone testifying they were high on Vicodin the whole time. (That was… strange.)

      • Edward On-Robinson

        Be my guest, but as I said I’m not a practicing lawyer. You might be better off waiting a few days for legal blogs to get around to publishing articles discussing this case, as they’ll likely include additional valuable information.

        To answer your questions – no, there’s no precedent in ‘lower cases’ – that phrase doesn’t mean anything, legally speaking. I don’t know whether you meant ‘lower courts’ or ‘later cases’. Very very breifly, in federal law, you have trial courts, known as district courts (which is where this trial took place); they’re organized into regional groups called circuits (going back to when senior judges used to tour around hearing appeals, repeatedly following the same routes), within which appeal courts listen to legal arguments about the validity or deficiency of individual trials. Appeals courts pay attention to each other, so for obvious issues they stay mostly on the same page, but sometimes two different circuits yield conflicting opinions about how the law should be interpreted. When that happens it’s called a circuit split and the case may then go to the Supreme Court. All copyright cases in the US are Federal matters by Constitutional assignment of power to Congress, so state courts don’t hear copyright infringement cases and can be ignored here.

        As I said earlier, trial courts listen to facts. The only legal information that comes out of a trial court is a binary determination by a jury or occasionally a single judge of who was right or wrong. *Occasionally* you see a ‘bench trial’ where both sides agree to have the decision rendered by a judge, usually because the issue is very complex. In cases like that the judge will usually write an elaborate opinion and that can be very influential on higher judges if the reasoning is sound; that’s what happened with gay marriage in California. But only the decisions of appeal courts (and the Supreme Courts, which is an appellate court) have any precedential value. Now, of course other copyright lawyers will study this trial to learn how best to persuade a jury to agree with them – but that’s just courtroom lawyering technique, which is a matter of salesmanship as much as legal knowledge. If you were hauled into court tomorrow by someone claiming that you infringed upon their musical copyright, the plaintiff’s lawyers would have to make the argument from first principles, and references to the outcome of the Williams/Thicke trial would be inadmissible.

        Yes, people rely far too much on expert testimony. This is a big problem in criminal trials because forensic experts are often far more confident than they are competent, but law enforcement, prosecutors, and juries mistake the former for the latter. Forgive me for sounding cynical, but defense lawyers often underestimate how stupid people are and don’t prepare for the possibility that they will be swayed by expert argument, even though Pharrell Williams has more musical ability in his little finger than most musicologists. Personally, if I were ever wrongfully arrested on criminal charges, I would *not* want a jury trial. Most people are easily manipulated and tend to believe that accusations are well-founded. I would want my case heard by a judge who is trained to think analytically *and* who has to justify his/her conclusions in writing, so that they can be challenged if they’re incorrect.

        You are right about the poor definition of what constitutes Fair Use; it’s a slippery concept (especially in aesthetic spheres, as distinct from straightforward literary plagiarism) and we will keep running into this because the excessively long copyright terms in the law today make it economically attractive for rights holders to sue. That’s why the Cariou v. Prince case mentioned above is potentially so significant.

        You should also keep an eye on the ongoing trial proceedings involving the song ‘Happy Birthday’ – would you believe that this song is worth ~$2 million *a year* in licensing fees to Warner/Chapell? http://en.wikipedia.org/wiki/Happy_Birthday_to_You#2013_lawsuit

        I have been following this one closely because I’ve written a screenplay in which characters have to sing ‘Happy birthday’ on two separate occasions. On the small production budget of an indie movie, it makes a big difference to me if I have to shell out $3000 in licensing fees before I can submit it to film festivals or get a distribution deal – about the same as the cost of food or the camera rental for a 3-week shoot.

        Finally, you might like (or not) reading the Gaye family’s lawyer’s explanation of how he won at trial: http://www.hollywoodreporter.com/thr-esq/marvin-gaye-family-lawyer-how-780743

        You can contact me via anigbrowl at gmail dot com if need be, though as I said earlier I’m not qualified to give legal advice, only opinion.

        • Sorry, I should have been clear about the difference between “this sort of decision could set a dangerous precedent” and “this specific decision sets a dangerous precedent” – yes, legally, it’s the former, not the latter.

          My recollection is incidentally that the lower judge did write an opinion in Bridgeport, by the way. But I don’t want to conflate digital sampling with this sort of musical infringement. So, yes, I think it’ll be worth following up on whatever investigations happen. Hollywood Reporter is covering the trial in detail but didn’t deal with the larger legal picture, necessarily.

          Based on what I read, I’m kind of wondering what the deal was with the Blurred Lines lawyer, generally. Maybe I missed something. 😉

          • I do want to add, though:

            I think the Thicke lawyer has an argument for saying this is a bad precedent in the general sense, which is what I intended to argue – whether that’s technical a legal precedent in the technical sense or not.

            If you demonstrate that you can win a big award like this just by pointing out features of genre, you could well assume some other “sample trolls” as that 2006 article called Bridgeport might come out of the woodwork.

            And that could have a chilling effect.

            So my point in the Bridgeport comparison is that it’s absurd not to have some kind of standard for substantiality as part of the framework of copyright. And absent some kind of measurable notion of that, it seems fair use has simply eroded away.

          • I’m seeing this writer make the same argument:

            http://www.laweekly.com/music/great-now-blurred-lines-has-ruined-the-entire-music-industry-5427407

            So us non-lawyers are using the word “precedent” not in the legal sense.

            I meant, and this writer means, precedent as in “example.” This sets an example for other frivolous lawsuits to go after songs based on feel. And, actually, that could be more dangerous than legal precedent.

            We’ll see… that’s speculative. Maybe this case was so phenomenally poorly run by Thicke et al’s legal team that it will in the long run prove to have been a fluke. I hope so.

        • Thank you so much for your replies to Mr. Kirn’s article. I am definitely learning a lot tonight from both of you!

  • jjbbllkk

    Thanks for some sense on this subject. Everyone’s been going crazy : “Lol, f.ck Robin Thicke” and not really seeing how preposterous this is regarding music itself. This quote, I mean, how many of us have had a moment like this in the studio?

    “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.’”

    • DLockwood

      The issue is that there’s no bright line law. I’m more inclined to side with the Gayes because the industry rule, up until about 2008, was always err on the side of caution. If you A/B’ed your song and your inspiration, and they sounded way too similar, ask for clearance. Now everything is rushed to be mixed and mastered as soon as possible–especially first singles, since they’re only distributed digitally. That being said, I don’t think the Gayes should be awarded anything more than 10% of future royalties and attorneys fees.

  • jblk

    Thanks for some sense on this subject. Everyone’s been going crazy : “Lol, f.ck Robin Thicke” and not really seeing how preposterous this is regarding music itself. This quote, I mean, how many of us have had a moment like this in the studio?

    “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.’”

    • ebauman

      The issue is that there’s no bright line law. I’m more inclined to side with the Gayes because the industry rule, up until about 2008, was always err on the side of caution. If you A/B’ed your song and your inspiration, and they sounded way too similar, ask for clearance. Now everything is rushed to be mixed and mastered as soon as possible–especially first singles, since they’re only distributed digitally. That being said, I don’t think the Gayes should be awarded anything more than 10% of future royalties and attorneys fees.

  • ksandvik

    I could only guess that the jurors were pretty much tone deaf.

  • ksandvik

    I could only guess that the jurors were pretty much tone deaf.

  • sore_twat

    i am am ised that a song abput date rape has basicaly gotten ass raped by lawyers..

  • sore_twat

    i am am ised that a song abput date rape has basicaly gotten ass raped by lawyers..

  • NRGuest

    While I can’t say I’m too torn up about Thicke getting sued, the ridiculousness that is modern copyright law really needs to stop. Too bad it’s such a niche issue you’ll almost never hear a politician advocate for reform…

    This one is probably left to the industry lobbyists until it gets so out of control no one can deny the negative effects.

    • There’s a question, though, as to whether copyright law is to blame. A jury can always screw up the interpretation of a law. It seems some legal observers are surprised by the verdict, that it doesn’t square with the law.

      And that’s why there’s an appeals process. Now, the question is whether there is an appeal that holds up a stronger standard for substantial similarity than was applied here.

      • just passing

        Juries are perverse and unpredictable. It’s impossible to distinguish between a jury who didn’t understand the law as it applied to the case, and a jury who understood it just fine but let forth a collective “screw that” in order to make an example of the defendant.

  • NRGuest

    While I can’t say I’m too torn up about Thicke getting sued, the ridiculousness that is modern copyright law really needs to stop. Too bad it’s such a niche issue you’ll almost never hear a politician advocate for reform…

    This one is probably left to the industry lobbyists until it gets so out of control no one can deny the negative effects.

    • There’s a question, though, as to whether copyright law is to blame. A jury can always screw up the interpretation of a law. It seems some legal observers are surprised by the verdict, that it doesn’t square with the law.

      And that’s why there’s an appeals process. Now, the question is whether there is an appeal that holds up a stronger standard for substantial similarity than was applied here.

      • just passing

        Juries are perverse and unpredictable. It’s impossible to distinguish between a jury who didn’t understand the law as it applied to the case, and a jury who understood it just fine but let forth a collective “screw that” in order to make an example of the defendant.

  • James Britt / Neurogami

    Thank you for this article. I was not familiar with the songs in question; tending to like most anything by Marvin Gaye I nodded my head when reading news articles about this. None of those articles managed to explain the key features you brought out here. I still like Marvin, but this is crazy.

    There’s a part of me thinking, oh good maybe we can put an end to the annual slew of songs that all sound the same, but really the idea that someone can own a basic musical template is absurd.

  • James Britt / Neurogami

    Thank you for this article. I was not familiar with the songs in question; tending to like most anything by Marvin Gaye I nodded my head when reading news articles about this. None of those articles managed to explain the key features you brought out here. I still like Marvin, but this is crazy.

    There’s a part of me thinking, oh good maybe we can put an end to the annual slew of songs that all sound the same, but really the idea that someone can own a basic musical template is absurd.

  • foljs

    “””And if it comes to taste, many of us would choose Marvin Gaye over Robin Thicke. Ahem. (Even before we get to the ridiculously sexist video.) “””

    As if that’s relevant? We’d also chose Prince or Rick James over Robin Thicke (one would expect), despite their even more sexist videos…

    • Well, my whole point was that it *isn’t* relevant to this question of copyright.

      Much of the commentary in the press and from the public – and apparently no small part of the motivation for the jury’s verdict (and the closing arguments against “Blurred Lines”) – boil down to the idea that Robin Thicke is, well, an asshole.

      This is, of course, not what should be the bright line test for intellectual property infringement, but here we are.

      And my whole point is whether you find the video offensive or not (me admitting my own bias against it here) isn’t the question.

  • foljs

    “””And if it comes to taste, many of us would choose Marvin Gaye over Robin Thicke. Ahem. (Even before we get to the ridiculously sexist video.) “””

    As if that’s relevant? We’d also chose Prince or Rick James over Robin Thicke (one would expect), despite their even more “sexist” videos…

    Sexual/overty sexual/etc which is what the videos are is not “sexism”. Of course it’s sexual from a male point of view, but the singer is also male — so who will dictate what people consider erotic, if an artist should display his sexual fantasies on a song video or movie, etc? Or, to put it another way, how is something like Anaconda any better?

    We should complaint against sexism for things it matters: to equal opportunity in education, the workplace, rights, salaries, aggresive behavior, etc…

    • Well, my whole point was that it *isn’t* relevant to this question of copyright.

      Much of the commentary in the press and from the public – and apparently no small part of the motivation for the jury’s verdict (and the closing arguments against “Blurred Lines”) – boil down to the idea that Robin Thicke is, well, an asshole.

      This is, of course, not what should be the bright line test for intellectual property infringement, but here we are.

      And my whole point is whether you find the video offensive or not (me admitting my own bias against it here) isn’t the question.

  • James

    Sorry, just skimmed, but am I to understand that the whole arrangement was performed for Thicke’s song? Then couldn’t he have covered this in a mechanical license for the original tune? So it’s not that he breached some law that broke music, but rather that he didn’t get clearance to the quotation. Maybe the precedence should be that we’re better off if money is not exchanged for all this; sampling could be more like citing a scientific paper. That’s the conclusion of this article, right? That the Gaye estate should win the case, but we cannot justify the payout?

    • James

      And to be clear, I believe the article is supposed to read:
      “And if it comes to taste, many of us would choose Marvin Gaye over Robin Thicke. Amen.” 🙂

    • No – the point is, there isn’t in my view enough evidence of substantial infringement.

      It may be a bad song, it may be a good song, it’s certainly an intentional copy of the Marvin Gaye song stylistically / structurally.

      But it’s a copy of the song’s feel; it doesn’t rip off any particular element, let alone in a substantial way. Music functions because you can make these kinds of copies or homages, good or bad.

      • James

        Okay, understood. I agree with you. It sounds like Pharrell probably, but not confirmed, listened to the Marvin Gaye song and both chose a novel, and lesser applied key/mode for pop music. And all that’s left in my first needle-drop impression is the same syncopation. It’s not the same performance, it’s not the same tempo, it’s not the same instrumentation-not even the percussion-, and it’s not the same walla from the studio musicians. It’s like patenting Sriracha on a White Castle burger. Or borrowing Fosse choreography.

  • James

    Sorry, just skimmed, but am I to understand that the whole arrangement was performed for Thicke’s song? Then couldn’t he have covered this in a mechanical license for the original tune? So it’s not that he breached some law that broke music, but rather that he didn’t get clearance to the quotation. Maybe the precedence should be that we’re better off if money is not exchanged for all this; sampling could be more like citing a scientific paper. That’s the conclusion of this article, right? That the Gaye estate should win the case, but we cannot justify the payout?

    • James

      And to be clear, I believe the article is supposed to read:
      “And if it comes to taste, many of us would choose Marvin Gaye over Robin Thicke. Amen.” 🙂

    • No – the point is, there isn’t in my view enough evidence of substantial infringement.

      It may be a bad song, it may be a good song, it’s certainly an intentional copy of the Marvin Gaye song stylistically / structurally.

      But it’s a copy of the song’s feel; it doesn’t rip off any particular element, let alone in a substantial way. Music functions because you can make these kinds of copies or homages, good or bad.

      • James

        Okay, understood. I agree with you. It sounds like Pharrell probably, but not confirmed, listened to the Marvin Gaye song and both chose a novel, and lesser applied key/mode for pop music. And all that’s left in my first needle-drop impression is the same syncopation. It’s not the same performance, it’s not the same tempo, it’s not the same instrumentation-not even the percussion-, and it’s not the same walla from the studio musicians. It’s like patenting Sriracha on a White Castle burger. Or borrowing Fosse choreography.

  • Jihm

    This is the most inane court decision in the history of intellectual property. This opens the way for thousands of frivolous law suites, and will stifle pop music creativity for decades to come if this decision cannot be overturned. Do you kids (and you would have to be kids to think this is only a case about the very current pop scene) realize that there are tens of thousands of blues songs with the same melody, cord structure and beat? Ditto for country & western songs.
    As for pop songs, it is rare to hear even a musical phrase that wasn’t consciously or unconsciously lifted from an earlier song. During the course of my long lifetime all this has been accepted, and taken for granted. Pop music, like folk music, was expected to evolve slowly, with constant reworking of musical and lyrical themes. Now, all of a sudden, you can’t write anything without being sued? This decision is a sad travesty.

  • Jihm

    This is the most inane court decision in the history of intellectual property. This opens the way for thousands of frivolous law suites, and will stifle pop music creativity for decades to come if this decision cannot be overturned. Do you kids (and you would have to be kids to think this is only a case about the very current pop scene) realize that there are tens of thousands of blues songs with the same melody, cord structure and beat? Ditto for country & western songs.
    As for pop songs, it is rare to hear even a musical phrase that wasn’t consciously or unconsciously lifted from an earlier song. During the course of my long lifetime all this has been accepted, and taken for granted. Pop music, like folk music, was expected to evolve slowly, with constant reworking of musical and lyrical themes. Now, all of a sudden, you can’t write anything without being sued? This decision is a sad travesty.

  • disappointed

    As a deep fan of Got to Give it Up’s genre, there is only one song like it. It’s not a template song tons of bands jumped on like Cold Sweat or Bold Soul Sister or Thank You (Falettinme Be Mice Elf) or It’s Your Thing. That groove is sublime and unique and unforgettable.

    I don’t like the legal precedent, but it should be OK to say as creators that Pharrell and co. plagiarized flagrantly, handled the resulting mess badly, and thus share a lot of blame with the usual greedy suspects. They’re the bad kids who got the whole class punished.

    • adolphus

      I have a question for you and all the other people here who seem to know more than me. First I have no opinion on this specific issue, I don’t know enough but I am trying to learn. One of the things I thought I knew was that there is a difference between plagiarism and copyright infringement. The former is a professional ethic and the latter is a legal construct. You can plagiarize something without infringing on its copyright and vice versa. Lots of overlap, sure, but fundamentally different.

      You used the word plagiarism, much like many popular press articles about this case do. Did you intend that as a technical use or popular? But I don’t think they committed plagiarism in the technical sense and I don’t think that’s what the jury found. Did they? I’m asking to learn.

      I guess I should wait until the legal blogs discuss this or the transcripts are available.

  • disappointed

    As a deep fan of Got to Give it Up’s genre, there is only one song like it. It’s not a template song tons of bands jumped on like Cold Sweat or Bold Soul Sister or Thank You (Falettinme Be Mice Elf) or It’s Your Thing. That groove is sublime and unique and unforgettable.

    I don’t like the legal precedent, but it should be OK to say as creators that Pharrell and co. plagiarized flagrantly, handled the resulting mess badly, and thus share a lot of blame with the usual greedy suspects. They’re the bad kids who got the whole class punished.

    • adolphus

      I have a question for you and all the other people here who seem to know more than me. First I have no opinion on this specific issue, I don’t know enough but I am trying to learn. One of the things I thought I knew was that there is a difference between plagiarism and copyright infringement. The former is a professional ethic and the latter is a legal construct. You can plagiarize something without infringing on its copyright and vice versa. Lots of overlap, sure, but fundamentally different.

      You used the word plagiarism, much like many popular press articles about this case do. Did you intend that as a technical use or popular? But I don’t think they committed plagiarism in the technical sense and I don’t think that’s what the jury found. Did they? I’m asking to learn.

      I guess I should wait until the legal blogs discuss this or the transcripts are available.

  • Michel Rouzic

    I’m happy with that decision, I think it was the right decision. I think the unease with it stems from the difficulty to define in strict terms just what was taken from the original song and why this decision had to be reached.

    But what’s important to remember is that it wasn’t a coincidence that those two songs sounded alike, it’s not a case of accidentally using the same elements, they deliberately took a lot from that one song to make their new song, They didn’t take elements from different songs, they tried to make something very similar to that one song, as they themselves admitted.

    They made millions by heavily copying someone and didn’t want to give that someone’s estate a red cent. I think it’s only fair that some of their millions go back upstream. This doesn’t give us any indication that this kind of precedent will be abused for cases of genuinely coincidental similarities, I can understand the concerns that it might happen, but I don’t think that’s in the spirit of this decision.

  • Michel Rouzic

    I’m happy with that decision, I think it was the right decision. I think the unease with it stems from the difficulty to define in strict terms just what was taken from the original song and why this decision had to be reached.

    But what’s important to remember is that it wasn’t a coincidence that those two songs sounded alike, it’s not a case of accidentally using the same elements, they deliberately took a lot from that one song to make their new song, They didn’t take elements from different songs, they tried to make something very similar to that one song, as they themselves admitted.

    They made millions by heavily copying someone and didn’t want to give that someone’s estate a red cent. I think it’s only fair that some of their millions go back upstream. This doesn’t give us any indication that this kind of precedent will be abused for cases of genuinely coincidental similarities, I can understand the concerns that it might happen, but I don’t think that’s in the spirit of this decision.

  • Matteo Grilli

    I think this ruling is a sham, but hey if it worked once, the marvin gaye estate could easily make another boatload of money suing ed sheeran for thinking out loud

    • Matthew Battaglia

      That songs sounds so much like “let’s get it on” it’s crazy, I’ve been arguing with my wife about it since it came out. Glad someone else noticed. Also, I agree with everyone else, the decision is bogus.

  • Matteo Grilli

    I think this ruling is a sham, but hey if it worked once, the marvin gaye estate could easily make another boatload of money suing ed sheeran for thinking out loud

    • Matthew Battaglia

      That songs sounds so much like “let’s get it on” it’s crazy, I’ve been arguing with my wife about it since it came out. Glad someone else noticed. Also, I agree with everyone else, the decision is bogus.

  • Pete Venkman

    https://www.youtube.com/watch?v=v2QRnutVa84

    there could probably be a whole full time department of people detected to finding all the songs that have “borrowed” the feel of Marvin songs, and specifically Got To Give It Up.

    it’s hard to know where to stand on this, Thicke and Williams didn’t sample anything, they just took the feel and vibe. but i will say rather blatantly and if you want to pay such homage, you might end up having to pay more than just homage, like 7 mill.

    an idea for the future could be that if you’re a huge as Williams and Thicke and you know you copped the feel of a classic tune, getting ahold of the owners and figuring out a win win arrangement so that all involved benefit.

    Blurred Lines indeed.

  • Pete Venkman

    https://www.youtube.com/watch?v=v2QRnutVa84

    there could probably be a whole full time department of people detected to finding all the songs that have “borrowed” the feel of Marvin songs, and specifically Got To Give It Up.

    it’s hard to know where to stand on this, Thicke and Williams didn’t sample anything, they just took the feel and vibe. but i will say rather blatantly and if you want to pay such homage, you might end up having to pay more than just homage, like 7 mill.

    an idea for the future could be that if you’re a huge as Williams and Thicke and you know you copped the feel of a classic tune, getting ahold of the owners and figuring out a win win arrangement so that all involved benefit.

    Blurred Lines indeed.

  • This decision is Horrible, Based on a Decision like this Giorgio Morodor andcould Sue just about every Dance Music Producer. Based on Feel alone Writers of “Classic Disco” could sue anybody making Nu-disco Speed metal folks well Yngvie Malmsteen has a lawyer for you too. This Ruling a farcical disaster.

    • Thicke in tha head

      Seeing as Rob started the legal action with a pre-emptive call you know he’d have figured another pit would have been waiting for him … just like the song: “if ya dig one pit you’d better dig two” In any case.. how else do u think his lawyers gonna get a paycheck this month… pure follywood

  • This decision is Horrible, Based on a Decision like this Giorgio Morodor andcould Sue just about every Dance Music Producer. Based on Feel alone Writers of “Classic Disco” could sue anybody making Nu-disco Speed metal folks well Yngvie Malmsteen has a lawyer for you too. This Ruling a farcical disaster.

    • Thicke in tha head

      Seeing as Rob started the legal action with a pre-emptive call you know he’d have figured another pit would have been waiting for him … just like the song: “if ya dig one pit you’d better dig two” In any case.. how else do u think his lawyers gonna get a paycheck this month… pure follywood

  • h1tchr

    Legal or not another huge issue is how much Robin Thicke’s Million Dolla Baby sounds like Gaye’s Trouble Man….this must have fueled the fire for Blurred Lines. Hear the two here and see what u think:http://www.h1tchr.com/timeline.jsp?id=4857

  • h1tchr

    Legal or not another huge issue is how much Robin Thicke’s Million Dolla Baby sounds like Gaye’s Trouble Man….this must have fueled the fire for Blurred Lines. Hear the two here and see what u think:http://www.h1tchr.com/timeline.jsp?id=4857

  • heinrichz

    It was derivative but we do not want that to be illegal, otherwise most contemporary EDM producers would be out of business…therefore the outcry against the verdict. Even though everybody is influenced by something they heard before, whether they remember it or not, there are clearly different ways of being creative, some are more original from inside out, while others are more derivative in a premeditated way. Working with DJ producers for many years, the first thing i often had to do was to listen to somebody else’s record for guidance or inspiration.

  • heinrichz

    It was derivative but we do not want that to be illegal, otherwise most contemporary EDM producers would be out of business…therefore the outcry against the verdict. Even though everybody is influenced by something they heard before, whether they remember it or not, there are clearly different ways of being creative, some are more original from inside out, while others are more derivative in a premeditated way. Working with DJ producers for many years, the first thing i often had to do was to listen to somebody else’s record for guidance or inspiration.

  • Svetoslav

    So the guy that wrote the “first” rock’n’roll song could have sued all the other 1 mill dudes that wrote rock’n’roll songs for “plagiarising” his style? Really?

  • Svetoslav

    So the guy that wrote the “first” rock’n’roll song could have sued all the other 1 mill dudes that wrote rock’n’roll songs for “plagiarising” his style? Really?

  • teej

    First off… guilty pleasure. I admit to always having liked that dumb song, and even the video. Sue me. So much about this “case” infuriates me, but if I had to choose one, this idea of “stealing the funk”/stealing a “vibe” is ludicrous beyond words. The only logical conclusion one can make is that the people ruling these judgements couldn’t possibly have ever created a piece of art of any form in their lives, or they would have tossed this case in the trash at first glance.

    If this were precedent, entire genres and catalogs of music would have to be pulled and punished. Hah, just imagine this applied to Drum n’ Bass or Dubstep… “Your honor, the defendant clearly stole both the ‘wowowow’ AND the ‘wompwompwomp’ from my client’s song.” What horse shit.

  • teej

    First off… guilty pleasure. I admit to always having liked that dumb song, and even the video. Sue me. So much about this “case” infuriates me, but if I had to choose one, this idea of “stealing the funk”/stealing a “vibe” is ludicrous beyond words. The only logical conclusion one can make is that the people ruling these judgements couldn’t possibly have ever created a piece of art of any form in their lives, or they would have tossed this case in the trash at first glance.

    If this were precedent, entire genres and catalogs of music would have to be pulled and punished. Hah, just imagine this applied to Drum n’ Bass or Dubstep… “Your honor, the defendant clearly stole both the ‘wowowow’ AND the ‘wompwompwomp’ from my client’s song.” What horse shit.

  • Tim Wilson

    Thanks for nice musical blog. Keep on touch.

    music

  • Chris

    When I heard Sam Smith’s song a year or so ago, I immediately thought to myself – “Tom Petty is going to get paid!” … and then my mind wandered and thought.. “But, Tom Petty’s song ‘Won’t Back Down’ is so simple, he probably lifted it from some old gospel tune, himself!” … the obvious rip-off (or complete coincidence) of Sam Smith’s song compared to Tom Petty was blatant! You can sing the chorus of Won’t Back Down over Smiths song, and it doesn’t change until about 75% of the way through the chorus MELODY… which is absolutely NOT found in the comparison of Marvin Gaye and Thicke’s songs!

    The only thing I found to be very similar was the percussion beat (and the background clamor of people)… I found no similarity in the Bass between the two songs, besides a general “feel” or “groove”… I found no similarity in the chord progression whatsoever (which really doesn’t matter anyway)…. I found absolutely NO similarity to the vocals, stylistically OR melody-wise…. and the arrangement was not even close between the two songs! What I hear, is a similar percussion beat… and a general groove, or feel, which is the crux of this horribly wrong ruling! You can’t copyright a feel or a groove or a drum beat… if that were the case, as has been aptly pointed out many times in this discussion, then every 12-bar blues song in the key of E will be deemed copyright infringement to Robert Johnson, just to point out the tip of the iceberg here!

    It certainly didn’t help that Thicke and Williams testified that they specifically tried to EMULATE the style and groove of Gaye’s song, but again, you CAN’T COPYRIGHT A STYLE OR GROOVE!! You can copyright the Melody, Lyrics and Arrangement… What’s next, Hendrix’s estate is going to sue people because they used the same guitar, amp and effects pedals that Jimi used, resulting in the same tone of guitar?

    Also, this ruling is a scary thought as I’m in the game of licensing my music for multi-media uses such as Film/TV/VideoGames, etc….. Because almost EVERY listing from a music supervisor who is looking for music for their next project reads “Looking for music that sounds similar to the style of xxxyyyzzz song” – generally followed by a disclaimer of “Do not rip off the songs mentioned, but use them as a guide for Feel, Style and Groove”… !!!!! Which, if this ruling leads to similar bullshit rulings in the future, my career may be in a tailspin here!

    • Chris

      By the way, I can’t stand Williams and Thicke’s song… I understand why it was a hit, because it has a good hook, but I still can’t stand it! But that doesn’t mean they should lose a lawsuit – because they WERE NOT GUILTY!

  • Chris

    When I heard Sam Smith’s song a year or so ago, I immediately thought to myself – “Tom Petty is going to get paid!” … and then my mind wandered and thought.. “But, Tom Petty’s song ‘Won’t Back Down’ is so simple, he probably lifted it from some old gospel tune, himself!” … the obvious rip-off (or complete coincidence) of Sam Smith’s song compared to Tom Petty was blatant! You can sing the chorus of Won’t Back Down over Smiths song, and it doesn’t change until about 75% of the way through the chorus MELODY… which is absolutely NOT found in the comparison of Marvin Gaye and Thicke’s songs!

    The only thing I found to be very similar was the percussion beat (and the background clamor of people)… I found no similarity in the Bass between the two songs, besides a general “feel” or “groove”… I found no similarity in the chord progression whatsoever (which really doesn’t matter anyway)…. I found absolutely NO similarity to the vocals, stylistically OR melody-wise…. and the arrangement was not even close between the two songs! What I hear, is a similar percussion beat… and a general groove, or feel, which is the crux of this horribly wrong ruling! You can’t copyright a feel or a groove or a drum beat… if that were the case, as has been aptly pointed out many times in this discussion, then every 12-bar blues song in the key of E will be deemed copyright infringement to Robert Johnson, just to point out the tip of the iceberg here!

    It certainly didn’t help that Thicke and Williams testified that they specifically tried to EMULATE the style and groove of Gaye’s song, but again, you CAN’T COPYRIGHT A STYLE OR GROOVE!! You can copyright the Melody, Lyrics and Arrangement… What’s next, Hendrix’s estate is going to sue people because they used the same guitar, amp and effects pedals that Jimi used, resulting in the same tone of guitar?

    Also, this ruling is a scary thought as I’m in the game of licensing my music for multi-media uses such as Film/TV/VideoGames, etc….. Because almost EVERY listing from a music supervisor who is looking for music for their next project reads “Looking for music that sounds similar to the style of xxxyyyzzz song” – generally followed by a disclaimer of “Do not rip off the songs mentioned, but use them as a guide for Feel, Style and Groove”… !!!!! Which, if this ruling leads to similar bullshit rulings in the future, my career may be in a tailspin here!

    • Chris

      By the way, I can’t stand Williams and Thicke’s song… I understand why it was a hit, because it has a good hook, but I still can’t stand it! But that doesn’t mean they should lose a lawsuit – because they WERE NOT GUILTY!

  • Frank

    U.S. jurisdiction gone crazy (once again).Here are 0.2 of many possible cents:

    1) This was a jury decision, right ? Like, are you crazy ? What kind of sense can it possibly make to let a bunch of laymen decide over a complicated copyright matter ?! Another prime example as to why the very idea of jury trials is flawd (same applies for most murder trials etc.)

    2) Now that the Gaye family has won this case on grounds of “plagiarism is the new copyright infringement” and given that “Got to Give It Up” is basically based on a general blues chord progression doesn’t that mean Chuck Berry could sue the Gaye family on gounds of the new definition of copyright infringement ?

    It’s not like the Gaye song didn’t borrow itself heavily from music that came before it – in fact, probably as much as “Blurred Lines” has borrowed from “GTGIU”.

    Who knows, maybe the Gaye’s estates “victory” might backfire soon…

  • Frank

    U.S. jurisdiction gone crazy (once again).Here are 0.2 of many possible cents:

    1) This was a jury decision, right ? Like, are you crazy ? What kind of sense can it possibly make to let a bunch of laymen decide over a complicated copyright matter ?! Another prime example as to why the very idea of jury trials is flawd (same applies for most murder trials etc.)

    2) Now that the Gaye family has won this case on grounds of “plagiarism is the new copyright infringement” and given that “Got to Give It Up” is basically based on a general blues chord progression doesn’t that mean Chuck Berry could sue the Gaye family on gounds of the new definition of copyright infringement ?

    It’s not like the Gaye song didn’t borrow itself heavily from music that came before it – in fact, probably as much as “Blurred Lines” has borrowed from “GTGIU”.

    Who knows, maybe the Gaye’s estates “victory” might backfire soon…