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