Marvin Gaye is one of the great singers and songwriters of all time, with a status deservedly approaching secular sainthood. Robin Thicke is a sleazy dirtbag who made a giant pile of money by knocking off one of Marvin’s songs to produce a rapey earworm, accompanied by a porn video. Naturally, I side with Team Marvin, and am delighted that Thicke and Pharrell lost the lawsuit.
While my fellow musicians are gleefully crowing, other observers are worried that this case sets a bad precedent. Michaelangelo Matos is among them.
I encourage vocal fans of this verdict to demonstrate their solidarity by deleting and/or destroying every piece of music they own featuring an unlicensed sample or bearing a notable resemblance to an earlier piece of music. But they won’t, and they shouldn’t, because that would entail deleting just about everything. Even if you loathe Thicke, this is no cause for celebration, because the size of the Gaye estate’s bounty is only going to encourage more lawsuits like this one.
Musical copyrights only cover top-line melodies, chords, and lyrics. They don’t extend to grooves, percussion parts, or overall vibe. The similarities in groove and vibe between “Blurred Lines” and “Got To Give It Up” are obvious and were by all accounts intentional. I don’t hear the melodies as being all that similar, and the two songs’ chords and lyrics don’t overlap at all. The only possible rationale for ruling in favor of the Gaye estate is similarity of groove. Joe Bennett offers an excellent close analysis of both songs; decide for yourself how much overlap there really is.
If this ruling does indeed extend music copyrights into the previously unregulated areas of groove, timbre and vibe, then every song that has any kind of commercial success is going to be the subject of lawsuits. Maybe groove and vibe should have been copyrighted all along–I know quite a few bassists, drummers and producers who think so–and maybe the law on the books should be amended so that they will be in the future. But deciding this stuff in the courts is bad because you get vague standards that future judges can interpret how they will. Lack of legal clarity makes it hard to make artistic decisions, and it forces musicians to err on the side of conservatism to avoid getting in trouble.
I’m in favor of the rhythm section getting a cut of the proceeds from a recording — the legal notion of the “song” as consisting solely of the top-line melody and chords is increasingly nonsensical, given that most of the creative content of pop music lies elsewhere. But how much of the music should copyright cover? I got into some back-and-forth over this on Twitter with the devastatingly great bassist Melvin Gibbs. Gibbs naturally feels that groove creators like himself deserve copyright protection, and that ripping off the creators of your favorite grooves will make them not want to work with you in the future. That’s a fair point. But then how are people supposed to create music within a style? Charles Mingus once said, “If Charlie Parker was a gunslinger, there’d be a whole lot of dead copycats.” But if he had been, would we ever have had any other bebop musicians?
This question has immediate practical consequences for working musicians and songwriters. Every rock or pop musician gets told at some point to go for a Stevie Wonder vibe or a Led Zeppelin vibe or a Radiohead vibe. Referencing existing recordings is the core vocabulary of the music profession. Should you have to cut Jimmy Page a check every time you write a heavy blues-rock song? Melvin Gibbs thinks you should, and that furthermore, Jimmy Page should be cutting a lot of checks to Pete Cosey. Once again, I see his point, but then shouldn’t Pete Cosey have been paying Jimi Hendrix? Where does it end?
This whole controversy emerges from the awkward fit between the demands of capitalism and the basic nature of music. There is no music without imitation. No matter how “original” a piece of music may be, it is still going to comprised almost entirely of existing materials: tuning systems, meters, scales, chord progressions, instrument combinations, melodic motifs, rhythm patterns, song structures. No matter how radical or far-out a musician may be, they exist in a community of practice, and however small that community may be, no artist is an island.
Personally, I subscribe to the theory that music (like all art) is made of information viruses that use human minds as their hosts. Music self-replicates, mutates, and evolves semi-independently of its host musicians, in much the same manner as the microbes in our guts and the tiny mites on our skin. I think that our copyright laws should be humble in the face of this fact, and recognize that the memes are going to copy themselves no matter what. Modern industrial capitalism is a historical oddity with regard to the concept of intellectual property. Most traditional societies view the ownership of music as being as nonsensical as the ownership of people. (Though our society used to be perfectly fine with that as well.)
I want musicians to get paid, but total originality can’t be the requirement. Unlike the theft of physical property, intellectual property theft can positively benefit the “victim.” Michaelangelo Matos points out that “Blurred Lines” didn’t cost the Gaye estate any money. Quite to the contrary, all of the publicity has led to a big sales bump for “Got To Give It Up.” If I controlled the universe, here’s the compromise I’d enact. Copyright rules would be exceedingly strict, requiring permission for any kind of imitation or sampling. But terms would be much shorter than they are now, and after that, everything would enter the public domain. The term specified in the original Copyright Clause of the US Constitution was just fourteen years. That sounds reasonable to me. I’m not holding my breath for Congress to stand up to Disney’s lobbyists and enact such a change, but it would be a good idea.
i love gaye’s (and much of pharrell’s, actually) music, but this case and legal decision is an abomination. no new music could ever be written based on this precedent. none. no pop, blues, jazz. maybe our avant garde musicians are somewhere atonally cheering, but hopefully not with any kind of imitative groove.
i think you are joking about siding with “team gaye” on this, especially considering shorter copyright terms and that “got to give it up” came out almost 40 years ago, but any crowing musicians should probably think about getting some lawyers on retainer, bc the lawsuits are coming. maybe harry casey could sue the recently flush team gaye – kc and the sunshine band’s “sound your funky horn” from 1974 “surely” predated and inspried the feel gaye used in “got to give it up.”
essentially all musicians, including melvin gibbs should be paying bootsy collins. he “invented” the funk formula, right? https://www.youtube.com/watch?v=IHE6hZU72A4
Actually the matos article said everything I was trying to say 500 times better. I should have read it before replying.
I’m Team Marvin aesthetically, but I agree with you completely, this ruling makes no sense.
I agree with you in that music self-replicates, mutates, and evolves semi-independently. I think after some time, it is going to be extremely hard for anything to be completely 100% original. I do not think that stealing other people’s ideas is right, though. This is a hard subject! Thanks for sharing.
I’d already learned and performed both these tunes before this lawsuit came out in the press. “Got to Give It Up” has been a favorite of mine since it was new, whereas “Blurred Lines.” despite my being a Pharrell fan pretty much since the turn of the century, has made me increasingly queasy the more often I heard or played it, and I won’t mind if I never do either ever again.
Nonetheless, this ruling troubles me. Ethan, you and others have made some excellent points about its possible impact on the future of music, but my unhappiness goes back to the original claim. When I first heard of the lawsuit, I was surprised: The one tune had never reminded me of the other, and I know both tunes well. Then I listened to them side by side and, yes, the drum/percussion sounds and feels are quite similar, but when did that become the basis for a claim of infringement on the copyright *for the composition*? The bass lines, melodies, lyrics, keys, and changes resemble each other not so very much (this in spite of the convoluted but predictable claims of the Gaye family’s domesticated musicologist: thanks, Cian O’Connor, for the link). It’s just not the same song.
My understanding of current copyright law for a composition is that all that’s applicable is melody, lyrics, and maybe chord progression (although it would in my opinion be bold — to the point of brashness — to claim that the sequence of I’s, II’s, IV’s, and V’s that comprise the harmonic progression in the Marvin Gaye tune, charming as it is, is so original that it could be owned by his estate). So: the melody’s not stolen, the “changes” (I-V) aren’t stolen, and the lyrics aren’t stolen. (Some external corroboration is at http://joebennett.net/2014/02/01/did-robin-thicke-steal-a-song-from-marvin-gaye/.) Where, then is the basis for a claim of infringement?
I agree and I think it’s obvious that other musical elements — e.g., rhythm section and timbre — have grown in importance, so much so that the legal definitions seem quaint. This whole discussion assumes that, and justly. But if the courts are going to change the legal definition, shouldn’t they indicate that publicly before hitting someone with a $7 million fine on that basis?
My other concern is with the jury that made the decision. I’ve been on juries, and, while not suggesting we replace our current system, I’m reminded of a standard criticism from adherents to others: how can we trust the fortunes, freedoms, and even the lives of the accused to a bunch of people so likely to be short on the appropriate expertise, and so susceptible to irrational manipulation?
This isn’t Vanilla Ice and “Under Pressure,” and it’s not “My Sweet Lord.” What it reminds me of (ok, just a little) is the time when someone in Metallica claimed ownership to the chord pair E Major – F Major…except that was a spoof.
Have you read the analysis from the Gaye family’s musicologist?
http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/musicologyblurred.pdf
The claimed similarities are pretty bizarre for the most part.
The fourteen years copyright idea is entirely impractical, and open to abuse. It would effectively provide a window within which an unknown composer would be forced to make all their potential income from a particular idea, after which it would be fair game for anyone. This would allow a brand new, but well-supported recording artist to take the idea, make a fortune with it, and not have to give a penny to the creator.
The idea seems to assume that all music has the same chance of success over a particular time-frame, that the process is linear and predictable, and that any profits made between the registering of an idea and the fourteen year cutoff will be based entirely on merit.
After an idea is fourteen years old, it isn’t “brand new” anymore. Fourteen years is an eternity in popular music. It would be a major accomplishment to get kids today excited about music that sounds like it was created in 2001.
Ethan, given the style of the music you produce I am very surprised to read that you would be in favor of strict copyright laws that “[require] permission for any kind of imitation or sampling”. Enjoyed hearing your take on the situation!
The key to my copyright vision is short terms. Creators would get to profit exclusively from their creations for a reasonably brief window, and then everything would go into the public domain where ideas rightfully belong.