By Don Berner

This has been covered fairly extensively of late, but I thought I’d put in my own two cents as regards the recent U.S. Court decision about the Gaye Family claiming that Robin Thicke and Pharrell Williams’ Blurred Lines was a case of copyright infringement. I do this in part because while I agree with many of the articles claiming this was an erroneous decision, I’ve yet to read anything that states why this was wrong on a musical and legal level wherein I agree with the authors’ lines of reasoning.

One recent article in the New York Times made the attempt at an argument that this was a bad judgment because it didn’t take into account the idea that contemporary songwriting is done with machines, while way back in Marvin Gaye’s heyday, people composed with sheet music and that these were two different methodologies; thus sheet music can’t be used for comparison. This position is as ill-informed as its line of reasoning is erroneous. Whether it’s a pen or a computer, these tools are both just pieces of technology to help get an idea into a sonic medium; they are not the composition itself anymore than a typewriter is a book.

“Sheet music” is not a means of composition, but rather a system of notating said compositions. Nor is synthesizer technology a means of composition, but rather a tool to aid in its creation. To compare notation with composition is akin to comparing the written word with the ability to form a sentence. To compare the use of synth technology to composition is akin to comparing a “speak-and-spell” with the ability to formulate a thought. Both scenarios possibly help enhance the transmission of ideas but ultimately the ideas originate with the orator, not the technology (Technology including synthesizers, speak and spells, the written word, or notated music). If anything, sheet music is merely a great way to notate both songs and be able to compare and contrast them.

One R&B singer suggested that the problem with this decision was that it limited creativity. (To be fair, I feel it is more a case of the reporter in this interview summing up his position than it is an accurate reflection of his position.) I thought he was very well spoken and it can be difficult to present an idea completely in the medium of a radio interview. So my problem lay not with his conclusions, but rather his line of reasoning. Laws in a scenario wherein intellectual property theft exists should limit creativity. The logic being that imitation so devotedly obvious is, in fact, not creative. However, the very valid point that I think Jeff Hendrick delivered quite well is that there is an organic lineage to music, all compositions building upon the past, and that this is not a scenario in which one song is so devotedly mimicking another that this can be considered copyright infringement.

Marvin Gaye's sheet music
Marvin Gaye’s sheet music

One need only look at the visual of the aforementioned sheet music in question to SEE some of the differences which the Gaye family claimed were samehoods.

Thicke & Williams' Blurred Lines sheet music
Thicke & Williams’ Blurred Lines sheet music

We also need to understand a few things about the differences between copyright infringement and plagiarism. Plagiarism is an ethical construct and is defined as taking the original work or works of another and presenting it as your own. Copyright is a legal construct that gives a copyright holder (usually the creator of the work) a set of rights that they and they alone can exploit legally (save for exceptions such as fair use). Many musicians are under the (as near as I could determine with a layman’s research of the law) mistaken impression that under North American law, rhythms and harmonies (which are extrapolations of melody) cannot be copyrightable. Only melodies may be copyrighted. This does not seem to be the case, and in fact the criteria actually seem to be a “substantial similarity”. In order to be part of a Western 12 note system of harmony, there are parameters within which one must operate (the most obvious one being you have 12 notes to work with, as opposed to Eastern musics like Turkish, Arabic, and Indian microtonal systems) which will inherently possess similarities. Music is very comparable to a language, in that it is aural, can be notated, and communicates from one person to another (the performer to the listener). To demand new parameters of creativity in every single musical creation would be akin to a musical tower of Babel, wherein no two pieces of music sound anything alike. Or, to draw another comparison, it would be like asking every single author or writer to come up with a new language every time they wrote something… clearly, a ludicrous concept.

The two songs, Blurred Lines and Got to give it up, have clearly differing melodies, keys, chord structures, and rhythms. About the only real similarity is what the rhythm section (bass, drums, and chordal instruments) is doing, and even then the similarity is primarily rhythmic, and not the same. This is where the judgment fails – these songs do not have substantial similarities.

However, really this litigation and judgment may be symptomatic of a larger issue. A societal issue, in which extremist capitalism, an abundance of fighting from a position of ignorance, and a drive to monetize every aspect of one’s existence are encouraged. Did the Gaye family actually believe they, as inheritors of their father’s estate were deserving of a large portion of the profits (meager as they are in this day and age) from Blurred lines? Only they can answer that, as I’m not in the habit of making mind-reader arguments. Was this a close enough imitation to merit a lawsuit? …Certainly not. An extrapolation of this lawsuit would result in the end of music as we know it, as imitation without duplication flows freely in every genre of this art form. Whether it’s the “Sonata form” of classical music, or the “Copied licks” of jazz and rock improvisers, music is never an entirely new creation and mere hints of acknowledgment of our musical forefathers have not customarily been met in this punitive a fashion. Further, I suspect as well that part of the problem that led to this bad judgment is just a general ignorance on the part of a public that is inattentive and musically illiterate. Play two tunes that sound remotely similar and as often as not people will be convinced they are the same. Realistically, this decision will likely be overturned in short order. But if this is settled-upon precedent, prepare for an eternity of Heard it through the Grapevine and other hits of yesteryear to dominate the airwaves for quite some time to come.

Title photo: Pharrel Williams – Coachella Day 2 by The Bull Pen used under CC license

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