Although the ‘Blurred Lines’ legal case hasn’t been heard yet, it’s still making the news. Today’s Complete Music Update reported on the fact that neither ‘Blurred Lines’ nor the song that it is allegedly indebted to, Marvin Gaye’s ‘Got to Give It Up’, will be played in court. Instead, the case will be decided by analysing the sheet music for each song. This is clearly to Robin Thicke’s and Pharrell Williams’s advantage, as the sheet music for ‘Got to Give It Up’ doesn’t include any of the distinctive backing vocals or rhythmic nuances that inspired the creation of ‘Blurred Lines’.
This reliance on sheet music will strike most popular music fans as being unfair. It is evidence that the legal system is geared towards classical conceptions of composition. On the one hand, it favours melody and harmony. On the other hand, it ignores what Paul Théberge has termed popular music’s ‘primary site of creation’: the recording studio.
There is some sort of legal logic in this, however. Artists don’t usually own their sound recordings; record companies do. It is the composition of ‘Got to Give it Up’ that is on trial, and it is the composition that is owned by Marvin Gaye’s estate. Howard King, the lawyer who is defending ‘Blurred Lines’, has said: ‘A truly fair trial requires only a comparison of the compositions, not the sound recording which is not owned by the Gayes. Given the fact that the compositions have absolutely no substantial similarities, there is little chance the Gayes can prevail at trial or on any threatened appeal’.
Another way of looking at this is that artists should own their sound recordings. They are more obviously the creators of these artifacts than record companies are. Moreover, it is in creating the sound recording that the principal act of pop authorship often takes place.
One final thing. I’m pretty sure that the focus on sheet music in this case is a quirk of American law. I used to work for PRS for Music and the regular advice we gave to songwriters was that, in order to copyright their works, all they needed to do was to post a sealed copy of the recording to themselves and ensure that the received package remained unopened. And so, in the UK the recording can be considered to be the composition. And yet who usually claims to be its author?