In March 2015 a jury in the US found against Pharrell
Williams and Robin Thicke in the ‘Blurred Lines’ case, deciding that their
composition had infringed the copyright of Marvin Gaye’s ‘Got to Give it Up’.
To many, this decision feels wrong. Songwriters, in particular, have been
outraged by the outcome, arguing that it sets a dangerous precedent for their
profession. Trying to work out why it is wrong is a complicated and convoluted
matter, however. Let me attempt to count the ways:
1.
Copyright legislation is based on
the notion of originality
US copyright law states that ‘Copyright protection
subsists . . . in original works of authorship’. British legislation states
similarly that copyright
is owned by ‘the person who creates’ the ‘original’ work. In both instances
copyright is betraying its debts to Romanticism and the notion of individual
genius. It is this aspect of creativity that the Gaye family sought to
emphasise when celebrating their victory. They argued that true artists, such
as Marvin Gaye, work ‘creatively from a blank slate in the crafting of their song
to ensure originality and the integrity of their creation’. They claimed their
action was ‘protecting the legacy of original artistry’ and that it was
‘encouraging future artists to also aim for new ground’. They were against
magpie artists such as Williams and Thicke, whose only aim was to ‘write a song
with the same groove’ as ‘Got to Give It Up’ and who failed to give ‘credit
where credit is due’.
2.
Popular music is not original
Songwriters have been outraged by the decision in the
‘Blurred Lines’ case because it fails to understand that most new music steals
from old music. There is nothing that is wholly original. Following the
verdict, Williams stated, ‘If
we lose our freedom to be inspired, we’re going to look up one day and the
entertainment industry as we know it will be frozen in litigation ...
Everything that’s around you in a room was inspired by something or someone. If
you kill that, there’s no creativity’. More recently, over 200 songwriters,
including Danger Mouse, Earth, Wind & Fire, Linkin Park, the Black Crowes,
Jennifer Hudson and R. Kelly, have grouped together in support of the appeal
that Williams and Thicke are making against the verdict. In their amicus brief
they have stated ‘All music shares inspiration from prior musical works,
especially within a particular musical genre. By eliminating any meaningful
standard for drawing the line between permissible inspiration and
unlawful copying, the judgment is certain to stifle creativity and
impede the creative process’.
3.
Popular music turns a blind eye to
some aspects of borrowing, but is vigilant about others
Traditionally, songwriters have felt free to be
‘inspired’ by other artists’ rhythm tracks and by the timbre of recordings, but
have been wary of lifting anything melodic or harmonic from another
songwriters’ work. The ‘Blurred Lines’ case stands this on its head. It went
against Thicke and Williams because they incorporated the groove and feel of ‘Got
to Give It Up’ into their work. This is the issue that has upset composers. Jim
Irvin, a writer for Lana Del Ray and David Guetta, has stated ‘Yes, there’s a sonic
resemblance, but Pharrell and Thicke are paying homage to an atmosphere, using
some of the colours of the arrangement, not copying the substance of the
chords, melody or lyric’. Meanwhile, the amicus brief points out that ‘Got to
Give It Up’ and ‘Blurred Lines’ ‘do not have similar melodies;
the two songs do not even share a single melodic phrase’. It condemns the
wrongheaded jury who decided in the Gaye’s estates favour just because the two
songs have a similar ‘feel’ or ‘groove’.
4.
These biases of songwriting
credits are elitist and racist
Previously,
when disputes about songwriting credits made it to court, the majority of cases
have found in favour of the composers of the main melodic and harmonic parts.
Popular music scholars have objected to this practice on two grounds. First, it
favours the elements of music that can be captured in a written score. It thus
has a high art bias and ignores the fact that much popular music is centred on
nuances of rhythm and texture - elements that come to the fore through the
recording process. Second, it is racist. Simon Frith has stated, ‘Copyright law defines music in terms of nineteenth-century
Western conventions and is not well suited to the protection of Afro-American
musicians’ improvisation art or rhythmic skills’. Matt Stahl has claimed
similarly that ‘US
copyright’s focus on words and melody privileges certain forms and makers of
music and disadvantages others along racialized lines’.
5.
Williams
welcomed the high art and racial bias of case law
One
quirk of the ‘Blurred Lines’ case was that it was supposed to be determined on
the basis of the sheet music rather than the recording. This is because ‘Got to
Give It Up’ was released in 1977. As such, the sound recording was copyrighted
after the drafting of the US Copyright Act of 1976, but fell under previous
legislation because the Act had not yet been implemented. Earlier US
legislation did not recognise a copyright for sound recordings. It stipulated
that any copyright infringement lawsuit had to be determined on the basis of
the written composition, as deposited in the US Copyright Office. Williams
sought to take advantage of this situation, arguing that the sheet music of
‘Blurred Lines’ is completely different to that for ‘Got to Give it Up’. He
demanded: ‘Anybody that
plays music and reads music, just simply go to the piano and play the two. One's
minor and one's major. And not even in the same key’.
6.
It is possible to give songwriting credits for feel and groove
Although
case law has its biases about compositional credits, copyright legislation
offers no specific guidance. Any aspect of the music can be credited,
including the work of the rhythm section and the skills of the producer. In
addition, these songwriting shares can be of any size, ranging from less than
1% to the whole of the work. There is a history of conventions, however. The
original division set out by most collection societies was to divide the
songwriting royalties 50/50 between the authors of the lyrics and the composers
of the written score. This norm was established in era when sheet music sales
were dominant and there were few writer-artists. New practices emerged in
response to the rise of self-contained, self-composing groups, as well as to
the ascendancy of sound recordings in the market. A convention developed
amongst bands to divide songwriting royalties equally between each member (the
Yardbirds and the Doors were pioneers here). In more recent years, a hybrid
style has appeared, whereby all band members are credited but the composers of the lyrics,
melody and harmony will gain higher copyright shares than the rhythm players. A
further model has grown in response to the growth of digital recording. In
genres such as EDM and contemporary R&B it is common for a
producer-composer to create a backing track, which will then be sent to
‘topliners’ who will add melodies, harmonies and lyrics. Here it is common to
divide the royalties 50/50 between the producers and the topliners. As such,
half of the songwriting credits are being awarded for feel and groove.
Finally, there is a long tradition of falsifying credits. It is possible to
award shares to participants that exceed their compositional contributions. It
is also possible to award shares to non-composers. This
practice goes back at least as far as the inter-war period, when performers
such as Al Jolson would be given a songwriting cut as a means of encouragement
to perform a tune.
7.
The songwriting credits for ‘Got to Give It Up’ and ‘Blurred Lines’ were
determined by different conventions
Gaye
is listed as the sole composer of ‘Got to Give It Up’. On the recording itself
he performs lead vocals and some of the backing vocals. He also plays
keyboards, synthesizer bass and percussion. Gaye is not the sole performer on
the track, however. There are two guitar players, a saxophonist, a tambourine
player and a drummer. Although Gaye is credited with putting together the
‘vocal, rhythm and synthesizer arrangement’, these are not the aspects of the
composition that earn him his sole composer credit. In fact, the arrangement of
a work cannot be copyrighted under US law. Gaye instead received 100% of the
compositional rewards because he wrote all of the lyrics as well as the main
melodic and harmonic parts. His family emphasised this point in the court case,
which they claimed was ‘was based entirely on the similarity of the basic musical
compositions, not on “style” or “feel” or “era” or “genre”’ (thus contradicting
their other comment that Williams and Thicke lost the case because they wrote a
song ‘with the same groove’ as ‘Got to Give it Up’). Moreover, it has been
acknowledged that the feel of ‘Got to Give It Up’ is not original. Gaye was
attempting to recapture the atmosphere of Johnnie Taylor’s hit, ‘Disco Lady’.
He did not give Taylor any songwriting credit for this inspiration and neither
did he credit Taylor’s rhythm section. ‘Blurred Lines’, in contrast, does give
some acknowledgement to the creator of the song’s groove and feel. It also
includes some false accounting. Thicke confessed that he was ‘high on vicodin and alcohol’ during
the songwriting sessions. He has stated, ‘the reality is, Pharrell had the beat
and he wrote almost every single part of the song’. This includes the words,
which Williams has admitted are wholly his own. Despite his paltry
contribution, Thicke was given 22% of the songwriting royalties for the song. Meanwhile, T.I.
was given 13% for his rap, and Williams claimed the remaining 65%. Williams has stated that he gave Thicke his share because ‘This is what
happens every day in our industry ... people are made to look like they have
much more authorship in the situation than they actually do’.
8.
Gaye was rewarded in ‘Blurred
Lines’ case on the basis of elements of ‘Got to Give It Up’ he did not claim to
compose
Although the ‘Blurred Lines’ case was supposed to be
decided on the sheet music alone, it appears that the sound recording of ‘Got
to Give It Up’ did influence the
jury’s decision. The judge permitted a stripped-down version of the recording
to be played in court. In their appeal against the verdict, Williams and Thicke
have stated that ‘the court erroneously allowed the Gayes’ experts to testify
about the sound recording anyway, including by playing their own musical excerpts
based on the sound recording’. There is little lyrical, melodic or harmonic
similarity between ‘Blurred Lines’ and ‘Got to Give It Up’. The main
correspondence lies instead with the rhythmic feel and the disco style.
‘Blurred Lines’ sounds like ‘Got to
Give it Up’; it does not sing like
it. As we have seen, songwriting credits can be given to the rhythm players who
have developed a groove, and they can go to producers of a recording. This is
not what Gaye did with ‘Got to Give It Up’, however. His compositional credit
was based on the aspects of music that can be captured in a written score.
Nevertheless, Gaye’s estate has been awarded $7.4m in damages for copyright
infringement due to the fact that the recordings of ‘Blurred Lines’ and ‘Got to
Give It Up’ have sonic similarities.
9.
Songwriting copyright is rigid
Although the ‘Blurred Lines’ decision is legally
unjust, it is not the technicalities of the case that have caused outrage
amongst songwriters. Many of them believe that an original recording, rather
than sheet music, constitutes the essence of a work. In addition, many of them
do credit rhythm and feel in their songwriting splits. Rather, what is
problematic is that this decision flies in the face of their everyday practice.
Moreover, their everyday practice is not accounted for within the law.
Songwriting copyright has proven to be flexible in one way. The conventions of
registration have changed over time to accommodate new technologies, changed
working methods and differing forms of agreement between contributors. And yet
songwriting copyright can also be rigid: there is usually only one way that a
work can be registered. This is problematic, as a song can be utilised by
different people in different forms. For songwriters there is the sheet music
and the original recording. For song borrowers there are cover versions and
samples. For song stealers there is plagiarism. In each of those instances,
different aspects of the composition can come to the fore. The original
recording is usually uppermost in most songwriters’ minds when it comes to
sorting out the splits. As such, works registrations will regularly credit
aspects of songs that are only present in their first recordings, including
their feel and their groove. When we turn to the other forms that a song can
take, the stress given to these aspects of the recording can rise and fall.
Covers usually remain faithful to the original lyrics of a song and they often
stick closely to the principal melody and chords. Their employment of rhythm
and feel can vary widely from the original recording, however. And yet, there
is no provision within copyright law that accounts for this fact. Sampling is
the opposite of cover versions in one respect: it usually concentrates on the
rhythm or texture of a recording, rather than its melody or harmony. It also
has different injustices. Many sampled recordings are old; consequently the
drummers and the producers are rarely credited in the original songwriting
splits. Sampling is similar to cover versions in one way, however: the splits
cannot be revisited in light of these emphases. If ‘Blurred Lines’ had sampled
‘Got to Give It Up’ directly there would have been general acceptance that the
authorship of the latter tune should be credited. Any sense of injustice would
instead have been focused on the fact that Gaye would be the only contributor
to the sampled work to receive a royalty. ‘Got to Give It Up’ was not sampled,
however. The ‘Blurred Lines’ case instead rested on whether or not Williams and
Thicke had plagiarised Gaye’s song. Although plagiarism can come close to
sampling – particularly with soundalike recordings and ‘interpolations’ of
works - songwriters think about it in a different manner. As the amicus brief
indicates, many of them are upset by the ‘Blurred Lines’ decision because it
has suggested that it possible to plagiarise a song’s feel or groove. A group
such as the Doors might register a work to all members of the band, and a
songwriter-producer such as Williams might incorporate rhythm and production
into his attribution of shares, but neither will expect to ‘own’ the rhythmic
elements or the production style. It is accepted practice that they can be
mimicked and copied. In contrast, songwriters are more vigilant when a melody
line is copied or lyrics are stolen. There are a number of reasons for this.
One is that there is still a hierarchy of musical elements, which places
melody, harmony and lyrics as the most important. There is a corresponding
hierarchy within groups: it is rare that the bass player or drummer will be the
leader of the band. Another reason why plagiarism cases are not made in this
respect is because many bass and drum parts are not original. The same patterns and methods are used in multiple
songs. This has been made possible because songwriters do not commonly launch
plagiarism cases when these elements are simulated. This is only convention,
however, and it is not possible to provide a separate registration of a work
that will outline which elements of a composition songwriters will pursue in a
plagiarism case and which they will chose to ignore. The ‘Blurred Lines’ case
goes against songwriters’ practice. It has caused alarm because the Gaye estate
won.
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