Today we’re heading a little bit away from our normal fare of religion and politics into the world of law and musical copyright. In particular, the rather extraordinary judgment handed down against Robin Thicke and Pharrell Williams for their song “Blurred Lines,” in favor of the family of Marvin Gaye, for allegedly infringing the estate’s copyright on “Got to Give it Up.” Now, there are many reasons not to like the Thicke-and-Williams penned “Blurred Lines,” primary among them being the song’s explicit suggestion that a woman’s consent is a blurred line, and it’s implicit mysogyny. But copyright infringement is not one of those reasons.
To recap the basics, a copyright is one of three forms of intellectual property that is recognized not only in the United States, but basically around the world. The three basic forms of intellectual property are copyrights, patents and trade marks. Very oversimplified, a copyright is a right in the authorship of a work, including books, paintings and music, among others; a patent is a right granted to the inventor of a product or process that solves a specific technological problem, and a trade mark is a sign, symbol, logo or design which distinguishes a business, or the goods and services produced by a business, from other businesses, goods and services. In the musical context copyrights can be in (1) musical composition (i.e. the sheet music) or (2) in the musical recording itself, and the two are treated separately. So, for example, if somebody wants to sample parts of a tune for a new recording, they have to get permission from the owner of the sound recording; if a band wants to play a cover tune, they have to get permission from the owner of the sheet music. Historically, in sheet music the primary components that were copyrightable were the melody and the lyrics. What was not generally copyrightable was the harmony (i.e. chord changes) and the rhythm. Or the feel of the song.
This schema — which was hardly all that clear to begin with — has been significantly disturbed by a $7.4 million verdict that Marvin Gaye’s estate won against Thicke and Williams for infringing on Marvin Gaye’s 1977 hit “Got to Give it Up.” Now, Thicke and Williams readily admitted that they were looking for a sound like “Got to Give it Up,” but as songwriters like Bonnie McKee and others have pointed out, trying to go for a similar sound is something that is done all the time in the music industry. One couldn’t even have a genre, like Disco — and maybe Disco’s not a good example because everyone now hates it — but one couldn’t have a genre without imitating a lot of the elements of the songs that are in that genre. So along came this verdict, decided back on March 10th, that Blurred Lines infringed the copyright of Got to Give it Up because it copied the “feel” and “vibe” of the tune.
First of all, the business aspects of the music industry are already unsavory, and this verdict, if not overturned on appeal, is likely to make them more unsavory. It is also likely (pun intended) to blur the lines between what is and what is not legal. There are only so many ways in which notes can be arranged that are truly original, and most of that territory has already been covered (unless you want to spend the rest of your life listening to things like 12-tone music, and trust me, you don’t). There is so much in music that is copied every day. To give but two examples: the 12-bar blues and the classic 50’s I-VI-IV-V progression. There are literally thousands of tunes that are based on one of these two progressions. If you assigned copyrights to those progressions, somebody’s estate would get very rich — if you could even determine who thought of these progressions first — and everybody else would get very poor paying homage to whomever got their first.
Music should not work that way. Yes, when you’ve written a specific melody and lyrics, you should be able to copyright that work without having someone else come in and use your song for free. And Lord knows, many white musicians stole the songs of black songwriters back in the day, and those songwriters should have been compensated for what they wrote. But those thefts were blatant. There was no doubt the songs were stolen. But to try to copyright a vibe or a feel? That’s just wrong.
As much as I like Marvin Gaye, his family is wrong. Thicke and Williams did not steal Marvin Gaye’s song, they just wrote something that was intended to emulate his vibe. And that is, and should remain, completely legal.