‘Blurred Lines’ decision offers blurry conception of copyright
A federal jury seated in U.S. District Court in Los Angeles has handed down a $7.4 million verdict against Robin Thicke and Pharrell Williams, asserting the pair’s 2013 smash “Blurred Lines” borrowed inappropriately from the 1977 Marvin Gaye song “Got to Give It Up.” The decision requires Thicke to turn over $1.7 million of the song’s profits to Gaye’s heirs, along with $1.6 million from primary songwriter Williams, with an additional $4 million assessed in punitive damages.
In addition to damages, Gaye’s heirs also can enjoin distribution of the song, giving them leverage to negotiate royalties going forward. Before going into why this decision could have an enormously chilling effect on the creation of popular music, perhaps it’s best to let the two songs speak for themselves:
Rock history is replete with allegations of one popular tune cribbed, intentionally or unintentionally, from an earlier song. Most famous is likely George Harrison’s “My Sweet Lord,” which copied the musical refrain from the Chiffons’ “He’s So Fine.” But there are others. The Doors’ “Hello, I Love You” borrowed from the Kinks’ “All Day and All of the Night.” Ray Parker Jr.’s theme to “Ghostbusters” did the same with Huey Lewis and the News’ “I Want a New Drug.” Most recently, Sam Smith had to acknowledge the similarities between his “Stay With Me” and Tom Petty’s 1989 hit “I Won’t Back Down.”
But what all those earlier cases shared was some identifiable musical phrase that carried over from one song to another. If you want a simple demonstration of how this case is different, and why it is so potentially problematic, just do the following: attempt to sing “Blurred Lines” to the tune of “Got to Give It Up.”
Can’t do it? That’s because it’s not really possible. The two songs are quite dissimilar in their construction. “Blurred Lines” is in the key of G and its basic chord progression over eight bars is GGGGDDDD. “Got to Give It Up” is in the key of A, and its progression is basically just AAAAAAAA. They’re both 4/4 at 120 beats per minute, but that’s true of an overwhelming proportion of the popular canon, as well.
The lyrics don’t betray any obvious similarities, either. Gaye’s song tells the story of a former wallflower who learns to dance and have fun at parties. Thicke’s is a notoriously “rapey” ode to a woman who, the singer believes, enjoys rough sex.
What they do share is a similar “feel,” a much more intangible and ethereal concept. Williams admitted as much on the stand, saying that the song was intended as a tribute. (Less discussed is whether the song’s “hey, hey, heys” were intended as tribute to the Fat Albert theme song.) But such influences are replete through the history of popular music. The Beatles imitated Little Richard’s “woos” and their name was inspired by Buddy Holly’s Crickets. The Ramones and Blondie borrowed from surf and girl group music of the early 60s. Lady Gaga owes a big debt to Madonna who owes a big debt to David Bowie who owes a big debt to Anthony Newley. On and on, it goes.
Among the most troublesome potential precedents set by a decision like this is considering how a case like Fogerty v. Fantasy Records Inc. would play out today. In that suit, Fantasy, which owned the rights to the back catalog of Creedence Clearwater Revival, sued former CCR frontman Fogerty claiming his 1985 solo track “The Old Man Down the Road” bore unmistakable similarities to “Run Through the Jungle,” which Fogerty wrote and recorded with Creedence in 1970. The case – which later reached the Supreme Court in an ancillary dispute about punitive damages for “bad faith” claims – included the bizarre spectacle of Fogerty forced to pull out a guitar on the witness stand and prove that he couldn’t reasonably be held accountable for writing songs that sound like John Fogerty songs.
The courts at the time concluded that Fogerty did not, in fact, plagiarize himself. With the precedent of the “Blurred Lines” decision, we should expect that question to be raised again the next time an artist with a distinctive sound moves from one record label to another.
