Thursday 12 March 2015

What’s Wrong With the ‘Blurred Lines’ Copyright Ruling?

Got To Give It Up (Marvin Gaye) – transcribed from bar 5 [0:14].
This bassline employs substantial rhythmic variations throughout the song.
"What’s Wrong With the ‘Blurred Lines’ Copyright Ruling" was a headline from the New York Times two days after a civil jury found that Robin Thicke, Pharrell Williams and TI's song infringed Marvin Gaye's 'Got To Give It Up'. In it Jon Caramanica says "Owing to the specifics of copyright law, the jury was instructed to base its decision on the sheet music, a fact that reflects how inadequate copyright law is when it comes to contemporary songwriting and production practices. In 2015, the arrangement of notes on a sheet of paper is among the least integral parts of pop music creation. We’re decades beyond the time when a songwriter penned a tune on paper, then gave it to musicians to perform.

Blurred Lines (Robin Thicke and Pharrell Williams).
This 8-bar bass line is looped throughout the song.
Pointing to the difficulties in this area, Caramanica also comments on the recent 'Stay With Me' settlement where Tom Petty and Jeff Lynne were given 25% of that song which allegedly plagiarised Petty's 1989 hit "I Won't Back Down" - although Caramanica points out the argument there was structural — "both choruses have a similar pace and syllabic emphasis. But Mr. Smith’s song is ecstatic and soaring, and Mr. Petty’s is quietly tenacious. “Stay With Me” is far more indebted to traditional choir gospel than to Mr. Petty’s meditative country-rock" and asking   in truth, once you begin splitting hairs, the possibilities are endless — listen closely to “Got to Give It Up,” and you may hear the skeleton of a song like Prince’s “Kiss.” Will the Gaye family sue him, too?

But there has been a lot of comment and argument out there - some criticising copyright law - but mostly criticising the decision itself, its detrimental effect on creativity and many criticising music lawyers.

Where do we begin? Well, Dr. E Michael Harrington, chair of the music business programme at the School of Audio Engineering Institute (SAE) and reportedly an expert witness in copyright infringement, said he found the ruling absurd saying  “I think it was the worst possible decision. I think it’s really a terrible precedent. There’s no melody, no chord progression, no rhythm, no lyrics,” he explained. 

Perhaps the best analysis and comparison of the two SONGS I had seen is here : its by Professor Joe Bennett, writer and musicologist and Professor of Popular Music and Dean of School of Music & Performing Arts, Bath Spa University. Its a very good read; it was written pre-trial but gives a good idea of why the two songs are NOT similar (even if the recordings are!). The two images I have used are from Professor Bennett's article.

George Harrison got a number of mentions in cyberspace yesterday. Readers may remember the rather complicated 1976 case of  Bright Tunes Music v. Harrisongs Music et al, 420 F. Supp 177 (1976) where Harrison was ultimately ordered to pay $587,000 for "subconsciously" copying parts of the Chiffons' 'He's So Fine' in his song 'My Sweet Lord' - with one commentator saying that when the songs are compared "makes it hard to feel bad for the old Beatle". Well that's his opinion - whereas I remember thinking at the time the songs (well the recordings of the songs I had heard) were quite different. But the decision was not mine to make - it was District Judge Richard Owen's and he held: "Did Harrison deliberately use the music of He's So Fine? I do not believe he did so deliberately. Nevertheless, it is clear that My Sweet Lord is the very same song as He's So Fine with different words, and Harrison had access to He's So Fine. This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.

Many other older stories about similarities between songs also surfaced - and this article in Time Magazine - 11 Suspiciously Sound Alike Songs and this one on Bloomberg, Six Musicians Who Got Busted for Plagiarizing perhaps sums up what many were thinking - and it is all brilliantly parodied in the Axis of Awesome's YouTube 2011 video "4 Chords" video which neatly and almost seamlessly combines numerous big hits - which all share the same four chords - its well worth a listen to get a sense of perspective! As is What do you mean all Country music sounds the same?!?

After the Chiffons case, Harrison admitted he was to 'paranoid' to write  any new songs for some time afterwards. Time Magazine also noted the 'chilling effects' of the ruling saying 

"It’s easy to see the judgment as a worrisome sign that authorship in music is about to get a lot more narrowly defined. After all, Thicke and Williams didn’t interpolate the actual recording of Gaye’s track; their ripping-off of Gaye, if one agrees with the court that they did indeed rip him off, is a question of having been influenced too much. But without influences and borrowing from one another, there’s practically no popular music at all. Nearly all of contemporary music, from Taylor Swift’s ’80s pastiche on “Style” to Meghan Trainor’s faux-doo-wop stylings on “All About That Bass” to every act that tries to sound like Avicii — they’re all reaching back to music from the recent or distant past, if only because there are only so many ways to truly innovate. Even in Williams’ own back catalog, listeners have noted similarities to other songs: Daft Punk’s “Get Lucky” bears some resemblance to “Criminal World,” from David Bowie’s Let Dance; both were produced by Nile Rodgers. 

The LA Times reported that Los Angeles composer and producer Gregory Butler said that his friends and colleagues in the industry were stunned by the verdict: "You've made it illegal to reference previous material,"  adding "I'm never going to come up with something so radically different that it doesn't contain references to something else."

And Joe Escalante, an early member of the Vandals punk rock band and an entertainment law attorney, said he was concerned that the jury's decision had been driven by emotion rather than what's protected under copyright law. "This may put a smile on the Gaye family's face, but it's a dark day for creativity, and in the end, this will be a net loss for music fans," he said.

But Gaye's daughter, Nona, had this to say ""I don't think there's anything wrong with being inspired. I've been inspired when I made music before. Inspiration's fine, but the line is when you decide to take the complete and utter essence out of the song. When you take all the meat, and leave the bones"

In fact I ended up in a large multi person live debate on FaceBook yesterday where there were a wide range of opinions and questions. It started off with I'm not a fan of Blurred Lines but does this mean Queen are gonna sue Alicia Keys as 'Fallin' sounds similar to the first two chords of 'We Are The Champions' or Madonna is gonna sue Gaga over 'Born This way' or is Bruno Mars going to have to fork out money to Earth, Wind and Fire, Prince and Kool and the Gang for for having similar elements in 'Uptown Funk' to their music" . Other comments included "Drums are copyrighted, dude!" to "All music is influence" to "Pretty sure drum patterns generally can't be copyrighted" to the more specific like "No lyrics or melody have been nicked. It is just that the main hook of the production could be argued to be the vibe of the the rhythm track" countered by the comment that "that if I was Marvin Gaye - I'd be pissed off, and I think i'd be totally within my rights to be pissed off" and  the comment that "A huge part of modern music is production to the point that it often  IS the 'song'. We're in a post-modern song era. The song is no longer the main identity of a track". It ended with "So basically nobody can use an electric piano patch with a funk cowbell without the fear of Gaye's hysterical daughter and her team of legal vampires descending on them"

The EFF picked up a number of these threads saying

"Artists evoke elements of common culture all the time, to make their point or simply to entertain by putting their own twist on what has come before. This is what makes culture a conversation and not a series of disjointed soliloquies. Copyright law, though, is dangerously disconnected with the way culture gets made, and as a result it pushes entire genres and communities to the margins, such as those that involve sampling, remix, and other adaptations" and "Musicians will have to think twice before creating any new songs that evoke the feel of the music that inspired them in their youth. And with the length of copyright we have these days, artists who want to feel confident that their musical influences are in the public domain are going to have to go all the way back to ragtime."

Judge Learned Hand
 United States Court of Appeals for the Second Circuit
Inspiration or appropriation? I went back 99 years to Haas v. Leo Feist, Inc. 234 F. 105 (S.D.N.Y. 1916) where Judge Learned Hand had to compare two works to determine if there had been copying. Despite denigrating the originality of BOTH works, Learned Hand drew lines connecting identical pitches occurring at the same points in the two tunes. A few years earlier, in his opinion in Hein v. Harris (1910), Hand used a similar "comparative method" when he found for the plaintiff because thirteen of seventeen bars were "substantially the same" between the works. In the later case he also favoured the plaintiff because of "parallelism which seemed to [his] ear to pass the bounds of mere accident." And lets not forget that in 1930 Learned Hand again had to look at the line between ideas and the expression of ideas: Reinforcing perhaps what many reading about Blurred Lines might have thought, in Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir.1930) Judge Learned Hand pointed out that the line between idea and expression is an inherently arbitrary one and said:

"Nobody has ever been able to fix that boundary, and nobody ever can."


Robert Taylor said...

Any idea why Thicke and Williams didn't argue transformative Fair Use - as in Campbell v Acuff-Rose?

Anonymous said...

I'm curious about the situation regarding "Weird Al" Yankovic's Word Crimes. Musically it's incredibly (and intentionally) similar to Blurred Lines, but presumably it was excepted from copyright infringement because it's a parody of that song.

Given the musical similarities, if Blurred Lines infringes the copyright in Got To Give It Up, surely Word Crimes must do too.

So can Word Crimes be excepted from copyright infringement of Got To Give It Up, when it's not a parody of that song, only of another similar song?

Robert Taylor said...

"Weird Al" states that he always clears rights to his parodies rather than rely on fair use:

Whether this means he has cleared Got to Give It Up with the Gayes I have no idea.
As Word Crimes is not a parody of GTGIU it could not claim fair use on that basis - but remember US fair use is not like UK fair dealing - their is no requirement to 'slot' the use in to a defined list of possible excepted uses. So a Court could decide that Word Crimes was a transformative fair use of the Gaye original composition weighing factors such as amount taken, purpose and effect on the market for the original.

Ben said...

An interesting and well balanced article by Alex Sayf Cummings, author of Democracy of Sound Music Piracy and the Remaking of American Copyright in the Twentieth Century, can be found on the OUP blog here

And mor here by Matthew D. Morrison on OUP