Analyzing the case against “Blurred Lines”

Update (Mar 13 9:15 AM): This article is now somewhat out of date; with the verdict came reports that these melodies were not the only things compared at trial. Stay tuned. In the mean time, this analysis is still accurate. 

Update (Mar 13 4:30 PM): There is now a part 2.

Court has been called back into session in the Blurred Lines plagiarism lawsuit, and as far as I can tell, the plaintiffs are currently making their case. Gaye’s camp does not have much to go on, since the judge ruled that the full recordings of the original songs could not be played in court, but their case looks stronger than I thought it would. According to Kate Conger at Ratter, the musicologist hired by the Gaye family presented the following slide in court last week:

gaye-thicke-comparison

With this slide the musicologist puts both melodies in the same context; and proves that they share the following elements:

  • a: a melodic fragment of three repeated notes (but not on the same scale degree)
  • b: a melodic fragment consisting of the 5th, 6th, and 1st scale degree in upwards motion in eighth notes
  • c: a rhythm of six repeated eighth notes preceded by a rest
  • d: a melisma (a phrase where one vowel sound is continued over more than one note) that contains a descending fourth (the second b)

Although this is a much more compelling case than I was expecting, these elements are far from novel, and I can’t see how this case could be won by the Gaye family without opening the door to a wave of lawsuits and copyright trolling. Take those a and b melody fragments of Got To Get It Up, for example, notated here as “5-5-5” and “5-6-1.” Together they are also the melody of the opening phrase of the chorus to Janet Jackson’s song Runaway:

runaway

They’re also basically the opening piano melody to Smokey Robinson’s You Really Got a Hold On Me:

holdonme

(*In this case phrase a is reduced to one note on the 5th scale degree, however phrase b continues onto the 2nd and then 1st scale degree, as is the case of Got To Give It Up.)

That eighth note rhythm indicated as is also extremely common,which makes me wonder why it’s even being considered as part of the lawsuit. Here it is in Beauty and The Beast:

littletown

Here it is in Old Time Rock and Roll:

oldtimerockandroll

And in the opening phrase of Beethoven’s Waldstein Sonata:

beethoven

So even though the musical material labeled a, b and c is all relevant to the case, I don’t think there is enough here to warrant a verdict in favor of Gaye’s family. These are common melodic and rhythmic ideas. I have only been working at this for about an hour and have already came up with one example that is an exact match for the Gaye a, b and c; one match for b and c that contains a fragment of a, and three rhythmic matches for c. This can be contrasted with the Sam Smith / Tom Petty plagiarism case, where my $180 prize for a third exact match that predates those songs has yet to be claimed despite a response from my friends that would lead me to estimate at least 15 man-hours have been spent looking for one.

You may be asking “what about the musical material labeled d and the second b?” The fragments that the musicologist is labeling d and the second b are irrelevant, I think; melismas are frequently improvised, and besides, they are different melismas. You can’t copyright the broad idea of including a melisma that contains a descending fourth.

Bright Tunes Music v. Harrisongs involved two recordings that had the same three- and five-note melodic fragments. In his ruling the judge in that case decided that using the same three- and five-note fragments on their own was not novel enough to be copyright infringement, but that “the four repetitions of A, followed by four repetitions of B, is a highly unique pattern.” So the copyright was violated not because a few notes were the same but because each of those fragments were repeated in the same way in each song for a total of twenty-seven shared notes in a row between the two songs. This is clearly not happening with Blurred Lines; there are only three (arguably five) notes that match each other exactly, and they are not repeated.

All things being said, this case is a lot closer than I thought it was going to be, and the Gaye family’s chances depend on on the jury’s perception of all of this. We are in fairly murky waters, but based on my understanding of our copyright laws and the precedent set by Bright Music v. Harrisongs, this is not a case of plagiarism. If the jury does rule in favor of the Gaye family, things are about to get very interesting. The Gayes’ musicologist has chopped the music up into pieces that are so small that it would fundamentally change the process of songwriting if they won. If three common notes within a single similarly-shaped phrase is all that is needed to successfully sue someone, then the floodgates of litigation are about to swing wide open. Stay tuned.

Pharell and Robin Thicke did not plagiarize Marvin Gaye

Last August, Robin Thicke sued the estate of Marvin Gaye, who had been harassing him regarding the similarities between his hit Blurred Lines and Gaye’s 1977 record Got To Give It Up. The lawsuit accused Gaye’s family of making an invalid copyright claim because the similarities that do exist between the two recordings fall outside of what can legally be copyrighted. In response, Marvin Gaye’s family formally sued Thicke and Pharell Williams, the producer and primary songwriter of Blurred Lines, for copyright infringement. The judge in the case allowed it to go to trial, the first date of which took place last week.

In the United States, you can copyright a melody, lyrics, a piece of sheet music and an audio recording. You cannot copyright a style, a chord progression, a song title, a groove, or a studio production technique. This is why no one has ever sued anyone over the similarities highlighted in the famous 4-Chord Song Youtube video, or why no bebop rhythm section will ever be sued for pairing a walking bass line with a swinging cymbal pattern. Only the lyrics of a song, the recording of the song itself, its sheet-music arrangement and its melody, defined as a rhythmically organized sequence of single tones so related to one another as to make up a particular phrase or idea, can be copyrighted.

The test of whether two songs are the same can be diluted to this: If the songs were sung side-by side, in the same key and at the same tempo, would the melodies match?

In the famous case of George Harrison’s My Sweet Lord vs. He’s So Fine by the Chiffons, the judge ruled that the songs were structurally the same even though there are slight variations between the two, and when you put the songs side-by-side this is very apparent:

Same is true for Twinkle Twinkle Little Star and The Alphabet Song: they are basically the same song with slight rhythmic variations, a fact that can be used to the delight of toddlers (thank you Annie Moor for providing the vocals:)

In the case of Sam Smith’s tune Stay With Me and Tom Petty’s I Won’t Back Down, the verdict is even more clear: these are the same melody, without variation, for three of the four phrases, as you can clearly hear when the songs are sung side-by-side. You’ll hear a slight clashing in the harmonies, but you’ll notice that they are otherwise the same melody for those phrases:

This is not the case for Got To Give It Up and Blurred Lines. Not only are the melodies different, but they operate with different phrase lengths, chord progressions and melodic contour. You will hear a ton of clashing. These are not the same song by any definition, and it’s not even close:

(note: in the last three examples each song is isolated on the left or right channel so you can compare them and also hear them separately. You will also notice I am not Marvin Gaye.)

Despite how clear it is that these are two different songs, there is no debate over the fact that the recording of Blurred Lines sounds similar to Got To Give It Up. Both recordings feature a double-time, off-beat electric piano pattern superimposed over a fairly straight-forward 4/4 drum pattern that includes a rapid cowbell rhythm and a bass line that anticipates the downbeat. This produces a unique sound for a pop song, so the similarity between these two recordings is pretty noticeable, and Pharell and Robin Thicke are open about the fact that they modeled their backing track on the Marvin Gaye recording. But even though they acknowledge that this was purposeful, what they did wasn’t plagiarism. It is not even copying or ripping-off; it’s emulation, and people are regularly praised for the way they emulate certain styles or the way they incorporate certain musical ideas into their playing or recording. Mark Ronson and Bruno Mars certainly borrowed from turn-of-the-1980s funk artists like Cameo and Rick James for their megahit Uptown Funk but you won’t hear any accusations of plagiarism unless it’s found that they lifted a melody or lyrics verbatim from one of those earlier recordings. No such case exists. The same rules apply to Blurred Lines.

A lot of people that should know better are reporting and commenting on this issue as if it were a cut-and-dry case of plagiarism. In response to the initial lawsuit, Nicholas Payton posted an open letter to Pharell in which he viciously berated the producer for what Payton believed was a case of brazen musical theft. “Just because you and Thicke lowered the key a whole step from A to G and removed the Blues doesn’t mean you didn’t steal it,” Payton wrote. “If that monotonous piece of trash you call a song had a bridge, you probably would have stolen it, too.” This completely disregards the fact that the two songs have different melodies, lyrics, phrase lengths, forms, and chord progressions. He even attacked Pharell for (correctly) saying that these two tunes would look different on sheet music: “What sheet music are you talking about? From some wack publishing company that did a transcription of Marvin Gaye’s work?” This is an odd series of statements when you consider that he is one of the world’s more renowned horn players in an idiom that is built upon emulating, honoring, and appropriating the work of other artists. How does Mr. Payton feel about playing contrafacts such as Hot House? What about the fact that he straight lifted the opening phrase of Louis Armstrong’s “West End Blues” cadenza when he recorded that tune a few years ago? It is not a stretch to say that Nicholas Payton is one of the most highly respected trumpet players of our time. Someone with his clout and musical knowledge should know better.

Court reconvenes next week. The jury will not hear the audio recording of Marvin Gaye’s song due to the fact that Gaye’s family does not own it. Because it is the recordings that sound similar, not the compositions, it is almost certain that the Gayes will lose this copyright suit. Still, according to the New York Daily News “each side has retained high-priced musicologists who will give opinions about what’s similar and peck away at keyboard keys in court.” It is baffling to think there is such thing as a high-priced musicologist, and it makes you wonder what case any credible musicologist would try to make regarding the legal similarity between these two songs. Maybe they’ll argue that one specific phrase is copied? I’ve listened to the tunes several times and cannot find one. 

There’s no way that Blurred Lines could lose this battle without opening the door for thousands of lawsuits. Could Michael Jackson’s estate sue Madonna because the background track to Like a Virgin is basically a major-key emulation of Billie Jean with synthesizers instead of live instruments? Could AC/DC sue Metallica for the similarities between the bells that open For Whom The Bell Tolls and Hell’s Bells? What about the hundreds of pop-punk bands that sound almost exactly like one another? Could the first one of those sue the rest of them? And for that matter, what about all of the bebop drummers and their spang-spang-a-lang cymbal pattern? If emulating the style of an earlier musical performance becomes the new legal standard for plagiarism, we are all in a lot of trouble.

CONTEST: Find a third song that matches “I Won’t Back Down” and win $180

By now we are all aware that the chorus of Sam Smith’s Grammy-winning song “Stay With Me” is melodically identical to the verse of Tom Petty’s 1989 hit “I Won’t Back Down,” with the exception of the third phrases. In case you’ve missed this story, here is the Youtube video that lays it all out:

https://www.youtube.com/watch?v=qkcZV97O3pw

Even though the recordings sound very different on their own, the melodies themselves are identical, so those bits of Sam Smith’s tune are legally the same song as the corresponding bits of “I Won’t Back Down.” This is pretty much indisputable, and it is in contrast to the ocean of sound-alike songs out there — for example the recent hits “Tik Tok” and “California Girls” — that seem like copies of each other but that are ultimately one or two notches removed from exactness to legally be the same song.

When news broke that Tom Petty would begin receiving royalties for Sam Smith’s song, many people — myself included — thought it was a little unfair to Sam Smith. Yes, these two songs are identical in a way that one couldn’t legally argue that the songs are different, but this particular melody is so simple and so universal that it is hard to imagine that Petty was the first person to write it, and Sam Smith’s recording unique enough that it feels like its own song. In an oft-cited article for Slate defending Sam Smith, Adam Ragusea went so far as to claim that he could find “a lot of songs that would be similarly simpatico,” which would mean that not only was Tom Petty not the first person to publish or record a song with that melody, but there would have to be many examples out there. Half-jokingly, I offered $80 to my first Facebook friend that found a perfect match that was published or recorded before “I Won’t Back Down,” thinking that it would only take a few music experts working for a few hours on their day off before one was found. But, two weeks later I am writing this and there have been no matches. This is an important issue, one that hits at the heart of what it means to be a musician in 2015, so I am doubling-down on the contest. 

The Contest: I will give one hundred and eighty dollars ($180) to the first person who provides evidence of a song that was written before “I won’t back down” that contains the following ten-note melody in any key: 10943638_10102217121328038_1055595378907470437_oIt can appear any place in the song but it has to be exact, in the same way that Sam Smith’s song is exact. It must appear that way in a published version or a released recording (not a live version or outtake.) You have to submit it here and you have to be first.

This is not intended as a knock on Tom Petty nor as a dig at his detractors; if we can’t find another song with the exact same melody, we should all lay off of Mr. Petty and let him collect his deserved royalties in peace. Likewise, if it is proven that the melody is older than 1989, the year that “I Won’t Back Down” was released, Sam Smith should not have to share writing credit or royalties with Mr. Petty; in fact, we may discover an earlier songwriter that deserves his or her own cut of both of these songs.

The full terms of the contest are as follows:

  1. Submissions to the contest must be in the form of a comment on this blog post or on my personal facebook page. The timestamp of your comment will be the official timestamp of your entry.
  2. The submission must be verified by a recording or published sheet music. If a recording it must be cataloged on the Allmusic Guide as being released before “I Won’t Back Down” (April 1989.) If sheet music, it must be proven to have been published before “I Won’t Back Down.” If you submit a song title without proof, your timestamp remains valid for twelve (12) hours to give you time to provide proof. In the case of a dispute or an ambiguity the burden of proof is on the submitter.
  3. The melody can appear anywhere in the song, but all ten pitches and rhythms must be an exact match. The rhythms must fall on the same beats as the given example, including the rest on beat one of bars 1 and 3, and the melody should function the same way in terms of solfege (e.g. that last note, in whatever key, must function as “do.”)
  4. If I (Dan Reitz) become aware of a matching song before a matching song is submitted, the contest is over. If this happens I will announce it in the comments of this blog post.
  5. If you win the contest you agree to refrain from blogging about it or mentioning it on media until I have announced the win on my blog, for a maximum of 3 days (I will likely announce it immediately.)
  6. You will receive your prize after the announcement has been made.
  7. I am the ultimate judge of this contest and reserve the right to full authority over it. I reserve the right to cancel the contest for any reason or to disqualify a person for any reason.

This is a real contest with real implications, so feel free to take it seriously. I would be surprised if there is not a matching song somewhere in the bowels of recorded and published music, but I don’t think it will be easy to find. It may even be older than copyright law itself. Happy sleuthing.