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.