Blurred Lines case: An analysis of the piano arrangements as they were presented to the jury

A couple weeks before the Blurred Lines verdict, I wrote a short analysis of a powerpoint slide used by Gayes’ musicologists regarding the similarity between specific melodic material in Blurred Lines and Got To Give It Up. The analysis showed that not only was the melodic material in question not novel, but it is basically the same melodic material that was used by Smokey Robinson over a decade before Gaye wrote his song, and also by other composers and songwriters throughout history. I used this to conclude that there was no way you could call this a case of copyright infringement.

The response to this analysis was more positive than I thought it would be, but one criticism I received is that I focused on only one element of the Gaye family’s argument. This was not intentional; at the time of writing the article I was unaware of any other materials from the case.

The full court documents from this case were recently leaked to me, and they are very troubling. With the verdict out and the internet buzzing about its implications, it is prudent to look at these other materials presented in court, beginning with the most instantly recognizable similarity between the songs: the piano accompaniment.

Here’s the audio presented in court as Example 1: the melody to Blurred Lines placed over the piano part to Got To Give It Up pitch-matched to Blurred Lines:

This was accompanied in the courtroom by a powerpoint presentation with the following bullet points:

• The melody to “Blurred Lines” matches with the accompaniment to “Got to Give it Up.”

• Even where there are different chords, they resolve with no conflict.

• The audio example matches because there are similarities in the melodies, harmonies, and phrase lengths of the two songs.

Here is example 2, the melody of Got To Give It Up placed on top of the keyboard part of Blurred Lines without pitch correction:

This was accompanied by a powerpoint slide with these bullet points:

1. Significant similarities in the melodies,harmonies, and phrase lengths result in the two works matching.

2. The accompaniment to Blurred lines is just a simplification of the “Got to Give it Up” accompaniment.

3. Based on these matches, it could be inferred that the accompaniment to “Blurred Lines” was performed while “Got to Give it Up” was playing in the background.

Because these bullet points were on a slide presented to the jury, I assume they were the basis of the Gayes’ argument regarding these clips. If I am wrong about this I will update this article accordingly.

There are several issues with these materials.

First: the audio does not match perfectly in either clip; In example 1 you can hear clashing of the melody and the harmony throughout the example even though they’ve been pitch matched, e.g. the major 3rd  clashing with the minor third at :32. There is not a ton of conflict, but this should not be confused with them “matching;” they work together because they were both pitch- and tempo matched. You could make many, many melodies work with that backing track the same way so long as you matched the pitch and tempo, so many so that it would probably be harder to find a song that would not fit at least as well.

Example 2 is even less “matching”; it sounds pretty ridiculous to me to have Gaye singing a whole step higher than I am used to, and I strongly suspect that a person who has heard neither song before would hear example 2 and sense something was wrong. The fact that they don’t completely clash is a result of the tunes both being in 4/4 and having rhythm at all.

These are also different songs harmonically:Got To Give It Up uses a series of dominant 7th chords with an emphasis on the I7 chord. It also uses the II7 as a turnaround, which is very novel for a pop song, or any song, really. Blurred Lines just uses a I-V progression in its simplest form, without variation, on repeat, ad infinitum. These these two songs do share the tendency to sit on the I chord for a while rather than change chords frequently, but this is not a unique feature of the harmonies of these two tunes alone. These two songs don’t even have the same turnaround, which is probably the most novel feature of the harmony of Got To Give It Up. They are not significantly harmonically similar and I could get behind the argument that they are actually significantly harmonically dissimilar.

In terms of their phrase length, which is the next point brought up by the Gaye family’s legal team, this is sort of a tricky thing to compare because of how clear and repetitive the phrases are in Blurred Lines and how loose and over-the-barline the melody is in Got To Give It Up. I would say that the length of the harmonic phrase in Blurred Lines is 8 measures, and the melody is made up of a series of shorter phrases that are around 1 and 2 bars in length. For Got To Give It Up, the harmonic phrase is a full 16 measures, while the melody is sort of a snaky thing whose shorter phrases change slightly in length from verse-to-verse. Either way, even if you heard both songs as having the same longer phrase length, there is nothing novel about 8- and 16-measure phrases. These have been the dominant phrase lengths in American popular music for as long as such a thing has existed. Pointing out the similarity between two songs for having 8- or 16-measure phrases is like pointing out the similarity between a cat and a rabbit because they both have fur.

So there are no significant similarities in the melodies, harmonies and phrase lengths that would make these two songs work together more than most other two-song pairs would work together, which means that the Gaye family’s first powerpoint presentation and the accompanying audio are all pretty much irrelevant.

I highly doubt that the Harvard musicologist who put this first presentation together actually believed that there was plagiarism going on here. Her presentation hinges on the ignorance of the jury; the bullet-points are either factually incorrect or are so broad that they could be applied to almost anything. It’s like if you were trying to prove that one novelist plagiarized another novelist and as your proof you pointed to the fact that they both published books that contained chapters, and both books had a couple of reviews on the back cover, and both books were written in English. Would these three similarities prove that one author ripped of the other? No, they would prove that both authors published a book, and it would show that books tend to contain chapters, be in a language, and have reviews on their cover. And even if there were plagiarism issues with the text of the books, it does nothing to prove this by pointing out that both books have chapters and have reviews on the covers. To do this would be cynical; you would be assuming that the jury had never read a book before.

Bringing us to the statement that is at the root of this case: “The accompaniment to Blurred lines is just a simplification of the “Got to Give it Up” accompaniment.” This was addressed in great detail in a series of slides in the second Powerpoint presentation, which appears to have been compiled by the other musicologist, the person who put together the materials I analyzed in the previous article. 

Like she did with the melody, she broke the accompaniments apart and placed fragments from each song next to each other in order to draw attention to specific similarities between the two songs. Although there is no exact matching musical material, she makes it clear that there are some similar tendencies in the basslines and the right hand of the piano part:

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This is fairly compelling stuff even though it does not contain a “smoking gun” of a copied phrase, bassline or instrumental part. The most damning similarity is the one that everyone notices immediately: that bouncing electric piano figure (described in the powerpoint as a “Rhodes Organ,” which is not the name of an instrument.) Although the chords are different (I7 vs I,) the voicings have the same number of notes and are in the same register, and they revolve around the same bop-bop-bop off beat rhythm. The similarity is so striking that most people seem to pick up on it right away, and it doesn’t help Pharell and Robin Thicke’s case that they purposefully chose to use a very similar sounding electric piano as an homage to Got To Get It Up.

But a this is hardly a novel element to a song, and Gaye was not the first to pair an off-beat piano rhythm with a I-chord dominated harmony. Here’s an example from The Skatelites that fits the same description:

Here’s an example of an even more similar groove from trombonist Don Drummond:

Both of these recordings predate the Gaye (I haven’t verified the dates on these, but both are featured in collections of recordings from the 1960s,) and these are just two of literally countless examples of Jamaican music from that era that featured the same basic off-beat rhythmic figure. It would be very surprising if Gaye were not hip to the sounds of these first-wave ska artists when he sat down to record “Got To Give It Up” since Jamaican music had become pretty well-known in the United States by 1977.

The irony is that in cutting these songs up and comparing their most similar fragments in an attempt to prove sameness, the musicologist also highlighted the clear differences between the two songs. She left the door wide open for a thorough rebuttal by the defense. Even the one element that is the most similar between the two songs is still slightly different, and can be easily proven to not have been novel. And without an outright copying of some element, which I don’t see here, I don’t understand how this could be a case of copyright infringement.