I got into a much more intense conversation than I usually allow myself to get into on Facebook recently over the Marvin Gaye vs. Pharrell/Robin Thicke copyright infringement lawsuit. I had similar conversations about the Sam Smith vs. Tom Petty controversy as well as an incident involving Lady Gaga (more on that below). Here’s the short version of my take:
Sam Smith / Tom Petty: I heard this one coming the moment I heard the Sam Smith song. Petty was absolutely within his rights to sue and rightfully got a settlement from a humble and civil Smith who fully admitted to the unintentional similarity.
Robin Thicke / Marvin Gaye: The Gaye estate never should have won this trial, and the case sets a dangerous precedent for musicians in the future.
Why are my views split so strongly between the two? Let me explain.
Smith vs. Petty: A Direct Hit
There are many people who have already posted good comparisons of these two songs, so I won't go into great detail here musically. But it's undeniable that a very significant percentage of the main melodies for both of these songs are identical—pitch, note values, even the harmony behind them (though the harmony isn't particularly important).
To both artists' credit, the matter was settled quickly, out of court and with class from both sides. Smith acknowledged the similarity, though both artists agreed it was unintentional. That last part—unintentional—is incredibly important to note; intention doesn't factor into a copyright infringement case. Take George Harrison accidentally lifting the melody for "My Sweet Lord" from The Chiffons' "He's So Fine." He (probably) had no intention of doing so, but he still had to pay up.
But intention works both ways: if you don't intend to plagiarize but you do, you're still responsible. And even if you do intend to rip someone off but by the letter of the law you technically haven't, you don't suddenly become a plagiarist. If I record a folk album in the style of Bob Dylan and publicly state that I was trying to make a record that sounded just like Dylan, yet I didn't directly copy any of his songs, nobody can sue me for that.
Thicke vs. Gaye: The Wrong Specifics
That intention bit is important because from what I gathered about the "Blurred Lines" trial, the defendants' intention was a deciding factor in the verdict.
Let's get something out of the way first: "Blurred Lines" is, in some ways, obviously a take on Gaye's "Got To Give It Up." You could probably even use the word rip-off in a general, musical-inspiration sense. There was an admitted intention from the songwriters to cop the style and vibe of Marvin Gaye. Unoriginal? Yes. Criminal? Nope.
The first problem here is that, other than the groove and percussion part, these songs are actually not very similar at all. The melodies share almost nothing in common. The bass lines, another oft-referenced element in the lawsuit, are not even close. And while they were clearly going for an emulation of that sound, copyright infringement only covers specific elements of a song that are simply not lifted in this example. You can't copyright a drum groove, a chord progression, a "vibe." "Blurred Lines" is most definitely influenced, but it's not infringing. The relevant song elements from a copyright infringement standpoint are significantly different enough that they shouldn't have lost the case.
The other problem is that the jury deciding this case, I can only assume, was not a jury full of trained musicians. While the average person can probably understand most general musical concepts, the average non-musician should not be determining the outcome of a case entirely based on music theory. From what I can tell, they barely even listened to the recording of the original song during the trial and largely based their decision on Pharrell and Thicke's admissions that they were mimicking the style. Combine that with hearing how, in a general sense but not relevant to the case at hand, some elements of the songs do sound very similar, and they wrongly (in my opinion) decided in favor of the plaintiff. Why was this even a jury case to begin with?
Samples vs. Songwriting
My dubiousness toward the jury was mirrored very well in some of my conversations with non-musicians following the verdict. One person said that the case was a good step in making artists credit and pay for samples. But this case had nothing to do with sampling; they did not sample the original sound recording, and that wasn't what the suit was about. Otherwise it would have been incredibly cut-and-dry: guilty. Someone else asked if my argument meant they could just change the lyrics of anyone's song and it would be legal. But that's not what they did either; similarities in the melody and other key musical details simply weren't there. If they used Gaye's song as a starting point, they changed a lot more than just the lyrics.
The only thing I could possibly think that could swing the case the other way was if they convinced the jury that the specific groove and percussion part were so key and signature to that song that they constituted a musical hook, but that's a huge stretch and a flimsy case at best.
The reason I feel this ruling sets a dangerous precedent is that it is essentially opening the door to suing an artist for being influenced by you. The vast majority of music is taking what has already been created and turning it into something new, even if it's just a little bit new. Every artist has ripped something off of an artist that came before them, whether they realize or admit it. We can’t start suing every time someone gets the essence of your music in theirs. If it’s not a real instance of infringement, take it as a flattering tribute, a tip of the hat to your prowess and inspiration.
The Gaga Incident
An indie artist recently attempted to sue Lady Gaga, claiming that Gaga had stolen one of her songs and turned it into her own track. Unfortunately for her, whether Lady Gaga ripped her off or not, the fact of the matter was that the song wasn’t the same, no melody or lyric had been directly lifted and no original sound recording had been used. There were some sections that were at most vaguely reminiscent of the song in question. The artist lost the case and blamed it on the idea that Lady Gaga had a lot more money, ignoring the fact that she didn’t actually have a real case and therefore no leg to stand on. Might Lady Gaga have gotten away with a genuine theft because she could pay for high-powered lawyers? Maybe! But the David vs. Goliath element was not the reason for the indie artist's failure in this case and is therefore irrelevant.
I’m hoping the "Blurred Lines" ruling will get appealed, and not because I love the song or am a fan of Robin Thicke (though I do like Pharrell and I love Marvin Gaye). And I know I’m not the only musician genuinely concerned with the outcome of the trial. Only time will tell, but for now this looks like a bad decision to me.