A couple weeks ago, Pharrell and Robin Thicke lost a lawsuit filed against them by the estate of the late Marvin Gaye. The two were ordered to pay 7.3 million dollars in damages for infringing on the copyright of Gaye's 1977 song "Got to Give it Up" with their 2013 hit "Blurred Lines."
There were several things that struck me as strange about this lawsuit. First, the songs just don't sound that similar to me. As an analyst, what I'm typically listening for are melody and harmony. Those are things that my music degrees have taught me to prioritize (for better or for worse). Melody, let it be noted, is one of the things that can be copyrighted in a piece of music. Among the things that are not protected under U. S. Copyright Law are instrumentation, timbre, and groove. These things, it seems to me, are what the two tracks in question have in common. Another unusal issue is that when Gaye's track was released, the 1976 Copyright Revision had not yet gone into effect; therefore, the rules set forth in the 1909 Copyright Act had to be considered in this lawsuit. That means that the recording of the song could not be used to prove any amount of substantial similarity - they had to use the sheet music that was on file with the Library of Congress. This means that two musicologists (one of whom has relatively questionable credentials) had to argue for the similarity of the two songs based on musical notation. According to the blog of the American Musicological Society, factors like both song having a ii-V-I progression were enough to convince the jury of infringement.
I visited a Music Business class that my colleague, Brian Felix, teaches, and participated in a discussion with the students. Their initial reactions were quite shocking to both Brian and me. They were saying things like, "Robin Thicke has to pay a bunch of money? Well, that's karma! What a douche! That song is horrible!" These things may possibly all be true. But is being a douche and writing a demeaning song reason enough to be sued? Did "Blurred Lines" actually break the law? In my opinion, no. One of the Music Business students astutely pointed out, "ii-V-I? Isn't that in, like, every song ever?" Ethnomusicologist Liam McGranaham wrote on his Facebook page, "I love Marvin Gaye, and there's something satisfying about Robin Thicke losing at anything, but this is a terrible decision. Every musician copies and steals (consciously or not) from their peers and predecessors. It's fundamental to how music is made and always has been." I obviously agree; in fact, there is an entire chapter in my dissertation dedicated to this point. A friend of mine, Eric Condon (a musician, but not an academic) had this to say:
"I know everyone (including myself) thinks Robin Thicke is a tool, so it's tempting to gloat about this, but this sets a really, really bad precedent for copyright, songwriting, etc. As sonically similar as these two songs are, they are objectively not the same song in copyright-enforceable terms, at least as far as I understand them. So this is weird. Things could get really bad for songwriters from here on out."
I leave you with a New York Times article about the verdict.