The lines just got blurrier.
March 10, 2015 7:23 PM   Subscribe

In a move that will delight people who hate Robin Thicke but dismay those who care about limiting the scope of copyright, Thicke and co-writer Pharrell Williams have been ordered to pay the Gaye family $7.3 million for infringement based on stylistic similarities between "Blurred Lines" and "Got To Give It Up."
posted by grumpybear69 (113 comments total) 15 users marked this as a favorite
 


But wait -- does this mean Word Crimes is in trouble? Because... Because that would make me very sad.
posted by Hermione Granger at 7:30 PM on March 10, 2015 [9 favorites]


Huh. The song sucks, its creators suck, but that ruling's kind of like some total bullshit right there, and a really terrible precedent. Yeah, they're remarkably similar, to the point that the one is an obvious ripoff of the other, but no more than, for example, that not-quite-Beatles music they always use in Beatles documentaries.

If "stylistic similarities" are forbidden by copyright law, that's pretty much the end of all art ever.
posted by Sys Rq at 7:30 PM on March 10, 2015 [59 favorites]


I for one welcome our new corporate copyright overlords have no way to express how I feel here without making a reference to somebody else's words.
posted by Joey Michaels at 7:33 PM on March 10, 2015 [32 favorites]


Root

By way of a little fun, we simply asked for
a precise bit of information.
Couldn’t we have done what others have done
and demanded a promotion, bought shares,
in fact made a success of something?

You’re no better than a lot of bandits
roaming around the country robbing houses;
you are no better than the exploiter, the
murderer, the sole cause of all their woe.

Poor human -
to scream like that, to make me remember

and your basic sunshine pouring through…
for a few days this new revelation absorbed us
completely. We kept these experiences to ourselves,
we guided our breath from place to place
within our bodies, we wondered why this air
made us so drowsy. But if we do not know
these things, there is a danger of perceiving no more
than the exotic value of certain aspects and
missing the essential entirely.

Buy difficulty, make delay, red, room, food,
understand oracles’ answers, laugh anything, tubs,
crack discipline, burst rifles began.
posted by Joseph Gurl at 7:34 PM on March 10, 2015 [3 favorites]


Sys Rq: “Yeah, they're remarkably similar, to the point that the one is an obvious ripoff of the other, but no more than, for example, that not-quite-Beatles music they always use in Beatles documentaries.”
Right on. I mean, next they'll be saying Papa John's owes the Hendrix estate money.
posted by ob1quixote at 7:38 PM on March 10, 2015 [3 favorites]


In a move that will delight people who hate Robin Thicke but dismay those who care about limiting the scope of copyright...

I am so conflicted right now.
posted by Foosnark at 7:39 PM on March 10, 2015 [16 favorites]


Bringing Thicke's stupid identity into this is making a lot of people reach really stupid conclusions. You know what you call a song when you change the melody, and the chord progression, and the lyrics? A different friggin' song. Incredibly horrible decision, simply on the merits.
posted by mellow seas at 7:41 PM on March 10, 2015 [42 favorites]


If having indistinguishable basslines is enough to base a court case on, I can think of a whole lot of bands playing 1-4-5 chord progressions with root-fifth bass parts who all need to start suing each other immediately.
posted by echo target at 7:47 PM on March 10, 2015 [18 favorites]


Lemme stop you right there. It's a great pop song. Ok, carry on.
posted by persona au gratin at 7:48 PM on March 10, 2015 [3 favorites]


And Pharrell is awesome, too.
posted by persona au gratin at 7:49 PM on March 10, 2015 [5 favorites]


Should Thicke and Pharrell get a cut of the money I spent when I bought Marvin Gaye's song the day after I bought theirs because theirs made me crave the original so much?
posted by mer2113 at 7:49 PM on March 10, 2015 [4 favorites]


Huh. The song sucks, its creators suck, but that ruling's kind of like some total bullshit right there, and a really terrible precedent. Yeah, they're remarkably similar, to the point that the one is an obvious ripoff of the other, but no more than, for example, that not-quite-Beatles music they always use in Beatles documentaries.

If "stylistic similarities" are forbidden by copyright law, that's pretty much the end of all art ever.


It sounds like it came down to Thicke opening his mouth on the road:

The proceedings were perhaps most notable for the presence of Thicke, who sang and played the piano as he defended the work as original and said he was intoxicated when he gave media interviews in which he talked about Gaye’s influence on the works.
posted by NoxAeternum at 7:50 PM on March 10, 2015 [1 favorite]


Bad decision. Like or dislike for Robin Thicke is beyond irrelevant.
posted by Sticherbeast at 7:50 PM on March 10, 2015 [7 favorites]


I bet Marvin was ripped when he wrote it, too. That's not a good defense.
posted by thelonius at 7:56 PM on March 10, 2015 [1 favorite]


If "stylistic similarities" are forbidden by copyright law, that's pretty much the end of all art ever.

Bad decision. Like or dislike for Robin Thicke is beyond irrelevant.

So, IANAL, but exactly what sort of bad precedent is this setting? Songs that rip off significant elements of other songs are liable for copyright infringement and have been for some time. Led Zep might have to pay for the Stairway riff. Tom Petty gets royalties from Sam Smith's reworking of Won't Back Down. Why is this bad?
posted by Going To Maine at 7:57 PM on March 10, 2015 [4 favorites]


Also, remind me, who killed Marvin Gaye? If the estate is collecting royalties from the work of Marvin Gaye, surely they're benefiting from the crime of Marvin Gay, Sr., no?
posted by Sys Rq at 7:58 PM on March 10, 2015


The framing here is problematic. This case was NOT decided by stylistic similarities, which Gaye could not protect, but by reference to the actual sheet music. The defense's argument was that the similarity was merely stylistic, with Thicke following on in the genre established by Gaye in reference to the sound of the recording rather than the music itself. The jury rejected that argument.

When Gaye wrote "Got to Give it Up" that's how copyright worked. Mowtown Records (IIRC) has the rights to the recording (and the "sound.") Gaye's estate has rights to the *music,* not the performance.

The NPR story got this reasonably right. Here's Rolling Stone's coverage.
posted by snuffleupagus at 8:00 PM on March 10, 2015 [5 favorites]


So, IANAL, but exactly what sort of bad precedent is this setting? Songs that rip off significant elements of other songs are liable for copyright infringement and have been for some time. Led Zep might have to pay for the Stairway riff. Tom Petty gets royalties from Sam Smith's reworking of Won't Back Down. Why is this bad?

Those examples actually lifted significantly, in notes-on-paper terms, whereas these two compositions, while similar, are totally different in those terms. The melody is different. The rhythm is different. The only real similarity is which instruments are used.
posted by Sys Rq at 8:01 PM on March 10, 2015 [4 favorites]


Those songs seem to contain samples of actual music that was under copyright, not just some vague stylistic similarity. I assume this verdict will be appealed and overturned or settled for substantially less in the future. The first round of IP cases is often not the last one when the stakes are this high.
posted by humanfont at 8:01 PM on March 10, 2015


When Gaye wrote "Got to Give it Up" that's how copyright worked.

That's irrelevant. How did copyright work when Robin Thicke wrote Blurred Lines?

Mowtown Records (IIRC) has the rights to the recording (and the "sound.") Gaye has rights to the *music,* not the performance.

No. Motown (or whoever) has the rights to the sound recording, and Gaye has rights to the music (i.e. notes on paper). They don't have the rights to the style.
posted by Sys Rq at 8:06 PM on March 10, 2015 [7 favorites]


A lot of these later comments seem pretty derivative of the earlier, classic, ones to me.
posted by Drinky Die at 8:06 PM on March 10, 2015 [39 favorites]


"Vague stylistic similarity" was the defense's losing claim, not the plaintiff's successful one. According to Rolling Stone the plaintiffs could not even play the original Marvin Gaye recording, they could only play a stripped-down melody, so it seems like the jury disagrees that the only similarity was stylistic.
posted by muddgirl at 8:07 PM on March 10, 2015 [7 favorites]


What's going on?
posted by davebush at 8:13 PM on March 10, 2015 [13 favorites]


That's irrelevant. How did copyright work when Robin Thicke wrote Blurred Lines?

It's plainly not irrelevant. The jury just rendered a verdict based on rights vested in Gaye's estate. You can't sue on rights held by someone else.

No. Motown (or whoever) has the rights to the sound recording, and Gaye has rights to the music (i.e. notes on paper). They don't have the rights to the style.

If you really want to be pedantic about it, they have the rights to the recorded performance. Which encompasses the 'sound' or 'style,' if anything does. You're free to disagree, but you're also free to be wrong (at least, at law, in this case).
posted by snuffleupagus at 8:14 PM on March 10, 2015 [1 favorite]


To me, these later comments, a lot of them, seem pretty derivative of classic, earlier ones.
posted by pompomtom at 8:14 PM on March 10, 2015 [34 favorites]


I would add that I tend to agree that the verdict is worse in terms of chilling effects than it is good in terms of protecting artists' rights to their works. But such considerations don't change what questions the jury instructions asked, and how the jury answered them.
posted by snuffleupagus at 8:21 PM on March 10, 2015


This won't be the end of the story.

This represents a significant move forward from existing law. The "melody" is not even derivative. The bass line is similar, but if this were to stand, it would radically change the music industry.

Kind of like Apple's claim against Microsoft based on "look and feel". Too broad to allow free innovation by the rest of the world.
posted by mygoditsbob at 8:22 PM on March 10, 2015 [8 favorites]


To me, these later comments, a lot of them, seem pretty derivative of classic, earlier ones.

Really, you people should stop hacking my comments to make a point. It’s not “fair use”. It’s illegal. Think the FCC will help me out here? You’re destroying my intellectual property and inserting your own stupid message. Come up with something on your own.
posted by Drinky Die at 8:22 PM on March 10, 2015 [3 favorites]


Just a reminder that everyone seems to have piled on Robin Thicke for the creepiness of the song but have totally given Pharrell a free pass just because he gave us an adult version of 'If you're happy and you know it clap your hands'

/joke stolen from Charlie Brooker.

Shit decision.
posted by HarveyDenture at 8:23 PM on March 10, 2015 [17 favorites]


If you really want to be pedantic about it, they have the rights to the recorded performance. Which encompasses the 'sound' or 'style,' if anything does. You're free to disagree, but you're also free to be wrong (at least, at law, in this case).

Nope. It encompasses the performance they have a recording of. Period. This ain't that. Even if Thicke et al. had recorded a direct note-for-note cover of "Got to Give it Up," Motown would have no hands in that cookie jar, and they don't here, so it's weird that anyone even brought up the label.
posted by Sys Rq at 8:24 PM on March 10, 2015


Even if Thicke et al. had recorded a direct cover of "Got to Give it Up," Motown would have no hands in that cookie jar...

Sigh. Sure, whatever. You're right, everyone else who is discussing this, and the judge, and the jury, and the attorneys on both sides are wrong and don't understand the law.
posted by snuffleupagus at 8:28 PM on March 10, 2015


snuffy, maybe take a look at who the plaintiffs are. Motown isn't even slightly involved in this case.
posted by Sys Rq at 8:29 PM on March 10, 2015 [2 favorites]


That's the whole point. I'm done here. Maybe one of MeFi's resident IP lawyers can do better. It's a bit counterintuitive.
posted by snuffleupagus at 8:30 PM on March 10, 2015


Thicke is gross, and the song is gross, but that shouldn't have any bearing on the verdict. But I doubt it did have any bearing on the verdict, and I'm unqualified in about fifteen ways to decide whether the verdict was right or not.
posted by ArbitraryAndCapricious at 8:32 PM on March 10, 2015


Motown isn't even slightly involved in this case.

I think you're misreading his point. The jury decided the case based only on the "notes on paper". "Stylistic similarity" was just a defense that was unsuccessfully introduced.

So in other words, saying that this sets precedent regarding the legality of "stylistic similarity" is wrong, since as you note, Motown and their attendant claim on style were not litigants in this case at all.
posted by anazgnos at 8:33 PM on March 10, 2015 [2 favorites]


If I were Alan Thicke, I'd think of suing Robin Thicke for similarity in name and image. When this song came out, I was all like, "Hey the Growing Pains dad suddenly became cool!" BOY was my face red when I found it it wasn't ALAN Thicke but some shithead capitalizing on Alan's good name and image.
posted by not_on_display at 8:35 PM on March 10, 2015 [8 favorites]


The jury decided the case based only on the "notes on paper".

But the notes on paper are different. The only similarity is the style.

If I were Alan Thicke, I'd think of suing Robin Thicke for similarity in name and image.


Probably should have named his son something different, then.
posted by Sys Rq at 8:36 PM on March 10, 2015 [10 favorites]


saying that this sets precedent regarding the legality of "stylistic similarity" is wrong, since as you note, Motown and their attendant claim on style were not litigants in this case at all.

This.

But the notes on paper are different. The only similarity is the style.

Presumably, the plaintiffs' musicologists were more persuasive than the defendants' on this point.

Or everyone just likes Gaye better than Thicke. It's a jury, not a computer.
posted by snuffleupagus at 8:42 PM on March 10, 2015 [6 favorites]


But the notes on paper are different. The only similarity is the style.

OK but what I'm reading is that they weren't even allowed to introduce the original recording as evidence, and that the comparison was between "Blurred Lines" and the sheet music to "Got to Give it Up".

It's fine that you accept the defense team's argument without question, I'm just wonder where that is coming from.
posted by anazgnos at 8:43 PM on March 10, 2015


I have to say this is a pretty weird one. I'm always ranting about how just about every modern pop song is a total ripoff of something, and annoying my friends and family by singing the lyrics of the old song over the new one... but these songs don't sound very much alike at all. Is there a secret version of one song or the other that sounds more similar?

Or everyone just likes Gaye better than Thicke. It's a jury, not a computer.

I guess that's what it comes down to. Jury trials are biased by definition. If Robin Thicke had been accused of assaulting someone I guess his jury trial wouldn't have gone very well there either.
posted by mmoncur at 8:45 PM on March 10, 2015 [1 favorite]


Gaye said many times that the inspiration for "Got to Give It Up" was Johnnie Taylor's "Disco Lady." So should Johnnie Taylor's estate now sue Marvin Gaye's kids for infringement?
posted by blucevalo at 8:55 PM on March 10, 2015 [1 favorite]


So should Johnnie Taylor's estate now sue Marvin Gaye's kids for infringement?

They're SOL.
posted by snuffleupagus at 9:09 PM on March 10, 2015


Interchange in ideas is the very soul of art -- I'm of the opinion that sampling and soundalikes should be allowed without royalty, but attribution of all samples/originals should be mandatory, with a significant penalty for noncompliance.

This is a much less clear case than George Harrison's "My Sweet Lord" vs. "He's So Fine."
posted by chimaera at 9:12 PM on March 10, 2015 [1 favorite]


I just don't get it.
posted by DrAstroZoom at 9:12 PM on March 10, 2015


According to this article it sounds like the testimony was largely not about actual copyrightable elements.
posted by grumpybear69 at 9:16 PM on March 10, 2015 [1 favorite]


The jury decided the case based only on the "notes on paper".

Can anyone explain how the plaintiff argued this, given that a transcription of the notes from each song would clearly be different?
posted by straight at 9:24 PM on March 10, 2015


snuffleupagus you mention an NPR story that you think got this right — link? All I can find is this blog post that's thin on details. The googles, they do nothing :(

Any other links that folks have found that get the heart of this? I'm having trouble grokking.
posted by wemayfreeze at 9:25 PM on March 10, 2015


Yeah, it seems like the ruling is based on just really, really, really, really spectacularly shitty self-foot-shooting defence.

1. Their testimony might as well have been "Why, yes, these gloves fit perfectly!" (Pharell: "It sounds like you're playing the same thing." Nice.)
2. Why on earth were they on the stand in the first place?
3. Jury? Jury??? The defence had a choice, right?

There's no reason the entire defence couldn't have been a few pages of staff paper shown to a judge, who summarily throws out the case.
posted by Sys Rq at 9:25 PM on March 10, 2015 [1 favorite]


Great decision! Good for the Gaye family. The lawsuit was right.
posted by ReeMonster at 9:48 PM on March 10, 2015 [1 favorite]


There's no reason the entire defence couldn't have been a few pages of staff paper shown to a judge, who summarily throws out the case.

This is called summary judgment, and that ship sailed in pre-trial litigation.
posted by snuffleupagus at 9:53 PM on March 10, 2015 [2 favorites]


for the curious, the Gaye family counterclaim and supporting musicologist's report can be found here. it alleges similarities in composition, not just general feel or style.
posted by factory123 at 9:57 PM on March 10, 2015


snuffleupagus you mention an NPR story that you think got this right — link? All I can find is this blog post that's thin on details. The googles, they do nothing :(

So, I looked for a link when I posted and didn't find one. Does NPR delay making aired content available on the web? I couldn't find a link the story I heard driving home from work (KPCC, a little after 5PM PST). Thus the Rolling Stone link in its stead.
posted by snuffleupagus at 10:20 PM on March 10, 2015 [1 favorite]


Aside from the copyright issues…

Robin Thicke song: Forced. Crass and base. Full of sexual allusions so ham-handedly obvious and uncreative that you feel like an idiot for even listening to it once. Conveys a depressingly one-dimensional message: "I want to fuck you". The backing track, a rather chilly simulation of funk, sounds like it was created by robots for Oktoberfest.

Marvin Gaye song: Joyous. Affirmative and effervescent. Full of lines that you want to hear again and again, because they don't hit you over the head or talk to you as if you were a horny 16 year old. Conveys a message of personal and communal liberation through dance and fun. The backing track is bouncy and funky, with all the cowbell, hand claps, deep-in-the-pocket bass line and blues-inflected soul that you want in music by actual human beings.
posted by flapjax at midnite at 10:47 PM on March 10, 2015 [15 favorites]


IANAM(usicologist), but unless someone provides some links showing that the jury disregarded the plaintiff's evidence presented in the trial, the OP has some bad phrasing. The jury appears to have agreed with the Gaye's musicologist:

The countersuit also presents an expert report by musicologist Judith Finell detailing "at least eight substantially similar compositional features" with Gaye's original. The similarities are said to encompass the signature phrase, vocal hook, backup vocal hook, their variations, and the keyboard and bass lines -- "far surpassing the similarities that might result from attempts to evoke an 'era' of music or a shared genre," according to the court papers.

It's one thing to claim that what the jury found is wrong, it's another to say that jury decided the case on "stylistic similarities". From the all the links provided (including the one in the OP), I just haven't seen any reporting saying that the jury agreed that there were stylistic similarities but that Thicke and Williams are still guilty.
posted by herda05 at 11:01 PM on March 10, 2015 [4 favorites]


Conveys a depressingly one-dimensional message: "I want to fuck you".

You know, come to think of it, it's got as many musical similarities to Nine Inch Nails' "Closer" (especially the Maxwell version), as it's got to the Marvin Gaye song.
posted by Sys Rq at 11:05 PM on March 10, 2015


Yeah well, didn't NiN basically sue Lab 4 to death on the basis of a sample?
posted by pompomtom at 11:29 PM on March 10, 2015


Not a lawyer, or a musicologist, etc., it's just interesting that while the two songs sound different to me, there is apparently some way to prove, in terms of a legal definition, that they are the same. The links (and links from links) in this discussion are a bit of a rabbithole ...
posted by carter at 11:48 PM on March 10, 2015 [1 favorite]


harveydenture is right. Pharrel completely ripped off 'If you're happy and you know it clap your hands'. What a hypocrite.

And Thicke is a disgusting person.
posted by adept256 at 1:11 AM on March 11, 2015


created by robots for Oktoberfest

I thought that was all pop music.
posted by colie at 2:04 AM on March 11, 2015


There's no reason the entire defence couldn't have been a few pages of staff paper shown to a judge

Then she or he would have been right to rule in favour of the Gaye family. The musicologist's report does a fairly convincing job of showing in notation how the signature phrase is fundamentally the same in both songs.

The signature phrase is the line 'I used to go out to parties' in Gaye and 'And that's why I'm gon' take a good girl' in Thicke. The melodic contour, phrasing, scale degrees used, and melismas are similar enough (not identical) to indicate plagiarism; and establishing that this signature phrase was a distinctive and memorable part of the first song goes some way to swinging it to Gaye in my mind. There are other melodic lines mentioned in the document.

It's similar to the George Harrison 'My Sweet Lord' case, which identified a key linking phrase in 'He's so Fine' as the hook of the song and worked outwards from that (the hook in that case was the line 'Really want to see you' in 'Lord' and 'I don't know how I'm going to do it' in 'Fine').

It's been pointed out that a chord progression or a rhythmic 'feel' can't be copyrighted, but a melody can. It seems that the differing chord progression in the Thicke song has done a good job of disguising the melodic similarity in certain key phrases, for a lot of ears.
posted by colie at 2:34 AM on March 11, 2015 [3 favorites]


it's a confused and confusing issue - the melody and words are totally different, but the arrangement's the same or very close

and you can copyright arrangements - at least they did in the big band era

it would have taken very little effort to change things around to make this significantly different and they couldn't be bothered to do it

on the other hand, it's gaye's session musicians who played the actual music that's claimed to be violated - do they get a piece of this? - if the cowbell, keyboards and drums and bass line are what's decided this case, can the players sue the gaye estate?

very much on the fence about this - on the one hand, it's a pretty lazy rip off of an arrangement - on the other hand, there's a real can of worms being opened up here
posted by pyramid termite at 2:42 AM on March 11, 2015


The jury only heard midi notes, not the style. At least that's all they were supposed to hear. They weren't exactly sequestered.
posted by internet fraud detective squad, station number 9 at 4:45 AM on March 11, 2015


I take that back, sounds like they did hear clips from both songs.
posted by internet fraud detective squad, station number 9 at 4:51 AM on March 11, 2015


Wow, that musicologist's report is some bullshit, particularly the "signature phrase" comparison. Does this musicologist know nothing about common melody shapes? Why yes, they frequently curve upwards toward a resolution near the 1, and then trickle back down after triumphantly arriving there with a bit of melisma. And the comparison of the bass parts points out that they play the root a lot in both songs? Seriously?

This is an awful decision and I sure hope it gets reversed.
posted by scrowdid at 5:06 AM on March 11, 2015 [15 favorites]


Also, remind me who killed Marvin Gaye?

Sys Rq: the killer was his father, Marvin Gay Sr., who shot his son during an argument the senior Gay was having with his wife. At the time of his death, Marvin Gaye Jr. didn't have a will, but he was survived by five siblings plus his own three kids and of course his mother, so there's plenty of people other than his father to have inherited the Gaye estate.
posted by easily confused at 6:02 AM on March 11, 2015


on the other hand, it's gaye's session musicians who played the actual music that's claimed to be violated - do they get a piece of this? - if the cowbell, keyboards and drums and bass line are what's decided this case, can the players sue the gaye estate?

Presumably as session musicians they were explicitly under a "work-for-hire" agreement, right? That's the whole point of them.
posted by Lemurrhea at 6:27 AM on March 11, 2015 [1 favorite]


Also noted by the "musicologist" were the "distinctive" use of the chords I and V, the playing of the keyboard on the offbeat (like all of reggae!), the use of melismatic vocal stylings (like all of R&B!) and, I kid you not, the fact that both songs omitted a guitar.

And what bearing at all does intent have to do with infringement? The fact that Thicke and Williams got on the stand and blathered on about their influences and that said blatherings then influenced the jury's decision is a pretty strong indicator that this trial was kind of a farce.

Whether or not Thicke is a piece of shit who wrote* a dumb song and was influenced - even heavily - by Marvin Gay should have zero bearing on whether or not infringement took place. It should have been solely about copyrightable elements. Instead this trial was ruled by schadenfreude.

You can expect this decision, if it is not overturned, to set precedent in a way that is harmful to everyone except IP clearinghouses.
posted by grumpybear69 at 6:32 AM on March 11, 2015 [7 favorites]


* or didn't write, as it turns out that Williams was the mastermind.
posted by grumpybear69 at 6:38 AM on March 11, 2015


I feel like many of the later comments are pretty much derivatives of earlier, classic ones.
posted by mathiu at 6:38 AM on March 11, 2015 [4 favorites]


Yes, that is entirely possible.

Wow, fancy me missing a brilliant gag like that.
posted by Wolof at 6:47 AM on March 11, 2015




As a rightful inheritor of the Adam®'n'Eve®™© family estate, I plan to sue everyone ever for anything ever regardless of time, space, spacetime and chord progression.
posted by procrastinator at 7:18 AM on March 11, 2015 [4 favorites]


Does anyone have a link to the Thicke musicologist's rebuttal of Gaye's? Observations like the following are at least open to debate:

The Gayes' other musical expert, Harvard professor of African-American music Ingrid Monson, argued that Gaye's bass line and its pairing with a reggae- or ragtime-influenced keyboard melody were highly unusual in Motown music. That means it's hard for Thicke and Williams to claim they were influenced by the genre in general, she said, instead of the Gaye songs specifically.
posted by colie at 7:23 AM on March 11, 2015


The REAL question is, "Does any of this satisfy the Constitutional mandate of 'promote the progress of Science and the Useful Arts" which underlies Intellectual Property Rights?

My opinion is, "No."
posted by mikelieman at 7:23 AM on March 11, 2015 [6 favorites]


I totally agree with this decision and I'm glad that there are other people besides grizzled old me who understand the concept of stealing.
posted by freakazoid at 7:25 AM on March 11, 2015 [3 favorites]


As someone who has analyzed and compared music and musical scores much more complex than this, my opinion is that this decision is not good. Stylistic similarities, yes; inspiration from Gaye to Thicke, obviously; but Thicke's track is not plagiarized or copied, not to my (highly trained and experienced) ears. YMMV.

According to this decision, had U.S. copyright law existed then, Mozart should have sued the shit out of Beethoven, and Haydn should have sued Mozart, and C.P.E. Bach should have sued the pants off the lot of them.
posted by LooseFilter at 7:47 AM on March 11, 2015 [9 favorites]


It's odd since if they thought it was infringement they would have just paid the estate upfront, right?

I think the idea that this was "stealing" is not the right way to think about it.
posted by josher71 at 7:50 AM on March 11, 2015


The music industry reacts.
posted by grumpybear69 at 7:53 AM on March 11, 2015


This all seems like deck chair positioning to me. If the point of copyright is to protect works sufficiently that people will create them in order to sell them then this decision is garbage. There's no sensible universe where the creation and sale of Blurred Lines inhibits the demand for Gaye's song. This is a decision that, combined with the nature of how brains and inspiration work, has the exact opposite result when it comes to encouraging creation.
posted by phearlez at 9:11 AM on March 11, 2015 [6 favorites]


It can be the case that a) copyright is fucked and b) Gaye's family is overly litigious and protectionist and c) this is a bad decision on musicological grounds, but none of that necessarily means that it follows d) we're now on some dangerous slippery slope in regards to "stylistic" borrowing, because there is still zero indication that had any bearing on the decision. There really seems to be a popular misreading of the outcome here.
posted by anazgnos at 9:54 AM on March 11, 2015


So, I looked for a link when I posted and didn't find one. Does NPR delay making aired content available on the web? I couldn't find a link the story I heard driving home from work (KPCC, a little after 5PM PST).

Would it be this SCPR link then?
posted by Guy Smiley at 9:58 AM on March 11, 2015


Sys Rq: to the point that the one is an obvious ripoff of the other,
I think that pretty much defines "copyright infringement", and therefore you've justified the judgment.

Personally, I imagine the truth is a lot closer to George Harrison's "My Sweet Lord"/Ronnie Mack's "He's So Fine", as colie noted.
posted by IAmBroom at 10:42 AM on March 11, 2015


The Guardian: The Blurred Lines verdict proves only one thing: you can't second-guess a jury - For all the fears that the Gaye family’s victory will stop musicians using the mood of older records, the main consequence will be a desire to avoid going in front of capricious juries
Understandably suspicious of how entrenched economic interests have sought to whittle away exceptions to copyright like fair use, critics of the verdict worried that a victory for the Gaye family would lead to courts prohibiting any unlicensed incorporation of an older musical styles into a new song, severely restricting the ability of musicians to pay homage to their predecessors. If Blurred Lines was infringement, some claimed, a retro pastiche like Mark Ronson and Bruno Mars’s Uptown Funk was a minefield of potential litigation.

And yet, in a strictly legal sense, yesterday’s verdict set no precedent. US copyright law is fundamentally unchanged; the jury’s decision is an interpretation of existing law. If Thicke and Williams challenge the verdict, a court of appeals ruling could possibly refine aspects of that law. Still, there seems no cause to fear we’re on the verge of anything as drastic and destructive to creative possibility as the landmark infringement rulings against rappers Biz Markie and NWA in the early 90s, which effectively banned all unlicensed sampling and forever limited how hip-hop could develop.
posted by anazgnos at 10:43 AM on March 11, 2015 [1 favorite]


and you can copyright arrangements - at least they did in the big band era

This is absolutely true and still true today. I was best friends in college with a son of one of the original Weavers, so I got to learn about how much of the 1950s and 1960s folk music revival was based on people who made money copyrighting "arrangements" of public domain songs. Randy Sparks, the guy behind the New Christy Minstrels, would keep a calendar that marked off the exact date when various Stephen Foster songs would go into public domain and then he'd file copyrights on new arrangements of the Stephen Foster song. If somebody else recorded a Stephen Foster song that sounded a little too close to your "arrangement," then you could demand royalties.
posted by jonp72 at 10:44 AM on March 11, 2015


In other news, the Bo Diddley estate is going to be suing... well, a lot of people.
posted by slkinsey at 10:48 AM on March 11, 2015 [3 favorites]


Still, there seems no cause to fear we’re on the verge of anything as drastic and destructive to creative possibility as the landmark infringement rulings against rappers Biz Markie and NWA in the early 90s, which effectively banned all unlicensed sampling and forever limited how hip-hop could develop.

The Blurred Lines verdict is nothing compared to the NWA ruling (known as Bridgeport Music, Inc. v. Dimension Films) that basically turned "sample trolling" into a legitimate and very lucrative business. Unlike the audible similarity between Blurred Lines and Got To Give It Up, NWA got sued for using three notes from a Funkadelic song that was all but unrecognizable by the time it was recontextualized as a sample in an NWA song. George Clinton himself disputes Bridgeport Music's claim to Funkadelic's music publishing rights as based on fraud, but that doesn't stop Bridgeport Music from being a very lucrative rent-seeking business. Basically, the entire business model of Bridgeport Music is to listen for Funkadelic samples and sue as many rappers as possible, even though George Clinton doesn't get a dime from the music and is generally very favorable to sampling of his work by rappers. Sample trolls are parasitic scum-sucking bottom dwellers on the music industry, akin to the role that patent trolls play in the IT industry.
posted by jonp72 at 11:03 AM on March 11, 2015 [3 favorites]


Personally, I imagine the truth is a lot closer to George Harrison's "My Sweet Lord"/Ronnie Mack's "He's So Fine", as colie noted.

The highly ironic bit is that the melodic shape which the musicologist for the Gaye family claimed was infringing is far more similar to both "I really want to show you" from MSL and "I don't know how I'm gonna do it" from HSF than "I used to go out to parties" from GTGIU.
posted by grumpybear69 at 11:03 AM on March 11, 2015 [1 favorite]


the melodic shape

Like the My Sweet Lord case, these decisions might hinge on grace notes and anticipations as well as the overall shape. The downbeat anticipation of Gaye on the word 'part-ies' is on the 2nd scale degree and then goes down to 1, rather than Thicke who aggressively waits for the downbeat and then hits a massively emphasised 1 on beats 1 and 2. MSL vs HSF didn't have this distinction because both songs hit the target 1 squarely on the downbeat.
posted by colie at 12:52 PM on March 11, 2015


My point is that, if you transcribed the key phrase from all four of those songs, "Got To Give It Up" would be the one that is not like the others. The way Marvin hangs on the 2 at the top of the phrase - as well as the way he hits it on the upbeat where Thicke and Harrison and the Chiffons all hit the 5 - makes them distinct melodies. Even if you placed the 2 on the downbeat they are significantly different. And that 2 is not a grace note, it is a fundamental part of the melody that would remain even were it to be distilled.
posted by grumpybear69 at 1:06 PM on March 11, 2015 [1 favorite]


I agree with you. I was just grasping around the idea that structurally some might interpret the GTGIU 2 downbeat anticipation as a dramatic effect that embellishes the destination 1 rather than takes the melody to a new place.
posted by colie at 1:18 PM on March 11, 2015 [1 favorite]


US copyright law is fundamentally unchanged; the jury’s decision is an interpretation of existing law.

Well, of course. Juries are for fact-finding. They are charged with applying the law in their jury instructions to the evidence and argument before them. Even the rulings of trial court judges have little weight as precedent, if any, until evaluated on appeal. Precedent is created by the published decisions of the higher courts.
posted by snuffleupagus at 1:20 PM on March 11, 2015


some might interpret the GTGIU 2 downbeat anticipation as a dramatic effect that embellishes the destination 1 rather than takes the melody to a new place.

That is no doubt what happened with the jury and what the plaintiffs hoped to impart via their musicologist. Alas.
posted by grumpybear69 at 1:32 PM on March 11, 2015 [1 favorite]


I think that pretty much defines "copyright infringement", and therefore you've justified the judgment.

Not at all. Deliberate sound-alikes are made all the time, usually for the specific purpose of skirting copyright, the idea being that they're close enough to the real thing that the naive or unsuspecting might be fooled, but people who use it in crappy movies or commercials don't have to pay an arm and a leg for the rights. Hence all those Beatles docs with generic Mersey Beat jangle soundtracks. See also Weird Al's style parodies (which are arguably not parodies at all -- just funny songs) or 99.9% of all EDM.

People deliberately ape prior art all the time. Unless they're actually lifting actual passages from it, they're not infringing on anything. Even if it becomes more popular than the original.
posted by Sys Rq at 1:37 PM on March 11, 2015


Even the rulings of trial court judges have little weight as precedent, if any, until evaluated on appeal.

Maybe better that Thicke et al don't appeal this one, then.
posted by grumpybear69 at 1:38 PM on March 11, 2015


Unless they're actually lifting actual passages from it, they're not infringing on anything.

This isn't true. Derivative works are a major concept of copyright law. Exact, verbatim copying of the songwriting isn't necessary to find infringement.

Re: soundalikes in commercials. These are usually done while betting on the chance that [successful but not huge indie band and its label] don't have the financial resources, time, or energy to litigate the issue; even if they did, they didn't have any concrete evidence that the soundalike songwriters were specifically relying on their work. (In this case, Thicke's comments have specifically brought up Gaye on multiple occasions and even this song in relation to "Blurred Lines", and that ends up being very important.)

I think much of what we're seeing here is a fascinating sort of cognitive dissonance that tends to happen when subjectively-experienced art is funneled through the narrow principles of copyright law. We're hearing all aspects of a song and also taking in extramusical aspects, when copyright law is narrow by necessity. We've all heard both commercial recordings; the juries have not, and the commercial recordings are NOT at issue in this case. They've seen the sheet music and have heard keyboard versions of passages. There are multiple copyrights for any given work - a recording copyright is analyzed differently from a songwriting copyright. And in this case, we're in danger of conflating a recording and how different it "sounds", as well as two well-known personalities and their differing style, eras and pop culture context, with the actual songwriting elements.

Keep in mind, too, that it's not sufficient to just cover up an infringement with superficial details to make the result less obvious. Those superficial details might be, for example, transposing the song to a different key, adding flourishes here and there, etc. All of this is being weighed by a jury in coming to a decision, and the result might sound totally different to us, but may be convincingly infringing from a legal standpoint.

At the end of the day, I don't think this is infringing material. I heard both songs and think they're similar but sufficiently different to clear the hurdle. But I'm working with privileged / biasing information, so is everyone in this thread. Worth keeping in mind.
posted by naju at 2:50 PM on March 11, 2015


What, no "thus it begins" pointer to Melancholy Elephants yet? Normally y'all are right in there with the science fiction parallels...
posted by finka at 3:16 PM on March 11, 2015 [1 favorite]


I have a bit of a musical ear and can't for the life of me hear anything worthy of a lawsuit. Does Marvin Gaye have a copyright on beats per minute?

Appreciate the respectful discussion between Colie and Grizzly.

It's bad enough that John Fogerty has been sued for sounding too much like John Fogerty, and Neil Young for not sounding enough like Neil Young. Granted those were by record companies but now this. Who is allowed to make music anymore?
posted by raider at 6:50 PM on March 11, 2015 [1 favorite]


See also Weird Al's style parodies (which are arguably not parodies at all -- just funny songs)

As often happens, This Reminds Me of Something - a bit that appeared in the fantastic weekly newsletter, 5 Useful Articles, by Parker Higgins & Sarah Jeong. A few weeks ago they included this really interesting quote which I thought made a fascinating point about something being perceived as parody.
Entirely Ornamental, Non-Utilitarian Article

The humor of the Downfall Hitler meme depends in part on the viewer’s being unable to understand German. For most viewers outside German-speaking countries, this is probably the case. In the US, for example, of students who study a foreign language, only about four per cent study German. For a viewer who speaks German the dissonance between what is said and what the subtitles show is confusing and undermines the humor, at least to some extent. As Hirschbiegel, the director, says of the parodies “Of course, I have to put the sound down when I watch.” But for the viewer who does not speak German, the incomprehensibility of the words enhances the overall madness of Ganz’s performance, and thus magnifies the incongruity of the (usually mundane) subtitles. The audio portion of the original is thus valued in the parody not for the information it contains, but for the opposite reason: for its failure to convey information. This leads to the result that the degree of transformativeness of the work varies depending on the audience. The work is most transformative to the viewer who reads English but cannot understand spoken German. At the other extreme, the viewer who understands spoken German but not written English will perceive no transformation at all, aside from some incomprehensible text at the bottom of the screen; for all the viewer knows, the subtitles might be an accurate translation.

Reclaiming Copyright From the Outside In: What the Downfall Hitler Meme Means for Transformative Works, Fair Use, and Parody by Aaron Schwabach
posted by phearlez at 7:27 PM on March 11, 2015




That Vulture article isn't very good. It's a verdict, not a ruling, and the interviewee seems to have a rather incomplete understanding of what evidence was actually admitted (i.e. what was played for the jury). And while Thicke and company began the suit as an action for declaratory judgment, the Gaye side counterclaimed for infringement, and prevailed on that claim.
posted by snuffleupagus at 8:57 PM on March 11, 2015


Vulture: A Copyright Expert Explains the ‘Blurred Lines’ Ruling

Interesting, but the guy is a professor of music theory, not a lawyer. I'm turning my head at enough of his statements that I don't think he's much of an expert at all...
posted by naju at 8:58 PM on March 11, 2015 [3 favorites]


This is from last year, but at least it comes from a reputable IP firm and actually discusses the legal standards involved. The Blurred Lines of Copyright Infringement of Music Become Even Blurrier as the Robin Thicke v. Marvin Gaye’s Estate Lawsuit Continues
posted by naju at 9:22 PM on March 11, 2015 [3 favorites]


I stand corrected by grumpybear and others that Gaye's case ultimately wasn't strong enough. That downbeat anticipation on 'part-ies' is enough to swing it, and having another listen, perhaps the Thicke song's replacement of it with a lascivious, pelvic-thrusting 'GOOD GIRL' squarely on 1 and 2 is precisely what some people find distasteful about the song. Or incredibly catchy, or both.
posted by colie at 12:42 AM on March 12, 2015


Thanks for that link, naju! That explains a lot about the trial and also makes clear how nebulous the ninth court's interpretation of copyright already is.
posted by grumpybear69 at 5:14 AM on March 12, 2015


Re: soundalikes in commercials. These are usually done while betting on the chance that [successful but not huge indie band and its label] don't have the financial resources, time, or energy to litigate the issue; even if they did, they didn't have any concrete evidence that the soundalike songwriters were specifically relying on their work.

There is actually a legal precedent for this. It's called Tom Waits vs. Frito-Lay. I wish I could say I was making that up, but sadly, I am not.
posted by jonp72 at 10:00 AM on March 12, 2015 [2 favorites]


Well, I failed at finding that commercial with Tom Waits, but I did find these.
posted by Going To Maine at 3:28 PM on March 12, 2015


There is actually a legal precedent for this. It's called Tom Waits vs. Frito-Lay.

That case -- which cites Bette Midler v. Ford Motor Company, incidentally -- really hinges on "voice misappropriation," i.e., the deliberate impersonation of Tom Waits' voice which made it seem like he himself was endorsing Doritos. If they had just created a simulacrum of his music without throwing a gravelly voice on it, there would be no issue.

Since nothing is being commercially endorsed here, and since no one would mistake Robin Thicke's voice for Marvin Gaye's, that case isn't really pertinent.
posted by Sys Rq at 9:21 PM on March 12, 2015 [2 favorites]


There is a local jeweler that is running radio ads that are a clear Family Guy ripoff, including the names. Is that okay or does it have to be music? Or real people?
posted by Drinky Die at 9:51 PM on March 12, 2015


And why do they think that will sell diamonds?!
posted by Drinky Die at 9:52 PM on March 12, 2015 [1 favorite]


that case isn't really pertinent.

Right, and it was analyzed under voice misappropriation (a sort of right-of-publicity defense) and the Lanham Act (trademark law), not copyright at all, from my brief skim of it. So yep, not relevant.
posted by naju at 11:12 PM on March 12, 2015


Marvin Gaye's family says Pharrell's Happy is another copy.
posted by progosk at 3:18 AM on March 13, 2015


...but also that they aren't in the mood for another court battle.

And, yeah, the whole Tom Waits vocal soundalike thing is different, but still interesting. Read broadly enough, it could suggest that a 'sound' or 'style' may be protectable under trademark, if not copyright. I'm not familiar with the actual nuts and bolts of IP rules and their litigation to know if that's at all a realistic tactic for challenging the impermissive reuse of an arrangement or style of a particular recording, vs. the imitation of a reasonably distinctive vocal style that is strongly linked to a celebrity persona's marketability.
posted by snuffleupagus at 2:31 PM on March 13, 2015


« Older Living off the grid: portraits   |   I wonder if he lives in a valley? Newer »


This thread has been archived and is closed to new comments