By Cassandra J. Sproles and Roger Hagy Jr.
Originally published in Tennessee Law, Spring 2016
“No more pretendin’. ’Cause now you’re winnin’…”
Or…not. (“Hey hey hey.”)
“I hate these blurred lines!” sings pop star Robin Thicke. And now he may truly hate them, or rather his 2013 hit song “Blurred Lines,” which put him at the center of a bitter copyright dispute in 2015.
The “Blurred Lines” battle pits Thicke and his co-writers—producer Pharrell Williams and rapper Clifford “T.I.” Harris—against the family of the late Marvin Gaye, the celebrated soul singer who left a lasting musical catalog following his death in 1984.
The Gaye family claims “Blurred Lines” infringes on the copyright of Gaye’s 1977 disco-funk hit, “Got to Give It Up.” Following buzz that their song sounded remarkably similar to Gaye’s song, the “Blurred Lines” artists filed a lawsuit to proactively determine that there was no copyright infringement. Gaye’s family countersued, represented by a legal team that was led by attorney Richard Busch and included UT Law alumna Sara Ellis (’11).
So far the legal battle has tilted in favor of Gaye’s family, with the latest court ruling awarding $5.3 million and 50 percent of future royalties to the soul singer’s survivors. Unsurprisingly, counsel for Thicke and his co-writers appealed the decision in December 2015.
The case is complex and raises many issues about songwriting, copyright infringement, creativity, and the impact of a public persona in a legal dispute. Two UT Law professors and two UT music professors recently discussed the case and what it means for music and copyright law.
Can you copyright cowbell?
“For me, the fascinating thing is the way the lawyers for the Gaye estate presented these two catchy pop songs to the jury, using a very logical and analytical framework,” says Associate Professor of Law Lucy Jewel, referring to the fact that the case was based not on the actual performance of the songs but only on the musical composition—the sheet music.
A musicologist for the Gaye family pointed out at least five alleged similarities between the sheet music for the two songs, including the recurrence of an A7 chord, similar successions of notes, similar beginning tones in phrasing, and similar melodic contours.
If you copyright both the sheet music and the digital recording, you probably have greater rights than just the sheet music itself.
But what about the performance elements that make these songs sound similar? It was, after all, the similarity in the sound of the two songs that first got people discussing the possibility of copyright infringement.
“Can you copyright cowbell?” asks Associate Professor of Music Theory and Composition Brendan McConville, citing the percussive sound found on both tracks.
In this case, the short answer is no.
A performer’s voice (a high male falsetto), the percussion (a similar beat and cowbell sound), and backing vocals are not considered part of the copyright for a piece of sheet music. Though the two songs may have a similar sound due to some of these elements, they are not protected in copyright law.
“I think it’s also interesting to note that [the Gaye family] didn’t have a digital recording protected under copyright law,” says Brian Krumm, associate professor of law and director of the Business Law and Trademark Clinic. “That might have made a difference as well. If you copyright both the sheet music and the digital recording, you probably have greater rights than just the sheet music itself.”
Basing the lawsuit on just the sheet music may have also put an unusual burden on the jury, according to Andrew Sigler, lecturer of music composition. “They’re trying to analyze and have a sense of something they can only get through the musicologist. So it really comes down to how well that expert witness can argue.”
McConville points to his music analysis classes and the subjectivity involved. “Analysis is interpretation, so the jury had to follow the analytical position of this person and that person, and they’re not able to make that determination themselves. Whereas in our classes, we may have twenty different perspectives on a piece. But the interpretation of the piece is subjective, and [in the trial] that was isolated to a few people’s opinions.”
Krumm and Jewel agree that in cases such as these, jurors are going to be heavily influenced by the advocacy of the attorneys and what they do with the evidence presented. However, they both argue that one major factor in the case had nothing to do with the songs themselves, but instead came from how the jury felt about Thicke’s bad-boy behavior and erratic testimony.
Falsus in uno, falsus in omnibus
During the trial, jurors were shown footage of Thicke’s and Pharrell’s depositions. The footage, which was released to the public in October 2015, conflicted at times with their courtroom testimony.
If you lie once, we can’t believe you for anything...I think that was fatal to their side of the case.
Just as damaging, though, was how the video reflected on Thicke personally. During the deposition he admitted that he was high or drunk every time he did an interview to promote “Blurred Lines.” Thicke also made the startling claim that Pharrell was the sole creator of the song and that he, again, was high or drunk during the song’s creation.
“This really is a cautionary tale for entertainment lawyers,” says Jewel. “Entertainers can be narcissistic; they can get into all kinds of nasty things like crime and drugs.”
Perhaps the most damning testimony was Thicke’s response when asked, “Do you consider yourself an honest man?”
He simply responded, “No.”
“In legal advocacy we actually call this falsus in uno, falsus in omnibus, meaning that if you lie once, we can’t believe you for anything,” Jewel says. “I think that was fatal to their side of the case.”
Standing on the shoulders of giants
Recently, several other cases of copyright infringement in the music industry have been settled out of court. In January 2015 it was reported that UK crooner Sam Smith had given 12.5 percent songwriting credit on his hit song “Stay With Me” to American rocker Tom Petty, after publishers for Petty’s 1989 song “I Won’t Back Down” noticed similarities in the melodies of the choruses. Songwriters for “Stay With Me” said they were not familiar with the Petty song but acknowledged the similarities.
You can commit infringement by mistake or subconsciously. You don’t actually have to intentionally copy or plagiarize the song.
“That’s the interesting thing about copyright law,” Jewel says. “You can commit infringement by mistake or subconsciously. You don’t actually have to intentionally copy or plagiarize the song.”
Petty said in a statement on his website, “All my years of songwriting have shown me these things can happen. Most times you catch it before it gets out the studio door, but in this case it got by.”
“Tom Petty, as a composer, knows that we’re all standing on the shoulders of giants. It’s all an aggregate,” says Sigler, who points out that Igor Stravinsky, one of the most influential composers of the twentieth century, was once quoted as saying, “A good composer does not imitate; he steals.”
“He knew very well the art, or rather the nature of his art, which is building upon previous epochs,” says Sigler.
It’s well documented that Gaye himself wrote “Got to Give It Up” after being inspired by the Johnnie Taylor hit “Disco Lady.” Gaye’s song was even originally titled “Dancing Lady.”
Pure, bright line?
Musicians today just have to work hard to come up with creative, unique ideas.
“Since music electronics and recording mechanisms come into play, it’s making it much more complicated,” says Krumm.
According to Sigler, up until about fifty years ago, music was a “fixed sheet of music, open to interpretation.” Now, sheet music is usually written after the fact, and the performance of the song—the recorded artifact—has become more important, making lawsuits like this one tricky.
Though there may never be a “pure, bright line” legally, the music professors agree that these types of cases shouldn’t stifle the creativity of artists.
“We’re continuing to evolve in how music is produced,” McConville says. “Musicians today just have to work hard to come up with creative, unique ideas.”