The ‘Blurred Lines’ Verdict: A Dangerous Precedent?

You can’t fail to have noticed this past week the outcome of a lawsuit from the family of late Motown legend Marvin Gaye, who sued Pharrell Williams and Robin Thicke for copyright infringement. The outcome was newsworthy because the judge in the case found in favour of the Gaye estate; turns out Williams and Thicke intentionally and wilfully ripped off ‘Got To Give It Up’ in 2013 ubiquito-hit ‘Blurred Lines’, for cold, hard profit.

Generally the verdict has been interpreted as setting a dangerous precedent, basically due to the tenuous nature of the similarities between the tracks. Highlighted in court were just two instances of simultaneity, totalling some 3 or 4 seconds of play time, and Gaye’s long-standing set-opener ‘Got To Give It Up’ (admittedly due to an injunction) wasn’t even played in court.

This article makes some good points, although it paints something of a doomsday scenario for future cases along similar lines, particularly highlighting the ‘top line melody’ argument, which seems to have been somewhat bypassed in last week’s proceeding. Usually when it comes to legal wrangles, the go-to basis for contesting similarities is that Song ‘A’s memorable, jump-out melody line is conspicuously re-appropriated at a later date by Song ‘B’. The reason why ‘Blurred Lines’, well… blurs the lines, is that the similarities between it and ‘Got To Give It Up’ are more to do with the production, the genre, the feel of the song than familiar melodies. These, say the many voices decrying the verdict, are all things you can’t really copyright.

The problematic precedent that this case sets is that it has heretofore been notoriously hard to prove or disprove copyright infringement – or plagiarism, call it what you will – between one song and another. In simple terms, there are only so many keys, scales and chords to combine in western popular music until, sooner or later, two configurations will almost certainly overlap.

“Pharrell and Thicke are far from the worst offenders”

Before now, it has been entirely plausible that a songwriter might simply ‘do a George Harrison’ and copy a song without realising it.

Hearing a song by 60’s girl group The Chiffons years earlier, Harrison unintentionally copied the melody for breakthrough solo single ‘My Sweet Lord’. His “subconscious plagiarism” is a completely understandable argument, one the Beatle readily admitted to in later years. A song wormed its way into his subconscious, and when writing a melody for ‘My Sweet Lord’, it simply bled through into his own work.

Was he inspired upon hearing a song or just simply swipe a melody? Well, Harrison ingeniously (or cunningly, depending on your perspective) pre-empted Michael Jackson’s purchase of the Lennon/McCartney back catalogue by buying up the rights to ‘He’s So Fine’, sort of answering that question himself. Arguably the first but definitely not the last time money was simply thrown at such a problem.

Which puts me in mind of a similar situation which arose between Coldplay and Joe Satriani a few years back, and the maudlin British pretentionists being sued by the latter guitar great. Satriani claimed that the melody line from his track ‘If I Could Fly’ was mercilessly ripped off four years later by the Coldplay single ‘Viva La Vida’. And listening to each track, the evidence seems pretty damning.

So damning in fact that the case had to be settled out of court in a payment to Satriani, seemingly after some chest-beating from Coldplay’s lawyers. This video seems to imply even shadier rug-sweeping dealings, but although a very interesting, thorough music theory-based dissemination, no actual sources are cited with regard to those claims, and I can’t find any supporting evidence for this.

My main problem with the ‘Blurred Lines’ verdict, and hence the main point of this article is that Pharrell and Thicke are far from the worst offenders, for once in the latter’s case. But are Coldplay the devil incarnate? Surprisingly not. If Coldplay did genuinely intend to plagiarise Joe Satriani in the way it appears, they quite frankly could have done a better job of it. In my own opinion, it’s much more a Harrison-esque case that the principal songwriter (the band are credited equally) had probably heard the melody and assimilated it into his memory. Maybe it was playing in the background in a bar or a shopping mall; perhaps they didn’t even know they’d heard it.

All of which begs the question; who are the worst offenders? Well, let me put it like this…

The advertising industry will be worth $600 billion this year. But advertisers still manage to scrimp on rights for the use of licensed music, no matter how many times they get called out on it.

Americo indie bluesters The Black Keys got infamously touchy on the subject of their music being used in such a way, launching multiple lawsuits against US companies for unauthorised use of their tracks. Not taking the hint, a further commercial used a ‘sound-alike’ track. The ‘Keys again didn’t take too kindly to their music being ‘interpreted’ in such a way.

Meanwhile some advertisers are eager to buy into having an epic, sweeping soundtrack on their product as one would find in a highly-polished nature documentary, at a fraction of the cost. The kind of soundscape you’d get from… oh, say Sigur Ros, who years ago signalled their dissent by posting this exhaustive list on their blog, of sound-alike tracks closely mimicking their music without actually using the original tracks.

If all of this seems like ancient history, you need only reach for the remote control to catch this currently-running advert for wholesome breakfast cereal Cheerios from evil corporation Nestlé.

Which blatantly, brazenly rips off signature Vampire Weekend track ‘A-Punk’.

Compare and contrast the fiddly intro riff, clean upstroked guitar chords and the airy synth-flute break in both tracks and challenge yourself to not find similarities.

There is also this very thorny issue surrounding this Aldi advert which seems to use a Teenage Fanclub B-side without permission. ‘Kickabout’ by the Scots originally sampled an earlier track, which Aldi have also lifted, then stuck over the top of a Fanclub-esque backing track without acknowledging or indeed paying them.

But an indie-labelled band will hardly be able to afford the funds to challenge these instances in court, so are reined in to disgruntled blog posts and Facebook statements.

Will the ‘Blurred Lines’ ruling therefore have an effect upon the rampant – and if not illegal then certainly immoral – use of advertising music in the future then? The answer seems to be a resounding ‘perhaps’, with even industry insiders urging a more cautious, arguably discreet approach going forward.

“Perhaps the thought that there are consequences to the underhand misuses of creative material will cause a juggernaut of an industry to apply the brakes”

The headlines will tell you that the ‘Blurred Lines’ ruling is a terribly bad thing for the music industry. That this will be a gateway for copycat lawsuits to stampede through, whenever two songs are in the same key, or use a similar tempo, or were recorded in the same studio. A creative compensation culture, to probably not coin a term.

I’d argue however that it’s a matter of perspective. Perhaps the thought that there are consequences to the underhand misuses of creative material highlighted above will cause a juggernaut of an industry to apply the brakes and analyse itself momentarily. So far from a dangerous precedent, it could well present an empowering future prospect for previously put-upon musicians. Sure, it has so far cost Pharrell and Thicke over £5 million to find this out. But in the long term, it could well prove far more costly not for those who are inspired by artists, but those more who mercenarily pickpocket them.


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