Within this musical and literary generation, one of the most persistent challenges is in coping with the habit of millennials to “sample” virtually everything, yet still call it their original creativity. Several much noted artists—like Diddy, Jay-Z and Pharrell Williams—owe their careers to the fine art of using earlier creative efforts of others as a base upon which to lay different lyrics and notes. An entirely new emphasis in law has grown out of monitoring and protecting prior musical compositions from plagiarism without compensation. It is connected to copyright infringement and called clearances and licensing.
In 2013, Robin Thicke, Pharrell Williams and rapper T.I. (Clifford J. Harris, Jr.) released “Blurred Lines,” as both an album and the lead song on the album. The song went on to become the top number one hit thus far of the 21st century, sold more than 15 million digital copies, and reached number one in more than 14 countries worldwide. The song was also said to have infringed the copyright (plagiarized) of Marvin Gaye’s 1976 hit, “Got to Give It Up.”
Based on hearing that suits may have been in the offing, Thicke and his writing/producing partners tried a preemptive tactic by filing suit against members of Marvin Gaye’s family (and George Clinton’s music publishing company, Bridgeport) requesting the court to issue a declarative judgement stating that “Blurred Lines” did not infringe on Marvin Gaye’s property rights in his “Got to Give It Up” song, nor George Clinton’s property rights in “Sexy Ways.” The Gaye family—Nona and her younger brother, Frankie—not only countersued, they also sued EMI Publishers, a subsidiary of Sony Music, for not protecting Marvin Gaye’s copyrights. Marvin Gaye, III, Marvin’s oldest son, also sued Robin Thicke and company.
The suit against EMI was settled in January by Sony Music paying the younger Gayes an undisclosed sum of money.
The larger suit/countersuit is still underway and may provide the biggest change in the music copyright law to date before it is finished. A jury trial is scheduled to begin in February 2015, if the matter has not already been settled by a judge by that time.
Here is the primary issue: When is use or derivation of prior material substantial enough to be theft of that prior material?
Questlove (Ahmir-Khalib Thompson), a very well known figure in contemporary music, has been quoted as saying, “technically, the song (“Blurred Lines”) was not plagiarized. It was not the same chord progression. It’s a feeling (that was copied). There’s a cowbell used in it and a Fender Rhodes (just like in Marvin’s sound) as the main instrumentation, but that doesn’t make it plagiarized. It’s derivative, yeah…That’s how Pharrell works. Everything Pharrell produces is derivative of another song—but it’s an homage (to that song and artist).”
Maybe. But here’s the way it will be determined. Copyright law protects the expression of ideas, not the ideas themselves. Since that is too often blurred, the court generally uses a two-pronged test: (1) Was there direct copying of a prior work (same notes, lyrics, music, etc.)? (2) Was there substantial similarity to the prior work sufficient to demonstrate improper appropriation (theft)?
Admission by the copiers is evidence of the first, or statements by others of conversations with the copiers indicating the intent to copy, are examples of needed evidence. The amount and extent of the copier’s access to the prior material is significant here, too. The more access a party had, then the less similarity in the work at issue the plaintiff has to show. In the Thicke case, he has said that he and Pharrell listened to many hours of Marvin Gaye’s music just before writing their own song.
Secondly, substantial similarity means what it sounds like to the ordinary listener or intended audience, or the noted similarity in technical composition. One advocated change in this part of the law is for the court to use a sample of musicians or people from the music industry rather than merely John Q Public as arbiters of whether the two compositions sound or feel similar enough. Currently though, John Q is the test used.
This September, the Gaye family arranged for the sitting judge in the case to hear both compositions together, and to play Thicke’s lyrics directly on top of an instrumental version of the Marvin Gaye song. It was a near perfect match. The judge’s ruling has not come out yet, but currently it is not looking good for the derivative crew.
The probable result of this brouhaha is that Robin Thicke, et al, will lose and have to pay millions of dollars to the Gaye family. It should also set a new standard for what is and is not legal derivation of prior music.
What Robin Thicke and company could have and probably should have done is what Kanye West and other artists have already learned—just give the prior artist co-song writing credit and avoid legal trouble.
Professor David L. Horne is founder and executive director of PAPPEI, the Pan African Public Policy and Ethical Institute, which is a new 501(c)(3) pending community-based organization or non-governmental organization (NGO). It is the stepparent organization for the California Black Think Tank which still operates and which meets every fourth Friday.
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