FROMAGE! (What the “Blurred Lines” ruling means for the music industry)

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Blurred Lines: copyright controversy[This article was written by Rob Filomena, CD Baby’s Director of Music Publishing.]

A few months ago we asked a simple question on the DIY blog: “Homage or Fromage?” We were exploring the blurry lines between paying tribute to something and infringing on another’s copyright. Well the jury is in and, in our particular case of interest, it was an unambiguous chorus of “FROMAGE!”

Pharrell Williams and Robin Thicke were ordered to pay $7.2mm to the estate of Marvin Gaye for copyright infringement in the case surrounding their 2013 smash hit “Blurred Lines.”

After a very public buildup to the trial, which saw attempts by both sides to get the court to see the argument their way, the jury sided with the Gaye family, deciding that “Blurred Lines” had come too close to Marvin Gay’s disco classic “Got To Give It Up.”

This verdict was by no means assured, given the general consensus by the music community and testimony by musicologists during the pre-trial motions stating that the songs were actually not all that alike.

The case for infringement was further complicated by the judge’s decision that the jury not be allowed to hear the original recording of the Gaye song, where there were some acknowledged aesthetic similarities (the jury were instead treated to Thicke playing medleys on the piano in open court). Nonetheless, the jury was convinced that the composition infringed.

I find myself a little ambivalent about the decision. I’d held back from saying so in my previous article but I’ve been squarely in the Gaye camp throughout. I found myself swayed by the public admissions by Thicke that they had willfully quoted the song throughout the recording session for “Blurred Lines,” and believed the sheet music didn’t fully paint the picture of authorship in this case — but I also (along with some others) fear the impact of the decision on the creative process.

For as much as I find myself annoyed by vicodin-popping, amnesiac Robin Thicke and famed hat-fetishist Pharrell Williams, I had to admit to believing that the usual musical proofs used in past infringement cases would hold up here and the case would probably be dropped. Limiting the analysis to the sheet music alone and giving no weight to the sound recordings also tilted the scales heavily in favor of a dismissal. What then was the cause?

What we’ve seen proven here is that there will always be a compelling subjective component to musical analysis that threatens to contradict previously accepted practices, no matter how concrete those seemed before. As I argued in my earlier article on the subject, intangibles had a chance to play an outsized role here and I believe that’s what happened. Thicke and Williams came off badly and I believe this swayed a jury of non-musicians into believing there was an infringement.

I suppose we’ll never really know, but it’s conceivable to think that the controversy surrounding the song’s lyrical content, the pre-emptive lawsuit against the Gaye Estate, the poor recollection, the sight reading fail, the admission of drug use, and the lies all had an impact on the jury.

It’s important to point out that it didn’t have to go this way. To look at the flip side of how such things can be handled one only needs to look a couple of months back to see how a matter like this can he resolved fairly and equitably without anyone kicking up dust and maintaining respect for each others’ creativity.

There is every chance the ruling here will be appealed and perhaps overturned. The question I have to ask though is, if the basis for determining infringement can be so flexible, where does one draw the line? Will this lead to an era of hyper litigation carried out by influential artists from the past trying to monetize their influence on a new generation of musicians? Will this even be the last major pop music infringement case this year? Even with a resolution in this case, the lines remain blurry.

Who do you think should have won this case and why? What effect will this decision have on the music industry? Let us know in the comments below.

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  • As I had noted on Twitter, I felt in listening to the two songs side by side that I could clearly see an influence from Gaye’s song on “Blurred Lines”, and certainly the beat is similar (but beats in and of themselves are not copying… beats are recycled all the time, take the standard 4/4 rock beat for instance), and I’ll even note of course, stylistically similar, however, I did not truly feel the melody of the song was even close.

    Regardless which side anyone is on, I think you make a valid point that this sort of ruling could plausibly have disastrous ramifications for the industry. What if I, as a songwriter being heavily influenced by some of my favorite artists, released a song that was very similar in style to one of their songs, even though it’s not the same song at all, and faced a lawsuit because of it? It freaks me out because “influential creep” is always going to be in any song any artist ever makes.

  • Christopher Hunter

    Where do we draw the line? I don’t know, but there never was one in the first place.

    Will this lead to hyper-litigation? Time will tell, but I’m not concerned yet.

    This kind of case has happened before, and with no changes to the design of the law, it will happen again with some regularity. Having experts show their cases to people with no expertise to pass the judgement is supposed to make the decision fair, but as subjective as music is, any such lawsuit has about a coin toss’ chance of success. Though suits like this can be said to create bad precedent, there have been enough of them through history that none have ever broken the whole system, and since a lawsuit requires a plaintiff to file it, we do a pretty good job of policing ourselves on these matters.

    As long as that is right, history will recall this case as an outlier.

  • richardmac

    Great article. This is an interesting case, but the phrase “jury of non-musicians” makes me cringe, as it should any musician. Most non-musicians know as much about music as they know about brain surgery. Like that foolish Joe Satriani suing Coldplay over a melody and chord changes that have probably been used hundreds or thousands of times before – I had family members who said “Oh, that’s such an obvious ripoff.” They had no clue how common that melody/progression was. The second to last paragraph in this article is astute and chilling. The United States of Lawsuits is becoming more real every day.

  • New of the death of creativity in writing music is highly exaggerated. There is legal precedent about that constitutes musical plagiarism or infringement. And it happened long before the He’s So Fine/My Sweet Lord situation. I have to believe these guys knew, or at the very least thought their song was so impressively close to the Marvin Gay tune some folks would wonder. How simple it would have been to get permission from the copyright holder in advance. With there star power it should have been easy. All of this was unnecessary.

  • jeffzx9r

    If the jury did not compare actual notation scores of both tunes, and did not audibly compare both tunes….the verdict is (as you suggest) based upon exactly WHAT? How many pop songs on the charts, have very similar (gasp, you might say “identical”) grooves? Is the court standard “beyond reasonable doubt,” or “clear and convincing?” I’m not certain this case meets EITHER, and sets a very dangerous legal precedent.