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When Unjust Things Happen to Bad People

[ 71 ] March 12, 2015 |

To state what is probably not terribly controversial, “Blurred Lines” is an atrocious Marvin Gaye rip performed by a skeevy guy who is substantially less talented than his father even though his father is Alan Thicke. Much more controversially, I think Pharrell – Nile Rodgers = Meh. So I had the initial Nelson Muntz reaction upon seeing that they had been ordered to pay the Gaye estate 7 million smackers. But Dan Reitz and Michaelangelo Matos convince me that it’s a really terrible precedent.

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  • Vance Maverick

    Certainly a conscious retread, justifying for once being called “a riff on” the model, and certainly inferior. But that’s music! All music is about previous music.

    Brahms soll auf die Bemerkung, dass sich beide Themen merkwürdig ähnlich seien, geantwortet haben: „Jawohl, und noch merkwürdiger ist, daß das jeder Esel gleich hört.“

    • wjts

      Ah, yes – the famous Herr Doktor Merkwürdigliebe Merkwürdiger. I hadn’t realized Brahms knew him.

      • The Dark Avenger

        H.L. Mencken parodied that here:

        I call this the Zarathustra motive, following the weight of critical opinion, but various influential critics dissent. Thus, Dr. Ferdinand Bierfisch, of the Hochschule für Musik at Dresden, insists that it is the theme of “the elevated mood produced by the spiritual isolation and low barometric pressure of the mountains,” while Prof. B. Moll, of Frankfurt a/M., calls it the motive of prowling. Kraus himself, when asked by Dr. Fritz Bratsche, of the Berlin Volkszeitung, shrugged his shoulders and answered in his native Hamburg dialect, “So gehts im Leben! ’S giebt gar kein Use”—Such is life; it gives hardly any use (to inquire?). In much the same way Schubert made reply to one who asked the meaning of the opening subject of the slow movement of his C major symphony: “Halt’s Maul, du verfluchter Narr!”—Don’t ask such question, my dear sir!

        • Hogan

          my dear sir!

          heh

  • I guess this is the current re-run of the “My Sweet Lord” case.

    • postmodulator

      “My Sweet Lord” is the same melody over the same chord progression as “He’s So Fine,” complete with the call and answer structure in the verses.

      “Blurred Lines” doesn’t share chords, melody, anything with “Got to Give It Up.” The rhythm track has the same vibe. That’s it.

      Basically if this precedent holds, Dee Dee Ramone’s estate can sue every punk band. Chuck Berry can sue the Rolling Stones. (He’ll do it, too, that genius is one mercenary motherfucker.) The guy that played the “Amen Break” can sue everyone who made electronic dance music in the 90s. And so on.

      • Lt. Fred

        Chris Bailey can sue every punk band, you mean, including the Ramones.

        Brisbanites really love the Saints. It’s our one band. Please give us that. Please.

        • postmodulator

          We are probably not going to settle the “Who invented punk” debate that has raged since 1978 right here at LGM.

        • Scott Lemieux

          Brisbanites really love the Saints. It’s our one band. Please give us that. Please.

          I must strongly reject this premise.

      • ScarsdaleVibe

        Verdicts aren’t precedent. But I bet there are a lot of lawyers hot to trot now.

        • postmodulator

          Yeah, I’m not a lawyer and don’t mean “precedent” in the legal sense. Sloppy choice of language, I guess.

      • SatanicPanic

        Exactly, the songs sound superficially similar, but I wouldn’t even call that a rip off.

      • Kathleen

        I always thought My Sweet Lord ripped from Oh Happy Day by Edwin Hawkins.

        The first time i heard the intro to Blurred Lines I was listening to a Top 40 Adult Contemporary Station (Translation: music not “urban”) and my first thought was “since when is Q102 playing vintage Marvin Gaye”? While I realize my reaction has no bearing on the merits of a lawsuit, it lends credence to why people think Thicke & Williams ripped it off.

  • Dennis Orphen

    Can this be appealed? I can imagine the verdict being overturned or the award greatly reduced. And what about the similarity to Funkadelic’s Sexy Ways? Could or should whoever has the publishing and/or sound copyright on that sue Marvin Gaye?

    Off-Topic but as tangentially close as it is probably going to get:

    While drinking a glass of bourbon, something I almost never do, before retiring last night I decided to do some research on the liquor I was drinking. One of the reviews I read was from a blog, Sipp’n Corn that focuses on the legal history of bourbon in America.

    Check it out, you’ll be glad you did.

    • matt w

      “Sexy Ways” was involved in the suit but they settled (or maybe they dropped the case after George Clinton said he didn’t think there was a sample of it in “Blurred Lines”).

      • matt w

        Perhaps relevant that George Clinton hates Bridgeport Music.

        • George Clinton was pretty strongly pro-sampling back in the day. In the early ’90s he released albums full of P-Funk samples.

  • medrawt

    The verdict is pretty astounding based on my (nonexpert) knowledge of musical copyright. The Reitz link is interesting because it looks to me like Gaye’s (estate’s) attorneys were engaging in the musicological equivalent of misleading statistics manipulation. The phrases aren’t the same until you break them down to such small chunks (not placed in the same location in the bar, even!) … and Gaye (nor anyone else) doesn’t own “5-6-1” as a signature melodic formula, which is why Reitz could find it in a handful of other songs. There are hundreds of other pop songs where it could be located. It’s also going to be present in pretty much any “riff”-based swing era song, ever, and the improvised solos of any horn player from that era, and any blues guitarist who knows he can play a note that isn’t “in” “the” “blues” “scale” (which is to say, any good one). The Thicke song absolute sounds like Gaye’s song, but it’s not Gaye’s song with a fresh coat of paint; it’s a different song with (I believe intentionally) similar building blocks.

    What struck me was that my read of Thicke’s testimony was kind of disastrous, which is hilarious. When the song was being attacked for its lyrical content, I looked the lyrics up and thought the song was being read uncharitably – it’s easy to defend as being aggressive in its flirtation, but ultimately it’s putting the agency on the woman in the song. And then Thicke and Pharrell gave like fifty interviews in which they talked about it, and were absolutely unable to talk about it without saying something terrible and reinforcing the reading I found “uncharitable”. Don’t know why Robin Thicke can’t get out of his own way, but damn.

    • FridayNext

      But is all this comparison of notes, time signature, rhythm, etc even relevant? As I read the case and precedent, the standard is “substantial similarity” as judged by a “lay observer.” And it doesn’t have to be the entirety of either song, just enough for a subjective, aesthetic assessment of the similarities.

      One of my favorite copyright cases, was Krofft v. McDonalds over the latter’s McDonaldland promotions. The trial court, including jury, and appellate court found that there were substantial similarities and found for Krofft. I am sure there are important differences and precedents in the intervening years, but if that was a copyright infringement, I can see how Thicke and Pharrell can be sued and lost. Blurred Lines and Got to Give it Up are as close, if not closer, than Mayor McCheese and Pufenstuf.

      (and I am not saying that is right or how it should be, just noting what I see as the binding standard for assessing an infringement.)

      I am not a lawyer (I spelled that out for emphasis) and I only heard of this case when the verdict came out. I am, however, struck by how many people want to compare the songs note-by-note, signature-by-signature, and lyric-by-lyric, when as I read it that isn’t relevant, or at least not the deciding standard.

      Am I wrong in that reading?

  • MacK

    I don’t know how unjust a decision this is.

    Let’s start with the procedural context. The case started as a declaratory judgment case, which is best described as “a lawsuit in reverse,” where the putative defendant (Pharrell and Thicke) sues the putative plaintiff (the Gaye family.) So to be clear, apparently there was comment that Blurred Lines ripped off Got to Give it Up, and worse, the Gaye Family mentioned that they were unhappy that Gay had not been given any credit. So what do Pharrell and Thicke do – they file a DJ action – a thuggish strategy that immediately imposed huge defence costs on the Gaye’s. It is pretty obvious that Pharrel and Thicke’s counsel thought that the Gayes would grovel, say very sorry and settle so as to save the legal fees – oops!

    Instead what they had on their hands was a case where they could not deploy (as I have seen in copyright cases) the piss-down-the-leg and say its raining – you can read the complaint here: http://mcir.usc.edu/inplay/Documents/williamscomplaint.pdf

    To say their lawyer in drafting this showed bad judgment would be an understatement. To say that:

    But there are no similarities between plaintiffs’ composition and those the claimants allege they own, other than commonplace musical elements. Plaintiffs created a hit and did it without copying anyone else’s composition.

    Then to argue that the songs are “starkly different”¶3, is bullshit – the similarity was obvious to numerous reviewers.

    However, during the case both Pharrell and Thicke admitted to listening to blurred lines, to trying to emulate it, but suddenly it was a “homage” rather than copying – but strangely a homage that was “starkly different” and involved no copying. So you have a party that made a basic error in its complaint – it opened with a lie – and a knowing lie, in a case that was going to a jury.

    I’ll admit to not having listened to the songs at length (not my sort of music), but I regularly run into this sort of situation – someone like Pharrell pushing their luck, going very very close to the line of copyright infringement – and then going just a little too far. It happens a lot, in game clones in particular. So now you have a situation where a lot of people are arguing that it was not copyright infringement, but at the same time it “is an atrocious Marvin Gaye rip – why does it seem so absurd to think Pharrell was over the line.

    Inter alia if you listen to Stairway to Heaven and Torlough O”Carolan’s planxty the Dream, the music is virtually the same. Of course Carolan died 1738, which is interesting because Spirit has now filed a copyright suit against Led Zeppelin. That Plant may have based the song of O’Carolan is indeed pretty likely, since he was around some traditional music at the time and in pubs this particular Carolan tune is very popular.

    • Shakezula

      Thanks for this, it really … er … unblurs the lines.

      It seems that this case was the equivalent of the cartoon villain smoking his own loaded cigar and then blundering into his Acme bear trap.

      I wonder if Thicke/Pharrell could have avoided the whole mess by giving Gaye a mention in the credits?

    • KmCO

      Inter alia if you listen to Stairway to Heaven and Torlough O”Carolan’s planxty the Dream, the music is virtually the same

      What am I missing? I don’t hear the similarity between the two melodies at all.

    • MacK

      The point I failed to complete was the ‘the piss-down-the-leg and say its raining’ “we din’nt copy nuttin” strategy.

      The cliché comes from old fashioned soccer, rugby and football stands without seats (or roof), where the almost exclusively male audience was packed in on broad steps – and if the game was very crowded it might be impossible to get out to relieve the pressure from the pre-match pints. Sometimes guys would urinate where they stood, with often unfortunate consequences for their neighbours clothing – hence the expression “don’t piss down my leg and tell me its raining.” Lawyers at least use the expression to describe an approach where a party denies something obviously true, with a contrived explanation. It’s usually a bad strategy because it relies on a statement that is obviously false – while insulting the intelligence of the court, arbitrator(s) and/or jury.

      For extra points – the cliché to “twist someone’s tits” is not in fact sexist. It’s a rugby expression and refers to the tactic of a prop sneakily twisting an opposing forward “tits” in a scrum with the prop’s free inside hand. The tactic is intended to annoy the other player so much that he will take a swing at the twister – thus incurring a penalty. Lawyers in England, Wales, Scotland and Ireland – often coming from the sort of schools where rugby was played, use the expression to describe subtly provoking someone in such a way as to extract a foolishly intemperate response.

    • JohnT

      Thanks for the YouTube link on The Dream. I mean, damn, if that had been written 230 years later (and if you could prove that the arrangement in the video was really roughly as it was written) it would have been the most open-and-shut music copyright case ever. It’s interesting that LZ recognised the influence of that type of music on Stairway, without AFAIK ever mentioning that melody itself. Maybe that suggests that Page and/or Plant heard it once in a pub, forgot about it, and unconciously reconstructed it when they came to write Stairway?

      • MacK

        Plant was always into the “world music” scene, and there was and is a big “trad” scene in London in the 60s – with a lot of Irish music. I’s suspect that Plant knew this piece quite well actually – and it was 2-300 years old so no copyright.

        • jim, some guy in iowa

          i think pretty much anyone who makes music has also *heard* a lot of music. it’s going to come out somewhere sometime

        • JohnT

          If he actually remembered the piece properly (and so knew it was an old Irish melody) why didn’t he mention it (again AFAIK) in any of the interviews he’s given about writing the song? Would it not be cool to say “and I borrowed this bit from an old Irish tune”? (not a musician so not clear whether that would have been considered a Bad or Good thing).

          • timb

            Because LZ and Stones stole every blues song of the previous 40 years without tossing a dime toward the originators?

            It was sort of a habit

            • Richard

              Zep was sued successfuly by Wilie Dixon and others. The Stones often gave proper songwriting credit (and therefore royalties) on many of their records – Little Red Rooster (Dixon), Time is On My Side and Fortune Teller (Toussaint) Its All Over Now (Bobby Womack), many others, especially from the first four LPs. Were some of their originals based on previously recorded blues songs – of course but it would be hard to make out a copyright infringement lawsuit for those, even given the standard used in the Thicke-Gaye case,

    • FridayNext

      I am always struck by the similarities between the iconic riff from Smoke on the Water and Gil Evans’ and Astrud Gilberto’s Maria Quiet. Compared here.

      I like Deep Purple and Smoke on the Water was the anthem of my guitar lesson taking youth. But if I was on a jury, I’d have a hard time finding for them on this issue.

    • ScarsdaleVibe

      A declaratory judgment action is not “thuggish.” The writing was on the wall when the Gaye family commented on this and all the speculation was out there. DJs are thuggish? It’s better to just sit around with your thumb up your ass waiting for someone to sue you? People are supposed to take you seriously with such an obviously slanted comment?

      Because I agree with you, I think it was a poor strategy here and probably pulled the trigger too soon. But declaratory judgments are not inherently thuggish and you don’t flesh out why they are here.

      Also, considering the fact that one of the Defendants is black, you might want to reconsider your choice of words.

      • MacK

        1. I’ve brought DJ actions usually patent. The main objective was to avoid Johnny Ward Sr. and Jr. and EDTx in patents.

        2. Both parties were black. How is suggesting it is thuggish remotely racist – it was an effort to intimidate the Gaye family out of commenting – to bounce them into a grovelling withdrawal, it was using the threat of legal costs to pull it off. Anytime I find someone using superior financial resources to try to get someone to concede an issue like this, I think it is thuggish – and I use the phrase quite catholically.

        • Lee Rudolph

          and I use the phrase quite catholically

          whenever the circumstances prod you to do so!

          • MacK

            Yep, like Brian Leiter’s thuggish behavior.

        • Just_Dropping_By

          Robin Thicke is black?!?

    • nosmo king

      While it’s certainly possible that Page and Plant knew of O’Carolan, it’s indisputable that on their first American tour, Led Zeppelin opened for Spirit. And that the Spirit song “Taurus”, the subject of the claim, was a mainstay of their stage show at the time. That doesn’t make everything true, but given Page’s history, it’s suggestive.

  • matt w

    I think Matos is probably right, but this:

    The idea that “Blurred Lines” somehow caused the Gaye family any financial hardship is absurd on its face—as if purchasing Thicke’s song somehow stopped anyone from checking out “Got to Give It Up” as well or instead. In fact, the opposite occurred—the suit brought so much renewed attention to Gaye’s song that its sales nearly doubled during the trial.

    is just the “piracy leads more people to buy the music!” defense. It would also be true if “Blurred Lines” was a straight-up ripoff of “Got To Give It Up.”

    • Joshua

      It’s not.

      If I pirate “Got to Give It Up”, Gaye’s estate obviously gets nothing. But if I listen to “Blurred Lines” and then someone tells me that it’s a lot like “Got to Give It Up”, I may go check out that song, at which point Gaye’s estate will get a cut (either from an iTunes download, or Spotify stream, or whatever).

      • ScarsdaleVibe

        I agree, I think Matt w misreads the argument.

        I don’t know about you guys, but when I hear music I really like, I look for bands that sound similar. I don’t particularly like any of the musicians in this suit. But if someone was saying in the press that my favorite, I dunno, Interpol song was very similar to a Kinks song, I’d think “Cool! I’ll check out that Kinks song!”

  • creature

    Bet Pharrel isn’t so goddam happy now!

  • Jake the antisoshul soshulist

    It seems that Pharrell/Thicke got hoisted on their own petard.
    However, I do think the judgement was iffy at best. And, I can see it having a chilling effect.
    Tom Petty does have a good case against Sam Smith. Even I could determine the similarity.
    In the Zep case, their history of ripping off other artists will not help them. Though, from the comments above, they may be able to use Bill Gates defense to Steve Jobs for ripping off Apple’s user interface for windows. ” I broke into my rich neighbor’s house (IBM) to steal their TV and found out you had already stolen it.” (possibly apocryphal)
    There is a lot blatant robbery going on. I am looking at you James Cameron. I am not Harlan Ellison, but if I were related to
    Poul Anderson, I would have filed against Cameron for the blatant theft from Anderson’s “Call Me Joe”. Seriously, a wheelchair bound paraplegic telepathically controlling an artificial lifeform on a hostile planet?

    • Joshua

      There is a lot blatant robbery going on.

      The music industry was built on theft. This is oversimplifying it, but early rock and roll was basically white musicians stealing from black ones and presenting it as their own to the (white) commercial audience. So it’s a bit rich for that music industry to use the force of copyright law to claim their work is original.

      I’m really not a fan of stuff like this. I’m not one of those “information should be free” guys but just the general nature of music makes these sort of cases so flimsy and thin. The Greeks figured out music thousands of years ago and we only have 12 notes. I don’t think we would have been better off if Mozart’s estate pursued copyright cases for the past 200 years.

      • UncleEbeneezer

        we only have 12 notes

        I would invite you to explore some micro-tonal music, but having visited a friend of mine during a marathon day mixing Persian pop music, I don’t want to subject you to such torture.

  • Richard

    I followed the case pretty closely and know the attorney for Pharrell and Thicke (once faced him in a three week trial – he’s good). I generally agree that the decision is a bad one but its no precedent, either legally or practically, for future cases. My take is that Pharrell and Thicke lost because of their pre-trial statements about how much they were influenced by Gaye, how they wanted to channel Gaye, etc and then their nonsensical attempts to disavow all those statements at trial. They came across as clowns who would be willing to say anything at trial to avoid an adverse result.

    Big question for me is what were the settlement discussions before trial. I would assume that the Gaye family made a settlement demand that was rejected by Thicke and Pharrell but would like to know which side misread what was likely to happen.

    • MacK

      The problem with these cases is that people want to say that there is an “objective” test for copyright infringement of an artistic work, be it music, a painting, a piece of architecture, etc. The problem is that it really is ultimately a subjective question – a sort of did this person take the gestalt of the work – did they capture the feel, the sense of the work.

      The best way of putting it is that the infringement line is not a sharply defined one – it is kind of blurry and smeared out. The point at which something goes over the line from being influenced by to being a copy is not clear if you are on this broad and fuzzy line – it is sort of obvious if you have not managed to get on the line – or if you are past the line, but when you are on the line itself, that is a lot trickier.

      • Joshua

        The best way of putting it is that the infringement line is not a sharply defined one – it is kind of blurry and smeared out.

        A blurred line, if you will.

        • MacK

          Awe, I was hoping someone would catch that, kisses!

      • Richard

        Fully agree. There is no and can’t be an objective test. So when the two main defendants come across as somewhat clownish liars, you have a problem

      • UncleEbeneezer

        This, and also the fact that every songwriting session that I have ever been privy to begins with and audible or mental “start with a beat like X, give the vocals a bit of Y, etc.” Everything is built on prior references.

    • FridayNext

      I have a question for any lawyers in the group.

      All the articles I have read on this, which is admittedly not many and exclusively popular press not legal, have used the concepts “plagiarism” and “copyright infringement” fairly interchangeably. My understanding, based almost exclusively about written works, has been that these two concepts are not the same. While there are loads of overlap, one is a professional ethic and one is a legal construct. One can plagiarize something without infringing on the copyright and vice versa.

      What was found in this case? Actual plagiarism, copyright infringement, or both?

      In the interim, I will continue to search for a solid legal discussion of this case.

      ETA: Comment fail. I meant this to be a standalone comment, but it ended up being a reply. Sorry.

      • Richard

        Plagiarism isn’t a legal term. Copyright infringement is. There is no statute that makes plagiarism illegal. The jury found that Pharrell and Thicke had violated the copyright held by the Gaye estate in the song

        • rea

          Yeah–if you cite the source, you aren’t plagiarizing, but you still might be violating copyright, unless it’s fair use. If I sell coffee mugs with a certain cartoon mouse on them, and the legend, “Walt Disney’s Mickey Mouse,” I’m still going to get the heck sued out of me, even though it isn’t plagiarism.

        • FridayNext

          That’s what I thought, but so many of the press reports on this use the phrases so interchangeably (and my actual knowledge of this specific case so shallow) that I wasn’t 100% certain of myself.

          So thanks!

          • MacK

            Journos

  • Bitter Scribe

    From the first link:

    …the judge ruled that the full recordings of the original songs could not be played in court…

    WTF??!!?!?!

    I really hope this gets overturned.

    • MacK

      Actually that may have been tho Pharrell and Thicke’s benefit

      • Bitter Scribe

        I listened to both songs last night, and I honestly don’t see (hear) how.

    • Richard

      The reason the judge ruled the the full recording of the Gaye song couldn’t be played in court is that the Gaye estate owns the copyright in the song, not the recording. (Motown owns the copyright in the recording and it never sued). The question was never whether the Thicke record violated the copyright in the Gaye record, it was whether the Blurred Lines song violated the copyright in the Gaye song. For any record made after 1976, there are two copyrights – one in the song and one in the recording.

      I think there is little chance of the verdict getting overturned. It was basically a factual question for the jury.

      • Bitter Scribe

        I’m sorry, but that makes no sense. How can you judge a song without listening to it?

        UPDATE: OK, I just scanned the Slate article on the case, and I see your point a little better. But it still seems highly counterintuitive.

        • rea

          It is the difference between sheet music and a recording.

          • The Dark Avenger

            Which is why George Gershwin had his own publishing company, so he didn’t have to share the profits from the sheet music sales.

  • Hogan
    • MacK

      That is really very very good. Thanks

  • tsam

    Thicke and Co. should be fined just for writing(?) that rapey piece of shit and unleashing it on the Future Frat Brats of America club.

  • Paul Chillman

    I don’t have a strong opinion about whether this is a good decision, but reading about it made me listen to “Blurred Lines,” which in turn caused me to listen to Marvin Gaye’s greatest hits so I could purge it from my brain. I came across “Praise,” which contains this line:

    Stevie, we really dig you
    Hope you don’t mind this riff from you

    The irony compounds.

  • The Temporary Name

    All you have to do is look at the sheet music. Rows of five black lines from right to left. A little curlicue on one side. Number signs. Black dots attached to small lines perpendicular to the big lines.

    There’s no way in hell that’s original.