Blurring the Lines of Musical Ethics and Law

In 2013, “Blurred Lines” took the music world by storm.

Robin Thicke, Pharrell Williams and T.I. leaped to the top of the charts with the catchy, “throwback” song and the intrigue of their provocative (and indeed, deeply misogynistic) video. But after basking in the success of a song that would last them a lifetime financially, they made the decision to take the estate of Marvin Gaye to court after a licensing dispute. The crux of the court debate hinged on the premise that “Blurred Lines” was “substantially similar” to Marvin Gaye’s “Got to Give it Up.”

After a long trial, it was eventually ascertained by jury that there was a “substantial similarity” between the two songs and over $7.4 million dollars in damages and profits were awarded. Although specific reasoning for the decision is unavailable as it was decided by jury, many musicologists and legal experts have suggested from the admitted evidence and judgements that the case essentially came down to a similarity of “vibe” above all else. Musicologist Robert Fink said that the verdict could set precedent for “fencing off our shared heritage of sounds, grooves, vibes, tunes, and feels.”

Expert witness for the Gaye estate, Professor Ingrid Monson, raised an interesting point about the admissibility of evidence in the trial. The recordings of the songs were not admissible as the Copyright Act 1909 in the U.S. only allowed for the musically notated copyright deposit to be presented rather than the copyright in the recording itself. What this essentially meant was that only the lead sheet (with the basic chords and melody) was allowed to be viewed. As the piece (and a lot of African American music) was composed aurally, she raised the point that this did not give a holistic comprehension of the work and in a sense, prejudiced aurally composed (often African- American) music. Although the admissibility of evidence is intrinsically linked to the debate and the relationship between race, music and the law is fascinating, it is far too complex a topic to broach in a single article, and therefore, will not be discussed at length.

What is equally pertinent is the ethics of such a judgement. It has been established by barrister Robert Yezerski and solicitor Andrew Cameron among others that the case would have been decided differently in Australia. The most recent case law in Australia comes from EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd. Here, it was alleged that Men at Work’s “Down Under” had infringed the copyright of the iconic “Kookaburra Sits in the Old Gum Tree.” There was a relatively simple two-step process followed by the courts. Rather than the “vibe” test in the U.S., the Australian test was much more focussed on a micro level:

The objective similarity of the works and a causal connection between the two works to establish copyright infringement.
The analysis of specific musical features to subjectively ascertain whether the work was copied or not.

It was established that “Down Under” clearly used two bars of “Kookaburra,” after specific analysis of musical features. However, as the “Blurred Lines” case had much less clear and substantive evidence of infringement on a micro level (through isolated and holistic analysis of specific musical features), there is at least some sense in legal circles that the case would be decided differently in Australia. The question to be answered here is whether the micro (specific musical features) analysis or the macro (“vibe”) analysis is preferable from an ethical standpoint, if either are wholly valid.

When considering the micro view, there is certainly some merit. By copying a substantive and recognisable part of a well-known melody without consent, it could be argued that it draws an association to the audience which is not there, borrowing upon an existing fan-base that may not necessarily be earned. However, the counter-argument is that music is built upon by new composers. With only twelve notes in the Western music system, there is always going to be a certain amount of overlap. When considering what a recognisable motif or musical feature is, there is always going to be some ambiguity at where the line is drawn.

There is a possibility that a ruling like the “Down Under” ruling in Australia could create a situation where composers are hamstrung for not being able to use recognisable patterns in their music. This is why the distinction between a specific musical features and a generic compositional technique must be distinguished. If the motif is simply a staple of a musical genre to the point that it is considered “generic” then this test will not impede creativity. However, if another part of a work is directly lifted like in the “Down Under” case, then the composers are protected. It should also be noted that the process of “sampling” allows this legally, where the composers will talk with the licensees of the work they are “borrowing” from and come to a royalty arrangement. This is perfectly fine. However, if this is done without prior consent, the law will and should provide some protection.

The US system of law is a lot murkier. Although I accept that Monson’s analysis of the similarities between “Blurred Lines” and “Got to Give it Up” is a lot more complex than this alone, one of the points I found interesting was regarding the bassline. She said that the “bass line had a stop and start rhythmic profile that was related to Motown but not like that of a generically expected Motown bassline… in neither reggae nor Motown would you expect to find these two rhythms combined… what made the copying… so striking was its combination of musical similarities.” This begs the question of whether an interesting and unusual application of style should constitute a copyright infringement in the eyes of the law.

To me, this is the crux of the argument. Style is one of the fundamental musical elements that composers have built off for centuries. If interesting or unusual applications of style restrict the composer’s ability to create and shape new works, then creativity in the music industry will cease to exist. Often it is the way that composers adapt and build upon style that creates magic in the music. To deprive the music industry of this is hamstringing composers and watering down popular music and all innovation in it. If we establish that the quasi-chromatic pattern on “you’re an animal” is an infringement of copyright, it would change the process of song writing so drastically as to be structured to avoid litigation. Pharrell Williams testified that 70s music and Marvin Gaye was part of his childhood musical milieu. Should this really be inherently actionable?

If it comes down to a question of the effectiveness of the Australian and US methods, I would say that the Australian method is a lot more useful. It provides adequate protection for composers from intellectual property theft, but it does not narrow the scope of musical creativity to a threshold so low that composers will be constantly concerned of litigation in the way that the US method could allow. This is not the way the law should be, and this is not the way music should be. Williams warned of the chilling implications of the “Blurred Lines” ruling when he said, “The verdict handicaps any creator out there who is making something that might be inspired by something else.” This is something that all musicians and all fans of music need to grapple with.