hip-hop and R&B songs, are
made today : the framework is
built in the studio by a
producer, working on some
combination of keyboard, drum
machine, sampler and computer
program. Songwriters contribute
topline melodies and conceptual
ideas, and sometimes all the
words. Generally speaking, at
the moment of creation, there
is no sheet music, no notation
that’s meant to guide
musicians.
On Tuesday, a federal jury in
Los Angeles concluded that
Robin Thicke and Pharrell
Williams, the performer and
primary songwriter-producer of
the 2013 pop hit “Blurred Lines,”
committed copyright
infringement by using elements
of the 1977 Marvin Gaye song
“Got to Give It Up” in their
composition without proper
credit. The jury awarded Mr.
Gaye’s family approximately
$7.3 million, a combination of
profits from the song and
damages. That’s an attention-
getting amount of money, but
the verdict itself is far more
damning.
Owing to the specifics of
copyright law, the jury was
instructed to base its decision
on the sheet music, a fact that
reflects how inadequate
copyright law is when it comes
to contemporary songwriting
and production practices. In
2015, the arrangement of notes
on a sheet of paper is among
the least integral parts of pop
music creation. We’re decades
beyond the time when a
songwriter penned a tune on
paper, then gave it to
musicians to perform.
Besides, in an age in which
popular music is incredibly
diverse, with more sonic
references, instruments and
digital trickery available than
ever, using sheet music as a
measure of a song’s originality
is a weak tactic, and possibly
an irresponsible one. The
“Blurred Lines” verdict is a
victory for an outmoded law,
but also an outmoded way of
thinking about music.
There are untold things that
static sheet music can’t
capture: tone, feel and intensity
or texture, all of which are as
important to modern
songwriting as the notes, and
probably more so. Relying on
the sheet music exposes a
generational bias, too — implicit
in the premise of the case is
that Mr. Gaye’s version of
songwriting is somehow more
serious than what Mr. Williams
does, since it is the one that
the law is designed to protect.
There is, it should be said, a
similarity in the bass lines of
the two songs, and perhaps,
more broadly, in their shared
lite-funk feel. And it’s likely
that Mr. Thicke and Mr.
Williams didn’t help their case
by contending in interviews
around the song’s release —
including one in The New York
Times — the psychic and literal
debts they owed Mr. Gaye,
and specifically “Got to Give It
Up.” (Mr. Thicke testified,
though, that he had barely any
input in the writing of the
song, a different explanation
from what he gave the news
media.) Often in the credits
that come with an album, the
phrase “contains an
interpolation of” will appear.
That generally means the song
borrows from something else,
but in a way that’s less than
an actual sample or a heavily
repurposed lyric or melody. It
can feel like a legally codified
version of a good-will gesture
— certainly “Blurred Lines” might
have benefited from such a
designation up front.
But in truth, once you begin
splitting hairs, the possibilities
are endless — listen closely to
“Got to Give It Up,” and you
may hear the skeleton of a
song like Prince’s “Kiss.” Will
the Gaye family sue him, too?
Disagreements of this nature
are typically settled out of
court. Take the recent case of
Sam Smith’s “Stay With Me,”
which owes a songwriting debt
to Tom Petty’s “I Won’t Back
Down.” At least, that’s what
Mr. Petty and his fellow
songwriter Jeff Lynne
contended, leading to a quick
and clean settlement in which
they would be added to the
song’s writing credits and
granted part of the royalties
The argument there was
structural — both choruses have
a similar pace and syllabic
emphasis. But Mr. Smith’s song
is ecstatic and soaring, and Mr.
Petty’s is quietly tenacious.
“Stay With Me” is far more
indebted to traditional choir
gospel than to Mr. Petty’s
meditative country-rock.
Presumably Mr. Smith’s team
agreed to a settlement to
avoid disrupting his meteoric
rise with a messy public
lawsuit. If it had fought the
claim, it might have had a
case. But copyright law may be
of less use to modern
songwriters and producers using
cutting-edge methods, who
want to protect their work in
the here and now. “Blurred
Lines” was one of the most
successful songs of 2013, No. 2
on the Billboard year-end list.
But it wasn’t close to being
the only popular song that
fought claims of being
derivative. The No. 1 song of
2013 was Macklemore & Ryan
Lewis’s “Thrift Shop,” which
bears at least some
resemblance to Le1f’s “Wut” —
both songs use synthesized sax
(or saxlike) skronk in similar
patterns. Le1f has openly griped
about what he perceives as the
unfair borrowing, but it’s likely
that he has little recourse.
Or take “Fancy,” last year’s
smash by Iggy Azalea and
Charli XCX. It is, in almost
every way, a facsimile of the
minimalist Los Angeles hip-hop
sound perfected over the past
few years by DJ Mustard. His
sound is signature — clean,
bubbly synthesizer lines with
certain unmistakable tones and
rhythms that themselves are
derived from early 1990s low-
end-heavy Los Angeles hip-hop
production, and according to
some, the mid-2000s hyphy
sound of the Bay Area.
“Fancy” feels like a craven
effort to profit from the DJ
Mustard sound without having
to pay for his services. (It was
produced by the Invisible Men
and the Arcade, who should be
given credit for being able
mimics.)
In the current context, this
imitation is a more meaningful
sort of infringement than
what’s at play in the “Blurred
Lines” case, but contemporary
copyright law would seem to
have less to offer a creator
like DJ Mustard, whose
bailiwick is everything but the
notes. Like him, whole
generations of songwriters may
remain vulnerable, their
innovations implicitly less
valuable because no one’s
figured out how to adequately
write them down.
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