Before we get going here, let’s get one thing out of the way. If you have an opinion of Robin Thicke, get it out of your system right now, because this case isn’t about him. He’s creepy. Fine. Are we done smugging it up about how much better we are than him? Yes? Ok good. Because if you are cheering this on out of spite for a stranger that you think is a gross dude, you are missing the point of this case and contributing towards a terrifying erosion of the rights of musicians. Are we good now? Let’s talk about what really matters here.
I’ve filed many copyright claims. If you haven’t filed a copyright claim before, don’t worry, here’s what you need to know to get through this article. When you file the claim, you put down your name and any other names involved with the creation process, and you mark everyone down for their role. You get to pick from any number of five tags: music, lyrics, text, arrangement, and format.
Let’s go over these real quick:
Music: The tones and rhythm that, when put together, make a melody, or something that you can write out to give to someone to express to them how you want it played.
Lyrics: The words written for the song. Lyrics are protected even if the melody they are paired with is not present. And vice versa for music.
Text: Non-lyrical words that go with a musical composition. This is often used in non-pop music.
Arrangement: If you take a tune like I Wanna Hold Your Hand and arrange it for a brass quintet, that is your arrangement. You own a copyright for that arrangement and anyone who plays your version owes you or has to get permission for you AND the owner of the music (Lennon/McCartney, or whoever owns their stuff now). The big band version of Fly Me To the Moon, done by Quincy Jones for Frank Sinatra, the music and lyrics are owned by Bart Howard, but when you play THAT version, you owe both Howard and Quincy Jones. I’m oversimplifying here, but that’s the gist of how it works.
Formatting: This would be like if someone wrote a song and you did the notation layout – you can copyright that physical visual product. This is why centuries-old public domain pieces still cost money – someone formatted it and they own the copyright for that editing work, so making a copy of that work is infringement, even though the music itself has long ago fallen into the public domain. You can write out your own copy of that same exact piece and then you would own that formatted version.
For Got To Give it Up, the music and lyrics are owned by Marvin Gaye (or, his estate). There was no arrangement done, mostly because the only people who copyright arrangements are the ones who sit down and write out parts for multiple instruments, people who write for big band, orchestra, chamber groups, etc. The music and lyrics were tagged and that’s it.
For Blurred Lines, the music and lyrics are owned by Robin Thicke, Pharrell Williams, and Clifford Harris. There is also no arrangement here.
The material that was filed with the copyright office consisted of music and lyrics, neither of which infringe on Got To Give it Up, at all.
But the Gaye estate won an infringement lawsuit. But wait a minute… which of the copyright categories was stolen?
Not the music: the melodies of the two songs are not the same at all.
Not the lyrics: the content is entirely different.
Maybe the chord progression? Nope: chord progressions cannot be tagged for copyright protection. We actually have a word for a chord progression used on a different song – contrafact – and because of that legal protection, the entire movement of bebop was able to flourish and grow. The beboppers grew up with standards of the 20s and 30s and because they knew them so well they wrote new heads over those changes. Basically, they were going to jam on those changes no matter what, so in many cases they just improvised solos, called it a melody, wrote it out as a new tune, and boom, a new musical language was able to spread through a system that made sense to musicians and to listeners. All legal and acceptable.
Maybe the groove? Nope: A groove cannot be tagged for copyright protection. Let’s go back to jazz for this. If Count Basie established a groove with a 4-feel on the bass, the drummer playing hi hat on 2 and 4 with quarter notes on the ride, the guitar playing quarter notes with slight accents on 2 and 4, and the piano playing single notes with space in between, can you copyright that setup? No. That’s why a composer can write their own piece and in the top left corner they can put “Quarter note = 140, Basie style.” It’s why you can write a tune and tell your players to “do a Birdland style thing” or an “ECM style thing” or in the rock world you can tell your drummer to give you some “Ringo Starr” grooving or “Stevie Wonder” keyboard playing. That is all 100% protected by copyright law and it’s what allows musicians to learn, grow, be inspired, and share their music.
Was a sample used?: No. A sample is when you use an actual piece of a recorded track. Imagine taking your own microphone and holding it up to the radio for 5 seconds and you catch a piece of a Michael Jackson song. Then you use your 5 second clip in your own song. You can pay royalties, or in some cases, just ask the owners for permission, and that’s it. People sample all the time, and we have a good system for working that out properly. But no sampling was used. The drum groove IS similar, but it was created from scratch without an reproductive tools. And as stated above, a drum groove is not protected.
Ok, so why did this case not get thrown out? Why did they win?
I actually don’t know. I’m serious, I don’t know. If anyone can tell me why they won I would be most grateful. Because the only justification I’ve heard is “I think they sound the same.” Ok, well, I don’t. Alright, so our opinions are canceled out. Should we have a worldwide vote and let the people decide? Because that’s what happening on the internet right now. Well thankfully we have LAW that gives us a clear answer; we worked all of this out already. I laid it out above. The law is clear. So if no elements that you can copyright were infringed upon, why did this suit end the way it did? The law protected Thicke and Co. but they still lost.
Do you need more proof that no infringement occurred? Joe Bennett amazingly does the leg work and writes out the parts in question. Even if you can’t read music, you can still clearly see that the two songs are not the same. Similar, but not the same. So, case closed right? Well, the Gaye estate won, so I guess not.
Now, you might be saying, well, this case ended badly, but it doesn’t affect me because I’m not Robin Thicke, and honestly who cares about rich people like Thicke and Pharrell? Well.. are you a musician? Do you want to be one in the future? Do you have any desire at all to ever write down one of your musical ideas and maybe start a band? Do you have friends and family who are, will be, or want to be musicians? Then this affects you.
It creates precedent. Precedent is important. It means that if a case is decided one way, it justifies similar cases in the future and in this country the concept of precedent is used every day to speed up legal processes. This case, I believe, has set the highest copyright infringement payment in history. This case is very public. Everyone now thinks that Thicke and Co. “stole” from Gaye, so these details will be stuck in the public’s mind for years to come. Which means that for future juries and judges and lawyers, this is a clear case of precedent. And it affects us all.
Here’s the thing: Music is language, it’s community, it’s communication. In the Baroque era, everyone wrote with a similar set of parameters so that they could fit into a style that was universal in their society. For many years, the common practice period had musicians writing and performing in ways that made sense to each other. It grew organically. New composers pushed those limits. Generations later, Beethoven turned common forms on their heads – the basics remained the same but the music was able to grow. Writers borrowed, stole, referenced, and paid homage to their fellow writers. No one sued anyone else for using an orchestra after they did. No one sued anyone else because of an oom-pa-pa piano groove.
Music grew organically as a community. This sense of stylistic unity would continue well into the 20th century and leave the confines of concert music. The 1920s would bring jazz, and with jazz came new grooves that mixed marches, church music, etc. The swing era would introduce the first large jazz orchestra, which brought it’s own grooves. The bebop era would splinter off and take over. Rock and roll would mix with jazz and rhythm and blues, the bossa nova craze would incorporate samba with jazz, metal would incorporate blues with snakes coming out of skulls (I love metal, I’m allowed to say that), etc etc. But each wave brought with it standards and similarities. And each wave would influence a new generation who would copy them and make their own personal improvements.
Groove is commonality, it’s culture, it’s community, and it’s history.
So when Robin Thicke wanted to do a tune that was a throwback to music he grew up loving, he ended up with the sound that is Blurred Lines. The groove of BL, while similar to Got To Give It Up, is not the same. Because no referential groove ever is. But Thicke was doing something that literally every musician has ever done. Including Marvin Gaye.
Yes, Marvin Gaye has also written tunes that use similar grooves as artists. You know why? Because his brain was on and he listened to music because he liked music. This is seriously not hard to understand. When Marvin Gaye recorded What’s Going On? In 1971, did he rip off Stevie Wonder’s My Cherie Amour, recorded in 1969? NO.
NO. HE DID NOT.
Hey actually, go back to Got To Give It Up – didn’t War use the same drum groove on Low Rider? No. And no one came after War. Know why? Because YOU CAN’T COPYRIGHT A GROOVE.
So here’s the problem. Musicians use similar grooves. It’s always happened and it always will. When you grow up listening to Herbie Hancock’s Headhunters and Harvey Mason, you’re gonna play that stuff. And sure enough, in the 1980s that’s what young players were emulating. You play what you know, you play what you listened to, and you play where you’re from. Then you develop. In Thicke’s case, he wanted to play something he loved; an uncopyrightable funky groove in a style that no one in the mainstream plays anymore. He brough it back, and that is totally appropriate and legal. And honestly, unless you’re writing art song stuff, you’re writing dance music, which is what pop music is, and if you’re writing pop music you’re writing a danceable groove that almost surely has to have been done before.
The precedent issue now is: can anyone else do that anymore?
If I write a big band tune in the style of Benny Goodman, do I owe royalties to Benny Goodman? Wait a minute, he only ran the band, Fletcher Henderson defined the sound. So I would owe him royalties? Wait.. does Jimmy Mundy, another notable staff arranger for Goodman, does he owe Henderson royalties? Does the estate of Glenn Miller owe the estate of Henderson? Ok wait, so Tommy Dorsey hired Sy Oliver away from Jimmie Lunceford – does Dorsey owe the Lunceford band because he then “copied” their grooves?
What if I get a band together and I write a fusion-y tune and tell my rhythm section “give me a Birdland groove,” do I owe Joe Zawinul? Does he owe all the American churches that grooved out like that Sunday mornings for years before Birdland hit the Billboard charts in 1977? What if I tell my band to give me an “ECM” groove? Do I owe royalties to ECM record label founder Manfred Eicher? Wait, who did that groove first? Keith Jarrett? Chick Corea? Do we have to have a public debate about who owns the ECM groove and who should collect royalties anytime we play straight 8ths and sometimes go slightly out of time?
Does Nirvana owe anything to Black Sabbath? Does Black Sabbath owe the Beatles? Do the Beatles owe Elvis? Does Elvis owe anything to a generation of blues musicians? Do those musicians owe anything to whoever they picked their music up from?
Does Freddie Mercury owe Elvis for Crazy Little Thing Called Love? (Spoiler: HELL NO. Everyone loves that song and Freddie Mercury lovingly performed it as tribute to one of his heroes).
Does Justin Timberlake owe Michael Jackson for Suit and Tie? (Spoiler: HELL NO. Everyone loves that song and Justin Timberlake lovingly performed it in the style of one of his heroes (Suit and Tie is a spiritual successor to Jackson, deal wit it))
Does Robin Thicke owe Marvin Gaye for Blurred Lines? HELL NO. Gaye was one of his influences growing up and he has every damn right to use his style in one of his songs. Whether you think Thicke is a creep or not, he followed a centuries-old musical convention and broke no laws, so stop cheering this decision.
This affects you and me because now everything is on the table. Did you ever perform a basic rock groove? The estates Bill Haley of Buddy Holly are calling. Are you a jazz bassist and you used your bow in a solo? The estate of Jimmy Blanton is calling. Are you a metal guitarist and you used a distortion pedal? A whole bunch of dudes from the 50s want a piece of that. Snare drum backbeat? Shuffle feel? Closed hi hats? All owned by someone else now.
So where does it end? No idea. But where it starts? Right here. Character aside, Thicke broke no laws and infringed on no copyrights. But he lost the case, and the precedent set by that is terrifying and dangerous and could easily spell the beginning of a new copyright war that all us little guys will get blown away in.