The “Blurred Lines” Trial as Redistribution of Wealth

 
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The “Ick” Factor

Since I do Los Angeles radio show on entertainment law, I’ve been asked by a few news outlets to voice my opinion on the copyright infringement case pitting the Marvin Gaye Estate against Pharrell Williams and Robin Thicke. But who cares about my opinion when we have Richard Epstein and John Yoo? I was thrilled when I heard Troy Senik introduce the topic on the most recent episode of Ricochet’s Law Talk podcast, but who got it right? Richard seems to be close to the age of the jurors in the case. This is the generation of “all this music sounds the same.” (Full disclosure: I’m close to joining that generation myself). John expressed the view that jurors shouldn’t even be allowed to decide these cases.

John got it right. There was no melody lifted, no lyrics, no chord progressions. It was just a successful attempt to write a song in the same genre as the Gaye hits of yesteryear. Why did the jury find infringement? Many believe that what decided this case was the Robin Thicke “ick” factor. Under oath, he came off as a tool. He claimed to be high on drugs and alcohol at key points in the story and threw Pharrell under the bus. The people I spoke with that were at the trial believed the jury thought the songs sounded just enough alike to justify taking millions from this jackass to hand over to the descendants of a saint. In other words: the verdict had a lot more to do with emotional reactions than copyright infringement. It didn’t matter who earned the money; it was all about who the jury thought deserved the money more.

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  1. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    The songs sound very much alike, complete with the party in the background.

    I understand evidence was introduced of an original score from Gaye that was copyrighted, and it was even more like Blurred Lines than the recording.   Is that the case?  Can we find that somewhere and compare it to the sheet music of Blurred Lines?

    In any event, here is a mash-up of the two very similar (in sound) songs:

    • #1
  2. Valiuth Inactive
    Valiuth
    @Valiuth

    Did we do this once before with Queen and Vanilla Ice?

    • #2
  3. Carol Member
    Carol
    @

    I am laughing because, although I think the jury was probably wrong, I can see the Thicke sleazeball factor as a huge influence. He makes my skin crawl.

    • #3
  4. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Valiuth:Did we do this once before with Queen and Vanilla Ice?

    I thought it was David Bowie and Vanilla Ice?  Was the riff for Under Pressure lifted for Ice Ice Baby?

    • #4
  5. MLH Inactive
    MLH
    @MLH

    Joe, wouldn’t you rather be fighting a bull?

    • #5
  6. Valiuth Inactive
    Valiuth
    @Valiuth

    Tommy De Seno:

    Valiuth:Did we do this once before with Queen and Vanilla Ice?

    I thought it was David Bowie and Vanilla Ice? Was the riff for Under Pressure lifted for Ice Ice Baby?

    Well Under Pressure was a piece that was performed by both Queen and David Bowie. I don’t know who brought the case against Vanilla Ice though.

    • #6
  7. Asquared Inactive
    Asquared
    @ASquared

    Valiuth:Did we do this once before with Queen and Vanilla Ice?

    You are forgetting my favorite copyright infringement case, when John Fogerty was sued for sounding too much like John Fogerty.

    • #7
  8. EJHill Podcaster
    EJHill
    @EJHill

    Listen to Paul Dukas’ Sorcerer’s Apprentice. Then listen to John Williams’ score from Star Wars. It’s only plagiarism if the other guy’s not dead.

    Irving Berlin was accused of lifting part of the melody for God Bless America.

    There are, what, eight notes? How many times can you rearrange them before somebody duplicates something?

    • #8
  9. user_2505 Contributor
    user_2505
    @GaryMcVey

    I noticed that when the defense lawyers were on camera for cable interviews, they consistently (and I think disingenuously) kept referring to the recording as “Pharrell’s creation”, shifting Thicke to the side of the picture and making it into a contest between two black men. Clearly they would have been better off if Robin Thicke had agreed to be in on it too.

    • #9
  10. Umbra Fractus Inactive
    Umbra Fractus
    @UmbraFractus

    Valiuth:

    Tommy De Seno:

    Valiuth:Did we do this once before with Queen and Vanilla Ice?

    I thought it was David Bowie and Vanilla Ice? Was the riff for Under Pressure lifted for Ice Ice Baby?

    Well Under Pressure was a piece that was performed by both Queen and David Bowie. I don’t know who brought the case against Vanilla Ice though.

    It was Queen.

    The two cases are different, though. The Vanilla Ice case involved sampling. It’s not just that VI copied the bass line from “Under Pressure,” the backing track of “Ice Ice Baby” actually is a loop the first few bars of the original recording with a drum machine added underneath. Essentially John Deacon himself “appeared” on “Ice Ice baby” without even being told about it.

    I listened to the Marvin Gaye song after listening to Law Talk and could definitely see the resemblance, but not so much that I’d call it plagiarism. Among other things, as a songwriter myself I’m definitely aware of the dangers of unintentional copying. I also note that if writing music in the style of an older artist equates to plagiarism then everything after the Beatles and maybe Black Sabbath is now illegal.

    • #10
  11. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    The people I spoke with that were at the trial believed the jury thought the songs sounded just enough alike to justify taking millions from this jackass to hand over to the descendants of a saint. In other words: the verdict had a lot more to do with emotional reactions than copyright infringement. It didn’t matter who earned the money; it was all about who the jury thought deserved the money more.

    Isn’t this a basic explanation for a lot of legal reasoning these day, up to and including on the Supreme Court? Find just enough of a toe hold legally speaking, then climb to the top where resides the desired outcome.

    Those two songs sound of the same genre to me and of the same style in the same way these six country songs latched onto a formula that works.

    The same could probably be done with any group of songs from the same genre in close enough temporal proximity. Separate them by enough time and it becomes a copyright issue.

    • #11
  12. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    There are only 7 notes. Aren’t we going to run out of songs someday?

    • #12
  13. EJHill Podcaster
    EJHill
    @EJHill

    Tommy De Seno: There are only 7 notes.Aren’t we going to run out of songs someday?

    Ooops. Oscar Hammerstein II caused me to count ‘doe’ twice. Can I sue?

    • #13
  14. Mr. Dart Inactive
    Mr. Dart
    @MrDart

    Valiuth:

    Tommy De Seno:

    Valiuth:Did we do this once before with Queen and Vanilla Ice?

    I thought it was David Bowie and Vanilla Ice? Was the riff for Under Pressure lifted for Ice Ice Baby?

    Well Under Pressure was a piece that was performed by both Queen and David Bowie. I don’t know who brought the case against Vanilla Ice though.

    After “Ice Ice Baby” began to receive some airplay as a B-Side of Vanilla Ice’s debut single the record and the CD it came from were picked up from the indie label Ichiban by SBK Records.  As a major label with a song publishing background SBK made sure that the four members of Queen and David Bowie were added to the songwriting credit.  They and Rob Van Winkle (AKA Vanilla Ice) all received mechanical royalties for the single and, importantly, for the CD which went 8X Platinum in the USA and sold 15 Million copies worldwide.

    This sort of issue between the Gaye family and Williams/ Thicke should not have gone to a jury trial.  It should have been settled through the music publishers by giving the Gaye estate a royalty.  The revenue streams of the decimated recorded music business can’t really support these sorts of wildly over-the-top verdicts.

    There are honest songwriters today very worried about the precedent this set.

    • #14
  15. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    If those two songs are close enough to be a copyright infringement, that means every painting of a bowl of fruit is a copyright infringement of every other painting of a bowl of fruit.

    • #15
  16. Vectorman Inactive
    Vectorman
    @Vectorman

    Tommy De Seno:There are only 7 notes.Aren’t we going to run out of songs someday?

    Counting black and white keys on a piano, there are 12 notes, hence the Twelve tone technique.

    When you also count various cords (triad, 7ths, 9ths, etc.) plus tempo, tambour, counterpoint, and rhythm, there is no excuse for infringement, except the tunes that sound “good” are a small subset of possible combinations.

    • #16
  17. Sabrdance Member
    Sabrdance
    @Sabrdance

    Lawyers and juries making a mockery of the law?  Knock me over with a feather.  And I concur with Misthiocracy.

    • #17
  18. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Vectorman I was being sarcastic. We need a sarcasm punctuation mark.

    • #18
  19. DocJay Inactive
    DocJay
    @DocJay

    Umbra Fractus:

    Valiuth:

    Tommy De Seno:

    Valiuth:Did we do this once before with Queen and Vanilla Ice?

    I thought it was David Bowie and Vanilla Ice? Was the riff for Under Pressure lifted for Ice Ice Baby?

    Well Under Pressure was a piece that was performed by both Queen and David Bowie. I don’t know who brought the case against Vanilla Ice though.

    It was Queen.

    The two cases are different, though. The Vanilla Ice case involved sampling. It’s not just that VI copied the bass line from “Under Pressure,” the backing track of “Ice Ice Baby” actually is a loop the first few bars of the original recording with a drum machine added underneath. Essentially John Deacon himself “appeared” on “Ice Ice baby” without even being told about it.

    I listened to the Marvin Gaye song after listening to Law Talk and could definitely see the resemblance, but not so much that I’d call it plagiarism. Among other things, as a songwriter myself I’m definitely aware of the dangers of unintentional copying. I also note that if writing music in the style of an older artist equates to plagiarism then everything after the Beatles and maybe Black Sabbath is now illegal.

    Way to bring out Black Sabbath, a favorite of my youth.

    This case is a joke but since Thicke is a D-bag and his song is putrid it sort of becomes comical.

    • #19
  20. user_86050 Inactive
    user_86050
    @KCMulville

    Tommy De Seno:There are only 7 notes.Aren’t we going to run out of songs someday?

    Music is a function of math. For a thousand years, monks tried every combination of notes, and every progression. Chances are, you can find the skeleton of every Springsteen song in some Italian abbey. If only they had a saxophone!

    • #20
  21. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Tommy De Seno:Vectorman I was being sarcastic.We need a sarcasm punctuation mark.

    <sarcasm>

    What a wonderful idea.

    </sarcasm>

    • #21
  22. user_357321 Inactive
    user_357321
    @Jordan

    I’d like to think the verdict will be overturned for the reasons you state, but isn’t it rare for a jury verdict to be successfully appealed?  Even for a civil case it has to be quite rare for a jury verdict to be overturned.

    • #22
  23. Quinn the Eskimo Member
    Quinn the Eskimo
    @

    This reminds me of the 4-chord song bit by Axis of Awesome.  (I think most versions violate Ricochet C of C, but you can find it on YouTube probably)  Something like 40 songs with the same chord progression.

    • #23
  24. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Yes Quinn just like 6 country songs King Prawn posted there are certain chord progressions that many many songs share.

    Oldies used to use C, Am, F, G a lot. Think Bristol Stomp and Cara Mia. They sound much different but it’s exactly the same chord progression.

    • #24
  25. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Something like 40 songs with the same chord progression.

    Oddest identical chord progression I’ve ever encountered is Gloria Gaynor’s I Will Survive and the worship song You Are My Hiding Place. (Incidentally, every time I’ve played this song at church I’ve been tempted to channel some Michael Ball in the singing of it.)

    • #25
  26. user_86050 Inactive
    user_86050
    @KCMulville

    Even across cultures

    • #26
  27. Larry3435 Member
    Larry3435
    @Larry3435

    EJHill:Irving Berlin was accused of lifting part of the melody for God Bless America.

    And have you ever noticed how much America (aka My Country ‘Tis Of Thee) sounds like God Save The Queen?  It’s uncanny.

    • #27
  28. Larry3435 Member
    Larry3435
    @Larry3435

    Jordan Wiegand:I’d like to think the verdict will be overturned for the reasons you state, but isn’t it rare for a jury verdict to be successfully appealed? Even for a civil case it has to be quite rare for a jury verdict to be overturned.

    Not that rare.  Usually, though, it is based on instructional or evidentiary error, rather than failure of the evidence to support the verdict.  Cases where the evidence is insufficient to support a verdict for the plaintiff are more often thrown out on summary judgment or non-suit and never make it to the jury.

    • #28
  29. Songwriter Inactive
    Songwriter
    @user_19450

    EJHill:Listen to Paul Dukas’ Sorcerer’s Apprentice. Then listen to John Williams’ score from Star Wars. It’s only plagiarism if the other guy’s not dead.

    Irving Berlin was accused of lifting part of the melody for God Bless America.

    There are, what, eight notes? How many times can you rearrange them before somebody duplicates something?

    Technically there are twelve for we Westerners with the chromatic scale.

    • #29
  30. Songwriter Inactive
    Songwriter
    @user_19450

    Umbra Fractus:

    Valiuth:

    Tommy De Seno:

    Valiuth:Did we do this once before with Queen and Vanilla Ice?

    I thought it was David Bowie and Vanilla Ice? Was the riff for Under Pressure lifted for Ice Ice Baby?

    Well Under Pressure was a piece that was performed by both Queen and David Bowie. I don’t know who brought the case against Vanilla Ice though.

    It was Queen.

    The two cases are different, though. The Vanilla Ice case involved sampling. It’s not just that VI copied the bass line from “Under Pressure,” the backing track of “Ice Ice Baby” actually is a loop the first few bars of the original recording with a drum machine added underneath. Essentially John Deacon himself “appeared” on “Ice Ice baby” without even being told about it.

    I listened to the Marvin Gaye song after listening to Law Talk and could definitely see the resemblance, but not so much that I’d call it plagiarism. Among other things, as a songwriter myself I’m definitely aware of the dangers of unintentional copying. I also note that if writing music in the style of an older artist equates to plagiarism then everything after the Beatles and maybe Black Sabbath is now illegal.

    I listened to the mash-up.  If that’s plagiarism, every songwriter has plagiarized and been plagiarized in return.

    Sure, it’s an homage to Gaye.  But I don’t think it comes close to plagiarism.  I’m with John Yoo: Juries shouldn’t decide these cases. Let musicologists do it.

    • #30

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