Marvin Gaye is one of the great singers and songwriters of all time, with a status deservedly approaching secular sainthood. Robin Thicke is a sleazy dirtbag who made a giant pile of money by knocking off one of Marvin’s songs to produce a rapey earworm, accompanied by a porn video. Naturally, I side with Team Marvin, and am delighted that Thicke and Pharrell lost the lawsuit.
While my fellow musicians are gleefully crowing, other observers are worried that this case sets a bad precedent. Michaelangelo Matos is among them.
I encourage vocal fans of this verdict to demonstrate their solidarity by deleting and/or destroying every piece of music they own featuring an unlicensed sample or bearing a notable resemblance to an earlier piece of music. But they won’t, and they shouldn’t, because that would entail deleting just about everything. Even if you loathe Thicke, this is no cause for celebration, because the size of the Gaye estate’s bounty is only going to encourage more lawsuits like this one.
Musical copyrights only cover top-line melodies, chords, and lyrics. They don’t extend to grooves, percussion parts, or overall vibe. The similarities in groove and vibe between “Blurred Lines” and “Got To Give It Up” are obvious and were by all accounts intentional. I don’t hear the melodies as being all that similar, and the two songs’ chords and lyrics don’t overlap at all. The only possible rationale for ruling in favor of the Gaye estate is similarity of groove. Joe Bennett offers an excellent close analysis of both songs; decide for yourself how much overlap there really is.
If this ruling does indeed extend music copyrights into the previously unregulated areas of groove, timbre and vibe, then every song that has any kind of commercial success is going to be the subject of lawsuits. Maybe groove and vibe should have been copyrighted all along–I know quite a few bassists, drummers and producers who think so–and maybe the law on the books should be amended so that they will be in the future. But deciding this stuff in the courts is bad because you get vague standards that future judges can interpret how they will. Lack of legal clarity makes it hard to make artistic decisions, and it forces musicians to err on the side of conservatism to avoid getting in trouble.
I’m in favor of the rhythm section getting a cut of the proceeds from a recording — the legal notion of the “song” as consisting solely of the top-line melody and chords is increasingly nonsensical, given that most of the creative content of pop music lies elsewhere. But how much of the music should copyright cover? I got into some back-and-forth over this on Twitter with the devastatingly great bassist Melvin Gibbs. Gibbs naturally feels that groove creators like himself deserve copyright protection, and that ripping off the creators of your favorite grooves will make them not want to work with you in the future. That’s a fair point. But then how are people supposed to create music within a style? Charles Mingus once said, “If Charlie Parker was a gunslinger, there’d be a whole lot of dead copycats.” But if he had been, would we ever have had any other bebop musicians?
This question has immediate practical consequences for working musicians and songwriters. Every rock or pop musician gets told at some point to go for a Stevie Wonder vibe or a Led Zeppelin vibe or a Radiohead vibe. Referencing existing recordings is the core vocabulary of the music profession. Should you have to cut Jimmy Page a check every time you write a heavy blues-rock song? Melvin Gibbs thinks you should, and that furthermore, Jimmy Page should be cutting a lot of checks to Pete Cosey. Once again, I see his point, but then shouldn’t Pete Cosey have been paying Jimi Hendrix? Where does it end?
This whole controversy emerges from the awkward fit between the demands of capitalism and the basic nature of music. There is no music without imitation. No matter how “original” a piece of music may be, it is still going to comprised almost entirely of existing materials: tuning systems, meters, scales, chord progressions, instrument combinations, melodic motifs, rhythm patterns, song structures. No matter how radical or far-out a musician may be, they exist in a community of practice, and however small that community may be, no artist is an island.
Personally, I subscribe to the theory that music (like all art) is made of information viruses that use human minds as their hosts. Music self-replicates, mutates, and evolves semi-independently of its host musicians, in much the same manner as the microbes in our guts and the tiny mites on our skin. I think that our copyright laws should be humble in the face of this fact, and recognize that the memes are going to copy themselves no matter what. Modern industrial capitalism is a historical oddity with regard to the concept of intellectual property. Most traditional societies view the ownership of music as being as nonsensical as the ownership of people. (Though our society used to be perfectly fine with that as well.)
I want musicians to get paid, but total originality can’t be the requirement. Unlike the theft of physical property, intellectual property theft can positively benefit the “victim.” Michaelangelo Matos points out that “Blurred Lines” didn’t cost the Gaye estate any money. Quite to the contrary, all of the publicity has led to a big sales bump for “Got To Give It Up.” If I controlled the universe, here’s the compromise I’d enact. Copyright rules would be exceedingly strict, requiring permission for any kind of imitation or sampling. But terms would be much shorter than they are now, and after that, everything would enter the public domain. The term specified in the original Copyright Clause of the US Constitution was just fourteen years. That sounds reasonable to me. I’m not holding my breath for Congress to stand up to Disney’s lobbyists and enact such a change, but it would be a good idea.