Can you plagiarize the feel of a song? The jury in the “Blurred Lines” case seems to think so.
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This is a head-scratcher, to be sure. Most cases of musical plagiarism involve striking similarities between two songs’ melodies and/or lyrics. In the case of “Blurred Lines” vs “Got To Give It Up” (and despite the judge’s admonition to the jury not to consider the “feel” of the songs in question), it appears that Robin Thicke and Pharrell Williams got nailed for exactly that: copying a feel.
I’ve been reading about this for several days now, assuming that I must be missing something. After all, we only get to know what’s reported, and so that requires reporters to understand a case before communicating the facts to us.
There are indisputable facts here. The lyrics for “Blurred Lines” bear no similarity to the lyrics of “Got To Give It Up,” and no amount of discussion can change that.
The melodies bear no similarity either. I’ve done up the first few bars of each song, and you really would have to have an active imagination to claim otherwise. For those who read music, click the links below to see the first page of each song (Each link opens in a new browser window/tab). I notated the melodies more-or-less the way we hear them in their recorded versions.
Blurred Lines Sheet Music – Page 1 -||- Got To Give It Up Sheet Music – Page 1
If you want to hear the first few bars of each tune in a “stripped down” accompaniment (pun intended), click the links below. I’ve done the renditions using a basic chording accompaniment, with “Got To Give It Up” transposed to the key of G major so that you can hear them both in the same key. Remember, the jury was instructed to consider the sheet music only, not the actual accompaniment or “feel” of the music.
Blurred Lines Sound File Example -||- Got To Give It Up Sound File Example
When done in this minimalist accompaniment, you get a clear picture of the melodies, and there is no denying that any similarity between the songs’ melodies is nonexistent.
So it does appear to me that the jury did exactly what the judge told them not to do. They seemed to be unable to separate the performances from the sheet music. There is no denying that Thicke and Pharrell deliberately borrowed (stole?) arrangement ideas from Gaye’s rendition.
But this is a real worry for songwriters. Imagine the scenario, which this week seems somewhere between possible and likely:
- You write a song that bears no resemblance to any other existing song.
- A performer/producer loves your song and wants to record it.
- They arrange the song (let’s say, without your specific input) so that it has a feel similar to The Bee Gees “How Deep Is Your Love,” including an arpeggiated keyboard, washy background vocals and string sweetening.
- The copyright holders for “How Deep Is Your Love” launch a lawsuit claiming infringement. They sue YOU for copying their song, even though sheet music renditions bear no similarity.
When has this happened before? Never, as far as I can see. I’m not a lawyer, and so am willing to accept that there’s something here that musicians aren’t understanding about music and the law. But it all seems ludicrous, sad and terrifying. When you can win a 7-million-dollar court case because the tempo, drum beat and cow bell were similar… well, as I say, this is a head scratcher.
Even if we were to consider the musical arrangement, they’re somewhat similar but not identical. The percussion for both songs is similar, but not overly. Both cow bell parts are completely different. The bass lines are similar, but not strikingly so.
It will be interesting to see where this all goes. For now, unless I’m missing something, it appears that we’ve witnessed what can only be called a judicial blunder that could have serious ramifications for songwriters.
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I have to agree with Tina – this is not a road we want to go down to. It is certainly a slippery slope.
Artists do get inspired by each other, and people do love dancing to songs, so why can’t we just relax and have fun?
I guess this story is indicative of what happens when money steps in and ordinary folks are put in the torturer’s seat (as in the famous psychology experiment).
It is also indicative to us as songwriters how little the audience cares about (or understands) the building blocks of music.
Something to consider when writing your next hit?
Thanks Gary for an insightful post!
Great comment, Iliya, thank you. I was thinking the other day about how composers from the Classical era would purposely take ideas from other composers’ music and incorporate them into their own works. In those days, it was seen as a compliment. Times have changed!
Thanks again,
-Gary
I think Sound on Sound did a really cool analysis of the mix and production of Blurred Lines that’s worth checking out. Mike Senior (Sound on Sound) also points out (bear in mind this article was published long before the controversy) how much fun the “(Michael) Jackson-esqe ‘Wooohs’ that Pharell repeats are. I wonder if the Jackson estate could sue as well because that “woooh” that Pharell repeats certainly has the same feel as the beginning to Jackson’s “Don’t Stop til You Get Enough.”
http://www.soundonsound.com/sos/dec13/articles/themixreview-1213.htm
thanks for the heads up, gonna read that article. and thanks to Gary for his blog post – totally on point.
I agree very much with you, Gary. I have read several articles on this very topic, both in the American and European press, and I find yours to be very thorough. Your point is well made and clearly argumented.
This is how I explain the jury’s decision:
1. They are not musicians. Why are we presenting sheet-music to them if they cannot read music? Shouldn’t plagiarism cases be debated by qualified music experts only, and not by ordinary juries?
2. I wonder if that pre-emptive lawsuit initiated by Thicke against the Gaye family didn’t backfire after all.
3. It looks like Thicke and Williams originally claimed to have wanted to ‘do something with that groove’. Those interviews must have worked against them– particularly if the jury didn’t comprehend the other elements of music. They clearly based their decision on “feel” only, as you contend.
And if you ask me, the more I listened to both songs, the less those feels were sounding alike to me after a while. “Got To Give It Up” has a much deeper, “lazy-er” groove, with a clear emphasis on the back beats– whereas, “Blurred Lines” is more 4-to-the-bar and sounds more jumpy or even frantic.
–Bruno
Yes, Bruno, I think your comment about the pre-emptive lawsuit is quite likely part of the reason for the finding in favour of the Gaye estate. I also find that the more I hear those songs, the more different they sound to me.
Thanks for your comments, Bruno.
-Gary
Basically, if you write something inspired by another song’s sound, you can be sued? Is this really the road we want to go down? I agree with Gary, the jurors didn’t follow the rules of what they were asked to consider. If the infringement case had been about “sounding like” the song, then that would have been another matter. Personally, I don’t think they sound that much alike, other than a beat, a falsetto “whoo” and a cowbell. It all seems like another way to punish the creative process, which often does build on the ideas of other creators. We need a way to reasonably recognize that process without automatically accusing each other of stealing! After listening to them for myself, my first thought is that War should have sued Marvin Gaye for sounding like “LOW RIDER”! Really, I think this is just a desperate case by the Gaye estate to get more money and sets a destructively awful legal precedent and it shouldn’t be supported. I hope they appeal!
I tend to agree with you, Tina. I have no problem seeing/hearing a similarity between the basic groove of the two songs – of that, there can be no question. But in a situation where the specific instruction to the jury was don’t consider the feel of the music, there was an obvious error in judgement here. From what I’ve read, Thicke didn’t necessarily endear himself to the jury, with comments about being high on drugs when he wrote it, etc. So there may have been, at least in a small part, a situation where the jury was swayed against Thicke from the start. I don’t know if the pre-emptive lawsuit by Thicke and Williams came up in court, but that may have also been a mitigating factor.
Thanks for your comments, Tina.
-Gary
Good point about the cowbell, Tina. Producers are probably going to forbid their use in recording studios from now on, in fear of getting sued !
–Bruno
I agree with the verdict.
As someone who was a young person at the time, and spent many hours dancing to that record, we all knew that the words and the melody had nothing to do with the reason we were dancing, or why we bought the record.
It was basically an instrumental track, and that is what it should be judged as. One side of the single did not have any lyrics or melody of the song !! The album version was 75% instrumental. To suggest that an instrumental [a piece of music] cannot be copyrighted is PLAIN WRONG.
When Pharrell suggests that he wanted to create the feel of that period, again, he is completely wrong. There was no other music like that around at the time, and that is why me and so many others went crazy for it. Insipid Disco ruled by and large, and this was like a breath of fresh air.
I agree with the verdict.
Thanks, Trevor, I appreciate your comments. “Got To Give It Up” aside, an instrumental doesn’t usually mean that there is no melody. In fact, most instrumentals have very distinctive melodies – Classical Gas, for example. But I take your point that this song really is all about the feel. The feel is so crucial to the success (existence, perhaps) of this tune that a melody-less instrumental rendition can actually work well.
Your comments also got me thinking: let’s say I wrote a song that copied the chords of The Beatles’ “Let It Be”, along with the instrumentation, “feel” and tempo, with the only difference being that I left out the melody and lyrics. Technically I haven’t copied any elements that are traditionally protected by copyright. But I have copied important elements of the sound recording, which is protected. So I think I’d be nailed for it. But just to go back to the point in my post, the jury was supposedly told not to consider the arrangement or feel of the song, as it was the sheet music that was being considered for infringement. And if that really is the case, that’s the part that confuses me: with no compositional elements in conflict, how was this song judged to be an infringement (musical arrangement and feel aside)?
Thanks again, Trevor, I appreciate your thoughts on this.
-Gary
This is ludicrous Copyright infringement on songs can not be judged on a feel
of the music Other wise Elvis would have been able to sue every Rock and
Roll star that followed him
This is a catastrophe for the music industry and the only case where they
got it wrong in comparison Was O J Simpson getting off for a double
murder that we all know he commited
Even if Greg and Zach have interesting and perhaps valid points regarding the value of the production/arrangement/feel of “Got to Give It Up,” I don’t understand what that has to do with the case. If I produce a cheesy polka version of “Got to Give it Up,” based on the actual…transcribable music rather than the feel of the production, I have violated copyright law. It doesn’t matter that my accordion version will never sell a single download on iTunes. And the opposite is true, if I blatantly take ideas regarding the vibe of a song, the instrumentation, the general soundscape, but don’t copy anything objective, like notes or lyrics or even chords in this case, I haven’t violated the law. And this is true regardless of whether the song does well commercially. We aren’t talking about whether we agree with copyright law, or whether the “feel” of the production should be included under copyright protection. It isn’t. What if there was a highly successful EDM track within a very particular genre of EDM? According to the reasoning of you guys, everyone within the genre would probably have a viable lawsuit to pursue. It makes no sense to copyright things “feel” or “production.” At least the law makes sense. Unfortunately the jurors weren’t equipped with the requisite understanding of music and copyright law to reach an informed decision based on the law, and not what happened to Feel to them like plagiarism.
And this is where I think the comments of lawyers over the next short while are going to be interesting. As I mentioned in my reply to Greg, this may be a precedent. Personally, I’ve never heard of this before, where the specific elements of the composition of a song are all unique, but can still result in being assessed to be a copy of an already-existing song. That part makes no sense to me. If the jury was told to assess the feel, arrangement and production of the songs, then there is no question that Blurred Lines is strikingly similar. But if the jury was told to ignore the production and focus only on the compositional elements, it seems they fell down on that job.
Thanks for your comment, Charlie.
-Gary
Charlie, your last sentence is dead on and brilliantly says it all !
–Bruno
Thank you Bruno. I think I can come off like I think I know it all, and I certainly do NOT know it all. But this verdict, and even the lawsuit in general, was absurd and potentially harmful. I don’t even like Blurred Lines (although I do like Marvin Gaye quite a bit). If a vibe or feel or production style is protected by copyright, then Prince could sue Justin Timberlake and a few others, and perhaps Little Richard could sue Prince. It’s such non-sense.
Eloquent and on target Greg Wyard!
I think it’s impossible not to hear that blurred lines is a complete rubber stamp of “got to give it up”. Deconstructed, perhaps there are differences….but as a whole, it’s a rubber stamp. It’s also a stretch to call the verse lines as melodic. The driving melody of blurred lines, certainly the hook…. comes from the background vocals and percussive patterns which, lean heavily on Mr. Gaye’s original.
What’s possibly most interesting here is that the production IS the song.
Thanks Zack. I don’t think it’s too much of a stretch to call the verse line a melody, since it is quite easy to notate it. All melodies will bear some resemblance to certain other melodies, as most of them will share a few notes; there’s only 7 notes in a diatonic scale. I wouldn’t call it a rubber stamp, but I think you’re right that they were certainly trying to get as close to a rubber stamp as they dared. I also agree with you that the production is the song, but the media is reporting that the jury was instructed to only consider the actual elements of the song’s composition – not the production (arrangement, feel, or whatever else we might call it.)
Thanks again, Zack. I appreciate your thoughts on this.
-gary
My thought about this is that the feel is so overwhelmingly similar in both songs, that it completely overshadows both the lyrics and the melody to any casual listener. The Marvin Gaye song has famously been referred to as the song that nobody knows the words to, and yet it was a hit. Can anyone sing more than three words without making up nonsense words? This proves that the lyrical content was irrelevant, and therefore comparing it to the lyrical content of “Blurred Lines” to find instances of plagiarism is impossible for any jury. Gaye’s falsetto melody is minimalist and lacks any real hook. You don’t catch yourself singing it. I’d be willing to bet if you changed all the lyrics of “Got to give it up” and sang any melody using notes from the pentatonic scale but kept the backing track identical, it would still be a hit. Robin Thicke and Pharrell Williams weren’t influenced by this song because of its infectious rhymes and hook-laden melody. No, it was completely based on the feel of the song, because the lyrics are unintelligible and the melody minimal. They may as well have sampled the backing track and sung Blurred Lines over it, and had they done that, they would’ve been required to pay royalties up front. But what they did in essence was reverse engineer and recreate the backing track (with omissions – they only chose the I and V chords) and write another song over it. The Rhodes piano / cowbell feel of the original song was so strong and unique that it overwhelmed the new song they wrote, even though the new song had fresh music and lyrics. That’s why the jury couldn’t overlook the feel. If Blurred Lines was identical in every way, but the backing track was rock guitars, or a polka accordion, or country fiddle and pedal steel, two things would have happened: 1. It wouldn’t have been a hit 2. There would be no plagiarism suit
Thanks, Greg – Really well-thought out, and I have to agree with you. My only counter would be that the story being communicated in the media is that the jury was told specifically and clearly that the musical arrangement was not on trial: they were not to consider the feel of the music. That’s why the lawyers for the Gaye estate were not permitted even to play the Marvin Gaye version in court, as the judge ruled that it would likely sway the jury. They were only allowed to address the issue by way of referring to the sheet music. There’s no denying, however, that the feel is what was assessed. I think everything you’ve said on this is exactly right: it’s the arrangement (the feel) that forms the song, not the lyrics or melody. Gaye could have improvised a completely new melody and lyric, and it would still be “Got to Give It Up.”
Still, though, the plagiarizing of a “feel”… that seems weird. And songs can have any number of arrangements, all greatly differing. Does this mean that Thicke and Williams could re-release the song with a completely different arrangement, and that’s OK? We’re in uncharted waters here, I think. In any case of musical plagiarism you can point to from the past, it’s always been something about the musical composition that’s been the factor. With this case, it’s the feel. And what’s weird is that the contributors to that feel — the cowbell and bass, in particular — are not at all the same between the two songs. They do, however, produce a similar “feel.”
It will be interesting once lawyers start weighing in on this.
Thanks again, Greg. Great comment!
-Gary