“Blurred Lines” – The Appeals Court Decision

No doubt you’ve heard that the district court legal decision regarding the apparent fact that the writers of “Blurred Lines” (Robin Thicke, Pharrell Williams and Clifford Harris Jr) plagiarized Marvin Gaye’s “Got to Give It Up” has been upheld the U.S. Court of Appeals.

I have to say, I’m still confused, particularly considering that the decision reiterates and affirms that the copyright breach has to do with the printed music, not the recording. When you compare the melodies of the two songs in written form, there is little to no similarity. The only similarity I notice is the one that I hear: a similar tempo, similar cowbell, similar basic beat/backing rhythmic feel, etc.

But the court has said in their decision: “The district court ruled that the Gayes’ compositional copyright, which is governed by the Copyright Act of 1909, did not extend to the commercial sound recording of “Got To Give It Up,” and protected only the sheet music deposited with the Copyright Office.”

So that leaves us with the things you’d find on a lead sheet: the notes, rhythms, lyrics and chords. The chords, as we know, are generic enough and couldn’t ever be protected. I don’t believe the lyrics were ever contested. So that leaves the notes and rhythms, which are completely different when you compare the two songs.

And not only different, but the way they are presented, including the phrasing, doesn’t even line up. “Got To Give It Up” uses longer 4-bar phrases, while you can hear the much shorter, punchier phrasing of “Blurred Lines.”

So I’m mystified. I’m not a lawyer, and so there are much smarter people than me to weigh in on the legalities of what can be considered in a case like this, and what cannot. But if you transcribe the melody of Blurred Lines, and then transcribe the melody of “Got To Give It Up”, and look at them side by side (as I assume smart people in the court did), you’d wonder why you’re in court at all.

Of course the sound of the recordings is similar, but all that proves is that songs can sound similar while having completely different melodies. (Songs, by the way, can sound completely different, yet use the same melody, as we hear when we compare the tune from “Hey There”, from the musical “The Pajama Game”, with the main theme of Mozart’s Piano Sonata No. 16 in C Major, K 545)

If the copyright protection extended to the sound recordings themselves, then I’m assuming that this would have been an easy case of infringement. As I say, I’m not a lawyer, so maybe someone in the legal profession can tell me how two completely different melodies, using different notes, rhythms and lyrics, can even be in court over copyright infringement.

This decision as been affirmed by two courts, and so there’s obviously something I’m missing.

Written by Gary Ewer. Follow Gary on Twitter.

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