Let’s get it on
Right now, Robin Thicke must hate the blurred lines of copyright infringement. According to reports, a U.S. district court jury in Los Angeles recently ruled in favour of the Marvin Gaye estate, concluding that the authors of 2013’s song of the summer, “Blurred Lines”, are liable for copyright infringement. Fresh off of another reported high-profile infringement case between Tom Petty and Sam Smith, the Thicke v Gaye verdict has captivated many, causing a polarizing effect.
It is no secret that popular music evokes profound emotions and generates contrasting opinions when a question of infringement arises between established artists. In this case, the Gaye camp likely feels strongly that the original author’s work has been imitated yielding monetary gain, and that they should be compensated fairly. Conversely, the Thicke camp probably believes that the similarities between the two songs are negligible and no infringement has occurred. Each camp’s claim is subjectively justifiable.
It would be hard to assert that “Blurred Lines” is a novel example of songwriting; Thicke and Pharrell Williams (the two principle songwriters) reportedly admitted that they used the Gaye composition as inspiration. However, the fact that inspiration does not equal infringement prompts two predominant issues:
- Is there a problem with concluding infringement each time a unique musical work demonstrates substantial inspiratory rhythmic content?
- Where do we draw the line musically between inspiration and infringement when fair use is not put forth as an argument?
The answer to the former question (which is a resounding yes in my view) is answered through thoughtful consideration of the latter, because the lower we draw a line between inspiration and infringement, the greater will be the frequency of infringement litigation. The consequence of increased copyright litigation, I believe, is a grave encroachment on the freedom of artists, songwriters and producers to express themselves using tools inherent and essential to the creation of musical works.
How Deep is the Ocean (of Originality)?
To begin, music is ubiquitously imitative. A new song cannot be completely unique without being atonal, being arrhythmic, and having instruments or electronically-produced sounds with timbral qualities never before heard by humankind—and even then, Arnold Schoenberg, Luigi Russolo, or Merzbow might take credit as sources of inspiration. John Cage could take credit for any attempt at a composition comprised entirely of silence. If you recorded an album of unpredictable human screams, you might receive a notice from Yoko Ono. It must be understood, both from a legal and musicological perspective, that all music derives content from pre-existing material. Which is not to preclude that originality is dead, but merely that a musical work is inherently derivative unless: [a] it was made by alien instruments; [b] it was capable of frequencies never heard by a human ear; and [c] it was composed without existing fundamental components like time signatures, key signatures, and chord structures regularly employed throughout music history. Otherwise, a minimum level of derivation should be assumed.
Returning to Thicke v Gaye, it can be said that the threshold for determining “uniqueness” in pop music should be much lower than in the realm of avant garde, cutting-edge composition. In Western societies’ mainstream songwriting, it is established and well-understood that certain components are to be exploited without having to acknowledge original authors. Chord progressions, rhythmic patterns, melodic lines, and lyrics can be (and are) reused and recycled ad nauseam as a matter of practice, sometimes as a nod of respect to antecedents. Assuming that popular music is going to be manifestly derivative, how is a court supposed to determine whether a pop song is composed in a manner which is par for the course, or has crossed the threshold into infringement?
In the Groove (Legally)
Determining the line between inspiration and infringement for musical works is indeed a struggle. The infringing work does not need to be a note for note duplicate; in Canada, the US, and the UK, a work is illegal when a “substantial” part of the original has been appropriated. It is incredibly difficult to determine what is substantial in musical works which, as we’ve established, inherently contain significant derivative elements. Additionally, it does not matter if a song is subconsciously infringed. If access to the original work is proven, then the copy will be designated as illegal regardless of whether the infringing author meant to copy or not.
Concerning what courts feel constitutes “substantial similarity”, the rhythmic feel of a song seems to be generally off limits. There is a rational basis for this: taking rhythm off the table in contemporary music would instantly make writing new pop songs illegal, as there are limited permutations of beats in common time. As an example of how pervasive rhythmic feels can get in certain musical genres, James Johnson might have claimed infringement on nearly every swing and bebop jazz recording released after 1924, since it could be argued the Charleston Rhythm (a very simple syncopated beat) formed the basis for each and every subsequent jazz composition’s rhythmic structure.
It gets worse when you consider substantial similarity in the context of rhythmic patterns found in cultural and regional musical genres. Reggae, Bhangra, Calypso, Afrobeat, Samba, and Celtic music (the list is much longer) each have a notoriously traditional reliance on specific rhythmic patterns. Latin music genres are concentrated on very narrow and specific variations of percussive patterns. In my opinion, a principle endorsing that rhythmic feels constitute substantial similarity would have a profound effect on international music. If a court ruled usage of a I-V-vi-IV progression or any other popular chord progression constituted a substantial part of a work, it would grind pop music to a stop entirely.
It gets worse when, in the case of Thicke v Gaye, the original copyright holder only owns the sheet music. This means that the court can only assess the similarities found in musical notation. Rhythmic ubiquity will inevitably lead to a conclusion of infringement because in small doses or in songs with ostinato (persistently repeated rhythmic patterns), comparative examination will always reveal substantial similarity. It is like trying to determine infringement for two films, and using the setting as the basis for comparison. A lot of movies are set in Paris, New York, and Los Angeles, but that should have little effect on a conclusive determination of infringement.
Finding rhythmic feel as a basis to determine substantial similarity is perceived as a problem because it takes business-standard tools off the shelf of pop musicians who wish to be derivative in a manner that they are used to. In a CBC News report, Susan Abramovitch suggested that in light of the Thicke ruling there will be a chilling effect. Undoubtedly, artists are not going to be willing to “pay homage” to their musical peers if they literally have to pay to do so.
Yet, songwriters were certainly aware before this ruling that actually copying another’s work is prohibited and many still infringed.
Exhibit A: Radiohead’s “Creep” (Q magazine’s #7 on their list of the 1001 best songs ever) was similar enough to The Hollies’ “The Air That I Breathe” that it was found to constitute infringement, according to reports.
Exhibit B: According to reports, Led Zeppelin is currently embroiled in a lawsuit commenced by the band Spirit regarding the iconic arpeggiated introduction to the classic rock saga “Stairway to Heaven” (#31 on Rolling Stone’s top 500 songs of all time).
If some of the “greatest works of all time” were infringements, then what is the harm in further clarifying for courts what defines substantial similarity to facilitate better administration of the law? An argument might be made that Exhibits A and B demonstrate songwriters are motivated by more than money, and would willingly risk infringement to garner exposure or fame. But in my view, that argument is unfounded, and suggests a dangerous (and already pervasive) devaluation of modern music.
Could this chilling effect have a positive net effect on quality and originality of pop music, by encouraging artists to try harder to be original? Having established how difficult it is to make truly original music, it would be unlikely that creativity will burgeon as a consequence of this case. Presenting rhythmic feel as an off-limits boundary for inspiration might indeed force some artists to think outside the range of usual time signatures. However, there is a mathematical limit to the number of permutations of rhythms in a bar of music. In a genre of music built on repetition for the purpose of hooking casual listeners with familiarity, it is hard to envision a majority of songwriters finding success in oxymoronically composing unconventional pop music.
The ruling in Thicke poses a threat to musical creativity by limiting the sources from which inspiration may be drawn. Though, the limit is only a temporal one and the case of Eric Carmen offers at least one avenue for relief. Two of Carmen’s classics, “All by Myself” and “Never Gonna Fall in Love Again”, are based on works by Rachmaninoff. Carmen admitted he borrowed melodies and chords under the belief that the concertos were public domain. Unfortunately, Carmen’s calculation of copyright duration was mistaken, and he wound up negotiating a 12 percent royalty agreement for both songs. Nevertheless, perhaps it is a lesson for songwriters to simply borrow from artists whose copyright has expired.
By finding that a rhythmic feel can be defined as a substantial part of a musical work, the range and scope from which artists can draw inspiration is limited. The limitation is not negligible, and for pop and other mainstream music genres, it is stifling. Hopefully, as the case is reportedly being appealed by Pharrell’s lawyers, it will be resolved in a manner which better acknowledges the widely-accepted and prevalent derivative nature of pop music.
Jordan Fine is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.