Music

The ‘Blurred Lines’ Between Homage And Theft: Or, Why We Shouldn’t Let Regular People Make Decisions

First music became meaningless, then music criticism, and now music law. Who do I blame? You.

In high school I used to watch the Schwarzenegger classic True Lies every time Channel 7 played it, which was about four times a day unless the tennis was on. Then in year nine I saw a French film called Jackpot and realised there’s nothing new under the sun. But James Cameron didn’t just stumble across the exact same plot by accident; one was the basis of the other.

So it seems the rule has been established: either you buy the rights to something so you can remake it, or you write something you think is original and get sued.

Last week, music copyright history was made when a song (‘Blurred Lines’, by Robin Thicke and Pharrell) that sounds kinda the same as another song (‘Got To Give It Up’, by Marvin Gaye) was ruled as plagiarism by a jury of eight regular folk. Not musicologists or composers, just regular folk. Like the ones that found Adnan Syed guilty.

Really opening up a big ol’ can o’ worms, ain’t ya?

As a musicologist, I have what I like to think is a more nuanced and informed opinion on the matter. I also happen to have a song on the internet on the very topic of originality in music, and it has proven quite popular for some years now.

In fact, a suspiciously similar mash-up was performed in court by Robin Thicke in his defence. So, credentials established, my most fervent argument is this: the songs are NOT the same. You may think they sound the same, but they’re not. Nor are they similar enough to warrant a legal dispute, when there are so many examples of creative crossover in other works that were never brought to court. Before we get started, listen to ‘Blurred Lines’ here; and listen to ‘Got To Give It Up’ here.

“But they sound the same to ME!”

First, let’s break it down into the actual music. Not what you hear on the surface, but what is actually going on. Surprisingly, the HSC music syllabus covers this kind of analysis quite well. It breaks music down into six concepts that can be applied to any piece of music. They are:

Pitch: the notes;

Duration: the length of those notes, and other temporal aspects like the speed, beat, metre and pulse;

Texture: how many of those notes are played at the same time;

Tone Colour:  what instruments are playing those notes and what kind of timbre those instruments have;

Dynamics & Expressive Techniques: how loud, soft, gently, harshly, etc those notes are being played;

Structure: how those groups of notes are arranged into a larger work.

You can get a slightly more in depth explanation here.

Break down any bit of music into an analysis of these elements, and you’ll be able to explain in words what the music sounds like. Music recording and production adds another layer to it, but in terms of music writing, that’s all there is. So, in the case of ‘Blurred Lines’ vs Marvin Gaye’s ‘Got To Give It Up’,  which of these bits are the same?

The tempo is slightly similar, sure — but there are entire genres that are almost exclusively defined by their tempo. Club dance songs are usually 130 beats per minute (bpm). Fatboy Slim’s ‘Praise You’ and Katrina & The Waves ‘Walkin’ On Sunshine’ are both 110 bpm. But nobody owns speed.

They use the similar timbres and arrangement. But so does every rock band, since the genre is defined by the instrumentation. Nobody owns the cowbell.

“I beg to differ, young man.”

As far as pitch goes, the chord progressions are completely different. They are in two different keys. One of the arguments made in court was the similarity in the melodies. This blog post shows the pitch elements in question, and demonstrates how tenuous the connection is. Have you ever been whistling a tune and then you unconsciously merge into another tune because they have three or four similar notes? That’s a $7 million lawsuit right there.

In terms of the other elements of pitch and duration, like the bass line and the cowbell, it is easily proven how different they are simply by looking at the sheet music. This guy does exactly that, and very well too.

New Statesman has a good synopsis of how all that information confirms that the songs are not the same, titled ‘If You Think Robin Thicke’s Blurred Lines Plagiarises Marvin Gaye, You Don’t Understand Songwriting’.

“But they STILL sound the same to me!”

So, after reading all of that, you STILL disagree? Okay then, here are more examples of songs sounding similar. Call the lawyers, because everyone is a thief.

Westlife’s ‘You Raise Me Up vs Bette Midler’s ‘Wind Beneath My Wings

Listen to the second line of each chorus; same melody, over the same chords. But litigation was probably out of the question here, since they are both borrowed from the Irish traditional Londonderry Air.

Sisqo’s ‘Thong Song’ vs The Beatles’ ‘Eleanor Rigby

Same chords, done with strings.

Bruno Mars’ ‘Locked out Of Heaven’ vs The Police’s ‘Can’t Stand Losing You’

The second ‘Locked Out Of Heaven’ starts, it sounds like The Police, thanks to the off-beat quaver rhythm of the guitar.

Critics have suggested that the influence of The Police is obvious, and Mars himself admitted to emulating the style in writing the song. And yet, no lawsuit.

Mark Ronson’s ‘Uptown Funk’ vs Michael Jackson’s ‘Jam’

There’s already a few different mash-ups of this on Youtube, but I made my own to illustrate the similarities in the choruses. They are in the same key. They are almost exactly the same tempo. They have the same chord progression for practically the entire song from Dm7 to G7, save for a variation in the verse of ‘Jam’. They both base their melodies on the same Dorian mode.

And, most strikingly, their choruses are both centred around funky three-note horn licks contained within a descending perfect 4th and resolving to the tonic, or root of the scale. If none of that makes sense to you, just listen to them back to back.

If this idiotic “mash up” is enough to spark that controversy, surely mine should be enough to start another lawsuit.

Because it is only elements that are universal within a particular style that have been argued are copied, the Gaye vs ‘Blurred Lines’ case suggests that any artist who emulates not a specific musician’s sound, but an ENTIRE GENRE, is in breach of the copyright of whoever did it first. Is the implication, then, that no other film maker can have their hero leap out of the sixth storey window moments before the building explodes behind them, because Michael Bay?

“Animation is built on plagiarism! If it weren’t for someone plagiarising The Honeymooners, we wouldn’t have The Flintstones. If someone hadn’t ripped off Sergeant Bilko, there’d be no Top Cat. Huckleberry Hound, Chief Wiggum, Yogi Bear? Hah! Andy Griffith, Edward G. Robinson, Art Carney.”

I often write music for advertising. After a first draft, the agency usually comes back and says, ‘Can you make it more upbeat?’ I just add a tambourine and don’t change anything else. Nine times out of ten? Problem. Solved.

Most people have untrained ears, and untrained ears don’t listen to detail in music. They hear the surface noise; the easily identifiable, like tone colour, rhythm and pitch. Most people don’t hear chords or textural arrangement without a deeper level of understanding. If the songs still sound the same to you, I assert that all you’re hearing is the cowbell, a bass instrument with a similar timbre playing different notes, and a beat of the same tempo.

So why then was it left to a jury to decide? Seems to me that in any other specialised case this would not happen. The ‘peers’ of the designers at Apple and Samsung weren’t called upon to decide whether one infringed upon the patents of the other, because those peers probably couldn’t even tell you how a mobile phone works.

This speaks to a broader problem in my mind: sure, everyone is entitled to their opinion in music. But having an opinion on music does not equate to having objective knowledge about it. So when the opinion of eight people decides that an artist owes 70% of their earnings from an alleged plagiarism? That’s troubling.

To anyone who still thinks they sound the same, all I have to say is this: the dress was blue and black, it’s pronounced ‘jif’, vaccination doesn’t cause autism, climate change is real and immediately threatening, and the songs are not the same.

Okay fine then, but I still think Pharrell is a hack.”

Pharrell Williams has written number one hits without needing to resort to plagiarism. He was one of the world’s first superproducers, right up there with Max Martin and Timbaland, making hit after hit for other artists and himself: Justin Timberlake’s ‘Señorita’; Snoop Dogg’s ‘Beautiful’ and ‘Drop It Like It’s Hot’; his own song ‘Frontin’. Why would he deliberately start stealing now when he’s already proven himself a progressive and inventive musician?

So why, when so many pop songs all sound the same, did this end up in court in the first place? I dunno. Maybe because Thicke’s team shot themselves in the foot by countersuing the Gaye family’s cease and desist, and starting the court case in the first place. Maybe because over the past few years we all decided we hated Robin Thicke (but not so much Pharrell and T.I.) for being a sexist douchebag, and this was the one thing we could pin on him. (In the same way that despite Tony Abbott’s constant violation of human rights, chowing down on a raw onion (twice!) might be what makes him come unstuck.) Maybe because Pharrell, Thicke, T.I., the record companies, and the studio collectively made over $39 million off that one song, and Marvin Gaye’s albums don’t quite have the same reach. Who knows?

The saddest part out of all of this is that is how little can be done about it. Lay opinion in music has already decided who’s writing should become popular and successful, and now it is deciding how that writing should be done.

Let’s all cheer up a bit with this somewhat relevant Micallef sketch.

Benny Davis is a musician and comedian, best known as one third of comedy trio The Axis of Awesome. He is an occasional writer, and definitely has nothing to do with this awful Instagram account.

 

Comments

Comments

  1. pto says:

    I despise Robin Thicke and I went through a phase where I lapped up absolutely everything Marvin Gaye ever did. But this court case is rubbish. The song was “In the style of” rather than copied.
    That’s not to say that there aren’t legitimate cases that were absolutely right to go to court. As much as I love, “My Sweet Lord”, there is no denying that it’s very much a copy of “He’s So Fine”, whether that was conscious or not. But in the case of “Blurred Lines”, or even worse, “Down Under” those were really completely wrong court decisions.

  2. Making a court establish that Blurred Lines was anything like anything made by Marvin Gaye degrades Marvins name…

  3. zeldafitzgerald says:

    I’d be way more concerned that the lyrics advocate date rape that sound a bit like marvin gaye

  4. Yeah, sorry mate, as a music academic and head of composition at a top 100 uni, I can spot theft when I hear it – it’s unmistakeable here. The electric piano gives away that they are directly copying, very consciously.

  5. Richard Grant says:

    The bass lines were played in court one after another for Pharrell, and he said he couldn’t tell the difference between them…which sounds pretty damning to me.

  6. Evan Hopkins says:

    According to an article in LA Weekly:

    “The most damning piece of evidence, in the jury’s eyes, was probably a series of 2013 media interviews in which Thicke and Pharrell openly acknowledged “Got to Give It Up” as a source of inspiration for “Blurred Lines.” Thicke tried, unconvincingly, to distance himself from those interviews, too, claiming that he was drunk and high on Vicodin for all of them and didn’t know what he was saying. To the jury, he probably sounded like a man trying to backpedal his way out of an admission of guilt.”

    http://www.laweekly.com/music/great-now-blurred-lines-has-ruined-the-entire-music-industry-5427407

    Although the article does go on to make the opposite conclusion to you it does raise a large enough question mark to throw doubt on the honesty of the song-writing process.

    I am unsure of how this case will fare when they (presumably) appeal the decision. Not being a legal expert, I understand that the melodic and lyrical content are the most important parts in a copyright claim and chord progressions, style/feel and rhythms are not copyrightable.

    Great writing by the way Robert! I am familiar with some of your works as a student at the Melb Con!

  7. Jayden says:

    Someone should do a shitty mashup of Marvin Gaye’s songs with whatever similar songs of the same genre came before it, and sue his family for every single song he ever made. That should shut them up.

  8. Samanjj says:

    Love your article! Fantastic. I learnt so much more than I expected

  9. pto says:

    Singling out the bass line, the same would be true of a lot of songs. I’m a bass player, I automatically listen to the bass first and foremost in songs. You’d be amazed how many songs are practically the same there.

  10. Trevor Mobbs says:

    There are 12 notes in Western music. 12. There are only so many basic ways to combine them that sound pleasant. I find court cases like this truly absurd – and I have a law degree as well as an amateur passion for music.

  11. Richard Grant says:

    Yeah but the bass is far more prominent in Got to Give it Up and Blurred Lines than it is in the average song- and an argument could certainly be made (and was made in court) that it is one of the most distinctive parts of Got to Give it Up.
    Both songs are ‘groove’ songs being driven by the bass parts (and drums) and showing that the bass parts are close to interchangable helps to emphasise that the similarities extend to more than just sharing a beat.
    (Which very different to when Rock songs, that are heavily guitar driven, have simillar bass parts…as they tend to be bass parts that are made up primarily by just playing the root note over and over.)

  12. pto says:

    That’s true, although it is a very simple two-note bass line for the most part, even if it is a very distinctive one and not one that I can remember ever hearing anywhere else. So much so that, yes, the first time I heard “Blurred Lines” I immediately thought “Got To Give It Up”. But I think the reason why I still don’t really think that this is a case for plagiarism is that even though both songs are groove based with a very prominent bass line, for me in both songs far and away the most important parts are the vocals which are totally different.

    But then again, I’m a bit puzzled by how Pharrell couldn’t tell the difference between the isolated bass lines. I mean, they are very similar but there’s enough difference between them that at least picking which is which is very easy. Did they only play very short sections? There are marked differences every few seconds.

  13. Richard Grant says:

    I don’t know for certain how they played them- from what I gather they played short sections of each bass line, and asked him to identify them (and he responded that they sound the same.)
    While the vocal would be the most important part of the song, I’d still argue that directly borrowing another songs groove (via the beat and bassline) and putting your own vocal line on top is a form of plagarism.
    A simillar example would Under Pressure/ Ice Ice Baby- where the Bass was blantanly stolen and Vanilla Ice just rapped around it.

  14. John says:

    I love robin thicke he makes me horny

  15. Earley Days Yet says:

    I think your use of the word “rapped” is perhaps giving Ice more credit than he deserves…