I’m jumping into the fray on the Pharrell/Marvin Gaye copyright ruling. (Robin Thicke, claiming he wasn’t around to write the song he received half writing credit on, is irrelevant to the case. Elvis used to get writing credit for songs he didn’t write too—as did Madonna—it’s not unusual). According to Lawrence Y. Iser, a well-known copyright lawyer, "This is a tricky case because while the two recordings do sound similar, the similarity is in the style, feel, tempo and groove, which are not covered by the copyright in the composition. Musicologically, the two songs do not share common melody, lyric or chord structure."

To sum up: the heirs of Marvin Gaye’s publishing and songwriting have been awarded $7.4 million for the use of Marvin’s work (the song “Got To Give It Up”) in the Pharrell/Thicke song “Blurred Lines”. The song was a huge hit, so, aside from $4 million in copyright damages, the judge ordered Pharell and Thicke to cough up the profits they made from the song—$1.6 million and $1.8 million respectively.

I know a little about this, I’m not an expert, but I do know some. I know that the copyright system is old, it’s based on a somewhat antiquated model of what music is. That’s pretty fundamental— that the idea of origination of ownership is based on a faulty definition! As it stands, copyright (and what constitutes composition and therefore music publishing) is based on three things: the top line melody, the underlying harmonies (whether you play a C chord, a D7 or an F when singing a C note, for example) and the lyrics. That’s it. Simple.

This is all based on how “music” was sold 100 years ago—and even before that. When the copyright laws were constructed, music was sold in written form. There were no recordings, so if you wanted a song, you bought the sheet music from the publisher (printed on paper, just like books—hence publishing). he sheet music had the words, vocal melody and the piano accompaniment and chords—everything else in the interpretation was up to you, and still is.

The jury was instructed NOT to listen to the two recordings being discussed. Sounds odd, eh? I mean, don’t listen to the music we’re talking about?! The reason being, especially in this case, that in listening to the recordings, one would hear aspects of them besides the lyric, top line melody and harmony—which are, remember, the only three things that determine copyright. So other more stripped down interpretations of the songs could be listened to, but not the actual two recordings in question.

In this case it’s easy to see why. I remember biking along last year and hearing what I thought was “Got To Give It Up” coming out of a car, and my spirits were lifted for a moment, thinking of that wonderful Marvin Gaye song—its got a wonderful groove and his voice! Days later I realized it wasn’t “Got To Give It Up” but a “new” song, called “Blurred Lines”. I thought to myself, “Wow! That’s the most ballsy appropriation of someone elses song I’ve ever heard!” If I didn’t know better I’d have thought it was a sample of the Gaye tune. I wondered—are our memories that short? Can they really get away with this?

Below you can hear for yourself:

Well, apparently they’re not getting away with it.

However, it seems to me, that if one followed the letter of the current law, they SHOULD have gotten away with it. The lyrics and top line melody are different, and much of the harmonic underpinning is different as well,so according to the legal definition of song copyright it then constitutes a completely new song. Clearly it isn’t, but if one adheres to the law and doesn’t use common sense—there is no infringement.

Clearly the law is not keeping up with the times, though—the groove on those songs is what hooks you and they’re almost completely identical. But by definition the groove cannot be counted as part of the composition, because you could play what’s written on the sheet music in whatever rhythm you want. Foxtrot, Cha Cha or ragtime: all would be the same song. There’s some logic to that, but should we live by absolutes?

Current copyright determination is based on a very Eurocentric view of what constitutes musical composition. Rhythm and texture, two of the great legacies of the immense African influence on our popular music over the last two centuries, has been brushed aside as being irrelevant. If anything it’s more relevant than ever. The evolution of popular music and jazz through the entire 20th century is the story of Africa meeting Europe… and something new coming into existence as a result. It’s not all about White folks stealing African American material—though that happened—there was actually a lot of interplay going both ways. But the views of what constitutes composition don’t reflect this reality. If one discounts the groove (and similar elements) in their definition of copyright, then much of James Brown’s compositions are impossible to copyright.

Everyone who listens to popular music in any form senses that the feel, the groove, the sound, and the attitude are what draws you in and makes a recording special—the lyrics and the melody, sure, very important too, but no more so than the texture and groove.

Does this mean that an industrial interpretation of “Roar” is partially at least a different song? A whole can of worms gets opened up once you start considering rhythm and arrangement as part of composition. And how much rearranging and swapping out of a groove constitutes composition? If I just change the guitar part, am I entitled to some percentage?- Where does one draw the line? Easy to see how crazy this can get despite being based on some kind of common sense. Easy to see why this issue has remained unchanged—it’s such a minefield.

Could this have been handled differently? Keep in mind this was NOT a sample, so Pharrell was under no obligation to clear the groove. I think he maybe could have pre-emptively offered a piece of the song to the Gaye heirs BEFORE it was released, but acting like nothing would happen seems in retrospect naive, and it now means that now they get ALL of it, not just a piece. That’s water under the bridge, though, the real question remains, How does one determine what constitutes composition in contemporary music?

Are creative uses of samples composition? To me they certainly are, which means the copyright holder of the sampled composition maybe shouldn’t demand the whole pie. Be fair. Is an homage theft? If my drummer PLAYS the funky drummer groove from the James Brown track, the most heavily sampled song in history, is that substantially different than sampling the groove? Yes, it is, because if not, every dub step or house track would be considered the same song, or partly.

A suggestion

Maybe, to start with, there could be an additional aspect of copyright called arrangement, or something like that? It might further confuse and muddy the waters, but at least it admits to the reality that since the advent of recorded music, the reason why we like a piece of music is based on more than those three simple elements.

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