Blurred Laws: In Defense of Pastiche and Robin Thicke

The Gaye estate won a $7.3 million copyright case against the writers of "Blurred Lines," but if the case forms a legal precedent for any stylistic pastiche, then everyone’s in trouble.

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11 March 2015, 2:47pm


Still from Robin Thicke's "Blurred Lines" video, via Vevo

A famous young R&B singer, who grew up idolizing Marvin Gaye, is at a crucial crossroads after a decade of ups and downs. And he decides to launch the next chapter of his career with a song inspired by Gaye’s 1977 chart-topper “Got To Give It Up.” Borrowing that song’s distinctive bottle-clinking percussion, party chatter ambiance of spoken background vocals, and a recurring falsetto “WOO!” ad lib, he and a veteran producer construct a new song with its own melody and lyrics but a clear aesthetic debt to the Gaye track. And this song goes number one, ruling both pop and soul radio and becoming one of the year’s biggest hits, a staple of weddings and dancefloors with an iconic music video.

If the story I just described takes place in 1979, it ends with “Don’t Stop ‘Til You Get Enough” launching Michael Jackson’s adult solo career and helping him become perhaps the biggest star in pop history. If it’s 2013, it ends with “Blurred Lines” making Robin Thicke more famous, but not exactly a superstar, and ultimately being humiliated in court over the song’s creative debt to Marvin Gaye. On Tuesday, Thicke lost a copyright infringement case to Gaye’s family, with a jury finding Thicke and co-writer Pharrell guilty to the tune of a $7.3 million, one of the largest damages awards ever in a music copyright case.

To be fair, “Blurred Lines” borrows a little more of its aesthetic from the Gaye song than “Don’t Stop” does, and it adds a little less. But it’s still an original composition by any traditional or legally binding notion of songwriting customs and copyright law. The words Thicke sings, and the melody he sings them in, are not from the Gaye song, nor are they even in the same key or cadence. The drums don’t have the same groove, and they move along at a noticeably faster BPM. The strongest similarity between real compositional elements of the two songs is the bassline, but, even then, it’s hard to give Marvin Gaye a monopoly on funky, minimal basslines.

Time will tell if the jury’s decision this week will be upheld or used as a legal precedent in future cases. Thicke, Williams, and guest rapper T.I. have already released a joint statement that they are “considering their options,” and I hope they continue fighting this. Clearly Thicke and his legal team made a lot of mistakes to get here. He filed the first lawsuit on this matter, against the Gaye family, as a preemptive measure, but it clearly didn’t prevent a countersuit and only succeeded in turning public sympathies against Thicke. The “Blurred Lines” songwriters even undermined themselves in their depositions and trial testimony. Thicke claimed that past interviews he gave about Gaye’s influence were done in a drug-induced haze, and Williams asserted that their own songwriting credits were fraudulent and that Thicke contributed nothing to the song.

It’s a shame that Thicke and Williams backtracked on their initial interviews about “Blurred Lines” in an attempt to deflect the accusation. A hip-hop veteran like Pharrell Williams should be able to educate a jury, and the public, about the difference between sampling, interpolation, and broader forms of homage. His long run of hits, starting with the production team The Neptunes in the 90s, often built on tropes of classic funk and R&B. But The Neptunes stood out from the pack of sample-happy rap producers by evoking old-fashioned grooves with their own original synth parts and programmed drums, fusing old and new. And Williams isn’t shy with credit on the sporadic occasions that he does borrow: His hook on Jay-Z’s 2007 single “Blue Magic” ”Blue Magic” contained several lines from En Vogue’s 1990 hit ”Hold On,” and the songwriting credits reflect this. And like anyone who’s made more than a few hits, Williams has been imitated and pastiched himself from time to time, such as with will.i.am’s transparent Neptunes knockoff on this Busta Rhymes single.

Let’s talk about pastiche for a moment. You know that when “Weird Al” Yankovic sings “Like A Surgeon” that he’s replayed every musical element of Madonna’s “Like A Virgin,” and simply changed the lyrics. But when a touchy artist like Prince won’t grant him permission to parody a specific song, Yankovic sometimes fashions a ‘style parody.’ That’s how you end up with ”Traffic Jam,” a spot-on pastiche of Prince’s “Let’s Go Crazy” that mimics the tempo, production and instrumentation of the Purple Rain hit with eerie accuracy. But the melody and the lyric are markedly different. And even someone as litigious as Prince wouldn’t bother with a plagiarism case over that.

Likewise, Sam Smith recently paid out to Tom Petty over the similarities between their respective hits “Stay With Me” and “I Won’t Back Down.” All those songs really have in common is the chorus melody and, to a lesser extent, the cadence of the vocal. Everything else, the lyric and the tempo and the instrumentation and the mood, are all dramatically different. But melody trumps all, and even though Petty himself believes it could’ve been an innocent coincidence, that melody was similar enough that Smith’s people cut the check without argument.

You may look down on homage and pastiche, and consider them to be just as bad as compositional plagiarism in terms of speaking to a songwriter’s creative acumen. But popular music is built on homage, whether it’s sophisticated and honorable or crass and opportunistic. It’s obnoxious that Iggy Azalea’s “Fancy” used two no-name British producers to imitate DJ Mustard’s west coast rap sound, and it’s obnoxious that Mustard himself claimed to invent a whole genre, “ratchet music,” out a template that producers like P-Lo and rappers like E-40 had been making songs with for years. It’s obnoxious that Mark Ronson’s “Uptown Funk” pastiched 80s funk bands like The Time and topped the Hot 100 this year during a monthlong stretch in which no African American artists had a top ten hit (although Trinidad James got a check for his lyrical inspiration for the song). These songs can be obnoxious, but their forms of homage are fair play within the constraints of the precedents set for music copyright law—at least, before the “Blurred Lines” suit.

If anything, “Blurred Lines” is just one example of how large Marvin Gaye continues to loom over popular music in the 21st century. He was namechecked in the chorus of Twista’s “Slow Jamz” and the title of Big Sean’s “Marvin & Chardonnay.” Drake’s 2011 hit “Marvins Room” is named after the LA studio where it was recorded, which Gaye founded. Gaye’s voice was sampled in multiple hits by Erick Sermon. Miguel’s “Adorn” was frequently compared to “Sexual Healing,” and Wale’s “LoveHate Thing” was undeniably influenced by “Inner City Blues.”

Much as there are entire genres based on individual Beatles records, large swathes of R&B as we know it today grew out of particular periods of Marvin Gaye’s career. The social conscience and earthy grooves of What’s Going On are a touchstone for neo soul, Let’s Get It On helped birth a generation of sexually charged slow jams, and Here, My Dear blazed a trail for countless other oversharing breakup albums. For whatever reason, Gaye’s music seems to regularly echo through the pop charts in ways that a comparable giant of R&B like Stevie Wonder’s does not.

Marvin Gaye’s family are, justifiably, proud and protective of the singer’s legacy. And after dozens of R&B hits paying tribute, however indirectly, to his influence, you’d think they’d be used to it, or perhaps they were sick of it. Maybe “Blurred Lines,” one of the top selling digital songs of all time, simply seemed too profitable not to try and get a piece of, or they just didn’t care for Alan Thicke’s annoying son’s use of Gaye’s influence. But the Gaye family’s victory in court this week has terrible implications for songwriters everywhere. The Gaye estate alone could apparently sue the genre of R&B out of existence if they wanted to, but if the case could form a legal precedent for any stylistic pastiche, then everyone’s in trouble.

Al Shipley is a writer living in Baltimore. Follow him on Twitter.