In March 2015, Marvin Gaye's family won a $7.4 million verdict against Pharrell Williams and Robin Thicke for copyright infringement. The suit alleged that their hit, "Blurred Lines," which spent twelve weeks at #1 on the Billboard charts in the United States, was a blatant copy of Gaye's 1977 track "Got To Give It Up."
The case was intended to focus on the composition, as it is present in the sheet music, of "Got To Give It Up," but, as some commenters have argued, the verdict seemed to instead hinge on how the songs sounded side-by-side. Diverse elements, from the bass line, the percussion, or even the "party vibe," as Slate puts it, all contributed to the similarities of the two tracks.
The verdict has, perhaps unintentionally, shifted the interpretation of music copyright beyond composition, towards sound itself. This poses an interesting problem for electronic music producers whose personas are, through hours spent toiling over oscillators and EQs, often linked to intentionally crafted sonic characteristics. With Tchami's modulated bass lines making him the de facto creator of #future house, or Skrillex defining himself through the uniquely brutal wobbles of Scary Monsters and Nice Sprites, how much can these artists legally grasp for to protect the sound that they have created from a deluge of imitators?
THUMP spoke with UK Music Lawyer Ben Challis, who has previously written on the case and currently serves as executive producer for television and general counsel for the Glastonbury Music Festival, to discuss future implications of the "Blurred Lines" case in electronic music.
THUMP: Could you very briefly give your opinion on the "Blurred Lines" verdict?
Ben Challis: My personal opinion was that the jury got it wrong. It's a very grey area and everyone made those puns about "blurred lines," but it is a very gray area and judges have always struggled to define what is inspiration and what's appropriation. Yes, the two recordings sound pretty similar, but the whole case is about the song, and in my own personal opinion the songs are not similar. If the case had been brought by the company that owned the sound recording I might have supported the decision.
Following the case, you wrote "At the pre-trial the US district judge ruled to prevent the Gaye's attorney from playing the two recordings side-by-side, noting that it was composition represented by the sheet music, not the sound recording that was at the heart of the case." What do you have to say on that?
It's up to the jury, not the judge, to decide which evidence they prefer and of course, they will be steered by the effectiveness of the attorneys who represent each side. My own personal suspicion is that at the back of the jury's mind the whole time was the sound recording, when the case was always about the song.
Does the "Blurred Lines" case set a precedent to pursue legal action for saying that something is compositionally different, but stylistically it's almost exactly the same?
Well, it shouldn't, because it's not meant to be about style, it's meant to be about songwriting, but I imagine that in reality that's exactly what it's done. It's opened up musicians eyes to the concept that while someone may not have copied all of their song if another track sounds similar and you can prove enough of the elements are similar to the song, you certainly can.
In electronic music, you have people coming out with not just original compositions but, through sound design, truly unique sounds. Skrillex, for example, came up with this squealing, grunting pitch that became his signature sound and then everybody started using it. Can we make the logical leap that a specific sound becoming part of an individual's style would make it copyrightable?
It makes perfect sense, and it's an extremely good question. There is no protection in British copyright law that protects sounds as such until it becomes a sound recording. So, the sound of a grungy, squeally sound is not protectable, at the moment, under British copyright law, because there's no definition to protect it. Now copyright law does evolve over time, both by a process of judges evolving it or by the House of Representatives or parliament changing the law. At the moment, you'd be hard-pressed. Unless another artist has sampled what you've created, not much you can do about it.
What we tend to say is protected is melody or, of course, the lyrics. A sound in itself, a unique sound, wouldn't normally fall within the definition of a melody or music. But, as things evolve, that will change.
What's the difference between an electronic musician hearing another contemporary track and saying "I want to make that sound," and Pharrell Williams saying "I really like that aural quality, that sound that Marvin Gaye had." In both cases, you are trying to replicate a specific quality, a specific sound, correct?
Correct. I don't think there is a difference in what you're saying or the question you're asking. It's the same question and of course again you can be influenced by someone, you can be inspired by someone, that's fine in legal terms. What you can't do is appropriate someone else's work or copy their work, or at least copy a substantial amount of their work.
To me, we've moved passed sampling; the 80's and 90's, that's really when that problem broke out and now it seems like everyone is either scared of doing it or prepared to pay out the nose for it.
Yeah exactly, or take the risk and don't get caught.
How do you feel about music copyright today specifically in relation to electronic music? With the ability to create a specific sound that is, in essence, your own style, do you see any way that could be pushed for copyright in the future?
With some difficulty. I think the counter argument is that the law on sampling is too strict and actually there should be a cultural evolution because people who are producing rap and hip-hop [who] don't think they are copying. They think they are using pre-existing sound recordings as elements and using their own skill as a tool to create new music.
I'm a copyright lawyer, I'm an IP lawyer... but I do understand it. A lot of my students say well "the law is wrong. I'm not stealing this. I'm taking short clips and creating something completely new." Now will copyright be expanded to bring in sounds and feels, I very much doubt it in my personal opinion. I can see why someone who creates something original might think it's a work, it's not covered as a work in copyright systems at the moment. Will it change? I doubt it. I don't see anyone driving for that change.
You can read more from Ben on his Law blog.