You can find some form of “prior art” in almost anything if you’re remotely paying attention;
Facebook looked like MySpace.
Twitter is just a glorified text message.
iTunes morphed from the file sharing primordial ooze of Limewire and Napster; only iTune’s legal
YouTube does little more than allow other people to see your videos – how original is that? And for that it carries a $50 billion dollar market value while you give up ownership of your content (but that’s a whole nother story).
However when it comes to Robin Thicke’s “Blurred Lines,” the breakout hit of the summer, soul legend Marvin Gaye‘s estate thinks Thicke has infringed on Gaye’s rights almost as much as Gaye’s dad did when he shot and killed him in 1984.
“Blurred Lines” – after 10 weeks in the Top 10 – was purportedly “written” by Thicke, Pharrell Williams and Clifford Harris (who goes by the name T.I. for additional street cred, I presume).
And in those 10 weeks it’s gotten more than its fair share of attention. First there were accusations that the video was X-rated and misogynistic. To which Thicke might have simply replied. “Oh, I see you’ve seen it.”
Then a small rumble started inside the Gaye camp and at Bridgeport Music – owners of selected tunes from George Clinton and P-Funk’s catalog – concerning the similarities to, “Got to Give It Up” by Gaye and “Sexy Ways” by Funkadelic.
Bridgeport Music has extensive experience in court, at times having been accused of being “sample trolls” just looking for a suit to file. They sued N.W.A. for sampling a two second riff from P-Funk’s “Get Off Your Ass and Jam” in their song “100 Miles and Runnin’.”
A two second sample, mind you.
The suit filed by Thicke’s people isn’t seeking damages – no money will change hands – they simply want the Judge to agree there’s no infringement and decide the rights of the parties. The question is, can you be “heavily influenced” by a song but not guilty of copying? And at what point in the creative process does one step over the line?
Did Thicke cross that clearly blurred line?
Maybe yes, maybe no; or as President Clinton stated in his impeachment hearing, it depends “what the meaning of ‘is’ is.”
Copyright laws protect the “expression” of ideas, not the idea itself and relies on a not so simple test; is it out and out copying of a prior work or is a substantial similarity to the prior work sufficient to constitute “improper appropriation?”
Copying can be proven by direct evidence, outright admission or circumstantial evidence.
Substantial similarity means “substantial in degree as measured either qualitatively or quantitatively” and similarity is defined as “similar in the eyes of the ordinary member of the intended audience.”
This case will probably never see a court room, but one major strike against the defendants, Frankie Christian Gaye, Marvin Gaye III, and Nona Marvisa Gaye will be the Gaye family “claims ownership of an entire genre, as opposed to a specific work” and the intent of “Blurred Lines” was to “evoke an era” not to infringe on the copyright of any other work.”
One can’t own or copyright an entire genre.
This isn’t a new problem, as I’m sure you’re all aware.
Former Beatle George Harrison’s “My Sweet Lord” was all but identical to the Chiffon’s “He’s So Fine.” Harrison was found guilty of “subconscious plagiarism” and wrote a check made out to The Chiffon’s for $587,000.00.
Some of the most famous cases include Led Zepplin’s “Going to California” ripped off by Pearl Jam in “Given to Fly.” Queen and David Bowie’s “Under Pressure” was directly sampled and ripped off by Vanilla Ice in “Ice, Ice Baby.” Huey Lewis’ “I Want A New Drug” was all but identical to Ray Parker Jr.’s “Ghostbusters.”
And The Beatles: Ob-La-Di, Ob-La-Da was borrowed by Offspring in “Why Don’t You Get a Job?” while Chuck Berry’s “Sweet Little Sixteen” was lifted so the Beach Boys could write “Surfin’ USA” back when Brian Wilson still had two brain cells to rub together.
If you listen to the songs in question today – Thicke’s and Gaye’s – there’s no room for doubt. Thicke was at the very least influenced heavily by Gaye and P-Funk’s prior work. But is there enough similarity to considered it “copied” in the ears of the “intended audience” or the eyes of blind justice?
I would look for the court to rule, much like in the case of Harrison, Thicke’s guilty, even if only “subconsciously.”
Marvin Gaye III told TMZ, “There’s a way to do business and a way not to do business, and we’re not happy with the way he went about doing the business,” adding, “He’s suing us over something where he clearly got his inspiration from at the least.”
“Blurred Lines” in the title, blurred lines in the sexuality and misogynistic behavior, blurred lines in its origin? I Love the song, you can’t get it out of your ears when you hear it.
But to your well-coiffed scribe, it’s not that blurred.
My verdict is in; Gaye estate and Bridgeport for the win.