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Following testimony from a Motown executive and a piano medley by Robin Thicke during the previous week’s proceedings, Thicke, Pharrell Williams and T.I. will return to Los Angeles federal court on Tuesday to fight claims they copied their multiplatinum song from Gaye’s 1977 hit “Got To Give It Up.”
In 2013, the musicians preemptively sued for a declaration they didn’t steal the late soul legend’s song. The singer’s children Frankie and Nona Gaye responded with counterclaims that the musicians infringed “Got To Give It Up” — and that Thicke and ex-wife Paula Patton copied a second Gaye song, “After The Dance,” in co-writing Thicke’s 2011 track “Love After War.”
The trial is expected to run through Friday, with testimony from Williams and T.I. (whose real name is Clifford Harris Jr.) as well as experts on music licensing and revenue, who will speak to the damages the Gayes could claim if they win.
The dispute isn’t as simple as whether the songs sound similar. In recent motions, Thicke and Williams’ attorneys threw the Gayes a copyright curveball with the argument they don’t own their father’s commercially released recordings — they only own the compositional elements in the sheet music “lead sheets.” (The recordings belong to Motown Records, which is owned by Universal, which in turn owns Interscope — the record company that released Blurred Lines and a defendant in the Gayes’ countersuit.)
Judge John Kronstadt agreed in a ruling in January and reaffirmed the ruling following an appeal from the Gayes. His decision enforced that the Marvin Gaye recordings of “Got To Give It Up” and “After The Dance” couldn’t be heard in court — the attorneys are only using stripped-down instrumentals.
But more importantly, the decision means that in deciding whether infringement occurred, the jury will only consider whether “Blurred Lines” and “Love After War” borrow excessively from what’s in the Gayes’ lead sheets. The lead sheets leave out some of the most recognizable elements of the recording, like the percussion and production effects. The Gayes’ attorneys argue that what’s left — the lyrics, the vocal melody, the keyboard line and the bass — still resemble Thicke’s songs enough to say they’re infringement.
So what are the similarities?
On Thursday and Friday, the Gaye family’s attorney Richard Busch called a pair of musicologists to the stand, and the courtroom became a course on music theory with their testimonies on what they hear in common between the compositions. (The musicians’ lawyers will call their own musicologist, Sandy Wilbur, this week.)
Here’s the breakdown of similarities:
- “Signature phrase”: Judith Finell, the Berkeley-educated head of a musicology consulting firm, labeled one phrase per song the immediately identifiable “signature phrase”: the opening lyrics “I used to go out to parties” in Gaye’s “Got To Give It Up” and the chorus opener “And that’s why I’m gon’ take a good girl” in “Blurred Lines.” She found the similarities in their melodies “pretty stunning” and “highly unusual,” she testified. She said both begin with a repetition of the same note — “one of the most important considerations in comparing melodies” — and end with a single word (“girl” and “dancing”) sung over several notes, the effect called a melisma, among other likenesses. Thicke and Williams’ attorney Seth Miller noted the designation “signature phrase” is nowhere in the lead sheets, but rather is Finell’s choice of comparable passages. “The musicologist’s job is to understand the important and unimportant parts of a musical work,” argued Finell. “It’s my analytical description.”
- Hook: Finell compared “Take a good girl” to “Keep on dancin’ ” in Gaye’s song. “In the case of these two hooks, the key words of the hook, the money words — ‘good girl’ and ‘dancing’ — come immediately after the bar line,” said Finell, referring to the timing of the words. The phrases share three of their four notes, she said.
Keyboard-bass interplay: The songs feature bobbing keyboard and bass lines with similar rhythms and moments of silence. Though the chord progressions aren’t identical — Miller pointed out that “Got To Give It Up” uses eight chords while “Blurred Lines” uses just two — Finell noted they both use E and A chords.
The Gayes’ other musical expert, Harvard professor of African-American music Ingrid Monson, argued that Gaye’s bass line and its pairing with a reggae- or ragtime-influenced keyboard melody were highly unusual in Motown music. That means it’s hard for Thicke and Williams to claim they were influenced by the genre in general, she said, instead of the Gaye songs specifically. “[The similarities] suggest that while ‘Blurred Lines’ was being written, ‘Got To Give It Up’ was playing in the background,” she continued. (The remark was struck from the record.)
Lyrics: Both songs center on transformation. The narrator of “Got To Give It Up” transforms from a wall hugger to an enthusiastic dancer, while in “Blurred Lines,” “the ‘good girl’ will transform into a more sexually liberated girl,” said Finell. Then the judge cut her off, pointing out she’s not a literary expert, but a musicologist. Line by line, the experts compared lyrics including Gaye’s “move it up / Turn it ’round / Shake it down” and Thicke’s “Shake around / Get down / Get up.”
The rap verse in “Blurred Lines” begins and ends at the same point in the song as the Gaye song’s “parlando” — a lyrical chanting Finell described as “a precursor to rap.” The jury looked amused while Busch and Finell compared lyrics from the parlando and the rap verse, including pairing Gaye’s “Let me step into/ to your erotic zone” with a line of T.I.’s that Busch refused to read aloud — “I’ll give you something big enough to tear your ass in two” — before he remarked to the audience, “Well, I lost that bet.”
- “Theme X”: Finell identified a short, recurring melodic line she labeled “theme X,” heard in Gaye’s sung lyrics “dancing lady” under the main vocal. It’s the same melody Thicke sings under lyrics including “OK, now he was close” and “But you’re an animal,” she testified, including one recognizable note out of key. “It’s the same musical material. It’s the same notes, the same rhythm, just … the same,” she said. Miller responded that Thicke’s vocals don’t match the Gaye sheet music, but Finell said the discrepancy is because Thicke’s theme X matches a harmony not written but implied in the lead sheet. “It’s represented as one melodic line when really there’s three that occur,” she said.
In the coming week, the musicians’ attorneys Miller and Howard King will bring their own musicologist, likely to refute Finell and Monson’s evaluations as well as present her own. Whatever the jury decides, they’ll need to evaluate both sides’ music theory in fine detail.
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