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When Robin Thicke marched into court Aug. 15 seeking a ruling that his summer hit “Blurred Lines” is not a copy of Marvin Gaye‘s 1977 classic “Got to Give It Up,” he renewed a controversy that has simmered since the dawn of pop music. Here was a white musician (albeit with African-American co-writers Pharrell Williams and Clifford “T.I.” Harris Jr.) allegedly stealing a black artist’s song craft without credit or compensation. Fifty years ago, upon the release of “Surfin’ U.S.A.,” The Beach Boys were pressured into giving Chuck Berry a writing credit for a song that sounded eerily similar to “Sweet Little 16.”
Although musical influences can be heard in nearly every song on the radio, such artists as John Lennon, Led Zeppelin and Black Eyed Peas have been brought to court for song theft, which under copyright law means their music is “substantially similar” to another song. In 1976, for example, George Harrison was found to have lifted 1970’s “My Sweet Lord” — “subconsciously,” said the judge — from The Chiffons’ “He’s So Fine.”
Nonetheless, for all the instances in which a songwriter extracts something from a similar song — Madonna had to pull “Frozen” from Belgian radio after a Belgian artist won a plagiarism case — there are countless disputes that go nowhere. That’s due in part to the murky and subjective nature of copyright law — blurred legal lines, you might say. As Questlove tweeted about Thicke’s suit: “Just because a song is derivative that doesn’t mean it’s plagiarized.”
Copyright authority includes the ability to control “derivative works.” “You can’t make ‘Hotel California 2’ or ‘Welcome Back to the Jungle’ any more than you could make Star Wars: Episode VII without a license,” notes copyright lawyer Eric German.
But courts often are left to make subjective evaluations of how much similarity is too much. Just ask the songwriter who sued Kanye West over 2007’s “Stronger” and was ridiculed by judges for attempting to “own” a particular rhyme pattern. The plaintiff “cannot claim copyright over a tercet,” scoffed an appeals court this year.
In fact, in a song theft case, one of the first things argued is what is protectable and what isn’t. Musicologists are hired, time signatures are scrutinized, and the measures in a verse become a battleground. An ongoing $10 million lawsuit against Justin Bieber and Usher, for instance, makes the case that “Somebody to Love” took a valuable hook from a Virginia songwriter.
“Of course, the lyrics had to change,” an attorney for the plaintiff argued in court papers. “But to keep the value of the underlying song, they had to keep the ‘hook,’ that part … listeners will sing to themselves in the car or shower (‘I … need somebody to loooooove!’).” And what do Bieber’s attorneys say? “The law is clear that this phrase is too short and cliche to be protected.”
If the songwriter suing Bieber were more popular, he’d likely have an easier time. Under the “inverse ratio rule,” a lower standard of proof of similarity is necessary when a high degree of “access” is shown. Parties also battle over “extrinsic” similarity — objective measures like chord progression — and “intrinsic” similarity, or what an ordinary listener might think. Other considerations include whether the artist accused of lifting has made “transformative” use of the original.
Digital advances only have confused the legal issues. Websites give artists instant access to millions of previous songs. At the same time, forensic software allows the lesser-known artist to sniff out unlicensed samples, explaining why Madonna is facing a lawsuit over 1990’s “Vogue” and The Beastie Boys are fighting over its 1989 album, Paul’s Boutique.
The preemptive move by Thicke against Gaye’s family and Bridgeport Music Inc. (rightsholder for Funkadelic, whose “Sexy Ways” also was named) is a somewhat ingenious gambit: By suing over two allegedly similar songs, Thicke’s lawyer Howard King implicitly argues that music can’t be plagiarized from a duo of distinct tunes. On the other hand, the Gayes’ lawyer, Richard Busch, likely will make the case that the war over the song of summer 2013 isn’t much different than the one over the song of summer 1963. Brian Wilson gave Chuck Berry props. Should Thicke do the same for Marvin Gaye?
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