A Copyright Expert Explains the ‘Blurred Lines’ Ruling

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The “Blurred Lines” saga has finally come to its legal end, but the story may not be over. On Tuesday night, a federal jury ruled that Robin Thicke and Pharrell Williams's smash hit had infringed on the copyright of Marvin Gaye's 1977 song “Got to Give It Up,” and subsequently awarded more than $7.3 million to Gaye's family. Aside from the size of the damages awarded — some of the largest ever in a music copyright case — the ruling was surprising for the legal thinking behind it: Rather than an obviously derivative melody, "Blurred Lines" was determined to have stolen a "feel" from Gaye's song. What could conceivably have been called homage was, in this case, illegal. 

We spoke with Jeff Peretz, a professor at NYU's Clive Davis School of Music who has often spoken on copyright law, about what precedents the "Blurred Lines" ruling may have set, and what it might mean for musicians moving forward. 

Was this a problematic ruling? 
The way it was arrived at was kind of weird.The jury reacted to the hubris and to the arrogance of Robin Thicke and Pharrell [the two had filed a pre-emptive suit claiming their composition's originality] and didn’t really take into consideration the way that these kinds of cases are usually thought through. The songs are different in their melodic and harmonic structure. That’s a mathematical fact. They are very similar in their rhythmic structure and their “vibe,” but up until this particular case, that was never a copyright-able thing. Pharrell made this song knowing where the line of copyright infringement was. He walked right up to it, didn’t cross it, and yet he was still found guilty. Going forward, perhaps rhythm will be taken a little bit more seriously as a determining factor.

Do you think this ruling will change the way hip-hop and R&B artists approach composition?
No. Sampling already has its own set of rules. When sampling became very prevalent, there were discussions and rulings to figure out a way to handle that. Every record label in the industry has people whose job it is to clear samples. When you make a recording that has samples on it, somebody goes and reaches out to the person who owns the copyright for those masters and cuts a deal. There are already rules. The area where there are no rules, and that’s what’s changing as a result of this case, is when somebody like Pharrell goes and reconstructs the rhythm of a track to create a very similar song without sampling. Had he sampled it, he would have had to pay in the beginning. He didn’t sample it, he just re-created it, but now it turns out he’s going to pay anyway. This is the first time that’s happened, that’s the precedent that this is setting. The Pharrells, the Mark Ronsons, the Bruno Marses who actively borrow from other styles of music are going to have to be more careful.

So artists are going to have to think twice about emulating recognizable sounds?
Yes is the short answer, but people already are. Look at Mark Ronson and “Uptown Funk.” That song leans heavily on the styles of early ’80s Minneapolis funk like Morris Day and the Time and the Gap Band. He worked on the Amy Winehouse records, which leaned heavily on early Motown and the girl-group sounds of the mid-’60s. But he’s also well aware of the line that he can’t cross into thievery. I think that Pharrell thought he was aware of that line as well, but it turns out this particular jury did not agree. Pharrell’s not an idiot. He’s a smart man, and he’s been in this industry for a while. These guys, they think they know where the line is. Pharrell stated from the beginning that the song was an homage. So when homage becomes theft is the question that we’re asking. And if you do make an homage to someone, what are the rules pertaining to how they’re compensated for you co-opting their music? 

Does “feel,” in addition to melody, need to be added to the criteria for infringement?
I’m not sure, but the conversation needs to become more in-depth about quantifying these things. A big idea of what “feel” is is based on the rhythm, and rhythm hasn’t been taken as seriously [in copyright law]. When we think of copyright infringement, we think of a melody being stolen. Chord progressions can’t be copyrighted because mathematically speaking, we’re going to use the same ones over and over again. There’s that little group of people who sing ten different songs over one chord progression and keep going and going and going, and everybody’s like, “Oh my God, they’re all the same song!” Harmonically, they might be, but melodically, they’re not. That’s always been the main indicator of copyright. I own my melodies. In the case of "Blurred Lines," it’s the rhythmic pattern. The drum pattern is the same on both of these songs, as is the cowbell pattern, and that's what determines the “vibe” that got Pharrell caught. We need to establish real, quantifiable mathematical language about what is vibe or feel. It’s like describing the sound of the sea or something, but that’s the conversation that needs to be had. We’ve got to get some language to determine where the [copyright-infringment] line exists.

Are our current copyright laws too antiquated?
When this case started, the judge said he was only going to deal with the sheet music and not the master recording. He was acting from a time when the only way to play music was to literally have somebody physically play it. So the copyright, or the actual sheet music, was, in essence, the copy of that song. There were no records, there were no mp3s, there were no tapes or CDs. You had your sheet of music and you had someone who could play it for you, and that was the only way you could hear it. That’s when these laws were created. But where the similarities lie in these two particular songs is in the way they were created as a master recording. Marvin Gaye didn’t write the notes down. He created this track in the studio, and therefore that is his intellectual property. The laws are antiquated because we need to be able to look at a recording. If you play these two songs on a piano back to back, it’s clear they’re not the same song. If you play them with the rhythm and the drums and the cowbells and everything, they start to sound very, very similar.

What other ramifications might come out of this ruling? What should we be looking for?
I would like to see the gray area between covering a song and sampling a song be more defined. Whether or not that’s going to happen, I don’t know. People are focusing more on the sensational nature of this case, and Pharrell’s statement about this being a horrible precedent for creativity. I’m not quite sure what he means by that. Is it horrible because people are going to have to think twice about stealing someone else’s groove? I'd like to see a panel put together to get some better quantification around the way this stuff is done. In the modern day, where you don’t necessarily have to be a musician to make records, you’re getting a lot of taking from A and B to make C —collage-style productions. There needs to be an understanding of how that’s going to be treated as intellectual property when it’s so easy to lean on, co-opt, and steal ideas. I don’t see this decision as being a bad thing. There’s a lot of money changing hands. That’s crazy. But that’s a whole other issue.