The right to write — and copyright
By Menon Dwarka
Artists Robin Thicke and Pharrell Williams suffered a crushing legal defeat earlier in the year surrounding their chart-topping song “Blurred Lines.” The jury ruled that the song was too close to Marvin Gaye’s 1977 hit “Got To Give It Up,” and the countersuit by the Motown singer’s heirs ordered Thicke and Williams to pay more than seven million dollars in damages. Thicke and Williams must have divined that the fix was in, choosing to sue the family first in hopes of achieving a precedent that might protect them against any future legal challenges.
The press had a field day with the ruling: “ ‘Blurred Lines’ verdict ‘very scary’ for music industry” (The Telegraph); “It’s okay if you hate Robin Thicke. But the ‘Blurred Lines’ verdict is bad for pop music” (Washington Post); “ ‘Blurred Lines’ Isn’t Even the Biggest Marvin Gaye Ripoff This Decade” (Spin); “Will The $7.3 Million Robin Thicke ‘Blurred Lines’ Verdict Kill Songwriting As We Know It?” (Forbes).
The case seemed to signal a seismic shift in the way we assess authorship, that somehow creativity itself was an endangered species, requiring the likes of conservationist Jane Goodall to ensure its survival. Why all the hyperbole? Granted, the song was a huge hit, but utterly forgettable. A passing tsunami of summer tuneage, but who can even name the iconic song from the year before? (“Call Me Maybe,” Carly Rae Jepsen.) I suspect all the uproar had little to do with the song itself. For the recording industry, the lines between original, derivative and plagiarized content are blurred indeed.
Before we delve into the particulars of the case, it might be useful to understand the premise on which the legal battle was waged. Richard S. Busch, a lawyer for the Gaye family, stated in the New York Times: “Throughout this case [the defense] made comments about how this was about a groove, and how this was about an era,” Mr. Busch said. “It wasn’t. It was about the copyright of ‘Got to Give It Up.’ It was about copyright infringement.”
Copyright, according to Jonathan Bailey of Plagiarism Today, “is a law that gives you ownership over the things you create.” He goes on to state that “the ownership that copyright law grants comes with several rights that you, as the owner, have exclusively. Those rights include the right to reproduce the work, to prepare derivative works, to distribute copies, to perform the work, and to display the work publicly.”
Copyright protection in the United States can be traced back to 1787 and the Constitution, in which Article 1, Section 8, Clause 8 protects the right “...[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
The actual mechanics of promoting progress included successive generations of lawsuits and judgments, but how do we determine when there has been a breach of copyright? When we hear of such legal challenges, we often think that one artist has stolen from another, but it’s more complex than simple plagiarism.
Bailey provides context:
While copyright infringement has one victim, the copyright holder(s), plagiarism has two sets of victims, the copyright holder(s) and the people who were lied to about the origin of the work. The other important way to look at is that plagiarism is an ethical construct and copyright infringement is a legal one. Though they have a lot of overlap, they are not the same and can never really be the same.
So how is music copyright determined in a court of law? Forensic musicologist M. Fletcher Reynolds has written an exhaustive article on the subject of how court cases are fought, “Selle v. Gibb and the Forensic Analysis of Plagiarism,” which examines the case of a songwriter suing the BeeGees over copyright infringement of the song “How Deep Is Your Love.” According to Reynolds:
[I]n a copyright infringement lawsuit, the court must determine (1) whether the first author holds a valid copyright, (2) whether that author’s work is original, (3) whether the original work has been copied, and (4) whether the copying violates the author’s exclusive rights or whether it is a fair use.
To prove copying, the plaintiff must show “access” plus “substantial similarities.” Plagiarism is rarely witnessed, and so the requisite evidence of copying is necessarily circumstantial. Access may be reasonably easy to show where the original work has enjoyed popular success and exposure. The term “substantial similarity” is nowhere defined. The jury must determine whether the similarities are sufficient to warrant an inference of copying.
What’s the problem with substantial similarity? Direct theft, in which a copy and the original are identical in every detail except for the attribution of ownership, is an easy point to determine, but the amount by which something can be altered while still arguably maintaining its identity is vast. Look at any series of variations from Bach to Beethoven to Schoenberg and you can see how far a composer’s imagination can stretch a particular theme or melody. But in these examples, there is no issue of ownership: the legal trouble only begins when another composer or songwriter does the varying.
In his article for Flavorwire.com, “A Music Theory Expert Explains Why the ‘Blurred Lines’ Copyright Decision Is Wrong,” Dan Bogosian tries to show dissimilarity between the two songs through chordal analysis, but the methodology is highly problematic. In addition to stating that “Blurred Lines” and “Got To Give It Up” are in different keys, Bogosian also draws attention to their different chord changes. But changing the key of a piece doesn’t negate authorship, and while it lies far outside the scope of Bogosian’s piece, he neglects to discuss the idea of chord substitution. The actual sequence of chords in a piece of music is not as important as the chords’ function. The whole practice of jazz harmony is based on switching out more common, mundane chords for chords that are richer and more complex in their composition and makeup. There’s a whole series of pieces that are based around “Rhythm Changes,” the chord sequence drawn from Gershwin’s “I Got Rhythm.” “Dexterity” by Charlie Parker and “Straighten Up and Fly Right” by Nat King Cole are two examples of wildly different tunes based on “Rhythm Changes.” They’re all independent pieces, but are based on the same chord progression.
Michael Leibson, a musical analyst who also serves as a forensic musicologist, stated in a recent conversation with Listen that determinations are often based less on any single parameter of musical identity than on the cumulative similarities of these parameters between any two pieces. “Assuming that there are musical features that are fundamental to the genre in question, features that are, by definition, not copyrightable,” says Leibson, “I look for parameters that are copyrightable: uniquely identifiable melodic features (intervals or rhythms that are unusual to the style), unusual use of particular modes, highly specific orchestrations, unusual and highly identifiable phrase structures or musical form, and so on. If one of these uniquely identifiable features is shared by two songs, it can signal that something is going on. If then two or more of them are found within the same two pieces, they form a foundation of evidence upon which a case of copyright infringement can be made.
Got to give it up. Robin Thicke and Pharrell Williams suffered a legal defeat to Marvin’s Gaye’s children, who hold the copyright to the late singer’s music. Left, Gaye’s daughter, Nona Gaye, speaks at a press conference following the jury’s verdict.
“From there, the nature of the case itself determines what follows: legal proceedings are, for many, prohibitively costly. Given solid evidence and a confident, skilled lawyer, these cases are most often settled out of court. In cases that pit an unknown songwriter against a famous, corporate-backed band, the outcome sadly depends on who has the deeper pockets. Simply put, corporations can afford to extend legal cases to the point that the plaintiff goes bankrupt or backs off — no matter how solid the unknown songwriter’s evidence may be.”
Reynolds relays some firsthand information about the process in his essay. He is quick to point out that most of the individuals in a courtroom — the judge, lawyers, jury — will be for the most part musically illiterate. As expert witnesses, forensic musicologists have adopted a method of note counting, where each side, in an effort to sway the jury, identifies how many consecutive notes two separate tracks have in common. It seems like a very odd and arbitrary way to determine similarity, but Reynolds provides some insight:
Why have experts favored this note-counting that masquerades as analysis when such superficial techniques can be readily rebutted by competent musicians? Perhaps it remains the analytical method of choice in court because it cannot be readily attacked by lawyers. Presently, writings on music plagiarism support a highly circumscribed view of music. Much of the misinformation can be traced to a legal treatise on music copyrights by Alfred Shafter written in the 1930s. Shafter apparently had no musical training, evidenced by his thesis that music has only thirteen [sic] notes and that all pleasing combinations of these notes have long since been exhausted. He argued essentially, although not explicitly, that music is an inexpressive art with a stunted vocabulary. In Shafter’s view, composers must inevitably engage in plagiarism and then devise clever ways to disguise their thefts.
Shafter... believed that the value of experts lay in their ability to ferret out the devious ways in which composers disguised their thefts. Never mind the ordinary listener, who may be fooled by the fact that the defendant’s work sounds different than plaintiff’s. This school of commentators seems to find composers at once too lazy to be original and yet masters of creative deception.
The issue here is that we are relying on the technology of notation as a source document. In fact, the de facto legal document for publishing music is not an audio recording, but a lead sheet, which is a single line of melody with chord symbols or piano accompaniment resembling the arrangement. Lead sheets of this nature are on sale for every imaginable kind of music, from super-groups like Led Zeppelin and The Who to any other kind of band that you can imagine. What’s missing are things like drums, the guitar solo, and vocal inflections such as glissandos and shouts that may very well be the best parts of the track. In the “Blurred Lines” trial, the jury was only asked to consider the lead sheets, with no direct audio comparison of each track, thereby excluding the clinking bottles that both have, the drum groove, and the timbre of the low keyboard bass. Beck parodied the manner of packaging and distributing songs with his Song Reader, a collection of twenty songs that were first released as sheet music. Artists were encouraged to make their own versions, and Beck himself collaborated with various idiosyncratic musicians to create new interpretations of his songs. Ultimately, the “Blurred Lines” jury reached what most music professionals consider to be the correct verdict, despite the lack of viable evidence.
It comes down to the question of homage or plundering, and no one really knows what is in the artist’s heart.
Clearly, there has to be a better way of determining copyright infringement. Relying on nineteenth-century tools tool such as sheet music to determine provenance of music made on twentieth- and twenty-first-century recording technology seems wildly out of step with what’s available. Apps like Shazam can identify a song you hear in a car or shopping mall by simply “listening” to the sound and comparing it to audio waveforms stored in a database. In “An Industrial-Strength Audio Search Algorithm,” a white paper available online detailing the technology behind Shazam, Avery Li-Chun Wang discussed how the software uses comparative data points in spectral analysis to determine what potential matches a particular song might have in its digital library, and how the search keeps comparing waveforms until it finds an exact match.
So how can today’s nefarious sneak borrow from another artist’s recording without getting caught? He no longer has to copy the note patterns or harmonies found in sheet music. Digital Audio Workstations, the software with which most pop music is made today, often have Audio-to-Midi triggers, which are mini-applications that can listen to the groove of one drum beat and map those patterns onto a whole new set of instruments, percussion or otherwise. Melodyne, a German music software company, has perfected a Direct Note Access, which allows any user to literally pull, stretch and rearrange any instrument or voice on a recording to create an entirely new track. Drop in your favorite song from The Beatles, switch around John’s vocal, change the pitch and duration of any of George’s guitar licks, delete Paul’s bass and build a new drum part made entirely of Ringo’s sound. If you tweaked it enough, no one, not even the original creators, could tell where the song came from.
Of course, all of this is old hat in the world of hip hop. Sampling, or taking the actual audio of an existing record and plopping it into your own track, was the bread and butter of music production during the eighties, until the lawyers stepped in and brought a halt the practice, thereby ensuring that masterpieces like The Beastie Boys Paul’s Boutique or Public Enemy’s It Takes a Nation of Millions To Hold Us Back would never be made again — or at least not within budget.
But nowhere can be found a more poignant explanation of the current quandary of borrowed music than in producer and recording artist Mark Ronson’s TED Talk “How Sampling Transformed Music.” As part of his closing remarks, he casually states: “We live in the post-sampling era. We take the things that we love, and we build on them…. [W]hen we really add something significant and original, and we merge our musical journey with this, then we have a chance to be a part of the evolution of the music that we love, and be linked with when it becomes something new again.”
It comes down to the question of homage or plundering, and no one really knows what is in the artist’s heart as he or she is making music. Using better tools will help us determine what has inspired creation and what has inspired copying — but what inspires most of us to make music is the music we have already heard, and that will likely never change.
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