Death of music rumors are greatly exaggerated

Full disclosure: I co-authored an amicus brief in the "Got To Give It Up" v. "Blurred Lines" appeal on behalf of 14 of the most accomplished musicologists in the country. (I and my co-counsel, the estimable Howard Abrams of Detroit Mercy Law School, acted pro bono.) So I read "There are only 12 notes, in so many octaves" (Oct. 12, 2017) by Delia Ramirez with interest. My interest quickly gave way to surprise that the evidence on which the jury actually relied to find that "Blurred Lines" infringed "Got To Give It Up" is not mentioned anywhere.

While the players and the music are famous and the damages substantial, this case was resolved on a basic and well-accepted principle: Infringement is not limited to wholesale copying; it turns on the originality and salience of the expressive bits and features the accused work takes. An infringer could lift only the distinctive six-note theme of "Sweet Home Alabama" and would still be liable though she took nothing more. Like many music copyright disputes, this case turned on how experts in American popular music sorted out and explained what was original about one of the greatest soul-funk hits of all time, and what parts of it Robin Thicke and Pharrell Williams "borrowed."

The Gaye family presented expert testimony of two eminent and deeply knowledgeable musicologists. One is the Quincy Jones Professor of African American Music at Harvard University; the other is comparably accomplished and experienced. These experts did not rely on the "overall feel and groove" of the songs, and were careful to say so in their testimony. Instead, they identified seven melody and bass lines, chord progressions, and other specific features of "Got To Give It Up" that they were able to explain were original to Marvin Gaye's hit, expressive in form and substance, and copied singly and in combination in substantially similar form in "Blurred Lines." In fact, virtually every bar of "Blurred Lines" incorporates one or more of these specific expressive elements. Ms. Ramirez notes that a number of musicians joined an amicus filing that disagreed, but doesn't mention that armies of eminent musicologists, law professors, and a who's who of funk and soul songwriters lined up as amici curiae with the Gayes.

Robin Thicke happily told the world how extensively the writers of "Blurred Lines" had relied on "Got To Give It Up" when their song first hit the charts; Pharrell Williams went so far as to say that he "imagined I was Marvin Gaye when I created 'Blurred Lines.'" (At trial Pharrell denied that "Got to Give It Up" or Marvin Gaye "ever crossed my mind" when he wrote "Blurred Lines.")

Unsurprisingly, the jury found infringement.

Ms. Ramirez points out that there are quite a few differences between "Got To Give It Up" and "Blurred Lines." But there are almost always significant differences between the original and the copy. What matters is what's the same. Bruce Springsteen's version of "Santa Claus is Coming to Town" has countless differences from the original standard, but in the eyes of the copyright law they are still the same song.

Similarly, Ms. Ramirez worries because famous people sometimes have to defend frivolous infringement cases. "I thought of that first" cases have been a price of fame for decades, but the fact that some copyright cases are bad doesn't mean that this case is. In fact, this case is the antithesis of frivolous -- the infringers lost at trial because of proven critical similarities at the heart of both songs. Unfortunately, sometimes even great artists cross the line between reliance and robbery. Former Beatle George Harrison copied the Chiffons' "He's So Fine" when he wrote "My Sweet Lord." He's just one of many.

Ms. Ramirez also says the legal standards for infringement are sometimes vague and difficult to apply. That's also true, but it doesn't mean that the jury got it wrong here. The line between homage and theft can be hard to draw. That's hardly a reason not to hold proven infringers accountable.

Ms. Ramirez closes with the concern that "there are only 12 notes." The point is difficult to fathom. Simple math reveals that an eight-note melody could take 429,981,696 different forms even if you restrict yourself to a single octave. And that's without taking into account that melodies depend not only on pitch, but on the duration of each pitch relative to the others. Not to mention harmony.

Infringers have been inveighing against The End of Western Culture As We Know It in just these terms for years, and the courts have remained sensibly unimpressed. Mariah Carey insisted in 2004 that she couldn't be liable for incorporating elements from someone else's composition into "Thank God I Found You" because there were too many differences between the songs, and the similar elements were found in other music too and merely constituted "musical ideas." The 9th Circuit reversed an award of summary judgment in her favor, emphasizing that "substantial similarity" was an issue for the jury. "Although ... a single musical note would be too small a unit to attract copyright protection," the court observed, "an arrangement of a limited number of notes can garner copyright infringement." It cited a case involving a four-note sequence. Swirsky v. Carey, 376 F.3d 841, 851-52 (9th Cir. 2004).

There are millions of registered musical works original enough for copyright.. Some were undoubtedly written by the very same songwriters who profess to be worried about the "Blurred Lines" case. I'll bet all of them have produced plenty of original expression with the scant 12 notes available. And I know what they'd do about it if someone lifted original parts of their work.

So while the lines may sometimes be blurred, you can cross them. And when you do, Mr. Thicke and Mr. Williams, you got to give it up. (Cue sound of dropped mic.)