It was the song heard ‘round the world—and now it may be the start of a musical revolution.

 Photo Credit: cc
Photo Credit: cc

“Blurred Lines” was crowned the “song of the summer” in 2013 early on, and as they say in “Titanic:” it was, it really was. You couldn’t turn on the radio without hearing the song of the summer, and you couldn’t go on the Internet without running into a think piece about why it shouldn’t be.

Which is part of the reason the copyright lawsuit it’s been caught up in has been so highly publicized. After many listeners noted similarities between “Blurred Lines” and Marvin Gaye’s “Got to Give it Up,” (and the Gaye estate reached out about royalties) the artists behind the song, Pharrell Williams, T.I., and Robin Thicke, filed a lawsuit seeking a judgement that his song didn’t infringe on Gaye’s copyright (and thus, he wouldn’t owe Gaye’s family any royalties). Of course that didn’t sit very well with the Gaye estate, they countersued, and then everyone met up in a courtroom for the trial to decide who owed what to whom.

And as we all know, Thicke and Williams lost the fight on Tuesday and were ordered to pay $7.3 million in royalties and damages (while the record company and T.I. don’t owe anything). It’s a huge payout for a case like this, so it’s no surprise a case filled with high-profile names and high stakes is getting a lot of attention. But many worry that the case could set an uncomfortable precedent for song-writing.

See, copyright for songs works in two ways: the concept of the song, or the sheet music of the thing, and the sound recording of the sound, which is what the audience hears. And as Oren J. Warshavsky writes for IP Intelligence, Gaye’s copyright rights are on the expression of the principles—be they of the subject or the genre—not the principle in and of itself:

Before deciding whether this is infringement or inspiration, the court will need to determine what is actually protected by the copyright to Got To Give It Up. Copyrights protect an artist’s expression of ideas, but not the ideas themselves. Thus the copyright covering Got To Give It Up does not protect those portions of the song that are common; it protects only those parts of the song that are original to Marvin Gaye.  This is a two part inquiry, and the first part is answering the question: “What are the protected original, expressive elements of Got To Give It Up and what are the non-protected elements?”

In other words, what in Gaye’s song makes the work unique to him?  Obviously the fact that he sang a song in a high voice and with a relatively fast beat is not original.  However, the words of the song, the percussion actually used and the other portions of the melody and harmony—and certainly the combination of all of the elements—are original to Marvin Gaye. Those are exactly the types of elements that express Marvin Gaye’s creativity and thoughts and that convey a message to any listener of Got To Give It Up.  These are elements specifically created by Gaye intended to evoke emotion and interest. As such, these are all elements that the court will likely deem original to Gaye and thus protectable.

But, as Joe Bennett laid out in his blog last month (so, pre-verdict), though the songs have notable differences (the tempo, key, chord patterns, lyrical intent, and vocal melodies) the fact that the sound “feels” similar enough was enough for the jury to hand down a verdict against Thicke and Williams:

The Gaye and Thicke recordings sound very similar to each other, but they use different notes, so it would be difficult to make a case that the composition has been plagiarised. And of course, Blurred Lines does not sample any of the audio from Gaye’s 1977 sound recording.

So to make a successful accusation of copyright infringement, Gaye’s side would have had to argue that the production ‘feel’ (or as the King and Ballow press release puts it, ‘choice DNA’) of ‘Got To Give It Up’ could attract copyright. Any legal action would probably have required the court (with the help of musicologists) to define exactly how this ‘choice DNA’ manifested itself in the recording, in order to discuss similarities. The act of putting an electric piano together with a cowbell and a 120BPM disco beat would need to have been judged a creative act in itself, making instrumentation and possibly even genre into protectable Intellectual Property. Which would have had massive implications for future creators of music.

Those implications are what many people are fearful of in the wake of the Thicke/Gaye settlement: that a song could be ruled as an infringement on another song simply for being in the same genre and using the same tools. Given that this suit has been so successful in terms of payoff, many are concerned that a tsunami of similar infringement cases will hit the courts any day now. Not only would that substantially hamper artists’ creativity in the future, it could set off a death spiral of lawsuits between musicians.

There are some who prefer to think more optimistically, that maybe it will lead to recording artists to vault another way, inventing wholly new instruments and experimenting with strange meters. But perhaps, as Michael Mauger of Ear Nuggets notes in an editorial for the site, the answer is that the whole industry will have to think more creatively about how they define ownership:

Record labels, if they still want to be a player in the music industry, must realize that consumer culture is moving away from ownership. Eventually, I will have access to the internet everywhere I go. This means that I will have access to digital versions of all the music I could ever want. We have the technology to do that. Why would I ever feel the need to “own” individual works when I could have access to all of them? Because record companies want it that way. That’s why. Record companies seem to be the only businesses who think that in spite of technological and cultural changes, they can continue to sell the same product and conduct the same business practices forever. So far, with deep pockets and political clout, they’ve been pretty successful.

What will the final fallout of the “Blurred Lines” lawsuit be? So far, the Gaye family is talking of going after Williams’ hit “Happy” and  Thicke and Williams will be appealing the verdict (no surprise, for a settlement of that amount) but for now, justice remains blurred.