An old showbiz adage states ‘Where there’s a hit, there’s a writ’. This is the notion that any sufficiently successful musical endeavour will immediately attract the attention of a lawyer, claiming the credit and money belongs to their client. The motto may be old, but it hasn’t lost any of its relevance.
This week, a US judge found in favour of Marvin Gaye’s family and against Robin Thicke and Pharrell Williams. Gaye’s people had brought a suit claiming Thicke and Williams had substantially copied Marvin’s ‘Got To Give It Up’ for their hit ‘Blurred Lines’. The verdict means significant damages will soon be swelling the estate of the late soul star. But does it signal anything more alarming for the wider music business?
“They’re entitled to protect their work, and that’s exactly what they did.”
Robin and Pharrell are by no means unique in feeling the sting of an adverse legal decision over a song. Although The Verve’s best known record is ‘Bittersweet Symphony’, the former members receive no income from the work. Thanks to a claim by The Rolling Stones, all royalties head in the direction of Jagger, Richards and former manager Andrew Loog Oldham. It’s the strings, you see. The Verve borrowed the violin figure on which ‘Bittersweet Symphony’ is based, from an orchestral version of ‘The Last Time’, without permission. This transgression was deemed serious enough to deny Richard Ashcroft and Nick McCabe any remuneration. You might argue The Glimmer Twins have money to burn and are therefore being a bit mean, but they’re entitled to protect their work, and that’s exactly what they did.
This was actually a rare instance of an open-and-shut case. The Verve undeniably pinched the section in question, and paid the price. Also, when Wet Wet Wet lifted a lyrical couplet from Squeeze, the theft couldn’t be disputed. But usually these things are far more nuanced – as Elastica discovered when they released the track ‘Waking Up’. Very quickly, m’learned friends were all over the band, insisting the song bore a marked and reckless similarity to The Stranglers’ ‘No More Heroes’. Although the dispute was settled before it reached court, Elastica were forced to make a financial contribution to Cornwell, Burnel and friends, who also carry a publishing credit (and therefore ongoing royalties) for ‘Waking Up’. Which just goes to show the subjective nature of such accusations. To my ears, the two songs are somewhat alike, in their rhythm and bass-driven tone. But they’re far from identical. Try them for yourself:
More recently, Brit Awards winner Sam Smith, fell foul of Tom Petty. Or at least the latter’s representatives. In 2014, Smith’s single ‘Stay With Me’ thrust him into the mainstream, but also drew attention to the record’s close resemblance to Petty’s ‘I Won’t Back Down’. Again, there was no court hearing, but we can be sure the settlement from Sam’s camp to Tom’s, would have been impressively large. In this instance, I can hear the similarity, but it’s not my ears that count and the line between inspiration and plagiarism is very mobile.
I’m no connoisseur of heavy metal (if you are, feel free to put me straight), but I would suggest almost every record in the genre borrows from Led Zeppelin. In turn, Zeppelin made free with the work of under-credited and under-rewarded Mississippi bluesmen. This is clearly a deeply unpredictable minefield we’re navigating. It’s also counter-intuitive.
“You can’t copyright a musical feeling. Or can you?”
When the result of the Blurred Lines case landed, several wags pointed out that Noel Gallagher must have been sweating, lest a call came in from The Beatles’ advocates. It’s a fair observation, although we shouldn’t forget Lennon and McCartney were themselves, enormously influenced by the R&B wafting over from America in the late fifties and early sixties. Their skill lay in translating that material into something uniquely their own, and the result was so groundbreaking, we can’t seriously blame Noel for paying homage. And besides, you can’t copyright a musical feeling. Or can you?
Have a listen to the Pharrell and Marvin songs:
They’re actually very different. They don’t share any lyrics, the former doesn’t sample the latter, and they’re not even in the same key. All they really have in common is a ‘feeling’ – the pared-back beat and ambient whooping. Indeed, it seems Gaye didn’t so much write ‘Got To Give It Up’ as improvise a vocal over a beat brought to him by a producer. They are, in fact, completely different songs. Yet a court has decided Thicke and Williams are plagiarists and must compensate the Gaye family accordingly. To evaluate the implications of this ruling, we must set aside any distaste for the sentiments of ‘Blurred Lines’. I loathe the record’s suggestion that women are prone to refusing sexual advances when they actually desire them. But it’s the court case which concerns us here, and the matter of its implications for the musician’s creative process.
The fact is, whether we examine punk, metal, indie, pop, house or hip-hop, nothing exists in isolation. Every song you’ve ever heard was written because the creator had heard something else. What’s more, when exploring house and hip-hop, the acquisition of other music is the very foundation of the form. Worryingly, what the ‘Blurred Lines’ ruling seems be doing is forbidding the use of influence or inspiration when writing and recording songs. Which is ludicrous.
The history of popular music isn’t segmented. No single, EP, album or performance is completely self-contained; rather it is part of a dovetail effect, whereby one successful group, record or movement gives rise to another. To legislate against that, is to legislate against creativity itself.
So, if it’s unmitigated musical originality the (U.S.) law now demands, then we’re going to have to accept random, unmelodic crashes and bangs as entertainment. Oh no, sorry. Apparently Lou Reed’s lawyers will have you for that.
Magnus Shaw – March 2015