On Thursday, Ingrid Monson, professor of African American music at Harvard, gave the first Class of 1960 music lecture of the year, entitled, “Why Authorial Copyright Matters in Popular Music: The Blurred Lines Case.”
In 2013, T.I., Pharrell Williams and Robin Thicke, the writers of the song “Blurred Lines,” sued Marvin Gaye’s family over a dispute about the similarity the song bore to one of Gaye’s songs, “Got to Give it Up.” Monson served as an expert witness for the Gaye family in the trial. Ultimately, the jury found that “Blurred Lines” infringed on “Got to Give it Up” and awarded the Gaye family $7.4 million.
Monson said that the media frequently depicted the case as a lawsuit by the supposedly hungry-for-money Gaye family, citing stories in the Boston Globe, Variety and Billboard; however, Thicke, T.I. and Williams actually sued the Gaye family preemptively about clearing the license for the song.
Williams and Thicke appealed the decision, but the court dismissed the appeal. However, Williams may appeal the decision on his own and has vowed to take the case to the Supreme Court. Because of the possibility of appeal, no money has changed hands at this point.
After introducing the case, Monson transitioned to explaining relevant copyright law. The 1909 Copyright Act does not permit using recordings as evidence in a copyright case. Instead, evidence must be written. Typically, this written evidence is a lead sheet, which the composer writes after recording the song. A lead sheet typically includes the melody, chords and sometimes the bassline.
“This leads to the erroneous idea that compositions are only melody and chords,” Monson said. According to Monson, the implication of the lead sheet is that the other parts of a composition are thought of as not protectable under copyright law.
The 1976 Copyright Act first permitted recording copyright cases to use records as evidence; however, the act did not go into effect until 1978.
Marvin Gaye recorded “Got to Give it Up” in 1976 and released it in 1977. His copyright for the song included the melody, chords and bassline. Gaye played each of the instruments in the recording, in addition to writing each part, which is not always true for recordings, Monson said.
Monson then explained the system of royalties for music. Mechanical royalties, derived from copyright, are typically split evenly between the writer and the publisher. However, Monson called artists’ royalties for performing a song a “crock,” as they are worth little or no money.
With the background established, Monson began to delve into the case itself. Prior to this case, she had never done copyright consulting. She chose to take on this case, however, because she saw “substantial similarities that can’t be accidental” in the two songs.
She also thought the Gaye family had a good chance of winning because Thicke had claimed in interviews that Gaye had served as an influence in writing the song.
Since Monson had never done copyright consulting before, she was unfamiliar with copyright law. As such, the Gaye family and their lead attorney, Richard Busch, did not hire her for copyright knowledge, but rather for her music expertise.
The Gaye family also hired Judith Finell, a music forensic expert, who worked full time on the case. Since Monson also had to teach, she only worked part time. “I couldn’t believe how much work it was,” Monson said.
Finell and Monson produced a list of 16 similarities between the two songs, and presented eight of these to the court. The opposition argued that each similarity was generic and therefore not a specific similarity between the two songs. The opposition also argued that only the melody, chords and bassline were part of the copyright deposit, so similarities not in these areas were irrelevant.
The judge originally ruled that Finell and Monson could not play recordings in court, meaning that each piece of evidence would have to be played on a keyboard. The judge subsequently ruled, however, that they could play only parts of the recording relevant to the copyright deposit. Monson said that this ruling was more strict than in other cases, in which playing the whole recording is usually permissible.
Since Finell and Monson could only play specific parts of the recording, they had to edit the re-cording very specifically. The Gaye family made these edits possible, as they still had the original tracks on which Gaye recorded the song. After making the edits, Finell and Monson presented the recordings in court.
Monson played each of the eight similarities that she outlined in court. These included the groove, the signature phrase, the backup hook, the descending bassline and the keyboard part. She also played some similarities inadmissible in court, including the “hey hey hey” part from “Blurred Lines” and the corresponding part in “Got to Give it Up” and the beginnings of the songs.
Monson explained that the opposition took a “literalist approach” to analyzing these similarities. In the sheet music, the groove and the signature phrase are not exactly the same, note for note, in the two songs, which the opposition highlighted. However, Monson argued that they still create a sound that is very similar.
Monson’s testimony also centered on why the similarities are not generic. The stop and start bassline in both songs featured elements of Motown music and of reggae. While the opposition pointed to similarities between “Blurred Lines” and Motown songs, or “Blurred Lines” and reggae songs, “Motown and reggae elements typically wouldn’t be found together,” Monson said. Therefore, Monson said the combination was unique to “Got to Give it Up.”
Similarly, the opposition argued that certain elements of the keyboards, bass and percussion were similar to many other songs, and therefore generic. Monson said, however, that the combination of all three is unique to “Got to Give it Up.”
Based on these arguments, the Gaye family won the case.
After discussing the case, Monson talked about the press’s reaction to the decision. She cited an article in The New York Times that argued that it’s wrong to consider the sheet music more important than the sound of the songs. Typically, in a music copyright case, the original rights holder uses the sheet music to argue that the composition has been copied, even if the sound is different. In the case, Monson argued that the decision should be based on the sound, whereas Williams argued the decision should focus only on the sheet music.
Monson also challenged the belief that the case would set a precedent of limiting the creation of new music, as the case supported the original copyright. “My opinion is that copyright doesn’t hamper artistic production,” Monson said.
Monson criticized the belief that copyright should only be limited to sheet music. She said this discriminates against orally composed music, as the most important parts of popular music can be grooves, which are not written.
Monson believes that copyright laws have never worked well for popular music. Mechanical royalties are the only way musicians can make money. The current music industry, however, encourages musicians to look at old music for inspiration. There are jobs dedicated to ensuring that new songs are changed just enough so that they do not violate copyright laws, Monson said. “There are a million ways to bake a cake, but you expect to pay for the ingredients,” she said.
According to Monson, the Gaye family may have allowed Williams to write the song if he had asked for permission beforehand. Additionally, Williams may have avoided going to court had he settled, as copyright cases frequently do, Monson said. He did not, however, want to admit he had taken elements of the song from Gaye, which the jury ultimately determined that he did.