The Significance of the “Blurred Lines” Lawsuit
No one in the music world expected it. Stevie Wonder told the Gaye family not to waste its money. But when the Marvin Gaye estate was victorious in its claim that the Robin Thicke and Pharrell Williams song “Blurred Lines” had infringed the copyright of Marvin Gaye’s “Got to Give It Up,” it sent ripples through the music industry.
Producers, songwriters, and publishers are shivering in their John Lobb boots because the court’s decision changed the legal definition of copyright infringement. I have testified as a forensic musicologist before, and the premise has always been that copyright in a song should be based on an analysis of melody and lyrics. This is why, like many others, I never believed the Gaye estate would win. No melodies or lyrics were copied, nor were any significant instrumental melodies. According to prior legal practice, the judge should have thrown out the case.
Still, while conceding that “Blurred Lines” did not copy any of Gaye’s melodies or lyrics, the court nevertheless ruled that the similarity of the “feel” of the rhythm section was sufficient grounds for a decision of copyright infringement. Denying Thicke and Williams’s declaratory relief counter-suit, the judge imposed a fine of $7.3 million. To clarify, this created a totally new criterion for plagiarism. This moving of the goalposts has created fear in the industry about a copyright gold rush, a hurricane of lawsuits from the estates of legacy artists such as James Brown, Smokey Robinson, and Bo Diddley against a long list of current hit makers.
Howard King, Pharrell Williams’s lawyer, has written, “Should the verdict be allowed to stand, a terrible precedent will have been established that will deter the record labels that fund new music from getting involved in creations built on the shoulders of other composers. No longer will it be safe to compose music in the same style as another song.”
The state of the lawsuit is quite worrisome to the 21st century’s brave new music industry based on TV exposure, provocative music videos, and computer-generated generic music. There has never been a time when originality was so far down the list of priorities. It’s been so easy for so long: Take a little from here, a little from there, sample this, time-stretch that, fire up the auto-tune, and wait for the royalties to pour in.
But now, writers and producers have been plunged into a waking nightmare: If they can’t base their new hits on previous ones, what on earth can they base them on? But it’s not just pop records that could be affected by the court’s decision. What about the arrangers and orchestrators who work for film composers? Under the gun of time, the composer scribbles out six bars of a top line with some chord symbols and writes in the margin, “big orchestra, electric guitar lead, lots of funky brass, M=83, 2:24 seconds.” They give that to their “orchestrator” (who is cleverly not called an arranger because that has compositional connotations) and say “Expand this to two minutes 24 seconds, and have it ready by three o’clock with a full mockup.” After the Gaye decision, the orchestrator might expect credit and royalties as a co-composer.
And what about movies based on other movies? Directors influenced by other directors? Movies based on books? Movies based on comic books? What about Quentin Tarantino whose films are influenced by the genres such as film noir, blaxploitation, and “spaghetti westerns”? And what about chefs? Does a restaurant serving French cuisine have to give credit and royalties to one of Louis the XIV’s chefs?
While these parties wrestle with these problems, the music industry has never given a moment’s consideration to another group of artists. And those previously invisible artists now have publishers and songwriters firmly in their sights. Be afraid: the arrangers are coming!
Previously, arrangements have been considered to be legally owned by the publisher and songwriter. As I explain in my book, The Invisible Artist, throughout the history of popular music, arrangers have had no rights whatsoever to their own work. The catchy brass introduction to “Dancing in the Street” was not written by the song’s credited songwriters, Marvin Gaye, Mickey Stevenson, and Ivy Joe Hunter. It was penned by Motown arranger Paul Riser, one of pop’s most prolific arrangers of hits. Although Riser composed that brass melody, it was deemed to be owned by the songwriters and their publishers. Riser’s only remuneration was his arranging fee (around $10 to $20 per song). His fellow rhythm-section musicians in the Funk Brothers never dreamed that the grooves or rhythmic “feel” they created, would ever be of value. They just accepted that they had regular work paying between $2.50 to $10 per song.
An arrangement is not a chord progression and is not simply orchestration, giving specific instruments previously written melodies. Since popular music began in the 1900s, arranging has been a job given to composers and orchestrators who make musical decisions that enhance the song and the performer. Sometimes those decisions are purely technical: They add appropriate accompaniment.
But sometimes arrangers create a genre with a rhythmic “feel.” They go beyond the technical to compose new melodies, important memorable hooks. I have argued for years that arrangements deserve to be qualified as co-composition. Now, the courts have not only agreed, but also ruled that rhythm patterns are equally as deserving as a string arrangement by Paul Riser, a French horn melody by George Martin, a whistling tune by John Altman.
The Thicke and Williams ruling is a landmark case for arrangers because it states that the arrangement is a significant and integral part of the composition. A song is now legally defined as a melody, lyrics, and arrangement, whether it is a brass or string melody written by arrangers or a “feel” created by the rhythm section. As an important element of a hit, the arrangement has a monetary value. In this case, the $7.3 million! Pop music has indeed eaten itself—at a very expensive restaurant.
The Gaye estate is taking the money and running. But no one has mentioned that the rhythm arrangement on “Got to Give It Up” was not written by Marvin Gaye alone, though he owned the rights to it according to copyright law as interpreted at the time. His co-arrangers were the rhythm section: Jack Ashford, Bugsy Wilcox, and Johnny McGhee. Because they had no choice at the time, those musicians knew that any recording sessions they took part in were considered “work for hire.” They accepted that they were earning small amounts of money while the songwriters and publishers could make a fortune if the song became a hit.
This court ruling that the arrangement is now legally of value as part of the composition could change the business model for songwriters and the musicians and arrangers who record their songs. If the arrangement has value, why should any arranger or studio musician simply give away a valuable commodity? We lonely scribes and brothers in rhythm sections may be in a position to make a deal that would indemnify songwriters against prosecution based on the “feel” of the arrangement.
On my website, I’ve posted a Recording Musician’s Bill of Rights for songwriters and publishers and arrangers and studio musicians. You can read and comment on it at richardniles.com. I recently took part in a panel discussion about this topic with Jay Cooper, Vince Mendoza, Julia Michaels, Don Peake, and Jeff Weber that was hosted by the American Society of Music Arrangers and Composers, and you can view the whole discussion on YouTube.
For anyone who wants to know if I am going to sue my previous employers for all the hits I’ve worked on over the past 40 years, the answer is no. I’m too broke to bring a lawsuit because I worked all those years for arranger’s wages.