Blurry

by Joanna Demers

Justice Los Angeles County Courthouse

The Williams v. Bridgeport [i.e., Bridgeport Music, Inc.]  decision, which orders “Blurred Lines”-co-writers Robin Thicke and Pharrell Williams to pay $7.4 million in damages to Marvin Gaye’s three children for copyright infringement, has elicited immediate and contradictory reactions. On the one hand, the verdict is a wrong turn for music copyright because it leaves the door open for frivolous lawsuits that will attempt to render “vibe,” “feel,” or other synonyms for style into property. On the other hand, the judgment is not entirely surprising. Plaintiffs Robin Thicke and Pharrell Williams arguably brought the trouble on themselves after Thicke bragged of intentionally modeling “Blurred Lines” on Marvin Gaye’s 1977 track, “Got to Give It Up.”<1> When Gaye’s children then sought a settlement with Thicke and Williams, the latter pair sued the Gayes preemptively. Thicke has since blamed Williams, claiming that he was too high and drunk during the studio session to know how closely they were imitating Gaye’s song.<2> Both Williams and Thicke participate gleefully in a music video for “Blurred Lines” featuring models who, in the non-rated version, dance naked to lyrics suggesting that a woman’s “no” really means “yes.” The picture that emerges from this case is of two entitled pop stars who don the mantle of a deceased hero of American music.

Now that these initial reactions have somewhat cooled, what leaves me and others so flummoxed is that this decision departs radically from what we all thought were the unwritten rules of music copyright. However objectionable we might find Thicke’s behavior, Williams v. Bridgeport is a copyright case, not a case involving moral rights or sexism or, for that matter, good taste. And no matter how unethical we might find Thicke’s and Williams’s deliberate copying of the style of “Got to Give It Up,” this sort of copying (or appropriation or homage, however we choose to label it) is a daily occurrence in the music industry. From high-charting pop hits to barely-noticed commercial jingles and scores for film and television, deliberate imitations of recognizable compositions are the stock-in-trade of our trade. Before Williams v. Bridgeport, most musicians, lawyers, and industry observers thought that the laws governing such copies were clear. Melody and lyrics cannot be copied without permission, we thought, except in the case of cover songs, which are enabled thanks to the compulsory license provision for non-dramatic musical compositions. Rhythm, harmony, and style are all subject to copying, we also thought, because legal precedent seemed to say as much. So why have the rules changed?

They have not, in fact. Section 102 of US Copyright Law states that “musical works” count as works “of authorship” protected by copyright.<3> But at no point, either in Section 102 or elsewhere, does the law indicate which parts of a composition are to be protected. Meanwhile, case law from the past hundred years has generally treated melody and lyrics as the only distinguishing characteristics in a musical work that warrant protection.<4> This practice makes sense if one imagines, say, five songs composed independently of one another in the space of a year that all feature the same fashionable characteristic—a rhythm or harmony or timbre. Most intellectual property experts would privilege that which sets each song apart from its cohort, and usually, that distinction has resided in the melody and words that sit atop rhythm and harmony. The idea that copyright only protects melody and lyrics, while situationally true, is a thought-fiction, a crutch that over time has helped us to bypass a messier truth: copyright law says very little about what in a musical composition it protects. This fiction has been repeated without qualification or nuance to the point that it has become a myth. Hence the incredulity with which so many have responded to the Gaye family’s victory.<5>

What we should conclude from the “Blurred Lines” verdict, if it is not overturned, is not that it is an anomaly but rather the logical (if ill-advised) result of trends already in full-swing. There are two types of copyright protection for music: that for compositions, and that for sound recordings. Before Williams v. Bridgeport, composition copyright had been interpreted rather permissively, frequently allowing for stylistic imitation and explicitly facilitating cover songs. Sound recording copyright, on the other hand, is exceedingly strict thanks to the Bridgeport Music, Inc. v. Dimension Films appeal, for which the court wrote, “Get a license or do not sample.”<6> The Bridgeport decision has ensured that any sound, regardless of its content or duration, is afforded copyright protection. Not coincidentally, the lawyer for the plaintiffs in Bridgeport v. Dimension decision was none other than Richard Busch, who also represented the Gaye family in Williams v. Bridgeport. With “Blurred Lines,” Busch has succeeded in applying the draconian language of sound recording copyright to copyright for musical works. We could wax philosophical at this point, and conclude that the ubiquity of sound recordings as today’s musical commodity of choice no doubt explains why laws that should only apply to recordings now apply to compositions as well. But stoic resignation is complacency. Style, the silent victim in the “Blurred Lines” confrontation, is what surrounds that which is central to a musical work. The center used to be melody and lyrics, but Williams v. Bridgeport suggests that the center is now everywhere, and thus nowhere. If we afford equal copyright protection to all aspects of a musical work, we have effectively accorded property status to that which we used to call style. That is tragic, for style has served as an alternative economy where musicians could borrow freely from commonly-held musical cultures. Robert Burton wrote that “style betrays us all,” serving as the calling card for our intentions.<7> If Williams v. Bridgeport is not overturned, we in turn will have betrayed style.

Joanna Demers is Associate Professor and Chair of Musicology at the Thornton School of Music, University of Southern California (webpage HERE). She has published two books: Listening Through the Noise: the Aesthetics of Experimental Electronic Music (Oxford, 2010), and Steal This Music: How Intellectual Property Law Affects Musical Creativity (Georgia, 2006).  Drone and Apocalypse: An exhibit catalog for the end of the world is forthcoming from Zero Books.

See also “Five Questions with Joanna Demers.” One of the answers:

One formidable challenge [for musicology] is the same one facing the humanities at large, and probably the university at large as well: how to navigate between the need for a canon, and the legitimate desire to have diverse representation of styles, genres, and histories. This has at times taken a venal turn at some colleges and universities, where historical music surveys are being entirely replaced with buffet-style options catering to popular genres. Musicology can and must engage with pop, jazz, and non-Western genres, but it should do so with an eye toward a large-scale pedagogical goal, rather than simply filling seats.

<1>Stelios Phili, “Robin Thicke on That Banned Video, Collaborating with 2 Chainz and Kendrick Lamar, and His New Film,” GQ, 7 May 2013.
 <2>Eriq Gardner, “Robin Thicke Admits Drug Abuse, Lying to Media in Wild ‘Blurred Lines’ Deposition,” Hollywood Reporter, 15 September 2014.
 <3>17 U.S.C. §102 (2012).
 <4>David J. Moser and Cheryl L. Slay, Music Copyright Law (Boston: Cengage, 2011), 28.
 <5>Sterling Whitaker, “Keith Urban Says He’s ‘Shocked’ By ‘Blurred Lines’ Verdict,” Taste of Country, 13 March 2015.
<6>Bridgeport Music, Inc. v. Dimension Films, 401 F.3d 647 (6th Cir. 2004).
 <7>Robert Burton, The Anatomy of Melancholy (New York: New York Review Books, 2001), I, 27.