What’s Going On? The lines between homage and plagiarism remain blurred

Posted 16/03/2015

The recent ruling in the ‘Blurred Lines trial’, which awarded more than $7.3m to the family of Marvin Gaye, might just be one of the most significant legal moments the music industry has seen for decades.  It is more likely, however, that nothing will actually change.

It is worth considering some other famous examples of musical plagiarism in order to fully assess this surprising ruling that Pharrell Williams and Robin Thicke copied Gaye’s ‘Got To Give It Up’ – surprising because here the talk was of a ‘vibe’ or a ‘feel’, rather than lyrics, melodies or chord progression typical in accusations of musical copyright infringement.

When the melodic similarities between Sam Smith’s ‘Stay With Me’ and Tom Petty’s ‘I Won’t Back Down’ were highlighted, the former agreed a songwriting credit with associated royalties.  A similar settlement had been reached between Albert Hammond and Radiohead, with co-writing kudos given due to the opening notes of angst-ridden anthem ‘Creep’ bearing startlingly similarity to ‘The Air That I Breathe’.

Other notable settlements include John Lennon and Chuck Berry, with the bespectacled Beatle agreeing to record ‘You Can’t Catch Me’ for his later covers album ‘Rock N Roll’ – the very song which had been lyrically poached in the creation of ‘Come Together’.  Lyrics and melody of Johnny Cash’s iconic 1955 signature tune ‘Folsom Prison Blues’ were lifted from Gordon Jenkins’ ‘Crescent City Blues’ of two years prior, with a significant sum changing hands as a result.  Huey Lewis and Ray Parker Jr. reached a settlement due to the clear similarities between ‘I Want A New Drug’ and the ‘Ghostbusters’ theme, and (then) Cat Stevens securing a 75% share of royalties for the Flaming Lips ‘Fight Test’ due to its melodic interchangeability with future Boyzone cover ‘Father & Son’.

Marvin Gaye, whose (cover) version of ‘I Heard It Through The Grapevine’ is one of the greatest records in history, had originally entitled ‘Got To Give It Up’ as ‘Dancing Lady’, and stated that he was inspired to create an ‘answer song’ to Johnnie Taylor’s ‘Disco Lady’.  Ironically we saw this same theme of homage and inspiration continue in the trial testimony of Williams and Thicke.  Unfortunately for them we also saw arrogance and contradiction deal their credibility a fatal blow.  In contrast to the musicologist acting for the Gaye family, who micro-analysed the compositions to the degree that the federal jury were unable to deny significant musical similarity, they appeared conceited and ill-prepared.  Certainly for Williams, the sheen of invincibility has been tarnished.

The reason this ruling could still be incredibly significant is that it does hint at a huge change in the law (although that is also the main reason why the inevitable appeals will be successful).  The other cases referenced above all go to clear musical similarity, be it lyrically, melodically or structurally, thereby meeting copyright infringement criteria.  ‘Blurred Lines’ simply does not borrow from ‘Got To Give It Up’ in any of these ways and the ruling is therefore incorrect.  To the naked ear, a funky bassline with a cow bell and some falsetto may sound similar, but if this were to establish the new threshold for plagiarism then musical development and experimentation would grind to a halt for fear of widespread litigation.  There are only so many notes and instruments available for us all to use.

Although highly questionable from a legal perspective, this outcome is actually extremely positive, and not just because everyone’s really bored of this song now.  Casually incorporating someone’s ‘vibe’, writing a song in half an hour and cashing in for £14m between you and your friend is morally questionable. Any change in the law is extremely unlikely, but if ‘artists’ are encouraged to take a step back and dig a little deeper in the ever more challenging quest for genuine originality, that’s surely a happy legacy.  After all, there ain’t nothing like the real thing.