Yesterday, one of the longest and strangest trials in music history came to an end when a jury awarded the estate of Marvin Gaye $7 million for what they determined was Pharrell and Robin Thicke's illegal infringement of Gaye's "Got to Give It Up" on their smash hit, "Blurred Lines."
On the surface the jury's decision feels like a good thing because everyone loves Marvin Gaye and Robin Thicke's a cringe-inducing douchebag. If given the chance, I think we'd all seize the opportunity to make the guy who creepily dry-humped Miley Cyrus fork over some cash to a true musical genius. It would feel like karmic retribution, musical justice.
But while that musical justice may feel nice, feelings shouldn't be the basis for a legal decision, and in ruling against Thicke and Pharrell the jury has also unintentionally set a very dangerous precedent for all music. But before we can get to why the end result of this case is so potentially terrifying, we need to run back through the mind-bending history of Gaye vs. Thicke.
- Released in the summer of 2013, "Blurred Lines" becomes one of the biggest hits of the last decade, going number one in over 20 countries and selling almost 15 million copies. Almost more impressively, it somehow convinced nearly one million people to buy Thicke's album of the same name, even though they really just wanted to hear "Blurred Lines" the song. Sometimes people are stupid.
- "Where there's a hit, there's a writ." That's a lawyer joke. Or to use a phrase you likely know much better, "Mo money, mo problems." Copyright lawsuits are a percentage game. To grossly oversimplify, winning a copyright lawsuit means receiving a percentage of the song's profits, so if you sue an artist who 100% stole your song and that artist racked up 147 YouTube views with that stolen song, congrats, you've just been awarded 100% of a fraction of penny and you're now in debt to your lawyer. Well played.
- The math changes when a song becomes a hit though. Even if you manage to squeak out a 1% award, that 1% could amount to hundreds of thousands of dollars. So if you're an artist with a song or album that goes platinum, rightly or wrongly, you're going to get sued by someone, somewhere, for something (cough Hot Stylz cough). Lawsuits over hit songs are basically the gravity of the music industry.
- Sure enough, once "Blurred Lines" became an international phenomenon, Marvin Gaye's estate, represented by his children, began suggesting that they were going to sue because of the song's similairities to "Got to Give It Up." I'm sorry, I know hearing "Blurred Lines" again will likely make your head explode, but at this point in the story it's worth hearing both songs back to back.
- It's unlikely that Marvin Gaye's estate was initially planning on actually suing Thicke and company. The threat of a suit was like leverage aimed at reaching a quick settlement, which happens in the vast, vast majority of cases like this. Instead though, Thicke and Pharrell decided to go on the offensive with a pre-emptive strike and sue the Gaye estate, a move that would later go down in the history of bad ideas with Hitler's invasion of Russia in the winter. The suit shifted the Gaye estate into "oh yeah, fuck you then" territory and now we were treated to that rare sight, a public copyright trial by jury.
- I can't overstate how common settlements are and how rare jury trials are. Even if an artist is completely convinced the lawsuit against them is bogus, paying someone to go away quickly almost always makes more sense than racking up mountains of legal fees and watching a case wind its way through the legal system for months. Did Tom Petty have a legit case against Sam Smtih? Eh, borderline, but Sam Smith paid up quickly, it's now "all good" and I'm not writing in-depth articles about the time Sam Smith lost $7 million in a lawsuit. Plus, while a judge or arbitrator will hopefully be more level-headed and knowledgeable, it's extremely difficult to get a jury of ordinary people to understand the mind-numbing complexities and jargon black holes of copyright law.
- Case in point, while the judge ordered the jury in this case to ignore any stylistic similarities between the two songs and only focus on the literal music itself, as that music appears written on the page, I have to assume now that the jury wasn't able to truly follow the letter of the law. Who could blame them? Both sides can bring out a small army of musicologists to testify, a jury of non-musicians will still be as qualified to independently determine infringement as a jury of non-biologists would be to independently determine DNA test results. This is art, even to the most highly trained ear the lines between copying and tribute, jacking and influence, are....wait for it....very blurred.
- Side Note: Thicke melting down and somehow becoming even more of an insufferable d-bag during the trial, claiming that he was so high and drunk he can't remember making the song and that he unjustly claimed co-writing credit in a fit of jealous rage, shouldn't have theoretically mattered. All that should have mattered is the music itself. That's in theory though. In reality, jurors are human beings who dislike rich asshole musicians, which is why, again, these cases so rarely go to a jury trial, and why so many copyright "experts" who said the Gaye estate had no chance of winning the suit turned out to be so wrong.
And now we've arrived at the real heart of the matter.
Copyright lawsuits are nothing new, especially in hip-hop, where sampling is a way of life. But, and I'm going to be annoying and bold some words coming up to visually drive home a point, this ruling is not about sampling (or interpolation). The jury didn't find that Thicke and Pharrell illegally infringed on any lyrics, or melody or any actual section of "Got To Give It Up." Instead, they determined Thicke and Pharrell "unintentionally" infringed by mimicking “a constellation of distinctive and significant compositional elements" of Gaye's song, which should send a shiver up the spine of any producer. Or again, to put in terms we're more familiar with, the jury has now made sweating someone's style grounds for a multi-million dollar lawsuit.
If I try to be more level-headed I'm not sure this really changes much. As I pointed out, lawsuits are already exceedingly common, is this really going to open the door to even more? Well....yes. (Maybe.) This ruling makes copyright infringement so potentially vague and broad it really could unleash a Noah's Ark-esque flood of lawsuits on artists, drowning creativity in the process. Every producer who's ever done the trap music, stuttering hi-hat, booming 808 beat thing? Lex Luger's now sued them all. Every song Kirko Bangz has ever done? Drake's lawyers are getting busy.
Ok, so that was an easy Kirko Bangz joke. But seriously, this ruling gets at something about the fundamental nature of art. Every artist is influenced by everything that's come before, creativity comes from the free flow of ideas, especially in hip-hop, a genre founded on the idea of taking the old and making it new again. Copyright law has always been about balancing the recognized good that comes from the public exchange of ideas and protecting the originators of those ideas, but this ruling tilts that balance dangerously towards the side of protection. All legal precedent before this said that such a vague interpretation of copyright wasn't within the bounds of the law, which is why Thicke and Pharrell's legal team seemingly felt so confident in pressing forward. That precedent's now changed.
My fears could very well prove to be unfounded. Years from now this could prove to be just an interesting footnote in legal history. But right now, it feels like we're headed towards a future when lawyers, not artists, decide what music sounds like, and that can only be a bad thing.
[Nathan S. is the managing editor of The DJBooth and a hip-hop writer. He also occasionally talks in podcast form and appears on RevoltTV. His beard is awesome. This is his Twitter.]
p.s. - Just to close up some loose ends, T.I. wasn't held liable as a co-writer because he rapped an original verse on "Blurred Lines" and Marvin Gaye didn't rap on "Got to Give It Up." If only things were always so simple.
p.p.s. - $7 million is an insane amount of money, but the trial also revealed that the song made over $30 million for Thicke and Pharrell alone, which shows that the idea of artists going broke in the internet age is only half-true. Artists in the bottom and middle are going broke, artists on top are still raking in ridiculous amounts of cash.