The main focus of this post will be to discuss the legal arguments laid out by the Gaye estate via the use of expert witnesses. In the process, though (both to point out the absurdity of the claims, and to show how this precedent is a silly and dangerous one) I'll show how the same standards could prove infringement cases for some rather odious folks at the same time.
My normal reaction to outrageous events is often to use humor. So, at first, this post was originally going to be titled "How Marvin Gaye ripped off the Nazi anthem recently banned by the New York Youth Symphony," which would have killed two ridiculous birds with one very ironic stone (and would have put Godwin's law to spectacular use!) In the end, I decided to go in a different direction, though the arguments put forth by Gaye's music experts lay out a compelling case for Horst Wessel to rise from the dead and sue the Gaye estate for millions. I had never even heard of the Horst Wessel tune until the NYYS controversy erupted, so I thought it would be a fitting, outrageous foil to the claims made in this case.
First and foremost, I (for now) am not doing a ton of offline research, filing for copies of depositions/transcripts, etc. Also, I'm not spending the time (yet) to find the elements claimed by the Gaye estate in other tunes, both popular and classical, though they are definitely out there (and I could certainly find them with a little time investment.) Many of the musical conventions claimed as actual legal infringements by the Gaye estate are found in dozens, and even hundreds of works, which is part of why this verdict is so problematic.
Amongst many articles that I've read, this is the one that best describes the musical details that were claimed to be infringed upon:
http://www.hollywoodreporter.com/thr-esq/how-similar-is-blurred-lines-778635
Next, this year-old article is the best I've found that details the dissimilarity of the infringible elements of the tunes:
http://joebennett.net/2014/02/01/did-robin-thicke-steal-a-song-from-marvin-gaye/
Oh, and here's a link to that Nazi tune for comparison!
http://abcnotation.com/getResource/downloads/image/das-horst-wessel-lied.png?a=trillian.mit.edu/~jc/music/abc/Germany/HorstWesselLied/0002
...and a version with lyrics, necessary for some other arguments:
http://www.anesi.com/east/horstw.gif
Next, I have to say how much I enjoy Pharrell & Marvin Gaye as artists, and there are a number of Thicke tunes (including "Blurred Lines") that I enjoy. Beyond that, I actually root for Pharrell- his background & career story are inspiring, and he's a true, creative artist! For those that don't know me well, I'm firmly embedded in both the classical and the popular music worlds, and (alas) there are few folks in the biz that have serious study/legit credentials in (or simply enjoy participating in) both worlds. For instance, there are over 650 accredited music schools in the country; having a degree from a rando program does not equal legit credentials. The divide between the classical and popular worlds is not only manifested in the flaws in the copyright laws, but also in the myriad of problems we've seen in the classical world over the last few decades. That's a separate topic of discussion, but it plays in to the problems with this case.
Last, and most importantly, it is very clear that "Blurred Lines" was heavily influenced and inspired by "Got to Give it Up." Both Pharrell and Thicke have admitted as much, and (based on both the actual copyright law, as well as the documented history of music over the last 6 centuries) they clearly never imagined that they would lose this case. A simple listen of both tunes *does* pass the "ear test" that normally leads to infringement cases, and the similarities are striking (instrumentation, percussion choices, groove/beat, party noise, "whoo"s, falsetto use, extended time spent on the I chord, the Bass groove style, and more.) There's a reason, however, that the judge required the jury to base their decision on the lead sheet of the Gaye tune: simply put, the Gaye estate does not own the copyright to the groove on the recording. There's certainly a larger moral question (which isn't adressed by the copyright law) as to how much someone should be able to borrow from a tune, but juries and judges are supposed to make rulings based on law, not based on what they think should be the law. Jury nullification is a real thing, however, and that's exactly what happened in this case. Personally, I am of the opinion that the Gaye estate should have songwriting credit (about 10%), but I'm also of the opinion that current law & precedent gives them exactly 0%.
Most articles, to varying degrees of effectiveness and specificity, have dealt with the larger point that feel/groove/style are *not* copyrightable. Several of my brilliant musical friends, along with other blog and article writers, have pointed out the last half-millennium is rife with examples far more similar than this case. This side of the coin is well-covered, so I won't be typing a treatise on the Parody Mass genre from the 1500s. Instead, I'm going to focus on the arguments made by the Gaye witnesses as described in the Hollywood Reporter article linked above. In the end, these are the arguments that go directly to the heart of the case, and will leave most folks shaking their head. I realize the summaries in this article are not the complete testimony, but they well cover the actual (and flimsy!) similarities rather completely, which is why I'm comfortable using the article as source material.
This post also demonstrates what the Pharrell/Thicke team should have focused on...having Pharrell and Thicke play tunes of other artists as a defense likely falls in the category of "The Man Who Represents Himself Has a Fool For a Client." OK, off we go!
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POINT #1: the Signature Phrase.
The Gaye estate claims that there is a signature phrase in both tunes, and that the similarities are "pretty stunning." Those phrases: the opening line ""I used to go out to parties" in the Gaye tune, and "And that's why I'm gon' take a good girl" in the Thicke tune. Here are the alleged similarities:
1. They begin with a repeated note. Says the expert: "one of the most important considerations in comparing melodies."
2. They end with a single word that finishes in a melisma.
Now, let's take an actual look at those signature phrases. First, the Gaye "SP" is also the main melodic hook of the entire tune, and is sung (at pitch) over a variety of chords. This works because the melody is pentatonic, and the basic tenets of Blues lets you put those notes (the pentatonic scale on I) over the chords I, IV, and V without transposition. The alleged Thicke "SP" is also pentatonic in nature. First, without getting sidetracked, if there is an "SP" in "Blurred Lines," this isn't it. Is a toss-up between the half-steps of the verse (which was referred to as "Theme X," and will be detailed below) and the chorus, which starts right on the words "Good Girl" (without the pentatonic run-up, and followed by the "1-1-1-2-3" melody.) Second, their pentatonic basis is where the melodic similarities end. To begin, let's look at the actual scale degrees of the alleged "SPs":
Gaye: 5 5 5 6 1 2-- * 1 5 6 (the dashes indicate holding over the barline, and the "*" indicates the barline)
Thicke: 3 3 b3 3 5 6 1 * 1 1
Gaye not only avoids scale degree 3 in the SP, he avoids it in almost the entire piece (save "Theme X, which will be covered below.) That's just good Blues, as the dichotomy between 3 and b3 is what makes Blues music awesome; hanging out on scale degree 3 makes it sound like Lawrence Welk. (Nothing wrong with that, by the way, it's just a different world of music from the tunes in this case.) Second, Gaye uses this SP throughout the song, the verse and chorus, over three separate chords. It really is the heart of the melodic content of "Got to Give it Up." In "Blurred Lines," the beginning of the alleged SP is a direct offshoot of the verse melody, which is almost exclusively repeated half steps (3 to b3 over the I chord, and 1 and out-of-tune 7/b7 OR 5 to #4 over the V chord.) The pentatonic lead-up only happens when leading up to chorus phrases, and never during the verses. Since the pentatonic nature of both lines is truly the *only* similarity, Ravel, Debussy, and hundreds of others (including a dead Nazi) would have something to say about that.
Point number 2 is so silly, I almost hesitate to address it. The "melisma" in Gaye's tune is actually written out on the lead sheet, is only 3 notes on the final syllable, is repeated verbatim throughout the song, and barely qualifies for a melisma. This is one of many things the Thicke expert should have pointed out...here's how I would describe it to musically-inclined folks:
Vince: "The melisma claimed by the Gaye expert is actually not a melisma at all. The word "Parties" starts with a fantastic 2-1 suspension over the I chord, a striking musical technique that is not even used once in the entire performance of "Blurred Lines." He then leaps down to scale degree 5, and resolves away to 6. This becomes important when we switch to the V chord, because we're now leaping down to 2, and resolving to 3- this is a centuries-old technique called an appoggiatura.This is the genius of Marvin Gaye: what begins as an embellished chord tone becomes something right out of the Chopin/Brahms playbook just by changing one chord." The Thicke SP is a true melisma, and is presented differently several times in the song. Also key: WHAT HAPPENED TO THE IMPORTANCE OF A REPEATED NOTE IN THE MELODY? "Good Girl," and "Blurred Lines" repeat scale degree 1 to finish...that's an incredibly distinctive melodic element, and that repetition is mimicked by the backup singers. In short: the Thicke melisma is not part of the melody proper, which the Gaye alleged melisma is an INTEGRAL part of the melody. This also shows that the Gaye line is FAR more sophisticated and complex in its design, which is no surprise to anyone.
Horst Wessel's case: The melody begins with a repeated note! After all, it's "one of the most important considerations in comparing melodies." In fact, 3 of the 4 phrases begin with a repeated note!! Even worse, look at measures 3 & 4: Horst Wessel uses a 2-1 against the a minor chord, and then a suspension at the end of the phrase in measure 4, just like Gaye did! Measure 6 has another strong 2-1 suspension as well, and the melody in measures 6-7 is completely pentatonic!
POINT #2 Hook
The Gaye team claims that the hooks from both songs share 3 of the same 4 notes, and the key words fall after the barline. The hooks in question: Gaye "Keep on Dancin'"; Thicke "Take a Good Girl." The alleged similarities:
1. The "key words" fall after the barline.
2. The phrases share 3 of 4 notes.
Ugh. First, this all should just be an extension of Point #1, as the "Keep on Dancin'" is obviously a partial quote from the SP "I used to go out to parties." (And, obviously, "Take a Good Girl" is literally a partial quote from the alleged SP claimed.) So, why the distinction by Gaye's team? Because of the rhythmic claim they make in claim 1 above. Changing the rhythm to the words "Keep on Dancin'" not only doesn't make it a separate musical idea, if two different people wrote those musical clips separately, the second person *would* likely be liable for copyright infringement!
Taking the above arguments with a straight face, however, to claim that a phrase that begins before a barline, then finishes the main thought after the barline is copyrightable is ridiculous. This happens in tens of thousands of tunes, including those written for propaganda around the WWII era (stay tuned!)
Let's now examine claim #2. Here are the scale degrees at work:
Gaye: 6 1 * 2 1
Thicke: 6 1 * 1 1
First (and again) WHAT HAPPENED TO THE IMPORTANCE OF REPEATED NOTES IN A MELODY, "one of the most important considerations in comparing melodies?" Next, both are pentatonic in nature, though barely so in the Thicke case, as there are only 2 separate pitches in that hook. Also, the Meatloaf-like claim that "3 out of 4 ain't bad" reminds me of the famous Idina Menzel "75%" quote, which gives me the opportunity to post this:
Horst Wessel's claim: His best case is the 75% argument. Look at the third measure, starting on the eighth note. Here are the scale degrees over the played a minor chord: 2 1 5 * 2 1. The first three notes are EXACTLY the same as the Gaye SP "Parties" melsima! Then, Horst Wessel does TWO 2-1 suspensions! (Yes, I know the first '2' is actually a passing tone, but I'm using the logic of the Gaye witnesses.) We also see 1-2-1-6 in measure 7, using the exact same 4 notes...BACKWARDS! (like subliminal messages in 80s hard rock albums!) The way key words fall over barlines also plays in HW's favor when compared to the SP! If you look at the lyrics version of the HW tune, almost every verse starts the key word before the barline in the 4th and 12th measures, and then finishes the word after the barline...That's what happens with almost every instance of the SP in the Marvin Gaye tune!
POINT #3: Keyboard-Bass interplay
The Gaye estate claims that the Bass lines are similar in style and groove. The specific claims:
1. Both use similar rhythms and moments of silence.
2. Both use "A and E chords." Then, as summarized in this article http://www.latimes.com/local/lanow/la-me-ln-blurred-lines-trial-expert-20150227-story.html a Gaye expert showed how two different Gaye/Thicke tunes shared a ii-V-I progression, and that "If you placed a mirror in between, they'd be a reflection of each other."
3. The Gaye groove is unusual, and Thicke/Pharrell mimicked the Gaye tune specifically, not a genre in general. (Further remarks along those lines were stricken from the record.)
Claim 3 first: Thicke/Pharrell stated as much, and that by itself is not an infringement of copyright. As to claim 1, the article I posted above wonderfully adressses the fallacy of that argument. Claim 2 HAS to be a misquote, since "Blurred Lines" has no A or E chords (though LOL that the Thicke musical expert admitted that the Gaye tune uses eight chords, and the Thicke tune only two...though that sells the passing bass notes leading back to I a little short.) I'm sure her actual quote was that both use I and V chords, which is actually a WORSE argument. Simple: Every tonal tune written in the history of documented music has I and V chords, and (INRE the other songs) ii-V-I has been the foundation of tonal harmony for centuries. Since harmony has a big part in how a groove unfolds, let's look at the two songs:
Gaye: I I I I I I I I IV V I V/V IV V I V/V
Thicke: I I I I V V V V (descending 4,3,2 back to...) * I
At first, one might be compelled by the repeated I chords in both works, until you notice that the entire Thicke tune is a Schenker dream (or nightmare?): I V. (To be fair with that analogy, though, the 8 active chords in the second half of the Gaye tune would essentially be V in Schenkerian analysis, making the two tunes harmonically identical!) A more appropriate harmonic analysis of the two tunes shows that they aren't similar at all...and if containing I and V is important enough criteria for a jury, a dead Nazi has something to say about that...
Horst Wessel's claim: holycrap V and I all over the place! More holycrap, ii-V-I progressions as well! There was likely no Bass groove in this homophonic march, but we *can* look at the use of silences...every SP statement from the Gaye tune begins with a rest on the downbeat, and so does *every* phrase of the Horst Wessel tune!
POINT #4 Lyrics
The Gaye estate claims that the Lyrics are similar.
1. Both songs center on transformation. In the Gaye tune, a wallflower transforms into a dancer. (And presumably "gives it up.")
2. "Move it up / Turn it 'round / Shake it down" vs "Shake around / Get down / Get up."
3. The rap verse of "Blurred Lines" begins at the same point as Gaye's 'parlando'.
4. "Let me step into/ to your erotic zone" vs. "I'll give you something big enough to tear your ass in two"
OK. claims #1 and #4 are the same: you can't copyright a general idea in a verse. No jury on the planet would see the quotes in claim #4 as actionable. Yes, they are further proof of what Pharrell already admitted: the Gaye tune was the inspiration for "Blurred Lines." That is not an infringement. Same guidelines apply to claim #2...the "Get Up/Get Down" lines have been in popular music well before Marvin Gaye. Claim 3 seems logical on its face, except just about every song that has a guest rapper appearance follows the exact structure; TLC's "Waterfalls" and Usher's recent release "I don't mind" are just two of hundreds of examples. (Side note on the Usher tune: Usher spends the whole song on how dancing "on a pole" doesn't make her "a ho," then the rapper comes in and essentially spends the entire time calling her a ho!) Again, claim 3 shows influence, not infringement.
Horst Wessel's case: did someone say a song that centers on transformation? Oh yeah! You can find an English translation here http://en.wikipedia.org/wiki/Horst-Wessel-Lied I'll avoid actually quoting any of those lyrics here, but there's lots of calls for transformation in that song!
POINT #5 "Theme X"
The Gaye estate claims that there is a two-pitch theme that is prominent in both songs. "It's the same musical material. It's the same notes, the same rhythm, just ... the same." While "Theme X" is nowhere in the lead sheet, the estate claims that the theme is implied by the harmonies in the lead sheet.
This "Theme X" occurs on the Gaye tune in background vocals singing "Dancing Lady." It occurs throughout the Thicke tune, including the beginning part of the alleged SP. In the Gaye tune, the pitches are simple: 3 3 b3 3. In "Blurred Lines," it's the repeated half-steps that occur throughout the verse as described in Point #1 above: 3 to b3 over the I chord, 1 and out-of-tune 7/b7 OR 5 to #4 over the V chord. Sometimes Thicke will repeat the 3, like this: 3 3 b3 3; other times, he'll start directly on the altered note: b3 3 b3 3.
**Before I discuss "Theme X," let me point out that Bartok's Concerto for Orchestra, composed in 1943, uses Gaye's exact 4-note line as the main theme for the first movement. (E E Eb E.) This makes "Theme X" either public domain, or under the auspices of the Bartok estate, making Point #5 moot.
First, let's analyze how these half-steps are used. Gaye ALWAYS puts that b3 on the strong beat: beat 3. Thicke NEVER puts the b3/b7/#4 on a strong beat! Using the Gaye expert's own arguments, the stress point of the key notes is crucial...and exactly opposite of each other. Second, the 3 b3 3 convention has been around music for centuries, and is seen in composers from Bach to Bruckner. Third, Thicke's melody is not a two-note cell, repeated a la Beethoven; it's a boring, repetitive melody that involves hammering a half-step over and over. Gaye's "Theme X" is in the world of backup singers, backup brass sections, and dozens of other conventions that have been around for decades...not to mention a b3/3 dichotomy that has been around for centuries. In short: it's NOT the same rhythm, and half-step motion is not copyrightable.
Horst Wessel's claim: Look at measure 5! He plays a note, he repeats the note ("one of the most important considerations in comparing melodies") then he moves down a half step...just like "Theme X" in the Gaye tune! Of course, HW moves down on the fourth note, but the HW "Theme X" shares 3 of 4 notes of the Gaye tune "Theme X!"
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The biggest question to come out of this case: how did the Pharrell/Thicke team fail so miserably? Of course, jury nullification played a big part; after all, the tunes do sound very similar in several ways. Also, Robin Thicke was not the best witness, admitting he was not honest about how the piece came together. The tabloid stories didn't help, either, and he definitely was not a sympathetic witness, but that shouldn't have affected the ruling. Also, everyone loves Marvin Gaye! Even when a judge tells the jury not to do something, it's hard for many people to separate their emotions & sense of justice from what their actual responsibilities are.
All of this said, most of the points that I mention above are *not* sophisticated ones; while many of the details above are described in Theoretical language, I'm also very confident in my ability to transmit those points in understandable ways to layfolk. This case involved three musicologists who have made court appearances as expert witnesses part of their careers. I am not looking to malign them in any way, just as I would generally never malign any attorney who takes unpopular cases. That said, the arguments they made are so absurd to anyone with a basic musical foundation, I am *convinced* that if I went out with them for drinks, we would all have a laugh at some of the things they said in the courtroom! Importantly, nothing that they said was untrue (except the claims of some of the similarities being 'unusual', which are a stretch at best.) It's the job of expert witnesses to make the best, most honest claim for their clients...and it's the job of the other side to answer those arguments.
Also of note: the claims made by the Gaye experts *only* work when presented in complicated language to a jury of layfolk. This point is worth repeating: the actual Theoretical musical claims made by the Gaye estate are absurd to anyone with a basic background in Music Theory. What the Pharrell legal team needed to do, in essence, was to educate the jury on the basic musical fundamentals behind each point- a mini-music appreciation class, of sorts. If a nuclear physicist claims, under oath, that two items are the same because aoierhgosnifuoaisurhtoigsnbtuhbgfiuhaosdkf, the other side has to describe "aoierhgosnifuoaisurhtoigsnbtuhbgfiuhaosdkf" well enough to demonstrate that the point is silly. (For instance, that "using I and V chords" and "putting the important word of a phrase on the downbeat" are not only common, they happen in almost every song written.)
In the end, this case will absolutely be overturned on appeal. The actual musical elements that are currently covered under copyright law were not infringed upon in this case. As I mentioned above, the Gaye estate does deserve a partial songwriting credit, but the elements borrowed from "Got to Give it Up" have, to this point in history, never been covered under copyright protection. Sometimes, it takes cases like Biz Markie/Gilbert O'Sullivan, Vanilla Ice/Queen, and Rob Base & DJ E-Z Rock/Maze with Frankie Beverly (Google them if you are curious) to update old law and to set modern standards. Here's hoping for an intelligent solution that is fair to both the old trendsetters and the new pioneers, but that doesn't dig up the bones of bad ghosts in the process.
