January 24, 2020 Musicology No Comments

For about five years there’s been a steady stream of infringement cases in the world of pop music. We’ve seen Katy Perry, Robin Thicke, Justin Timberlake, Lizzo, Juice WRLD, Carrie Underwood, Justin Bieber, Ed Sheeran (repeatedly), Taylor Swift, Miley Cyrus, and Childish Gambino, off the top of my head, all in the news facing infringement accusations.

Ariana Grande is the latest, appearing in the news earlier this week. “Yes!” you might say, “I was waiting for someone to notice that ‘7 Rings’ is just “My Favorite Things” from Sound of Music!” No, it’s not that. Grande signed away nearly all of her future earnings from “7 Rings” for the license to sing most of it to the tune of “My Favorite Things.” She’s actually being sued over what little of that track is NOT sung to “My Favorite Things;” accused not just by one, by the way, but maybe by two or three different artists (!) who think her chorus’s lyrical flow is too much like their own.

All these lawsuits have gotten composers and record companies a bit spooked. Just in the past week or so there were articles in both the New York Times, It’s Got a Great Beat, and You Can File a Lawsuit to It, and in Rolling Stone, How Music Copyright Lawsuits Are Scaring Away New Hits about this, and the dire message in both, one that I’ve heard a ton since the “Dark Horse” verdict, is that these cases represent a distressing seismic shift and that we should all be concerned that creatives are paralyzed and the arts will suffer for it.

Two cases in particular, “Blurred Lines” and “Dark Horse” are most blamed for having established this climate of fear and paralysis. In 2015, Marvin Gaye’s estate won a 7.3M verdict that said Robin Thicke and Pharrell Williams’ “Blurred Lines” was too similar to Gaye’s “Got To Give It Up.” Then more recently in 2019, Katy Perry and cowriters of her biggest hit “Dark Horse” lost a 2.8M verdict for sounding too much like a Christian rap track called “Joyful Noise.” 

Both of these verdicts surprised a lot of people; they made composers and musicians uneasy, and they annoyed a lot of musicologists, myself included. And certainly, it makes sense that these high profile and big money cases might be what’s encouraging more lawsuits, (I do get more requests for consultations when these cases are in the news.) but even if more lawsuits mean more frivolous lawsuits, what’s the appropriate response? Is a response appropriate at all?

Jon Caramanica, the author of the Times article, takes a strong position when he calls the musical connections of some of the songs in these suits “flimsy at best.” But when he says about the “Blurred Lines” verdict, “Not only could you be held liable for theft, intentional or otherwise, but you now could be held liable for being influenced, too,” he probably doesn’t mean it literally; because you’d have to infer a lot.

So let’s not begin with a faulty premise. Neither “Blurred Lines” nor “Dark Horse” set any precedents. There was no seismic shift in copyright law. The Marvin Gaye team will not gladly cop to having successfully sued over being influenced. They fought on substantial similarity, not of a groove, nor a feel, nor a vibe, nor a style, but of the actual notes, as per usual. And as for “Dark Horse” despite a recent amicus by a bunch of music professors and musicologists which blames the jury a lot, hopes the court might reverse the jury’s opinion (I’ll eat my hat), and goes on at length (correctly) about how the extrinsic standard wasn’t met and therefore the intrinsic test should never have had its moment (read that as: “the notes didn’t match, so the jury should never have considered whether the songs sound alike to their ears.”). Well, Joyful Noise’s musicologist (wrongly) said the notes matched plenty, and he explained to the jury that that’s why the songs might sound the same to their ears. The jury understood, believed, and agreed. In other words, the plaintiffs in both of these cases educated and persuaded their juries; that’s the job; that’s our system.

Understand, I agree that these plaintiffs were super wrong about all of that! “Blurred Lines” didn’t infringe on “Got To Give It Up,” and “Dark Horse” didn’t infringe upon “Joyful Noise.” But while these were bad verdicts, the sky is still blue and not falling. You still cannot have copyright to a mere vibe, nor infringe upon a style, nor be held liable “just for being influenced.” That doesn’t follow. And skip the unproductive, hyperbolic, and lazy messaging like: “All music is derivative! There’s only 12 notes! You’re telling me every new song anymore has to be 100% unique, otherwise, it’s infringement!?” No, it’s not. Never was; still isn’t. Chill.

One thing that is true is that it can be hard for laypersons and even most professional musicians to know the difference between what’s appropriate and what’s wrongful appropriation. Let’s appreciate this. That’s why musicologists are involved in these cases. And that’s why increasingly we’re being asked to evaluate music before release to proactively assess and avoid or at least mitigate risk. It’s not simple stuff.

It’s also true that the music itself is a contributing factor. Caramanica wrote in his Times article about a lack of appreciation and understanding for the way pop music mostly evolves, where each iteration strives to have one toe in new territory but while remaining mostly in a place of comfortable familiarity, reliability, and thus, appeal and marketability. He’s right! Over in the Rolling Stone article, Ross Golan, a super talented and successful songwriter responsible tons of big songs by famous artists, was quoted saying, “Music is now more similar than it is different, for the first time.” He added, “People are using the same sample packs, the same plug-ins, because it’s efficient.” He’s right too!

To which I might add though, “Copying is efficient as well, and whether it’s intentional or not, it’s both wrong and illegal. So don’t steal. Try harder. Be better. If one writes ridiculously derivative music, the risk one brings onboard is often deserved.

And in that same Rolling Stone article, Joel Timen, vice president of A&R and publishing at Curb Word Entertainment, was quoted saying, “A lot of my songwriters have been asking more questions: ‘Does this melody or pre-chorus section remind you of anything? Should we be careful?’”

Yes, please do be careful! Nothing new here. If your melody reminds you of something, make sure it isn’t too much the same as that something. If it is, scrap it or change it! Sorry, but that’s the deal! Always was.

Pharrell would probably say, “I was careful.” And I’d say, “Yeah you got screwed. Sorry.” But be that as it may people are indeed writing wholly unoriginal music all over the place, I assure you.

Can copyright law evolve? Maybe. Copyright law is intended to serve the greater good. The constant evolution of music, and art more generally, is part of that “good.” Is not the world better off when Danger Mouse mashes up The Beatles’ “The White Album” with Jay-Z’s “The Black Album” and makes “The Gray Album?” We can’t be oblivious to modern music-making, tastes, style, the art, and the techniques that drive and enable it. Overprotecting is bad. Maybe some evolution is in order. Maybe modern music style demands it.

Another great Times article by Ben Sisario, ‘Blurred Lines’ on Their Minds, Songwriters Create Nervously quoted songwriter Evan Bogart, who has written for Beyoncé, Rihanna, and Madonna, saying “I shouldn’t be thinking about legal precedent when I am trying to write a chorus.” And taken as I think he meant it, he’s right. If he’s mindful of originality but finds all the lines have been blurred out — the net effect of a wave of bad verdicts and spurious lawsuits — indeed it’d be a shame if instead of writing a great and original hook, he’s too wary his pinky toe might brush against a landmine. We don’t want that. We want him writing great hooks for us all to groove to. 

It’s worth monitoring the respective incentives of plaintiffs, lawyers, intellectual property squatters, copyright trolls (?) and the like, which might be swinging toward more frivolous lawsuits. Are we incentivizing IP squatters? We REALLY don’t want someone stalking Mr. Bogart, ready to slip a landmine beneath him in a “gotcha” sorta way. What if I run over to royalty exchange, and I comb through looking for songs that sound a little like other songs, buy up some rights, and go sue somebody! Nevermind the right and wrong of it, what about the calculus? What’s my ROI?

Copyright law seeks to protect creators’ exclusive rights to their works (in itself an incentive toward future creativity) but without overprotecting such that future creativity is stifled. That’s a balance and maintaining that balance requires adjustment. A bit like cybersecurity, very much in the news today; copyright law and the justice system may need to adjust to stay a step ahead and disincentivize IP squatters and discourage frivolous lawsuits. It’s not terribly simple. It’s gonna require thinking harder.

Written by Brian McBrearty