August 29, 2023 Musicology No Comments

Last week I wrote an article (not for Musicologize) asking about when we might be able to say the pendulum had swung back and away from the supposed floodgates opened years ago by “Blurred Lines.” Each appropriately adjudicated case since has been met with the idea that it’s compensatory or a regression toward a norm, which I suppose begs the questions around the atrocity of Blurred Lines itself and whether it was responsible for scores of supposedly similarly wrong-minded cases, making a casino of the courts. I’ve written little to dissuade anyone from that idea. To me, it’s perfectly efficient. Blurred was a high-profile case that resulted in a bad verdict. It’s sensible to move swiftly to the question of what good or bad effects such a high-profile bad verdict might bring. And although there hasn’t been such a calamity in a while, we’ll continue having these discussions as long as judges regularly fail to throw out silly infringement cases. In the past twelve months for example Ed Sheeran, all by himself, took the considerable personal risk of a jury trial in bot of two cases that didn’t deserve his time. His Thinking Out Loud and Shape Of You trials were unworthy, and either one would’ve been a Blurred Lines-level catastrophe if Sheeran had lost, so we should be thrilled to have avoided the refresh, and grateful to Sheeran for being a flat-out hero. And I am.

Today, Future received summary judgment on his case involving his “When I Think About It,” and a plaintiff’s “When U Think About It.” I’ve been looking for judges to step up and dismiss more cases this way, cases that have no business going to jury trials. I should be delighted at this.

Actually I’m looking across a whole slew of headlines about this. Future’s infringement case was tossed by a judge who is making headlines for citing Biggie, Wu-Tang and Ye among others in her decision. I’m not sure why that’s such a big deal, but moreover, I don’t have the information I need to know if I agree with this summary judgment, which is to say, I’m not completely taken with the memorandum and the rationale expressed by this court.

It would be a very typical scenario; there’s perhaps no more fraught storyline than one I call the “Blueprint Fallacy” which goes:

  1. “I gave my demo tape to someone in their orbit.”
  2. “Months later I heard their song.”
  3. “You could’ve knocked me over with a feather! I instantly recognized my work. They had simply taken my song, changed nearly everything, and made a completely different copy of my song.”

And believe me, I sympathize whenever this happens because I know it’s compelling. There’s an access story. And then there’s a snippet of observable similarity. And then, all the pieces begin to fall into place, one idea after another parallelling their own, and the terrible feeling that they’ve been wronged settles in. Except it’s so often not true. The myriad additional clues are usually overvalued and heavily reliant upon confirmation biases.

Remember that copyright only applies to protected expression, and that themes, ideas, and short common phrases are unprotectable.

Here, the plaintiff’s work and the defendant’s work share a phrase that is both short and common.

Future’s chorus goes:

“Got on a million dollars in jewelry when I
think about it

Got more guns than a terrorist when I think
about it

And so forth for six of the eight lines in his chorus.

Similarly, the plaintiff’s work goes:

My whole life I’ve been keeping it G, when u
think about it

Stashing money, grind with no sleep, when u
think about it.

And so forth for four lines, repeated twice.

So the question is first whether “when you think about it” is an original and protectable phrase, and whether the usage is substantially similar.

Judge Martha Pacold’s decision includes:
“The thematic elements that [the accusers] address—guns, money, and jewelry—are frequently present in hip-hop and rap music,” the judge wrote. “The commonality of these themes in hop-hop and rap place [them] outside the protections of copyright law.”

That’s probably all there is to it and the judge is probably right. But, it bothers me that I can’t know more.

I know nothing for example, about the backing tracks. Future’s track has a melody that lingers on three pitches and two chords. One evolution in forensic musicology is how it applies to music such as this, very groove-oriented, less melocentric, whereas melocentric analysis has mostly been the backbone of forensic musicology for a century. We’re looking for probative value wherever it’s to be found. And it’s completely plausible that I might be persuaded that these two works were more substantially similar if Mr. Robinson’s version contained a similar melody and harmonic scheme. Unfortunately, I haven’t heard the plaintiff’s work, so I can’t say, except to acknowledge that there’s nothing in the complaint that leads me to believe there are similarities beyond the phrases ending with “when I think about it,” and as the judge points out, some ubiquitous themes. There is no mention of instrumental elements in the complaint other than that both songs are in the same key, which is pretty irrelevant. But the judge’s arguments are somewhat unsatisfying, I find, without some extensions of faith. Have we looked carefully at the lines than include “when I think about it” and at how it’s employed? Let’s put the shoe on the other foot, if someone else writes a song that ends every chorus phrase with “when u think about it,” will we not find that conspicuous? On paper the five word phrase is common, but what if the cadence is the same? What if the enunciation is the same? What if other elements, unprotectable on their own are the same.

“The mere use of a ‘core lyric’ to support a song’s storyline is not a protectable element because it is a frequently utilized technique in popular songwriting,” said Judge Pacold.

That’s practically a truism. Does it need to be said that having a core lyric is itself not a protected element? Is that the ruling? Crosby, Stills, Nash and Young’s “Our House,” which the ruling cites, indeed contains a core lyric but this does not make it particularly relevant prior art. What about the repeated use of the same core lyric across an eight line chorus specifically as a device that binds the elements in a list? Nobody imagines “when you think about it,” is a protectable phrase. Most lyrical fragments are not. It’s not an end argument, not in a vacuum. And although the decision addresses the unprotectable elements in combination, and also the aspect of “similar phrase in the same place and in the same way,” which the judge says does not make the songs substantially similar, here I’m not sure I agree, regardless of the Kanye West case (Stronger) the judge provides as precedent. The Nietzsche isn’t the issue, but the placement, which is not in my hot take opinion analygous.

The scenes a faire argument applied to the guns, money, and jewelry themes in which the judge made herself very headline friendly, citing Wu-Tang Clan, Notorious B.I.G. and another Kanye recording are nearly superfluous as are the matters of structure and storyline. Storylines at a high or general level are not protectable and the forms of both works are extremely commonplace.

But again, I haven’t even heard the plaintiff’s song. I hope the judge got it right particularly as it was with prejudice. I imagine she did.

Written by Brian McBrearty