Robin Thicke and Pharrell's “Blurred Lines” is probably not the ideal song to be a test case for artistic freedom. If you thought the 2013 hit's lyrics and video were “rapey,” or if you were creeped out by Thicke’s antics with regards to his ex-wife Paula Patton, or if you want to take revenge on Pharrell for inflicting “Happy” upon the world, there's some schadenfreude to be had from the news that a jury wants the two musicians to pay $7.4 million to Marvin Gaye’s estate because their song resembled "Got to Give It Up."
But musicians and industry observers have in large part reacted with horror to the ruling. The writer Michaelangelo Matos put it like this: “If the Internet can't kill music, the courts will.”
No one contends that “Blurred Lines” is a straight musical copy of Gaye’s “Got to Give It Up”; unlike with Sam Smith paying royalties to Tom Petty, the issue is less about chords than about “feel.” The “Blurred Lines” groove hits the ear a lot like the Gaye one—the musicians admitted as much—but when, exactly, does feel become infringement? It’s a complicated question, and it reportedly turned the courtroom into a concert hall: Thicke performed on piano to show how common it is for popular songs resemble each other; Gaye estate’s musicologist turned the two tracks into stripped-down jingles so that jurors could compare core elements.
The entire history of popular music has, in large part, been driven by songs that evoke other songs, whether when Bo Diddley’s strumming style birthed rock or the “trap” beat transformed hip-hop over the past few years. It seems counterintuitive, but creative copying often accompanies innovation, and now Twitter’s alive with jokes—or, maybe it’ll turn out, not jokes—about the potential implications of the ruling:
Hip-hop in particular has proudly thrived on borrowed sounds and vibes, and has clashed with the courts over the years because of sampling. In the wake of the ruling, Questlove of The Roots sent (then deleted) a tweet with the hashtag #NiceKnowingYouHipHop. In 2013 he told New York that “If it were a case of melodic plagiarism, I would definitely side with the estate,” but then explained why he thought Thicke and Pharrell were in the clear:
Look, technically it’s not plagiarized. It’s not the same chord progression. It’s a feeling. Because there’s a cowbell in it and a fender Rhodes as the main instrumentation — that still doesn’t make it plagiarized. We all know it’s derivative. That’s how Pharrell works. Everything that Pharrell produces is derivative of another song — but it’s an homage.
Homage is right: Thicke has said that "Got to Give It Up" is one of his favorite tunes and that he and Pharrell discussed it in the studio. But in court, he testified that he'd been high on Vicodin during the recording process and wasn’t involved very much. In any case, the jury ruled that the infringement was not “willful." That judgement reduces the amount of money the Gaye estate gets, but should only heighten the fears of anyone who worries that the bar has now been lowered for what kind of musical borrowing is legally actionable.
Pharell’s spokesperson says the losers in the case are considering their options, and the years to come will bear out whether concerns about litigation threats stifling musical progress are justified. When I listen to the files that the Gaye musicologist presented to the jury, I’ll admit to hearing a resemblance that's not just vibe. I don’t know whether that resemblance is or should be illegal, though. That’s the crazy thing about this case; it came down to a jury's ears, and now there might be repercussions for everyone else’s.