What is the song Blurred Lines about?
"Blurred Lines" or: The law doesn't matter
In August 2013, Robin Thicke, Pharrell Williams and Clifford Harris Jr., better known as T.I., preventively sued the heirs of Marvin Gaye. They wanted to get official confirmation that the song blurred lines no plagiarism of Gayes Got to give it up is. An interesting case that moved at the intersection of two diverging positions: on the one hand, a narrowly interpreted copyright interpretation, according to which the song is beyond suspicion; on the other, one of the story of white theft of black music; Thicke should receive his just punishment. The judgment itself ultimately found a copyright infringement. I believe that there are two lessons to be learned from this case. First: How people (including juries) decide whether it is a legitimate - i.e. transformative - use is not what should play a role according to the law. Second, the value system on which copyright is based is not what the law should play a role.
If we begin with the question of what criteria people use to judge a work's use, there is little agreement between the musical elements that are copyrighted under US law and the factors that people use to judge similarity or originality . This discrepancy was also evident in the coverage of the case blurred lines. Kal Raustiala and Christopher Jon Sprigman argue in the Slate magazinethat “the problem - and the reason why the judgment is too blurred linesSuch a disaster is - is that the jury has apparently been influenced by things that shouldn't really matter ”. As for the legal aspect, Tim Wu notes in new Yorker: "It's not about whether Pharrell borrowed from Gaye," because it was clearly the case, "but whether the loan actually belonged to Gaye," which Wu said was not. Chris Richards admits in his article in the Washington Post a: "Yes, blurred lines is similar in rhythm and sound Got to give it up"But, he asked," is that theft? Listen to it. Both songs have a kind of cowbell percussion that rattles along at a similar pace, but the patterns are different. Both songs have rich, provocative basslines, but each with different notes and rhythms. ”So these commentators agree on one thing: there are similar elements in the songs, but these elements are not among the things that are protected. This is all the more true as when Gaye's piece was made, sound recordings did not come under US copyright, but actually only the written notes of the composition and none of the rather immaterial, not written down aspects of “felt” correspondence, as is the case here is.
Raustiala and Sprigman conclude that “what the team at blurred lines copied, is either not original or not relevant ”, but I would like to deny that. According to the law, they are right: rhythm, background noise, falsetto, funky bass, cowbell or even the other elements are not relevant, be it because they do not go back to Gaye or because they are not copyrighted or both. However, these elements have a definite relevance to people listening to these songs, and that includes jurors. As a result, such aspects have weight in copyright proceedings, whether consciously or not. What the law says does not correspond to how we perceive music, nor to how we hear similarities. So I would argue that while none of the individual elements proves the originality of the song, their combination is exactly what Got to give it up matters - and also blurred lines. The law does not currently take this aspect into account, but it is based on experience and must be taken seriously, if only because of its influence on judicial decisions.
As for my second consideration on how copyright works, it matters a lot who did what to whom. Says Richards: "A whole generation of American blues musicians died before they could smell the tons of fuel used by the private rock'n'roll helicopters that drove off with their sound. In other cases there were only out-of-court settlements. And that's one reason why such cheers erupted on social media following Tuesday's verdict. This time the young bastards didn't get away. ”The story of whites who avail themselves of black music with impunity goes back a long way, from Elvis to Moby, and it's the real reason why this judgment feels“ right ”to most people.
However, this case reveals another aspect in which the law does not play a role. United States copyright law, as enshrined in the constitution, is about "promoting the advancement of science and the useful arts by giving authors and inventors exclusive rights to their writings and discoveries for a limited period of time." The idea behind this is that the state, which has an interest in promoting science and art, grants a short-term monopoly on otherwise uncontrollable ideas in order to offer an incentive for creative work. According to this, Raustiala and Sprigman argue, basic fairness may dictate that Gaye's heirs for the inspiration he is for blurred linesdelivered, to be compensated, but:
“Fundamental fairness is not the goal of our copyright system. The reason we have copyright - the reason we protect songs, books, and other creative works for the lifetime of the author and 70 years beyond - is to give artists an appropriate incentive to create new creative works . "
This judgment - commentators from law and music agree - gives people no incentive to make more music. On the contrary, it is said, they become afraid that what they once considered a harmless influence may now be an actionable violation. Raustiala and Sprigman fear that the verdict "could ultimately lead to the destruction of an important source of creativity in music - writing great new songs in homage to older classics", which harms not only the artists but also the public for which the copyright is actually intended.
Ultimately it shows blurred linesCase on two main points, how the law tends to work and, in my opinion, should work in a targeted manner. On the one hand, our social perceptions of creativity, originality and value influence decisions about whether works constitute a violation or a transformative use, and that is a good thing. Whether we think the law is there to encourage creativity (its original purpose) or to ensure that creators get what they are due (its current purpose), it should protect that what we consider socially valuable, creative and cultural enrichment, not just arbitrarily everything that is claimed by someone who can afford the necessary legal assistance to enforce his claims. Second, when it comes to recycling, we should judge whether it is legitimate, as the jury did in the case blurred linesobviously have done, taking the balance of power into account - who does what to whom? The racial discrimination that paved the way for white rock musicians to simply avail themselves of black blues musicians created the need for redress in the verdict blurred lines. I think these points should be taken into account in order to get a better result. Of course, these two principles can come into conflict - the fact that sampling is far more creative and appropriate in the mash-up genre, which is regarded as white, than in hip-hop, which is connoted in black, doesn't make things any easier. Implementing them will prove to be a difficult balancing act, but as a normative statement, I contend, it would move us forward in deciding whether to use existing creative works, whether legal or not.
Slightly shortened and revised version of Mel Stanfill's essay "blurred lines or: The law does not matter ", in:100 years of copyright, edited by Detlef Diederichsen and Lina Brion, Berlin: Matthes & Seitz, 2019, in the series Library 100 years of the present.
Translated from the English by Anja Schulte.
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