Robin Thicke ordered to pay $7M for Blurred Lines Plagiarism

[Acsenray]

Nitpick No. 1:

@aceplace57

… copy write …

Copy write …

It’s copyright.

Nitpick No. 2:

@TonySinclair

Robin Thicke ordered to pay $7M for Blurred Lines Plagiarism

@pulykamell

fall anywhere near the category of what I would consider plagiarism.

The judgment was on a claim for “copyright infringement,” not “plagiarism.” There is no action for plagiarism in American law.

And the two are not equivalent. Copyright infringement is a very narrow concept defined by the law. Plagiarism is not defined by the law and is instead defined and enforced by institutions such as universities and corporations.

One big difference between the two is that plagiarism standards usually require someone to cite to the originator of an idea if that idea was not original to the author.

Copyright law does not protect ideas and requires no such crediting.

[you_with_the_face]

I think what is getting glossed over by many is that by preemptively suing the Gaye’s, Williams and Thicke committed the offense of protesting too much. Why did they do that if they were confident the song was original? By going out of their way to keep the issue out of court (fruitlessly), the signal was sent that they had something to hide.

These guys were only victims of their own laziness. If they weren’t willing to settle, they should have just called the Gaye’s bluff. But they didn’t.

The lesson in this clear: when the line between inspiration and copyright infringement is blurry, you are playing with fire. Expect to get burned eventually.

[Acsenray]

Frankly I’m far more troubled by the Tom Petty judgment than this one. That was only three notes.

[bup]

I think that Gaye’s estate opted for a jury trial shows they couldn’t win the case on hard evidence.

They’re different bass lines, and nobody owns the right to use a freaking cowbell.

[you_with_the_face]

@bup

I think that Gaye’s estate opted for a jury trial shows they couldn’t win the case on hard evidence.

Isn’t that the defendant’s choice to make, not the plaintiff’s? My assumption is that Pharrell and Thicke believed their star power would have more sway over a bunch of commoners than it would a crusty old judge.

[pulykamell]

@bup

They’re different bass lines, and nobody owns the right to use a freaking cowbell.

Hell, I’d argue the cowbell part in “Blurred Lines” has more in common with the feel of the cowbell in another disco classic, “Funkytown”, than it does to “Got to Give It Up.”

[Acsenray]

@Musicat

I haven’t researched the “sheet music” situation, but it occurs to me – why is the sheet music involved? And where did it come from? If it was written down by a takedown copyist (which I used to be), how accurate is it? Are we comparing subjective interpretations?

And is the sheet music the copyright material? From 1909 to 1976, the only way you could copyright a song was with the written version, no matter how inaccurate or sketchy it might be (typically, only a lead sheet). After 1976, the US Copyright Office accepted audio recordings, but translating those to written music, whether automated or manual, is more of an art than a science. Are we comparing two imperfect interpretations to make a 7 million dollar decision?

The action here was infringement of a composition. So it’s the original composition that must be compared to the allegedly infringing work.

@Musicat

A lead sheet is supposed to capture the “essence” of any song, using the three elements of lyric (if any), melody (if any) and harmony (chords, if any). The one thing it can’t capture well is the feel (arrangement, sounds).

And comparing two lead sheets is a lot like interpreting Nostradamus – you can find similarities or differences everywhere you look; it just depends on how you look. How similar do you want them to be?

Here’s where we get into the weeds of copyright law. The general principles are very easy to understand. But when it comes down to actually determining “substantial similarity” you are faced with very complex questions about what is it exactly that you should compare.

With respect to a lot of music disputes, it had become accepted that the “composition” that is being protected is what is on the lead sheet—the key, the melody, the lyrics, the chord progression, and such basic outlines of a work.

This has come about at least partly based on the recognition that two performances of a composition can sound very different, but that they are performances of the same work—the composition—that is subject to protection.

So very often you see a court directing a jury to look at the transcription of a work.

Now, there are obviously weaknesses in this approach, but there are also weaknesses in alternative approaches too. My point is that this approach didn’t arrive arbitrarily or through ignorance of how music works. This resulted from a series of rational choices, because such decisions had to be made in order for the system to work.

[bup]

@you_with_the_face

Isn’t that the defendant’s choice to make, not the plaintiff’s? My assumption is that Pharrell and Thicke believed their star power would have more sway over a bunch of commoners than it would a crusty old judge.

In a civil trial, either party can request a jury. But you got me on making an assumption - now that you bring it up, I don’t know which party did request the jury. Having trouble finding the answer.

[Death_of_Rats]

I have to wonder, with all the issues that have happened to Thicke from this song, from the Miley twerking to this, how much does he regret this song, on a scale from 1-10?

[Acsenray]

@Death_of_Rats

I have to wonder, with all the issues that have happened to Thicke from this song, from the Miley twerking to this, how much does he regret this song, on a scale from 1-10?

All* publicity is good publicity?

*(With some notable exceptions)

[Zebra]

I believe that you ‘copyright’ the sheet music.
I remember from the Field of Dreams DVD special features they talked about the soundtrack. They largely ‘improvised’ it. Rehearsing it a few times then recording. The ‘composer’ told the story about how one of the executives at Universal kept asking him for the sheet music to copyright it. He kept putting him off then finally had to go back and write it down while listening to it.
So maybe legally the music is the sheet music.

[Musicat]

@Zebra

I believe that you ‘copyright’ the sheet music.

<snip>

So maybe legally the music is the sheet music.

Prior to 1976, that was the only way to copyright music, since the law was first written in 1909 and not revised until 1976. In 1909, music was written down first, sold in stores on paper, usually as piano/vocal form, and recordings came later, if at all.

You can see how the music industry has changed. It’s rare now for the written form of a song to come first, and it’s not usual for the composer to do the writing down at all, ever. That task usually falls to a copyist/takedown artist who listens to a recording and converts it to written notation. Obviously there is a lot of subjectivity here. The recording can be a crude demo or a finished product.

As of 1976, a song can be copyrighted by depositing “the best copy” of it in the US Copyright Office. The best copy can be a disk, tape, or other preservation medium. It can still be written music, too, but only what is deposited is protected, subject to some interpretation.

If it wasn’t for the 1976 law change, I’d probably still be doing takedowns for copyright purposes and making a handsome living, as I was fast, good, and in high demand. But the bottom dropped out of the market shortly after, as publishers decided to dispense with a lead sheet in most cases and deposit a tape instead.

@Zebra

I remember from the Field of Dreams DVD special features they talked about the soundtrack. They largely ‘improvised’ it. Rehearsing it a few times then recording. The ‘composer’ told the story about how one of the executives at Universal kept asking him for the sheet music to copyright it. He kept putting him off then finally had to go back and write it down while listening to it.

I doubt that the composer did that. Composers are too busy, highly paid, and rarely notation experts. Most of their output was, in those days, nearly impossible to read as speed was more important than detail. It was up to the copyist to figure out what he meant and produce a sharp, unambiguous, instantly playable music copy for performance.

The composer or publisher probably hired a copyist to do the dirty work.

I was hired to write the lead sheets for some of John Williams’ scores. The idea of JW doing his own copying would be ludicrous, even though, artistically, it would make considerable sense. Who better to know which instrumental line is most important?

I was able to convince 20th Century Fox to deposit a complete copy of the Star Wars scores in the Copyright Office after they hired me to write lead sheets for that purpose. The idea of my trying to reduce an entire symphony orchestra’s performance to a single staff melody line from just listening to a recording struck me as a very poor choice, especially when, unlike most rock & pop music,* every single Star Wars note had been written down in advance and played exactly as written.*

Since the advent of computerized music, some composers nowdays are able to produce quite readable music directly from the MIDI files that they are producing for recording purposes. I’m out of the industry now and behind the times, but I suspect some of these “scores” have been used for copyright without the intervention of a copyist. Better yet, deposit a digital MIDI file copy (I don’t know if the Copyright Office will accept that, but it would be a good idea).

[Acsenray]

@Musicat

Prior to 1976,

Nitpick: It was the Sound Recordings Act of 1971 that made sound recordings protectable under U.S. copyright law. Even today, pre-1972 sound recording are some of the few creative works whose rights are still governed by state laws rather than federal law.

As of 1976, a song can be copyrighted by…

Nitpick: a work is protected by copyright law as soon as it is fixed in s tangible medium (e.g., recorded or transcribed). You are talking about registering a work, not “copyrighting” it. (I continue my crusade to discourage the use of “copyright” and “trademark” as verbs for this very reason.)

every single Star Wars note had been written down in advance and played exactly as written.

The other side of that argument would be that what’s being protected is not just the exact score that was written down and played exactly by the orchestra.

[Acsenray]

@Suburban_Plankton

If the sheet music was identical, then one (or possibly both) of the bands in question must be composed of horrible musicians, because the notes that got recorded are nowhere near identical. Similar (perhaps even identical; I didn’t listen *that *closely) in terms of chord progression, but not note-for-note the same.

In any case, the legal standard is “substantially similar,” not “identical.”

[Musicat]

@Acsenray

Nitpick: It was the Sound Recordings Act of 1971 that made sound recordings protectable under U.S. copyright law. Even today, pre-1972 sound recording are some of the few creative works whose rights are still governed by state laws rather than federal law.

You are talking about sound recordings, not creative works. The P in a circle was created in 1971, and protected the “squiggles” in a disk, if you will. The C in a circle, copyright, was subject to the 1909 law, especially with regards to what form of material could be deposited (printed music) until 1976.

You are correct about “registering” vs. copyright, but for all practical purposes, especially prior to 1976, a copyright was only effective if registered, since proof of creation date is a lot harder if it’s not.

[pulykamell]

@Musicat

I was hired to write the lead sheets for some of John Williams’ scores. The idea of JW doing his own copying would be ludicrous, even though, artistically, it would make considerable sense. Who better to know which instrumental line is most important?

Out of curiosity, how did you end up doing that? Do you just pick one line that you figure is probably the most important, or do you end up notating any concurrent countermelodies? Also, just as an aside, what kind of equipment is used to do this? Do you have tapes that you can slow down? If so, do they compensate for pitch, or do you just transcribe it an octave higher for each 1/2 speed you slow it down? I assume, like other lead sheets, you have harmonies notated? How detailed and exact do these have to be? What happens if you get into more modern (like non-triadic) harmonies? If the answer is too detailed, feel free to give me an overview.

[Musicat]

pulykamell, I’d be glad to answer your questions, but I probably risk being accused of a hijack for this thread. Nevertheless, because I feel it does relate to the OP, here goes…

Do you just pick one line that you figure is probably the most important, or do you end up notating any concurrent countermelodies?

I had a blank check. For artistic reasons, I would have been overjoyed to work with John Williams to make these decisions, but I wasn’t given that freedom or that kind of (hourly) budget. Basically, the job was “push it out, get it out, never mind the accuracy, we just need something on paper, and fast,” ordered by the publisher.

Unfortunately, I no longer have any of my output to refer to (I left most of it behind when I moved away from LA, and I regret it ever since), so I’m not sure exactly how I notated it.

If you remember that a lead sheet is basically a melody, a harmony, and a lyric (if any), I’m sure I tried to capture the primary melodic line & rhythm, harmony in the form of chord symbols if at all possible (and that isn’t always easy for orchestral works), and lyrics weren’t a consideration here. Most likely I used a single melody line with cues where important. IMHO, using a lead sheet for this kind of task is ridiculously stupid, but sometimes you gotta do what you gotta do.

Publishers didn’t seem to understand that if any written music or lyric sheets were used during the recording, they might be incredibly useful (for speed and accuracy) to anyone doing a lead sheet or transcription of any kind. They seemed to think that any copyist could write a 100% accurate transcription of what every instrument was playing, in a few minutes, just by hearing a stereo recording of an orchestra. They were used to lead sheets for simple country songs and assumed that a jazz or symphonic work was no different

It was after I had a hard time figuring out what Barry White was saying, and finding out that the written lyrics were available, but not given to me, that I started charging about 30% more if a lyric sheet was NOT supplied, and warning the publishers that the shortcomings of my ear didn’t guarantee an accurate lyric.

Also, just as an aside, what kind of equipment is used to do this? Do you have tapes that you can slow down?

I built my own equipment, or modified consumer hifi as needed. I was given open reel tapes (different speeds), acetate disks (different speeds), pressed disks (different speeds), and later, cassette tapes and had to be able to use what was given.

I transferred disks to open real tape for ease of handling. There were no consumer or even pro-sumer open reel tape units available that had speed controls. The studios had VSOs (Variable Speed Oscillators) that could control their tape machines to any speed, fast or slow, but a VSO cost thousands of dollars and the tape machines were prohibitively expensive.

So I built a Knightkit audio generator and bought a 100 watt mono audio power amp. I rewired a Pioneer RT-1011 tape deck that had a synchronous capstan motor to accept its power from the audio generator thru the power amp. 60hz from the audio gen, amplified, provided standard power (a synchronous motor’s speed is dependent upon the frequency). I was able to reduce the tape speed from 40% of normal to about 250% by varying the audio frequency, and the audio generator allowed very fine tuning around the “standard” speed. This was critical, since I used a non-tunable standard piano as a pitch reference and to play along with the recording.

This proved to be immensely valuable since I found out that while professional recording studios go to great pains to have their tape recorders play a constant speed, they seemed to have little concern that the constant speed was referencing 440hz for A. They put level tones at the start of each multi-track tape, but never (to my knowledge) used them to calibrate speed, only level.

So by the time a multi-track master was mixed down to a 2-track stereo (might be 1% off in speed), then given to the disk mastering lab, whose machine might be 1% off, too, the speed errors sometimes accumulated (2% speed low or high is a large fraction of a musical half-step). Many commercially mastered disks are significantly out of tune with a 440hz base.

So I had to compensate. In the worst case, a disk might be exactly 1/4 tone away from standard, and I had to guess what the intended pitch was. If it was a guitar piece, I leaned towards pitches that would make the composition in a “sharp” key. If it was keyboard-based, the key of C was more likely than D-flat or B.

I guessed wrong once, for a Norton Buffalo LP. The performer/writer called me up and loudly accused me of writing “the entire album in the wrong key! All the songs are wrong! Every chord is wrong! Every note is wrong!” He calmed down when I suggested he look at them in a transposed fashion, and they would all be right, and if he had told me the keys in the first place, I would have tuned my recorder to match. He subsequently told me that all the note and chords were right after all.

If so, do they compensate for pitch, or do you just transcribe it an octave higher for each 1/2 speed you slow it down?

Unlike today’s digital processing, where you can boost the speed without the pitch, and vice-versa, I had to put up with both changing at once, and compensate, so I did a lot of transposing in my head.

My favorite example is Billy Joel’s Root Beer Rag, from his Streetlight Serenader album. I slowed the recording down to get the individual melody notes easier, then sped it up to get the bass notes easier. I remember the publisher telling me they were in a hurry for the lead, and before I heard the song, I told them I’d get it done in about an hour. When I first played it, I called them back and told them I would need a little more time – it wasn’t your typical country ditty!

I assume, like other lead sheets, you have harmonies notated?

Yes, in standard chord symbols. For complex songs, something has to give, but I did my best.

I sometimes had a disagreement with songwriters about this. I felt that the chord symbols should reflect the harmony, not the chord the guitar or keyboard was playing. If the songwriter was a guitarist, he wanted the chord symbols to show his part, not the overall harmony. Cat Stevens wanted it to reflect the piano part, which he played. (Imagine me arguing with Cat Stevens?)

How detailed and exact do these have to be?

Again, I was given a blank check. Rarely did my work get back to the original composer/artist, nor did they care, or would they know how to read it. They were too busy counting their booze, broads, and bills.

On the rare occasions that I was challenged (and that’s another story), I always held my ground, and invited the complainer to come to my studio and we’d examine his complaint. I never lost one of these arguments.

What happens if you get into more modern (like non-triadic) harmonies?

I can’t recall running into many problems like this, although I often discussed such topics with academics, and Clinton Roemer proposed a notation methodology for 4th-based chords. On the rare cases where a lead sheet just didn’t make sense, I advised the client to consider working with me on an hourly basis for a custom job – “this is not your grandfather’s lead sheet, you dig?”

[NDP]

@Stratocaster

That’s an excellent analysis. I had already felt the decision was goofy for the reasons he noted, though his drill down to details just blows away the plaintiffs’ case. The songs have different melodies, bass lines, chords and lyrics. This is not taking the original and tweaking it.

A song can have another as inspiration–hell, it can deliberately try to evoke a comparison–but if the sheet music elements are different in virtually every regard, it ain’t plagiarism. If it was, Chuck Berry would be a multi-billionaire.

Given the jury’s verdict in the “Blurred Lines” case and assuming for the sake of argument that there no statute of limitations laws, does anyone think the estate of Horace Silver would have a viable claim against Walter Beckker and Donald Fagan for appropriating the opening of “Song for My Father” for “Rikki Don’t Lose That Number”?

[pulykamell]

Thanks for the fascinating answer, Musicat. I always did wonder how the work was done. I had no idea it involved building your own equipment. And I’m somewhat surprised–though I know I shouldn’t be–that someone complained about the music being written out correctly, but in a slightly different key. I have noticed that many recordings don’t sit at A440, often halfway between keys, and have always wondered whether that was done on purpose, or if it was just that they were recorded slightly at the wrong speed.

[Acsenray]

@Musicat

You are correct about “registering” vs. copyright, but for all practical purposes, especially prior to 1976, a copyright was only effective if registered, since proof of creation date is a lot harder if it’s not.

1976 was 40 years ago. The difference between date of fixation/publication (copyright) and date of registration is a very significant one in American law.