Blurred Lines, or: The Law Doesn’t Matter

In August 2013, Robin Thicke, Pharrell Williams, and Clifford Harris Jr., better known as T.I., preemptively sued the estate of Marvin Gaye to have the song “Blurred Lines” declared not infringing of Gaye’s song “Got to Give It Up.” The case occupied an interesting intersection, between a) a strict copyright interpretation that said the song was permissible and b) an approach informed by the history of white theft of Black music that wanted Thicke to be punished. Ultimately, the verdict was that the song was indeed infringing. I argue that there are two lessons from this case: first, what people use to decide whether something is a legitimate—that is, transformative—reuse (even juries) is not what the law says should matter, and second, the value system currently animating copyright protection is not what the law says should matter either.

To begin with how people evaluate reuse, the musical elements that United States law says are subject to copyright and the factors people use to assess similarity or originality are poorly aligned. This disconnect was reflected in the press coverage about the “Blurred Lines” case. Kal Raustiala and Christopher Jon Sprigman argued in Slate Magazine that “the problem—and the reason the verdict in Blurred Lines is such a disaster—is that the jury appears to have been swayed by things that were not supposed to matter.” Legally speaking, Tim Wu notes in the New Yorker, “The question is not whether Pharrell borrowed from Gaye,” because clearly he did, “but whether Gaye owned the thing that was borrowed,” which Wu contends he did not. Chris Richards concedes in an article in The Washington Post, “Yes, ‘Blurred Lines’ approximates the rhythm and timbre of ‘Got to Give It Up,’” but, he asks, “is that theft? Listen. Both songs have cowbell-ish percussion that plunkity-plunks at a similar tempo, but the patterns are different. Both songs have rich, teasing basslines, but the notes and rhythms of each are dissimilar.” The consensus from these commentators, then, is that, while there are elements of the song that are similar, the similarities are not of a sort that are protected. This is particularly the case given that, when Gaye’s song was created, U.S. copyright did not protect sound recordings but rather only the written notes of the composition and not more intangible or non-notatable aspects of the “feel” that show up in the recorded version.

This leads Raustiala and Sprigman to conclude that “what the ‘Blurred Lines’ team copied is either not original or not relevant,” but I want to contest that point. By the letter of the law, no: rhythm, background noise, falsetto, funky bass, cowbell, or any of the other elements are not relevant, either because they’re not original to Gaye or not copyrightable or both. However, these aspects are clearly relevant to people hearing the songs, a group that includes jurors, making these aspects carry weight in legal cases whether they are supposed to or not. What the law says is not how people experience music, and neither is it how people hear similarity. Indeed, I would argue that, while none of the individual elements are unique to Gaye, the combination of them is what makes “Got to Give it Up,” and also what makes “Blurred Lines.” That’s not something the law currently accounts for, but it is experientially true, which has to be taken seriously even if only because it impacts court decisions.

The second principle of my framework for how copyright actually functions is that who did what to whom matters a great deal. As Richards notes, “An entire generation of American bluesmen died before sniffing the monthly private helicopter fuel budget of the rock-and-rollers who ran off with their sound. Others have settled out of court. And that’s one reason why a cheer went up on social media after Tuesday’s verdict was announced. This time, the young cads didn’t get away with it.” There is a long history of white people stealing Black music with impunity, from Elvis to Moby, which has everything to do with why this verdict “feels right” to many.

However, this case also reveals a second way the law doesn’t matter. The point of copyright in the United States, established in its Constitution, is “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The idea is that there is a state interest in promoting knowledge and art, served by granting a short-term monopoly on otherwise uncontrollable ideas to produce an incentive to create. Thus, as Raustiala and Sprigman argue, while basic fairness might dictate that Gaye’s estate be compensated for the inspiration he provided to “Blurred Lines,” “Basic 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 life of the author plus 70 more years—is to adequately incentivize artists to produce new creative works.” This verdict, according to legal and musical commentators alike, does not encourage people to make more music. To the contrary, they argue, it makes people afraid that what they previously may have regarded as benign influence is now actionable infringement. Raustiala and Sprigman worry that the verdict “may end up cutting off a vital wellspring of creativity in music—that of making great new songs that pay homage to older classics,” hurting not just artists but the very public copyright law is supposed to serve.

In the end, the “Blurred Lines” shows two key features of how law tends to work, which are also how, I argue, it should deliberately work. First, our social beliefs about creativity, originality, and worthiness impact decisions about whether works are infringing or transformative, and they should. Whether we think of the purpose of the law as to encourage creativity (the initial purpose) or to give what authors deserve (the contemporary purpose), it should protect what we socially feel is valuable, creative, and an addition to culture, not just arbitrarily anything claimed by someone with the lawyers to back it up. Second, when we think about reuse, assessing whether it’s legitimate should, as the “Blurred Lines” jury apparently did, take into account the power dynamics—who’s doing what to whom? The racial inequality that let white rock musicians steal from Black blues musicians primed a drive for a reparative “Blurred Lines” verdict. I think using this as a consideration will produce better results. It is true that these two principles may come into conflict—certainly, the ways that sampling is far more often considered creative and worthy in the white-coded genre of mashup than the Black-coded genre of hip-hop highlights the challenge. The balancing act of implementing them will be difficult, but as a normative statement of principles I contend this would move us forward in thinking about legitimate and illegitimate reuse of existing creative works.