In the mid ’90’s The Offspring released their breakthrough album, Smash. Not long afterwards, people began calling me suggesting that the song Gotta Get Away was a rip off of our own Hard To Laugh. A few people in the music business were suggesting litigation, thinking we an opportunity to cash in on what they perceived to be copyright infringement. I bought the album and listened to the track and it ‘sounded’ kind of the same but I didn’t think their song and mine were the same. The comparison that people heard revolved around a riff and maybe a drum beat(??). I thought the claim was frivolous and the similarities between the two songs was most likely accidental.
So everyone is talking about the Blurred Lines verdict and what it means. I am seeing posts of Mavin Gaye’s family listening to Happy, by Pharrell Williams, one of the plaintiffs in the Blurred Lines case to see if further litigation is an option. This is disturbing in several ways.
When I first heard Blurred Lines, I thought, wow that sure sounds like Got To Give It Up by Marvin Gaye. the cowbell, the groove-the feel and the sound were very close. I kind of smirked and thought little of it past that. It wasn’t until the lawsuit surfaced that I examined the songs.
My understanding of the law is that, in terms of song copyright, a song is the melody and lyrics. Since there are only 12 notes in Western music, that can get pretty dicey. But the reality is, there haven’t been a lot of these suits. Copyright infringement has needed to be pretty blatant before a judge would hand out an award. One of the most famous cases was George Harrison’s My Sweet Lord which was said to have copied the melody of He’s So Fine by the Chiffons. In this case, it’s relatively clear that the melody is remarkable similar.
That’s not the case with Blurred Lines/Got To Give It Up. The songs are not particularly similar, there is merely a comparable vibe because of the production values. Production values shouldn’t be a matter of copyright.
To me, Blurred Lines falls into the category of homage or tribute. It’s acknowledging someone else’s great art by referencing it in your own art. Like Back In The USSR by The Beatles is a homage to both Chuck Berry and the early Beach Boys. There is a band called The Spongetones who’s work is a meticulous recreation of the Beatles style and sound. Todd Rundgren’s band Utopia did an album called Deface The Music which did the same thing, sent up very specific Beatles tracks in terms of sound and style but were nonetheless original songs. Should they be sued for this?
Almost every early rock and roll song in the ’50’s was a fast paced 12-bar, very much alike in sound, style and structure. Same with so many old honky tonk songs. Apparently the great Hank Williams once said that he basically re wrote existing songs, put new lyrics on them and bingo-a legend is born. You could find 1000 12-bar blues tracks where the differences would only be apparent to a musician. Should everyone above be sued? Does everyone who uses a detuned, distorted electric guitar owe something to Black Sabbath? Does every House producer owe Georgio Morodor/Donna Summer, every Techno producer owe Kraftwerk?
So you see where this could lead. And that’s not even touching bands who wear their influences on their sleeve like power pop demi gods Jellyfish or The Rolling Stones influenced Black Crowes. There is a hilarious video by a comedy troupe from Australia called Axis of Awesome playing several dozen hit songs over the exact same four chords.
And if we want to call out rip off artists, how about Katy Perry who blatantly ripped off Jill Sobule with her breakthrough hit, I Kissed A Girl. Jill’s song had the hook, I Kissed A Girl and at a point says, ‘and I liked it’, just like Katy’s song. And what about Bruno Mars aping the hook of one of Billy Joel’s biggest hits, Just The Way You Are? The melodies in both cases are different but if all we need to show is that the songs are ‘similar’ these songs in my mind are more actionable that Blurred Lines. And should anyone be looking into a half a dozen Led Zeppelin songs that sound like old blues tracks but are ‘written’ by Page and Plant?
Copyright infringement is hot right now because of another recent case involving Sam Smith’s Stay With Me and it’s melodic similarity to Tom Petty’s Won’t Back Down. It never made it to court as the involved parties resolved it themselves. In that case, one could say the melodies had a striking resemblance. I remember thinking it was a big fuss over nothing, I bet if you dug deep you could find other songs with that descending melody. But most people would think this case had some legitimacy, because it’s the song that’s the same, not the arrangement or production. That’s a huge difference.
The biggest problem with litigation is that it’s not always about who is right but who has the best lawyer. In this case, it was clearly the Gaye family. As for the Gaye family hunting around for more copyright infringement, that’s just gross.
It should be clear that what we are talking about here is much different than sampling. Sampling is using someone’s ACTUAL PERFORMANCE in a song. If Blurred Lines had sampled Got To Give It Up, it’s a completely different case. But even sampling cases sometimes stretch the boundaries of what most people would consider fair. Read up on The Verve’s nightmarish run in with Andrew Loog Oldman and The Rolling Stones with their hit Bittersweet Symphony. That’s another blog.
The worst case scenario here is that people start to think that this is a way to make money in our ever challenging business. If the case before us now becomes precedent, then the floodgates would surely open for literally thousands of equally specious claims. That would effectively kill music production and recording. So everyone in this business should be praying this verdict is overturned in appeals court. Otherwise, things are really going to suck.