Copyright Madness: Blurred Lines Mess Means Artists Now Afraid To Name Their Inspirations

from the cultural-losses dept

Thu, Jul 13th 2017 3:24am — Timothy Geigner

The ways in which the disastrous Blurred Lines verdict represents a complete mess for the music ecosystem are fairly legion, from chilling artistic creation for fear of unintended infringement to the absurdity of giving estates of long-dead artists license to stifle the release of new art that would benefit our culture as a whole. The awful ripple effects of the lawsuit don't end there and it's useful to keep in mind that the jury awarded the $7.3 million verdict to the Marvin Gaye estate acknowledged that there was no willful infringement on the part of Blurred Lines creators Robin Thicke and Pharrell Williams. Put another way, the jury latched onto the duo's perceived and, in the case of Pharrell, stated inspiration by Gaye's contributions to music and decided that inspiration was copyright infringement. For anyone with even a cursory understanding of how music is made and creativity sparked, this was crazy.

So crazy, in fact, that as the world waits for the appeal, it seems that some musicians and their management groups have decided that nobody ought to talk about who inspired whom publicly.

Now though, music experts have told the Victoria Derbyshire programme that artists are being advised not to mention publicly who has inspired them. This is because of a high-profile copyright infringement case in which US jurors ruled that Robin Thicke and Pharrell Williams, on their song Blurred Lines, had copied Marvin Gaye's Got To Give It Up.

According to forensic musicologist Peter Oxendale "everyone's concerned that inspiration can [now be interpreted as] a catalyst for infringement.

"All of these companies are worried that if a track is referenced on another at all, there may be a claim being brought," he explains.

If you've ever wondered what a chilling effect looks like in its chilly, chilly flesh, this is it. Since time immemorial, it has been common practice in the music industry to laud praise on one's inspirations and heroes in the music world, with no narrow eyes cast at those inspired by the greats from the past. When Bruno Mars created Uptown Funk, everyone who listened to it knew the era and genre the music was inspired by. Hell, the first time I heard that song, it made me immediately go back and listen to Morris Day and the Time, for instance. That's how music and culture works... and it's great for music and culture. Homages such as Uptown Funk or Blurred Lines, with their nods to music's past and to the great artists that built that past, are undoubtedly what keeps those past artists relevant. But now, in the wake of a terrible jury award for what everyone seems to agree wasn't even willful infringement, we get to witness copyright killing that part of the culture. Instead, apparently everyone will simply pretend publicly that all art is created in a vacuum of influence, devoid of homage and bereft of cultural context.

And the labels aren't just stopping there. There are some reports that the labels want artists to secretly disclose their influences contractually as a way to do a risk analysis on future copyright lawsuits.

Mr Oxendale says some artists are now having the requirement to name their influences written into contracts by their record labels - although he would not specify names.

"Many of the companies that I work with ask the producers and the artists to declare all of the tracks that may have been used as inspiration for their new tracks," he says.

He also confirmed that he is being sent new music to check the possibility of future copyright infringement claims.

No serious person could possibly claim this is good for music, for artists, or for our shared musical culture. And if we agree on that, then we agree that this ruling represents a perversion of copyright from its intended purpose, which is to foster more culture and creation. Much in the way certain industries absolutely hate ambiguity in their markets, so too does the music industry on matters such as these.

Nevertheless, Simon Dixon - one of the lawyers for Ed Sheeran, Sir Elton John and the Rolling Stones - says the judgement has made some people in the industry nervous.

"[The court case] wouldn't have been decided the same way over here [in the UK]," he explains. "So as a result, everyone felt they knew what the law was, they knew what the parameters were. And when you know what the laws are and the rules are you get comfortable. This injects an element of grey into the picture. So as a result people are less certain now about what they can and can't do. And as a result, everybody feels a bit nervous."

Any person who would want to state that this nervousness has no effect on artistic output would make that claim to the peril of their credibility. It has to have an impact and that impact cannot possibly be positive. If ever there were a case of copyright being used against its own purpose, this certainly must be that case. It also serves nicely as a canary in the coal mine for what our permission culture might ultimately do on our wider culture as a whole.

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Filed Under: blurred lines, chilling effects, copyright, creatitivity, infringement, inspiration

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That One Guy (profile), 13 Jul 2017 @ 1:37am

Mission... accomplished?
Well on the plus side on multiple occasions I've run across people that argued that creativity only counts if it's entirely isolated, that real creators don't build upon what came before, so in a sense they're getting what they wanted with this.

If no-one dares list the inspiration of their songs then clearly every song is entirely original and has no connection to what came before, with any similar sounding parts being pure coincidence, something that I'm sure won't at all impact culture or historical relevance of older works.
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That Anonymous Coward (profile), 13 Jul 2017 @ 3:37am

Well I am sure the copyright cartel is very happy with this.
First they got fragments of beats sampled to be infringement, and owing millions for their use. Now there is a thriving business built around 3 second riffs.
Now they've killed off the idea that we can build off of what came before, as they themselves lock away even more of our shared past in extensions to protect a cartoon mouse.

So while we can expect more franchises running forever, really they put Jason from Friday the 13th in space.

All content is belong to them & they reserve the right to deny that even if you paid them that you have any rights.
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Yes, I know I'm commenting anonymously, 13 Jul 2017 @ 3:53am

This is a logical continuation of the Down Under (Men at Word) verdict.

Everybody is now going to be inspired by Mozart, Bach c.s. (until all music gets pulled from the Public Domain.)
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TMC, 13 Jul 2017 @ 4:53am

Good company
So, have Marvin Gaye's horrible little shits tainted his contribution the same way Sonny Bono and Gershwin's estates ruined their's in supporting Life + 70?

Kinda feels that way.
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Anonymous Coward, 13 Jul 2017 @ 4:53am

Copyright is killing culture. So what else is new?
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MyNameHere (profile), 13 Jul 2017 @ 5:04am

Inspiration is not the same as duplication. You can be inspired by an artist without risk - unless of course you are reusing their music with slightly more modern sounds.

Blurred Lines case wasn't really hard to understand, it's not inspiration as much as duplication. It's more than a homage, it's all of the same things (bass line, beat, vocal style, "crowd sounds", and so on) just given a slightly modern sound. Aside from the lyrics being different (but presented in nearly the exact same phrasing) the songs are pretty much identical.

Homage and duplication are often close. This one is not hard to see as being over the line.
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orbitalinsertion (profile), 13 Jul 2017 @ 5:06am

Re: Mission... accomplished?
There is an old science fiction story about exactly this. They raise children completely alone with tools for creativity and no exposure to the outside world.

You'd have some pretty fsckd-up human beings as a result of this, but i think the fsckd-up human beings who make demands along these lines would be just fine with this, yeah? Pretty sure the members of Marvin Gaye's estate would have loved it if he had been raised like that.

The other thing about contracts... well, er, given recording companies demand the musicians they sign list their influences for their purposes, i am pretty sure any future hungry lawyer would be on the subpoena train demanding those contracts and relevant records, no matter what artists are made to claim in public.
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Anonymous Coward, 13 Jul 2017 @ 5:43am

it all goes back to allowing the entertainment industries as a whole do exactly as they have wanted for decades, in getting civil laws being changed to criminal laws, in punishments for what should be nothing but minor discrepancies turned into more severe than real crimes like rape, murder, bodily harm and some stupid artists allowing themselves to be used to further the greed of certain industry bosses when nothing actually went to the artists! also allowing those same bosses to keep control of something rather than joining the digital age, while stifling progress in all forms of entertainment through that greed and pure fear! everyone else is losing here but even politicians, after being 'encouraged' to let this carry on cant see or wont see the harm being done! ridiculous!!
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David, 13 Jul 2017 @ 6:05am

So?
You join a copyright society and let them determine fair shares for a reasonable percentage, just like judge monkey in Aesop's fable does, breaking the contested cheese in two and then biting off from the two pieces alternately to make them match in size until only a minor fraction is left which he then takes as his payment.
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Ryunosuke (profile), 13 Jul 2017 @ 6:26am

Re: Re: Mission... accomplished?
something about 100 monkeys with 100 typewriters?
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AEIO_ (profile), 13 Jul 2017 @ 6:43am

...and decided that inspiration was copyright infringement.
So in other words: "You didn't build that?"
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Anonymous Coward, 13 Jul 2017 @ 6:51am

Re:
"This one is not hard to see as being over the line"

I disagree. I'd say that line is very blurred.
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Ninja (profile), 13 Jul 2017 @ 6:54am

Re:
At some point it will start biting themselves in the ass. They love to create pop stars. It will be fun to watch when other actors come after them for parts of the songs looking too similar. Sadly, culture will have already paid the price for the copyright idiocy.
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Ninja (profile), 13 Jul 2017 @ 6:55am

Re:
All hail the wisest person in the world, the one that can easily discern music from copy. Please judge us oh holder of all tastes and opinions!

Have I mentioned you are an idiot?
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Ninja (profile), 13 Jul 2017 @ 6:57am

Time to start suing everybody for using prior art. Yes because EVERYBODY is inspired by something at some point. Every. Single. Work.

Let the chaos ensue.
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Anonymous Coward, 13 Jul 2017 @ 7:05am

Honestly, how far will this go? Will the estate of Bob Dylan one day* sue INXS for their song Mediate (and of course, the music video) which is not secretly an homage to Subterranean Homesick Blues?

(*Not wishing you harm, Bob)
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ECA (profile), 13 Jul 2017 @ 7:40am

Inspired
To paint my house, THIS WAY/THAT WAY. another way...and NOW I have to pay homes and garden..

Im inspired by the music, and Get Laid?? Oh! know!!! Who do I name the kid after..

Music inspired my DOG TO LEAVE ME...

A comic book Inspired me to be SUPERMAN..

The Bible Inspired me to FIX THE WORLD..

Im inspired to Shut up and sit down..
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Anonymous Coward, 13 Jul 2017 @ 7:48am

Re: Mission... accomplished?
"I've run across people that argued that creativity only counts if it's entirely isolated, that real creators don't build upon what came before"

Of course, this makes all famous artists not real artists since they all build on something.

If not another work, then something that exists in the real world.
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jupiterkansas (profile), 13 Jul 2017 @ 7:56am

Re:
You'll just be infringing on someone else who was inspired by Mozart before you were.
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This comment has been flagged by the community. Click here to show it

Anonymous Coward, 13 Jul 2017 @ 8:08am

Good grief. In the world "According to Techdirt", there should be absolutely no copyright, where everyone can steal an idea from what someone else has created.

Copyright does not stifle innovation and change, it stimulates innovation and change. If we didn't have copyright, nobody would create anything because of the fear that someone might steal their idea or creation.

Must be nice to be thieves of copyright content, huh?
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Anonymous Coward, 13 Jul 2017 @ 8:13am

This could never have happened currently
www.youtube.com/watch?v=_ABbxQk92AA
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Bergman (profile), 13 Jul 2017 @ 8:17am

Re: Re: Re: Mission... accomplished?
Actually it's more like infinite monkeys on infinite typewriters.

The universe isn't old enough for 100 to have any effect.
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Bergman (profile), 13 Jul 2017 @ 8:20am

Re: Re:
So make a modern recording of an old Mozart score, and at least in the EU that gives you copyright on the Mozart score under the same legal theory that photographing an old public domain painting gives you a copyright interest.

Then, armed with your shiny new registered copyright (endorsed by a major government) you then sue everyone who was inspired by Mozart for creating derivative works based on your copyright -- which is pretty much anyone who ever made music, one way or another.

Public domain? What public domain?
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Anonymous Coward, 13 Jul 2017 @ 8:27am

Response to: Anonymous Coward on Jul 13th, 2017 @ 8:08am
Except there's plenty of creators that place their works in the public domain upon publication so the idea that copyright is necessary for that is clearly incorrect
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Anonymous Coward, 13 Jul 2017 @ 8:33am

I'm sorry your not allowed to breathe .....
Please place this plastic bag over your head and inhale deeply .
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Anonymous Coward, 13 Jul 2017 @ 8:34am

Re: Response to: Anonymous Coward on Jul 13th, 2017 @ 8:08am
Oh, and there's even artists who use copyleft licensing instead of public domain for their creations precisely because they despise the idea of the copyright monopoly and wish to have a sort of anti-copyright in effect for derived works.
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Anonymous Coward, 13 Jul 2017 @ 8:44am

Re:
"If we didn't have copyright, nobody would create anything because of the fear that someone might steal their idea or creation."

You simply must be trolling. Nobody can really be that stupid.
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MyNameHere (profile), 13 Jul 2017 @ 8:59am

Re: Re:
NInja, is that all you can add?

Listen to them back to back. Listen to some of the examples that play them back and forth, it's pretty clear stuff. They are effectively interchangeable.

As for you insults, well, if that's your only answre, I guess you are agreeing with my point (and yes, I am wise enough to know that, idiot!)
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Anonymous Coward, 13 Jul 2017 @ 9:11am

Re:
Nothing was ever created before the Statute of Anne? I almost hate making fun of someone as dumb as you, almost.
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Anonymous Coward, 13 Jul 2017 @ 9:13am

Re: Re: Re:
Bitch about richly deserved insults. Next sentence, insult. Copyrights best and brightest on display right here boys and girls.
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Anonymous Coward, 13 Jul 2017 @ 9:30am

Re:
Eh, you're not really qualified to decide between inspiration and copy. Hell, you consider samples lasting two seconds to be unreasonable.
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Anonymous Coward, 13 Jul 2017 @ 9:49am

If we want to keep going with this absurd Copyright system (and it sure seems that way :( ), we're going to need something similar to the FRAND system but for Copyright (especially older works).
Right now a rightsholder is allowed to overcharge for or even outright deny one a license regardless of how much money one is willing to pay.
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Anonymous Coward, 13 Jul 2017 @ 10:10am

Don't care
If I ever make a work based on another, I'll still explicitly name who or what influenced it- all while taking a jab at the Marvin Gaye estate's lawyers, to boot.
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Anonymous Coward, 13 Jul 2017 @ 10:11am

Re:
All human creativity builds on what went before, as is recognized in the sciences by authors citing the works they are building on. It also stands to reason that whole and only reason that recognizable musical genres exist is because artists borrow from each others works.
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Anonymous Coward, 13 Jul 2017 @ 10:20am

Re:
remember kids, copyright infringement is not theft

"If we didn't have copyright, nobody would create anything "

So, where did all that classical music come from?
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Thad, 13 Jul 2017 @ 10:27am

You know, I'm beginning to suspect that Marvin Gaye's family members may not be good people.
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Anonymous Coward, 13 Jul 2017 @ 10:29am

Re: Re: Re: Re: Mission... accomplished?
Infinite monkeys on infinite typewriters would recreate everything instantly. The way I'm used to hearing it is "given enough monkeys on typewriters and enough time..."
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Rotanev, 13 Jul 2017 @ 10:37am

Re:
You know, I really wish you'd quit duplicating other people's words and letters. Please create your own, from scratch, so we aren't subjected reading your crap.
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Anonymous Coward, 13 Jul 2017 @ 10:43am

Abolish Copyright
Completely.
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Dark Helmet (profile), 13 Jul 2017 @ 11:11am

Re:
"Good grief. In the world "According to Techdirt", there should be absolutely no copyright, where everyone can steal an idea from what someone else has created."

Well, in the world "According to Techdirt" and the god damend law, there's the idea/expression dichotomy, which makes your sentence above proof that you're a complete moron on matters of copyright. Thanks for putting that out there for us, dummy!
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Anonymous Coward, 13 Jul 2017 @ 11:35am

Re:
Logic foul: false dilemma.
Player caught excluding possible middle ground between two extremes.
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Anonymous Coward, 13 Jul 2017 @ 12:28pm

Re: Re:
Abolition is not always bad, and compromise is not always good.

https://en.wikipedia.org/wiki/Missouri_Compromise
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Mike Masnick (profile), 13 Jul 2017 @ 12:57pm

Re:
Just to be clear: you're basically wrong on nearly all the facts (which, I know, is par for the course).

Inspiration is not the same as duplication. You can be inspired by an artist without risk - unless of course you are reusing their music with slightly more modern sounds.

They didn't reuse anything. Wrong.

Blurred Lines case wasn't really hard to understand, it's not inspiration as much as duplication. It's more than a homage, it's all of the same things (bass line, beat, vocal style, "crowd sounds", and so on) just given a slightly modern sound. Aside from the lyrics being different (but presented in nearly the exact same phrasing) the songs are pretty much identical.

Let's be clear: "bass line, beat, vocal style, crowd sounds..." are NOT COPYRIGHTABLE. Even worse, you apparently don't even seem to know that the lawsuit is NOT over the sound recording, but the COMPOSITION, and the crowd sounds, vocal style, etc are NOT A PART OF THE COMPOSITION.

It's hard to see how you could be more wrong.

Homage and duplication are often close. This one is not hard to see as being over the line.

Only if you have no clue about the law... or are deliberately misrepresenting it.
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Anonymous Coward, 13 Jul 2017 @ 12:58pm

Re: Re: Re:
I didn't say either of those things. The person I was responding to took this techdirt article to imply that the people at techdirt want to abolish all copyright simply because they disagreed with this situation; completely ignoring the possibility that the writers at techdirt merely want a scaled back and saner copyright system.

Personally, I would entertain the idea of abolishing copyright, but maybe creating some kind of mandatory attribution system where you are free to take and reuse all you want, but if you are selling some one else's work you must provide attribution of who/where you found it. I don't know what the specifics would need to be with such a system or what unintended consequences it might yield, but I think it's worth exploring.
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Not an Electronic Rodent (profile), 13 Jul 2017 @ 1:12pm

Simple

"Many of the companies that I work with ask the producers and the artists to declare all of the tracks that may have been used as inspiration for their new tracks,"

Well, that's easy; In that box under the question you write, "Every single piece of music I've ever heard may have inspired this track"... Because that's how creation works!
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Advocate (profile), 13 Jul 2017 @ 3:35pm

Eliminate copyright!
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Advocate (profile), 13 Jul 2017 @ 3:39pm

also... blah blah, Hitler.
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Anonymous Coward, 13 Jul 2017 @ 4:13pm

We had a similar kind of case/judgement in Australia regarding the song Kookaburra and two bars may or may not have been used in (what is considered) an iconic song "Down Under" by Men at Work. Our High Court refused to hear the case in 2011.

It was decided that it was copyright infringement eventhough it was only two bars and the judge relied on "musical experts" to objectively determine if they were the same.

Sadly this (Blurred Lines) decision isn't that surprising. If two bars can be copyright infringement, the the "feel", etc of an entire song would most certainly be.
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MyNameHere (profile), 13 Jul 2017 @ 6:11pm

Re: Re:
With all due respect, I understand that each of those elements BY ITSELF is not copyrightable. However, they are the easiest parts for people to listen to in order to follow along with the composition to see how it's just the same song.

The bass, drums, and vocal patterns are all part of the composition - unless you are trying to deny that each can be written music (and for those who don't think drums can be written, go find the sheet music to Frank Zappa's The Black Page to understand more).

"Only if you have no clue about the law... or are deliberately misrepresenting it."

I actually think you are misrepresenting it here. How is composition defined for music?

"Musical composition can refer to an original piece of music, either a song or an instrumental music piece, the structure of a musical piece, or the process of creating or writing a new song or piece of music. People who create new compositions are called composers in classical music."

The composition is made up various parts, generally written out as a musical score. That would include (and not be limited to) musical notations for each of the instruments that appears in the song. It would indicate things like tempo, pace, and structure, and would determine the interplay between the instruments.

In modern music, the use of samples and / or repeating sounds is part of the composition of the song. All of those things can be written in mustical notation and thus are part of the composition.

Now, playing the finished result (which is copyright in and of itself as a musical performance) and comparing it to another finished product (itself copyright) isn't anything more than an easy way for people who are perhaps less skilled in the art of composition to hear the finished products and compare them. If it had no meaning, then the two songs would never have been played in court because it would be (in your opinion) a non-relevant comparison.

So, let's make it clear: "bass line, beat, vocal style, crowd sounds..." ARE COPYRIGHTABLE as part of the composition. They cannot be copyrighted individually but as part of a composition, they could be. Not the "sounds" but the musical notes, pattern, and pacing as part of the composition.

After all, a composition is a collection of parts.

Put another way:

"A Musical Composition consists of music, including any accompanying words, and is normally registered as a work of performing arts. The author of a musical composition is generally the composer and the lyricist, if any. A musical composition may be in the form of a notated copy (for example, sheet music) or in the form of a phonorecord (for example, cassette tape, LP, or CD)."

So, as an example, if there was no specific sheet music for the Marvin Gaye song, then the recording can serve the same purpose for proof of composition. That recording would reflect things like notes played, pacing, and the interplay between the instruments set up as part of the composition.

The internet is a great resource if you use it!
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dropcap (profile), 13 Jul 2017 @ 6:23pm

Re:
This post is going to cost you in a few years when referencing becomes infringement and some algorithm finds that "all your base" allusion.
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Anonymous Coward, 13 Jul 2017 @ 6:26pm

Re: Re: Re: Re: Re: Mission... accomplished?
No, it's "An infinite number of monkeys sitting at a single typewriter will condense into a singularity that manifests all Shakespeare's plays into reality."
I'm pretty sure.
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dropcap (profile), 13 Jul 2017 @ 6:41pm

Except that melody has always been considered copyrightable, while feel is so vague that it's always been seen as outside the scope.
Land Down Under absolutely should have been fair use/dealing, but it was also absolutely making (entirely justifiable) use of a copyrighted portion of a song. It was a bad fusion, but blurred lines is much worse.
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Mike Masnick (profile), 13 Jul 2017 @ 11:12pm

Re: Re: Re:
With all due respect, I understand that each of those elements BY ITSELF is not copyrightable. However, they are the easiest parts for people to listen to in order to follow along with the composition to see how it's just the same song.

Um. Nope. You're just wrong. Hilariously so.

The bass, drums, and vocal patterns are all part of the composition - unless you are trying to deny that each can be written music (and for those who don't think drums can be written, go find the sheet music to Frank Zappa's The Black Page to understand more).

I didn't deny that they can be a part of the composition. I'm saying that the vocal patterns and the crowd noises specifically were DEEMED IN THIS CASE TO NOT BE PART OF THE COMPOSITION. The very thing you are insisting is true is simply not true and the case specifically said that.

From the judges ruling in the freaking trial:

The Court continues to adhere to the view that the copyright deposit sheets, rather than the sound recordings, define the scope of the subject matter protected by the copyrights

And also:

elements that appear in the Gaye sound recordings, but are absent from the copyright deposit sheets -- the only publications submitted by Defendants as evidence of their copyright ownership -- are not protected by the copyrights

So you can go on and on about how "the internet is a great resource if you use it" but it's pretty clear you did not use it.

Similarly, your argument that the songs are basically the same is... well... wrong. http://flavorwire.com/508795/heres-why-the-blurred-lines-copyright-decision-is-wrong

In fact, they’re not even similar. They’re set in different keys, with Thicke’s song in G major and Gaye’s in A major — but even if they weren’t, Gaye’s composition still has a different set of chords and Thicke uses a clever twist that Gaye doesn’t.

There are literally only two chords in “Blurred Lines”; a lot of people have inappropriately labeled it G to D, but it’s actually C/G to D. That’s one of the gratifying things about the song: because the C chord doesn’t have a C in the bass, it maintains tension throughout. It would’ve made an interesting, albeit short, feature for Owen Pallett’s Slate series: the genius of Williams and Thicke has the bass doing one thing, and everything else doing another.

This progression is known as IV to V, and it’s one of the most common set of harmonies in all of music; it happens in every single doo-wop song, and in roughly half of all pop songs and classical compositions. A bassline that never hits the root or truly resolves is unusual nowadays, but it’s actually the defining trait that makes the opening moment of “Blurred Lines” funky.

On the other hand, “Got to Give it Up” has twice as many chords as Thicke’s (four versus two), and includes the IV to V chord progression on every repeat. Each repeat resolves, never using the strange tension in the bass the way “Blurred Lines” does.

The strongest point to make here is that even if you put them in the same key, “Got To Give It Up” and “Blurred Lines” would not be mistaken for the same song. If the similarities in chords are enough for the songwriters to owe Gaye, than Smokey Robinson should hire a good lawyer; the chord progression to “Got To Give It Up” is commonplace in soul, and as the leading Motown songwriter, Robinson used IV to V on several hits a decade before “Got to Give it Up” was released.

So, yeah. Wrong, wrong wrong. What else you got?

In modern music, the use of samples and / or repeating sounds is part of the composition of the song. All of those things can be written in mustical notation and thus are part of the composition.

Right, but in this case THESE THINGS WERE NOT IN THE SCORE. NO matter how many times you insist they could be, they weren't.

Now, playing the finished result (which is copyright in and of itself as a musical performance) and comparing it to another finished product (itself copyright) isn't anything more than an easy way for people who are perhaps less skilled in the art of composition to hear the finished products and compare them. If it had no meaning, then the two songs would never have been played in court because it would be (in your opinion) a non-relevant comparison.

This is a confused mess of ignorant garbage. 1. Yes, the sound recording has its own copyright -- but that copyright is not held by the Gaye family and was not even at issue in this case. 2. The sound recording copyright is not a performance copyright. That's something entirely different. 3. The only issue in this case was the deposit copy copyright and THAT DID NOT include the elements you cited as similar (which, as noted above, aren't even as similar as you claim).

Your wrongness continues to be legendary.

So, let's make it clear: "bass line, beat, vocal style, crowd sounds..." ARE COPYRIGHTABLE as part of the composition. They cannot be copyrighted individually but as part of a composition, they could be. Not the "sounds" but the musical notes, pattern, and pacing as part of the composition.

And yet, they WERE NOT COVERED by the copyright in this case AS STATED BY THE JUDGE.

So, as an example, if there was no specific sheet music for the Marvin Gaye song, then the recording can serve the same purpose for proof of composition.

This was discussed in the case. You seem to be ignorant of that fact, but are mouthing off like an expert. You are wrong.

The internet is a great resource if you use it!

This is more ironic than you can possibly imagine.
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Mike Masnick (profile), 13 Jul 2017 @ 11:15pm

Re: Re: Re: Re:
Oh yeah. One more from the court:

Elements that appear in the sound recording, but not the copyright deposit, include backup vocals, percussion parts and the use of party noises as accompanying sound. Id. at 17-18, 21. In addition, the distinctive sound of Marvin Gaye’s voice is beyond the scope of the composition copyrights at issue. See 1-2 Nimmer on Copyright § 2.10 (performer’s “emphasis,” “shading,” “tone of voice,” “inflection,” and “timing of a vocal rendition” may be copyrightable under 1976 Act as a sound recording, which “must be distinguished from . . . the underlying musical composition”).

So your long treatise on how they might be a part of the composition copyright was directly contradicted by the judge in this very case. So, let's see how you respond to this.
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PopeyeLePoteaux (profile), 13 Jul 2017 @ 11:51pm

Re:
"Good grief. In the world "According to Techdirt", there should be absolutely no copyright, where everyone can steal an idea from what someone else has created."

Ideas are non material "objects" that do not get destroyed when consumed (as opposed to any material object) and whose production does not require direct consumption of material inputs, as what economists call services do.

The economic concept of trade on which all arguments about the efficiency of markets based on well defined property rights, simply cannot be meaningfully applied to ideas, it makes no sense to "steal" an idea.

"Copyright does not stifle innovation and change, it stimulates innovation and change. If we didn't have copyright, nobody would create anything because of the fear that someone might steal their idea or creation."

Sure, because without copyright, all the ancient literature and music that were created without needing it wouldn't exist even if the Statute of Anne was created until 1710.

"Must be nice to be thieves of copyright content, huh?"

How infringement is stealing again? If I steal something, the owner no longer has the object I stolen, whereas infringment can entail copying it, no material object is lost.
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PaulT (profile), 14 Jul 2017 @ 1:17am

Re:
What's sad is that the liars on one side of the debate have stretched their arguments to such degrees that it's impossible to tell if you're serious, whereas a few years ago I'd have said it was an obvious parody.
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Wendy Cockcroft, 14 Jul 2017 @ 5:26am

Re: Re: Re:
Twist and Shout - The Beatles
La Bamba - Ritchie Valens

Back in the day both songs co-existed and nobody lost their minds over it.
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PaulT (profile), 14 Jul 2017 @ 6:06am

Re: Re: Re: Re:
Hmmm.. I'd never considered the similarity between those two songs but I can kind of hear it in my head now. Maybe because they're cover versions the method chosen to cover them on that occasion happens to have a similar arrangement and the new additions are what make them seem similar? I doubt that the original of the Beatles' song was directly influenced by the original Mexican folk song, anyway.

Anyway, lot of songs back then consisted of either white kids directly ripping off blues musicians with no repercussions or similar songs in the charts at the same time with no real issues. It's only really when corporations realised how much money can be at stake and civil rights started to encourage people to treat black musicians as equals that this started changing, I think.
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MyNameHere (profile), 14 Jul 2017 @ 6:09am

Re: Re: Re: Re:
There you go again. It's fun to watch you go really hard to try to prove me wrong. But in some ways you fail.

First off, let me be clear: I haven't spent hours and hours (as you clearly have) reading every word of the judge's rulings, I worked from what I know, see, hear, and various stories here and in other music related sites discussing the case.

My points were based on what SHOULD be copyright, and not what may or may not have specifically been in this case. That the composition copyright failed to include the backing vocal lyrics, or the percussion track is an oversight of the composer or arranger.

Your link to the "expert" is actually quite funny. If his information is exactly true, either Thicke had a terrible attorney and couldn't afford experts, or your quoted expert is perhaps overstating things a little bit.

Quick, call Robin Thicke, he got the wrong expert! He needs to appeal.

Now as for some of your other stuff: "So, let's make it clear: "bass line, beat, vocal style, crowd sounds..." ARE COPYRIGHTABLE as part of the composition. "

Notice "ARE COPYRIGHTABLE", I didn't say they were in this particular case. A musical composition for this type of music may have a number of sections, with arrangements for each instrument as part of it. So the bass line (as written in the arrangement) is part of the composition), as would be the percussion and all if it was included. In this case apparently they didn't include those things, which is too bad for them! If they are not part of the composition as published, then they are not copyright.

"This was discussed in the case. You seem to be ignorant of that fact, but are mouthing off like an expert. You are wrong."

Well, apparently your "expert" is wrong too, as the judge decided otherwise. Perhaps you should call him out for "mouthing off like an expert" because clearly, the courts found him wrong as well.

PS: no mention of Shiva these days. Settlement talks progressing?
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PaulT (profile), 14 Jul 2017 @ 6:23am

Re: Re: Re: Re: Re:
"I worked from what I know"

You've never furnished us with credentials, any indication that you have superior knowledge, or in fact any reason to believe a word you say. Yet, you seem to think that because you have personally come to a conclusion, then that must be fact that everyone else must blindly accept. You give nothing except "I say this and it's right", despite regular indications to the opposite.

Why should anyone believe your bare, uncited assertions that you're correct?

"PS: no mention of Shiva these days"

Why, has there been anything in court proceedings to report on that's been missed, or do you just need some random new material to feed your weird fetish?
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Dark Helmet (profile), 14 Jul 2017 @ 6:41am

Re: Re: Re: Re: Re:
"Quick, call Robin Thicke, he got the wrong expert! He needs to appeal."

HAHAHAHAHHAHAHAHAAHAHAHAHHAAHHAHAAHAHHAHAHAHAHAHAHAHAHAHAHHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA AHHAAHHA.....he did appeal, fool. Ruling is due any day now.
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Ninja (profile), 14 Jul 2017 @ 6:45am

Re: Re: Re: Re: Re:
"There you go again. It's fun to watch you go really hard to try to prove me wrong. But in some ways you fail."

It's fun to watch you in denial after you've been properly smacked.
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Ninja (profile), 14 Jul 2017 @ 6:51am

Re: Re: Re: Re: Re: Re:
Shiva is all he has to attack Mike these days. I suspect he is going the suicide route once Mike wins because his life will be empty.
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Anonymous Coward, 14 Jul 2017 @ 7:41am

Re: Re: Re: Re: Re: Re:
There's also the fact that he openly admits to arguing not about what's actually in the lawsuit but what he thinks should be relevant.

It's like Otis Wright all over again. Apparently the guy with a never-ending bone to pick with Mike Masnick thinks himself above judges, unless they're Beryl Howell or Liam O'Grady.
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Mike Masnick (profile), 14 Jul 2017 @ 10:48am

Re: Re: Re: Re: Re:
First, I accept your apology.

Second, let's summarize this conversation:

YOU: This is obviously infringement, not even close. All these things are exactly the same.

ME: You know, the things you cite are not in the relevant copyright as laid out in the case.

YOU: You ignorant dumbass. Those things sure are copyrighted. If only you used the internet to educate yourself.

ME: Here are actual quotes from the lawsuit showing you you're absolutely wrong.

YOU: I worked from what I know... and what I think SHOULD be the law is more important.

Oh wait. I'm looking and it appears that your apology for being totally wrong went missing. Perhaps the spam filter caught it? Or maybe in your rush to type more nonsense you accidentally forgot it? Either way, I accept your apology and hope that you'll be more careful in the future.
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MyNameHere (profile), 14 Jul 2017 @ 1:27pm

Re: Re: Re: Re: Re: Re:
Yes, I apologize that you clearly didn't catch the difference between "ARE COPYRIGHT" and "ARE COPYRIGHTABLE". That Marvin Gaye or his arranger or composer didn't include appropriate sheet music for certain parts of his song is a pretty major oversight on their part, but likely not unusual I guess.

I accept your apology for going off on me for not noticing the difference. Either way, I accept your apology and hope that you'll be more careful in the future.
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MyNameHere (profile), 14 Jul 2017 @ 1:30pm

Re: Re: Re: Re: Re: Re:
I was joking - an appeal is generally only on what was already in the case, he can't bring in new experts to add testimony. Appealing a loss is pretty much a given in the US legal system, right?

My point is only that clearly Mike's "expert" either has it right and should have been at trial (and the experts at the trial were bad) or he's just plain wrong in some manner. Clearly the judgement went the other way, for obvious reasons.
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Dark Helmet (profile), 14 Jul 2017 @ 2:48pm

Re: Re: Re: Re: Re: Re: Re:
"My point is only that clearly Mike's "expert" either has it right and should have been at trial (and the experts at the trial were bad) or he's just plain wrong in some manner. Clearly the judgement went the other way, for obvious reasons."

I rather enjoy this line of thinking, which can be boiled down to:

"Obviously, since the first trial, pending appeal, was decided by a jury of lay people one way, then that way can be the only truth, the light, the alpha and the omega, so no further conversation is at all warranted."

I find your faith in the civil courts....disturbing.
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Chris Bingham, 14 Jul 2017 @ 3:29pm

Re: not duplicated
"Feel" and "groove" are not the same thing as actual melody and rythm. Gaye was not the first to use party / crowd sounds and a disco beat at 120 bpm in his music. The finding in this case turns everything we've been calling "composition" in copyright on it's head.

I challenge you to write out every part from both tunes in the same key and find *any* overlapping rhythms and melodies. You'll be hard pressed, because they simply aren't there.

My best guess is that a jury of musically illiterate "consumers" found differently, because probably not one of the twelve has ever actually performed music from a score.(Example: a music theorist testified some examples were "implied")

Williams and Thicke's lawyers had horrible clients. I'd want to "stick it" to Thicke just for making the video he did. But if you listen only to the melody and rhythms, without "crowd sounds" the intervals don't land in the same places. Any player gets that immediately. Consumers just hear the wall of sound.

There is plenty of similarity in the instruments used. But if this case survives appeal, you can bet the Gaye estate will be among the many sued by the people that inspired Marvin.
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Anonymous Coward, 14 Jul 2017 @ 3:46pm

Two versions of copyright PA / SR
One can copyright the sound recording, which included the "crowd sounds" and everything we hear in the recording. (Use form SR to register) That was not at issue, because the same company owned that copyright.

What was at issue was the exact structure of the melody and rhythms, which is what notes are played when. (Us for PA to register.) Any *player*, if you put two bands together and hand them play the songs as written, (even if you transposed them into the same key) would be playing radically different combinations of notes and rhythms.

I can only guess that the jury ignored the central issue, listened to the wash of sound, and decided the songs sounded the same regardless of what the players actually played. Every "genre" band in the world better watch out. Nothing you do is original, no matter how different. Blues players, just give up now. I, IV, V belongs entirely to Robert Johnson.
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Stevo (profile), 15 Jul 2017 @ 5:37am

Re:
if you could read music notation you would see there is not a single duplicated line.
Pharell is smart enough to know how to legally steal. But unfortunately for him the case was decided by a jury too stupid to know how smart he is! No tragedy as it's a terribly crap song and he doesn't need the money.
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Stevo (profile), 15 Jul 2017 @ 5:41am

Re: Re:
there was copyright and print royalties even in the time of Mozart and Beethoven. it's partly how Beethoven became wealthy and very much part of how composers freed themselves from the slavery of patronage and entering thru the servants entrance.
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MyNameHere (profile), 15 Jul 2017 @ 1:27pm

Re: Re:
What you mean is the jury was smart enough to see what he was doing, and held him responsible for it.
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Anonymous Coward, 15 Jul 2017 @ 2:50pm

Re: smart jury
So I guess you believe OJ Simpson is innocent?
You know as ignorant of law and the events in this case as you are the rudiments of music.
The jury decided quite correctly that Pharell, Thicke and even more so their lawyers are assholes. They redistributed the wealth to the more needy and sympathetic family of Marvin Gaye.
It’s been well established for a century that you can’t copyright styles or genres or Georgio Moroder would own every house music track of the last 40 years since it’s all based on the arrangement of I Feel Love.
30 years of Drum and Bass would belong to the drummer that blew his fill and created the ‘Amen’ beat.
The estate of Chuck Berry would own most rock music since 1956. Led Zeppelin would have sued Guess Who for their copycat song American Woman, but oh wait Steve Marriot would own every Zeppelin song because Plant based all of his singing on the style Marriot’s singing in the Small Faces. Is there a single hair band singer of the 80s who wasn’t copying Ian Gillans’ high vibrato ?
Lawsuits about music should be judged before a board of trained musicians not well meaning but ignorant civilians. Music is math and math is science and the science tells us that Blurred Lines and Got to Give it up are fundamentally different even tho they ‘sound’ similar. Songwriting infringement cases are traditionally based on the melodic and lyric elements as they are indicated on the lead sheets.
Music notation is the DNA test of song ownership, it’s that moment when Maury Povich comes out and tells the trailer park cuck he’s not the babymaker.
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MyNameHere (profile), 17 Jul 2017 @ 1:49am

Re: Re: smart jury
If course, the problem you have here is that they borrowed quite a bit too much to get to the finish line. They didn't borrow just a style, they literally borrowed the whole song.

Yes, they used a different key - mostly because Thicke's vocal range is smaller than most (I was going to say smaller than Leigh's family treasure, but that would be mean). It's basically been moved to where he could sing it.

As always, the line between "inspired by" and "wholesale replication" is blurred. I think the jury saw it correctly, it's not homage when it's way too close.
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Wendy Cockcroft, 17 Jul 2017 @ 2:46am

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From what I understand you are correct. I half remember a story about the Rolling Stones causing consternation when they invited their Blues heroes to meet them backstage and treated them as equals — because they had been inspired by their work.

Much of our culture as we know it today wouldn't exist at all if the right to use it had been locked up.
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Jeremy2020 (profile), 17 Jul 2017 @ 7:11am

Re: Re: Re:
I listened to them. I wasn't confused. I was easily able to tell which song I was listening to...
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Jeremy2020 (profile), 17 Jul 2017 @ 7:15am

Re: Re: Re: Re: Re:
it should be easy to cite the judge's words. Please do.
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John85851 (profile), 17 Jul 2017 @ 11:20am

But where do influences come from?
"Mr Oxendale says some artists are now having the requirement to name their influences written into contracts by their record labels"
And how exactly is this done, especially when artists may not even know consciously where their influences come from? How many artists seem to make something up, but in reality, all kinds of influences and pieces and parts have been rolling around their head?
Are we heading down the path of "Well, you should have known that your song maybe could have been influenced by this other song"? Well, gee, of course a musician is going to be exposed to other songs.
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Anonymous Coward, 17 Jul 2017 @ 2:26pm

Let's see the copyright cartel starting to sue dead people. Oh wait...
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PaulT (profile), 18 Jul 2017 @ 12:08am

Re: But where do influences come from?
My guess will be that they know the musician cannot possible name such things, but that's not the point. It's to protect the label from liability if they're sued by someone not on that list, and ditch the artist through some kind of breach of contract, leaving his out to dry.

If you're looking for honesty and logic outside of "protect ourselves at all costs" in a record label contract, you're looking in the wrong place.
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Too Much Coffe Man, 9 Sep 2018 @ 1:34pm

Re: Re: Re: Re:
The main similarity of the songs is that they both employ a I-IV-V chord progression, a progression used by hundreds of thousands of songs. Furthermore, it was not originally recorded by the Beatles.
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