Pharrell Williams, the singer, songwriter and producer best known for his hit “Happy,” was in U.S. District Court trial in Los Angeles this week with singer Robin Thicke. The two are accused of unfairly copying a song by Motown great Marvin Gaye when writing the blockbuster 2013 song “Blurred Lines.”
Pharrell testified in court Wednesday that the only thing “Blurred Lines” and Marvin Gaye’s “Got to Give It Up” share is a “feel,” which isn’t infringement, he said, but just an echo. Williams said he had too much respect for Marvin Gaye to copy his work unfairly.
“He’s one of the ones we look up to so much,” Williams testified. “The last thing you want to do as a creator is take something of someone else’s when you love him.”
Thicke, however, gave multiple interviews in which he cited the influence of Marvin Gaye. Asked in 2013 by GQ magazine for “the origin story behind your new single ‘Blurred Lines’?” Thicke answered, “Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye's ‘Got to Give It Up.’ I was like, ‘Damn, we should make something like that, something with that groove.’”
But months later, Thicke told Vanity Fair magazine “There isn’t one chord, one syncopation, one melody that is the same as Marvin Gaye’s song.”
Before the trial began, the court ruled that “Thicke’s inconsistent statements do not constitute direct evidence of copying.”
Trial is a rarity
Accusations of copying are commonplace with hit songs, in part because popular music is trendy, and songs that are part of a stylistic trend tend to share basic qualities with one another.
“Pop music conventions are such that there are frequently similarities between songs, and there's a gray area that will always be there,” said Michael Carroll a professor at American University Washington College of Law. What is rare with the “Blurred Lines” case, he said, is that it has gone to trial.
“A lot of these cases don't go to court.”
He pointed to the settlement recently reached between newcomer Sam Smith and veteran rocker Tom Petty. Smith’s breakout hit “Stay With Me” had almost exactly the same melody as Petty’s song “I Won’t Back Down.” Instead of going to court, Smith agreed to give Petty co-writing credit – and a share of the royalties – on the Grammy-winning song.
“All my years of songwriting have shown me these things can happen,” Petty said after the deal was made. “Most times you catch it before it gets out the studio door but in this case it got by.”
Cost is one reason such disputes often get settled before going to trial.
“It's incredibly expensive to litigate,” said Kate Klonick, a Fellow at Yale Law School’s Information Society Project.
But there is a lot of money at stake with “Blurred Lines,” enough to make the high price of litigation worth it. “Blurred Lines” has already produced profits of over $16 million. In closing arguments Thursday, the Gaye family lawyers asked for damages of $25 million.
Different notes but similar sounds
Before there was any question of damages, the jury would first have to find that the song was copied, a question that both sides presented expert musicologists to argue over.
An expert for the Gaye family found what she described as a “constellation” of similarities between the songs, including the “signature phrase” in the vocal melody, the hook, and even in the choice of “unusual percussion.”
A musicologist hired by Thicke and Pharrell’s legal team compared the notes written out in the “Got to Give It Up” sheet music with those in the sheet music for “Blurred Lines.”
“There are no two consecutive notes in any of the melodic examples that have the same pitch, the same duration, and the same placement in the measure,” she argued.
The court ruled that the jury has to consider what was in Gaye’s song as it was written out on paper and filed with the Copyright Office. The Gaye family has objected that the real similarities between “Got to Give It Up” and “Blurred Lines” are heard by comparing the finished commercial recordings.
“Any judge or jury can justify in a million different ways why they think one song is similar or why they think it's dissimilar,” said Yale University’s Kate Klonick. “How to weight all those things are inherently subjective assessments.”
How much is too much?
How subjective? Even if a jury finds one song has elements copied from another, said Boston University Law Professor Wendy Gordon, “The jury still has to consider whether the copying is so extensive as to be wrongful” How much copying is too much? “No one has an answer,” she says. “It’s a gut question.”
The closest the law in the United States comes to helping the jury decide is guidance such as this from federal Judge Learned Hand in 1923: “The collection of notes,” he wrote, “becomes an infringement, only when the similarity is substantially a copy, so that to the ear of the average person the two melodies sound to be the same.”
The jury may make that decision as early as today.