The controversial music video for Robin Thicke's 'Blurred Lines' was uploaded to YouTube on March 20, 2013. Roughly two years and 370 million plays later, the number-one single made Thicke a household name, helped relaunch Pharrell's career, launched Emily Ratajkowski's career, semi-relaunched T.I.'s career, made a fan of Chicago Mayor Rahm Emmanuel, and turned a profit of $16.6 million dollars. Thicke and his team are now in the second week of a complicated trial to determine whether their hit unlawfully copied Marvin Gaye's 1977 single 'Got to Give It Up.' The beats are undeniably similar (listen to a side-by-side comparison here), but in order to win the case, Gaye's children must prove that their father's composition of 'Got to Give It Up' is embodied within the song's audio recording. In addition, they allege that Thicke's 'Love After War' ripped off Gaye's 'After the Dance.' Meanwhile, the jury of non-musical experts must figure out, what, exactly, defines "a song." As the Times notes, during last Friday's proceedings, Judge Kronstadt shared a juror's question: "Is there only one way to write a chord?"
Here are some more basic questions, answered:
What's the difference between a "composition" and an "audio recording"?
A composition refers strictly to musical notes and lyrics. An audio recording is a master file of notes and lyrics put together as a finished product, the thing you buy or stream. Marvin Gaye's children own the rights to the "Got to Give It Up" composition, but they do not own rights to the master recording.
Who does own the recording of "Got to Give It Up"?
The song was released as a single in 1977, appearing as the final track on Gaye's Live at the London Palladium. That record was published by Motown, which folded into Universal Music Group in 2011. Universal is now the parent company of many record labels—Island, Def Jam, Capitol—including smaller labels like Pharrell's own Star Trak Entertainment, which released "Blurred Lines."
Wait. Both recordings are owned by the same company?
Yes.
So... can't Universal just step in and kill the case?
No. While it's true that Universal owns the audio recordings for both "Blurred Lines" and "Got to Give It Up," it does not own the compositions.
That's weird.
It is! But keep in mind that especially in pop music, songwriters are not necessarily song performers, nor are they necessarily full-time employees of a given record label. They're often independent contractors. Linda Perry from 4 Non Blondes wrote and performed the early-'90s earworm "What's Up?" but since then, she's largely been a background figure, writing and producing hits for people like Christina Aguilera, Gwen Stefani, and Pink. And even though songwriters like Perry outsource the management of their songwriting credits to large firms like Universal, these individuals still own rights to the songs they write. However, most artists do not retain the rights to their master recordings from start to finish.
Does that relate to the difference between "Song of the Year" and "Record of the Year" at the Grammys?
Yes. Song of the Year is an award for songwriting, while Record of the Year honors the performance, production, and engineering of a written song.
But Sam Smith won both of those awards this year, and he stole that song from Tom Petty!
Only sort of! Sam Smith performed the song on the official recording, and he initially shared the songwriting credits with James Napier and William Phillips. And while the lyrics and instrumentation of "Stay with Me" are nothing like Tom Petty's "I Won't Back Down," the entire melody of the chorus—the rises and falls of Smith's voice—is very similar. In lieu of a trial, Smith reached a settlement with Petty and ELO's Jeff Lynne, Petty's co-writer. In that sense, Smith's Song of the Year Grammy and all of his future royalties will presumably be shared among the now-five songwriters, including Petty and Lynne.
Okay, but "Blurred Lines" sounds a lot more like "Got to Give It Up" than "Stay with Me" sounds like "I Won't Back Down."
To the naked ear, maybe. But the melody is different.
That doesn't make sense.
Listen to the opening drums of "Just Like Honey" by the Jesus and Mary Chain.
They sound nearly identical to the opening of "Be My Baby" by the Ronettes.
But any comparisons stop there. In fact, here's a whole list of songs with the "Be My Baby"-style drum intro. (In an unrelated court case, Phil Spector was forced to pay $2.6 million in back royalties to The Ronettes, but that had nothing to do with copyright infringement.)
Fine, but those drums are an inherent element of the "Got to Give It Up" composition, and Marvin Gaye's family owns the rights to the composition, so what's the problem?
The "Got to Give It Up" drum beat is not explicitly identified on the composition that the Gayes own. Yes, the beat is one of the most memorable parts of the whole song, but, given the fact that it is not printed on the song's "tear sheets," it's hard to legally prove that the Gayes "own" it.
Back up. I thought Thicke admitted last year that he didn't even write "Blurred Lines" in the first place.
During his September deposition, Thicke confessed that Pharrell did almost all of the work on the song. Thicke said that he was "high and drunk" when he first claimed co-authorship, and that's now part of the court record. As noted by the Times, Thicke also testified: "The biggest hit of my career was written by somebody else, and I was jealous and wanted credit. I felt it was a little white lie that didn't hurt his career but boosted mine."
Damn. Does that change anything?
In his earlier deposition, Pharrell didn't seem to care. "This is what happens every day in our industry," he said. For now, Thicke is still a major part of the lawsuit. However, if his side wins the case, Pharrell's lawyers could cite the deposition and theoretically ask Thicke to relinquish some or all of his rights and forfeit future songwriting royalties. New testimony reveals that Thicke made $5.6 million off the song, while Pharrell made $5.1 million and T.I. made around $700,000.
Why didn't the Gaye family just settle this in the first place and avoid the trial?
Thicke preemptively sued the Gayes in 2013 after getting hit with private infringement claims. The Gayes counter-sued. It's been a mess ever since.
So, in order to win, all Robin Thicke has to do is prove that the "Blurred Lines" melody (which Pharrell wrote) is inherently different from "Got to Give It Up"?
Yes and no. Both sides are calling in musicologists to break down and analyze various aspects of both songs (lyrics, hook, "signature phrase," keyboard-bass interplay). Thicke has also performed for the jury live in the courtroom.
Huh?
During his testimony, Thicke performed part of "Blurred Lines," as well as songs by other artists (U2, Bob Marley, Michael Jackson, the Beatles), to prove how similar various songs may seem. The Hollywood Reporter notes that Thicke's side is also routinely telling the jury that the Gayes retain rights to nothing except "sheet music," effectively downplaying the fact that they also own the musical composition that exists on those sheets. Consequently, the Gayes have accused Thicke's side of "poisoning" the jury.
Didn't John Fogerty also perform live in court when he was accused of plagiarizing himself?
Yes. And he won.
Why can't the Gaye family lawyer simply play both songs back-to-back? Wouldn't that solve everything?
Thicke's lawyer will not allow that, since Gaye's family does not own rights to the audio recording. The only thing the Gayes can do is hope to prove that their father's composition—his lyrics, melody, and chords—were copied in whole or in part directly within the composition of "Blurred Lines." And they have to prove that without letting the jury hear anything more than a stripped-down version of "Got to Give It Up."
How hard is that to prove?
Very.
John Hendrickson is the Deputy Editor of Esquire.com, where he oversees the site's 24/7 news operation as well as all politics coverage.
