(photo: Kevin Mazur/WireImage)
There are some lines that should never be blurred. And one of those is the line that separates simple homage from “infringement.” Unfortunately, the jury that decided the “Blurred Lines” case couldn’t decipher any line at all, with a verdict that put an “in the spirit of…” song in the same categoryas outright plagiarism. Under these standards, just about every song you everloved is actionable.
Not to take too selfish an interest in the outcome, but you know who’ll fare worst because of this decision? Music journalists, because every time we ask a musician the stock question about who their influences are from now on, the smart ones will zip their lips and cite their right to an attorney.
In all seriousness, honestly we’ll be the first casualty. Would this case have ever gone to trial if Robin Thicke and Pharrell Williams hadn’t been candid in pre-lawsuit interviews about their desire to do a sexy R&B party song in the style of Marvin Gaye’s “Got to Give It Up”? You can find plenty of folks who’ll say “Blurred Lines” reminded them of the Gaye song without having first read the comparisons, but without the creators copping to their intention, it’s hard to imagine what the Gaye estate’s case would have been, given the utter lack of melodic or lyrical similarities between the two songs.
As the Roots’ Questlove said to Vulture last year, “If it were a case of melodic plagiarism, I would definitely side with the estate… (But) it’s a feeling. Because there’s a cowbell in it and a Fender Rhodes as the main instrumentation — that still doesn’t make it plagiarized.” (More cowbell? You’d better be consulting with your lawyers, Will Ferrell.)
The weirdest wrinkle is that the jury wasn’t even instructed to evaluate the merits of the comparison based on Gaye’s recording of “Got to Give It Up” because his family only owns the copyright to the composition, not the single itself. So the verdict was supposedly decided just based on the sheet music, even though, when you strip away the obviously tributary arrangement, it’s difficult to find any similarity at all in the words or chords. You can only surmise that this was a case decided less on derivation than douche-iness. (Sorry to use the D-word, but Google it together with “Robin Thicke” and you’ll see the voluminously unflattering results.)
(photo: Nick Ut/AP Photo)
It’s possible that a jury of his peers would have elected to send Thicke to the chair just based on the “Blurred Lines” video. Throw in the Paula album, and a lot of folks would throw in being dragged through the streets behind a truck prior to capital punishment. Now throw in some actual testimony from the man himself about how he lied when he took credit for co-writing the track, which, while surely true, makes him appear to be throwing Pharrell under the bus; add the parts where Thicke claimed he was stoned out of his mind while doing all the interviews where he discussed the non-collaboration, and you’ve got the least sympathetic defendant in recent memory who did not actually set off a nail bomb.
But if they’re coming for Thicke today, they could be coming for Dylan tomorrow, if the technique of using an existing song as a musical starting point constitutes both love and theft. As Bob Dylan once told the Los Angeles Times: “My songs are either based on old Protestant hymns or Carter Family songs or variations of the blues form. What happens is, I’ll take a song I know and simply start playing it in my head…I meditate on a song. I’ll be playing Bob Nolan’s ‘Tumbling Tumbleweeds,’ for instance, in my head constantly…At a certain point, some words will change and I’ll start writing a song.”
There’s another P-word to consider here besides plagiarism: “pastiche,” which means the celebration of the style of a particular genre or artist. It’s not to be confused with parody, which is largely protected by the law. In other words, a vicious satire of someone’s work enjoys a better shot at legal protection than an affectionate homage.
Among the pastiches that could have resulted in lawsuits by this standard, but didn’t: Billy Joel recently allowed that “Uptown Girl” was “an homage to Frankie Valli and the Four Seasons and it became a hit record. Who would have thought there would be a hit record by the Four Seasons in the ‘80s?”
Here’s Mick Jagger in 1977, to NME: “No, really. I’ll tell you exactly what we pinched. Y’know ‘Stray Cat Blues’? The whole sound and the way it’s paced, we pinched from the first Velvet Underground album. Y’know, the sound on ‘Heroin.’ Honest to God, we did!” He’s swearing on a Bible!
Without pastiche, we would not have such classics as the Beatles’ “Back in the USSR,” which Paul McCartney has freely admitted was his tribute to Chuck Berry’s “Back in the USA,” combined with a very open shout-out to the Beach Boys’ “California Girls.” Rather than sue McCartney, Mike Love claimed he gave McCartney the idea for incorporating the “California Girls” nod. Mind you, Love is not exactly known for an aversion to litigation.
Half the recording-artist world has paid homage to the Beach Boys at some point or another. With “At My Most Beautiful,” said Mike Mills, “”Once I had written the piano part, I realized that in some small way I might have been channeling Brian Wilson.” Time to pull back and hide the influence, right? No: “I ran with that in both the bass lines and the harmonies. Our deferential nod to one of the best musicians of all time.”
Was Christina Aguilera paying tribute to or stealing from the Andrews Sisters with “Candyman”? Should the Beatles have sued the Knickerbockers for “Lies”? Or the Rutles, the Dukes of Stratosphere, and Todd Rundgren’s Utopia, all of whom recorded delectable Beatles soundalike albums, with varying degrees of straight faces?
One Direction ran into some flack for paying possibly too much homage to the Who with “Best Song Ever.” Did Pete Townshend call his lawyers? No, Rolling Stone — to whom he said, “I like the single…The chords I used and the chords they used are the same three chords we’ve all been using in basic pop music since Buddy Holly, Eddie Cochran and Chuck Berry made it clear that fancy chords don’t mean great music – not always…I’m happy to think they may have been influenced a little bit by the Who. I’m just relieved they’re not all wearing boiler suits and Doc Martens, or Union Jack jackets.”
If you think it’s only artists as low-art as Thicke and One Direction who indulge in pastiche, consider the case of Stephen Sondheim, who made some rather frank admissions in his 2010 musical memoir Finishing the Hat. In the classic show Follies, Sondheim said, “I imitate people. But in each of these songs, there’s always something of me added to the imitation of Kern or Arlen or whoever it is. That’s something I couldn’t avoid—my own comment on the style… It allowed me to imitate the reigning composers and lyricists from the era between the World Wars, and I grabbed at it with all ten fingers and a rhyming dictionary. Follies is an orgy of pastiche.” The song “Losing My Mind,” he wrote, was “less an homage to, than a theft of, Gershwin’s ‘The Man I Love,’ complete with near-stenciled rhythms and harmonies.” (Sondheim then went on to list 11 composers and 12 lyricists he considered himself to have consciously ripped off for that one show.)
Some Sondheim buffs think he overstated just how much he leaned on those other songwriters. But here’s the thing: Wouldn’t you rather live in a world where artists are allowed the liberty of overemphasizing the debt they owe to their predecessors, instead of pretending, on advise counsel, that they’re the geniuses who thought up every subgenre from scratch?
This is not to say that plagiarism is not a real and constant thing in songwriting. But don’t applaud the “Blurred Lines” decision because it’s some kind of symbolic redress for all the pilfered bluesmen who didn’t live long enough to sue Led Zeppelin. “Let’s do something like…” are four words that have led to untold thousands of the songs we know and love. Music will be better if we don’t preemptively ban them.