Recently I received an amicus brief from an esteemed colleague asking me to consider adding my name to a list of other esteemed colleagues in support of overturning a ruling that determined the writers of “Blurred Lines” (Pharrell Williams, Robin Thicke and T.I.*) infringed on Marvin Gaye’s “Got To Give It Up.”
The email asked for community support.
I am all for community support.
I picked up my pen.
For those of you who aren’t familiar with this case, in March of 2015, eight jurors ultimately found sufficient similarity between the 2 compositions to constitute copyright infringement. Facebook posts, blogs (mine included) and op-eds were flying.
The brief went on to suggest that if the result stands it could stifle creative expression in the future.
Geez. That's horrible!
The details of the case started flooding back. What was all the fuss about?
Oh yes…there was this: when co-writer Pharrell Williams was asked by HipHollywood.com if he was inspired by Gaye’s song, he replied, “For sure, Totally.”
However, he elaborated that it was the feeling of “Got To Give It Up” that he was after.
Fair enough. You can’t infringe on a feeling.
I want to sign. I want to sign. Who doesn't love Pharrell Williams, the artist who brought us "Happy"—the Happiest! most uplifting song in the world?
But later in a court deposition, he said it was Marvin Gaye he was paying homage to, not specifically “Got To Give It Up.”
Mr. Williams appears to be uncomfortable with the questioning. Half of me wants to hug him and make him some soup. But the other half finds the discrepancy between the interviews curious.
I twiddled my pen.
Let's face it. We’re all inspired by all the music that came before us. I’ve caught myself on more than one occasion inadvertently borrowing from Stephen Bishop and more embarrassingly "Big Bottom," from Spinal Tap." (I’m not kidding.)
There indeed are some very blurry lines between what constitutes inspiration and what constitutes copying. That said, sometimes we're so inspired that we don’t even realize we’ve crossed one.
In a GQ interview Robin Thicke spoke of what transpired the day they wrote “Blurred”: "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…’
But later in his deposition he back peddled: “When I give interviews I tell whatever I want to say to help sell records.” Really? He went on to explain he didn’t do a single interview the previous year without being drunk and high on Vicodin! (I do not want to hug him or make him soup. And I will never believe another word he says. I do however, adore his mid-deposition jacket.)
He also claimed he co-wrote the song. And then he said he didn’t.
I was very confused. So was my pen.
Just because they were channeling Marvin or a specific Marvin song, does that mean they actually ripped it? I mean…sometimes we fantasize about someone or something to get us started. Right?
But there was something else I had forgotten: After “Blurred Lines” was released, the Gaye family, hearing the similarity, assumed the writers of “Blurred” surely contacted the publisher of “Got To Give It Up” to either clear the work or share the credit. When they learned that wasn’t the case, they put forth that there should be some kind of agreement. Pharrell and Robin didn’t concur. In fact, they went a step further and preemptively sued the Gaye Estate—asking that the court protect them from any future infringement claim. That's what this case was about. The Gayes were the defendants.
Why would they preemptively sue if they felt there wasn't an issue?
I put my pen down.
To be fair, there was compelling testimony on both sides. For instance there are no shared lyrics or specific melodies between the 2 songs. Still, enough people were conflating them, and the details of why that was must have been a more compelling argument for the jury.
I don’t wish to re-litigate this case in this space. (Feel free to share your thoughts.) But certain musings come to mind in light of the pending appeal.
1- Perhaps the law should establish clearer criterior as to what it is that determines when lines have been crossed.
2- What if someday someone earned 16 million dollars from a song they would never have written if not for my song?
3- I'm a songwriter! I certainly do not want to see creativity impaired in the future.
That said, here's some truth...in writing sessions of late, with algorithms being a huge factor in predicting what the next hit will be, we strive for familiarity. We do. Familiarity sells records. And very often someone in the room will reassuringly say, “we’ll never get sued for that.”
Well, maybe we will.
And who wants to be in a courtroom for the next 10 years?
Of course, if I absolutely felt there was no over-stepping, I would take it to court.
But we do have an alternative. Say we absorbed and recycled a likeness of another song inadvertently or not… and our co-writer said—Hey, that’s a little too evocative of or too close to "Got To Give It Up,” or “Let’s Get It On,” or “Won’t Back Down” and we sorta kinda know in the back of our mind that thousands of other people were going to think so too…why ask for trouble and all that toxicity in our life? Why not make a call. Share the credit. Make friends, even. Like Sam (Smith) did with Tom (Petty). And then we could move on. Life is short. There are so many more songs to write.
And instead of impairing creativity, we’d be encouraging it, luxuriating in it, liberating it.
And we wouldn’t have to be writing on eggshells any more.
PS. For those of you who'd rather live on the edge, The NSAI offers infringement insurance for about $1500 a year. :)
*Rapper T.I. added his verse to the song after it had been written and recorded. It remains to be seen whether he will be held accountable as well.
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