The ‘Blurred Lines’ Between Homage And Theft: Or, Why We Shouldn’t Let Regular People Make Decisions

First music became meaningless, then music criticism, and now music law. Who do I blame? You.

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In high school I used to watch the Schwarzenegger classic True Lies every time Channel 7 played it, which was about four times a day unless the tennis was on. Then in year nine I saw a French film called Jackpot and realised there’s nothing new under the sun. But James Cameron didn’t just stumble across the exact same plot by accident; one was the basis of the other.

So it seems the rule has been established: either you buy the rights to something so you can remake it, or you write something you think is original and get sued.

Last week, music copyright history was made when a song (‘Blurred Lines’, by Robin Thicke and Pharrell) that sounds kinda the same as another song (‘Got To Give It Up’, by Marvin Gaye) was ruled as plagiarism by a jury of eight regular folk. Not musicologists or composers, just regular folk. Like the ones that found Adnan Syed guilty.

Really opening up a big ol’ can o’ worms, ain’t ya?

As a musicologist, I have what I like to think is a more nuanced and informed opinion on the matter. I also happen to have a song on the internet on the very topic of originality in music, and it has proven quite popular for some years now.

In fact, a suspiciously similar mash-up was performed in court by Robin Thicke in his defence. So, credentials established, my most fervent argument is this: the songs are NOT the same. You may think they sound the same, but they’re not. Nor are they similar enough to warrant a legal dispute, when there are so many examples of creative crossover in other works that were never brought to court. Before we get started, listen to ‘Blurred Lines’ here; and listen to ‘Got To Give It Up’ here.

“But they sound the same to ME!”

First, let’s break it down into the actual music. Not what you hear on the surface, but what is actually going on. Surprisingly, the HSC music syllabus covers this kind of analysis quite well. It breaks music down into six concepts that can be applied to any piece of music. They are:

Pitch: the notes;

Duration: the length of those notes, and other temporal aspects like the speed, beat, metre and pulse;

Texture: how many of those notes are played at the same time;

Tone Colour:  what instruments are playing those notes and what kind of timbre those instruments have;

Dynamics & Expressive Techniques: how loud, soft, gently, harshly, etc those notes are being played;

Structure: how those groups of notes are arranged into a larger work.

You can get a slightly more in depth explanation here.

Break down any bit of music into an analysis of these elements, and you’ll be able to explain in words what the music sounds like. Music recording and production adds another layer to it, but in terms of music writing, that’s all there is. So, in the case of ‘Blurred Lines’ vs Marvin Gaye’s ‘Got To Give It Up’,  which of these bits are the same?

The tempo is slightly similar, sure — but there are entire genres that are almost exclusively defined by their tempo. Club dance songs are usually 130 beats per minute (bpm). Fatboy Slim’s ‘Praise You’ and Katrina & The Waves ‘Walkin’ On Sunshine’ are both 110 bpm. But nobody owns speed.

They use the similar timbres and arrangement. But so does every rock band, since the genre is defined by the instrumentation. Nobody owns the cowbell.

“I beg to differ, young man.”

As far as pitch goes, the chord progressions are completely different. They are in two different keys. One of the arguments made in court was the similarity in the melodies. This blog post shows the pitch elements in question, and demonstrates how tenuous the connection is. Have you ever been whistling a tune and then you unconsciously merge into another tune because they have three or four similar notes? That’s a $7 million lawsuit right there.

In terms of the other elements of pitch and duration, like the bass line and the cowbell, it is easily proven how different they are simply by looking at the sheet music. This guy does exactly that, and very well too.

New Statesman has a good synopsis of how all that information confirms that the songs are not the same, titled ‘If You Think Robin Thicke’s Blurred Lines Plagiarises Marvin Gaye, You Don’t Understand Songwriting’.

“But they STILL sound the same to me!”

So, after reading all of that, you STILL disagree? Okay then, here are more examples of songs sounding similar. Call the lawyers, because everyone is a thief.

Westlife’s ‘You Raise Me Up vs Bette Midler’s ‘Wind Beneath My Wings

Listen to the second line of each chorus; same melody, over the same chords. But litigation was probably out of the question here, since they are both borrowed from the Irish traditional Londonderry Air.

Sisqo’s ‘Thong Song’ vs The Beatles’ ‘Eleanor Rigby

Same chords, done with strings.

Bruno Mars’ ‘Locked out Of Heaven’ vs The Police’s ‘Can’t Stand Losing You’

The second ‘Locked Out Of Heaven’ starts, it sounds like The Police, thanks to the off-beat quaver rhythm of the guitar.

Critics have suggested that the influence of The Police is obvious, and Mars himself admitted to emulating the style in writing the song. And yet, no lawsuit.

Mark Ronson’s ‘Uptown Funk’ vs Michael Jackson’s ‘Jam’

There’s already a few different mash-ups of this on Youtube, but I made my own to illustrate the similarities in the choruses. They are in the same key. They are almost exactly the same tempo. They have the same chord progression for practically the entire song from Dm7 to G7, save for a variation in the verse of ‘Jam’. They both base their melodies on the same Dorian mode.

And, most strikingly, their choruses are both centred around funky three-note horn licks contained within a descending perfect 4th and resolving to the tonic, or root of the scale. If none of that makes sense to you, just listen to them back to back.

If this idiotic “mash up” is enough to spark that controversy, surely mine should be enough to start another lawsuit.

Because it is only elements that are universal within a particular style that have been argued are copied, the Gaye vs ‘Blurred Lines’ case suggests that any artist who emulates not a specific musician’s sound, but an ENTIRE GENRE, is in breach of the copyright of whoever did it first. Is the implication, then, that no other film maker can have their hero leap out of the sixth storey window moments before the building explodes behind them, because Michael Bay?

“Animation is built on plagiarism! If it weren’t for someone plagiarising The Honeymooners, we wouldn’t have The Flintstones. If someone hadn’t ripped off Sergeant Bilko, there’d be no Top Cat. Huckleberry Hound, Chief Wiggum, Yogi Bear? Hah! Andy Griffith, Edward G. Robinson, Art Carney.”

I often write music for advertising. After a first draft, the agency usually comes back and says, ‘Can you make it more upbeat?’ I just add a tambourine and don’t change anything else. Nine times out of ten? Problem. Solved.

Most people have untrained ears, and untrained ears don’t listen to detail in music. They hear the surface noise; the easily identifiable, like tone colour, rhythm and pitch. Most people don’t hear chords or textural arrangement without a deeper level of understanding. If the songs still sound the same to you, I assert that all you’re hearing is the cowbell, a bass instrument with a similar timbre playing different notes, and a beat of the same tempo.

So why then was it left to a jury to decide? Seems to me that in any other specialised case this would not happen. The ‘peers’ of the designers at Apple and Samsung weren’t called upon to decide whether one infringed upon the patents of the other, because those peers probably couldn’t even tell you how a mobile phone works.

This speaks to a broader problem in my mind: sure, everyone is entitled to their opinion in music. But having an opinion on music does not equate to having objective knowledge about it. So when the opinion of eight people decides that an artist owes 70% of their earnings from an alleged plagiarism? That’s troubling.

To anyone who still thinks they sound the same, all I have to say is this: the dress was blue and black, it’s pronounced ‘jif’, vaccination doesn’t cause autism, climate change is real and immediately threatening, and the songs are not the same.

Okay fine then, but I still think Pharrell is a hack.”

Pharrell Williams has written number one hits without needing to resort to plagiarism. He was one of the world’s first superproducers, right up there with Max Martin and Timbaland, making hit after hit for other artists and himself: Justin Timberlake’s ‘Señorita’; Snoop Dogg’s ‘Beautiful’ and ‘Drop It Like It’s Hot’; his own song ‘Frontin’. Why would he deliberately start stealing now when he’s already proven himself a progressive and inventive musician?

So why, when so many pop songs all sound the same, did this end up in court in the first place? I dunno. Maybe because Thicke’s team shot themselves in the foot by countersuing the Gaye family’s cease and desist, and starting the court case in the first place. Maybe because over the past few years we all decided we hated Robin Thicke (but not so much Pharrell and T.I.) for being a sexist douchebag, and this was the one thing we could pin on him. (In the same way that despite Tony Abbott’s constant violation of human rights, chowing down on a raw onion (twice!) might be what makes him come unstuck.) Maybe because Pharrell, Thicke, T.I., the record companies, and the studio collectively made over $39 million off that one song, and Marvin Gaye’s albums don’t quite have the same reach. Who knows?

The saddest part out of all of this is that is how little can be done about it. Lay opinion in music has already decided who’s writing should become popular and successful, and now it is deciding how that writing should be done.

Let’s all cheer up a bit with this somewhat relevant Micallef sketch.

Benny Davis is a musician and comedian, best known as one third of comedy trio The Axis of Awesome. He is an occasional writer, and definitely has nothing to do with this awful Instagram account.