Yesterday, a Los Angeles federal jury awarded $7.4 million to the family of late, great R&B singer Marvin Gaye for copyright infringement by contemporary pop-icons Robin Thicke and Pharrell Williams. The jurors determined that Thicke’s 2013 chart-topper “Blurred Lines” copied elements of Gaye’s 1977 hit “Got to Give It Up.” Although they were instructed to consider only the written melodies, chords and lyrics of the two songs, one might not be too off-base in suspecting that the jury arrived at their judgment on the basis of the song-titles alone. Thicke and Pharrell definitely blurred the lines. Ergo, secundum Gaye, they got to give it up. Case closed.
But it’s not that simple, really. Pop music is an art form that depends upon “familiarity.” Pop songs are on the whole a mix of universalizable lyrical tropes, tried (and tried and tried and tried) and true structural compositions, standard chord combinations and progressions, recognizable hooks (now, “samples”) and formulaic production values… with only just a slight seasoning of originality thrown in at the end to accommodate what are inevitably periodic and recurrent trends. If a song is avant garde— really, truly, groundbreakingly “original”– then it isn’t, by definition, “pop.”
Consider, for example, a song I discussed last year on this blog, which I called “Memphis’ Mustang Sally.” (You’ll need to click on and read that post for the following to make sense.) Here is a case of an outright “cover” of a well-known pop song, originally written by Sir Mack Rice and subsequently made popular by Wilson Pickett. I doubt anyone other than me would claim that the “Memphis” version of “Mustang Sally” is an “original” song– I mean, clearly its a cover song— but even still, there is something unique and recognizable and, perhaps most importantly, iterable and consistently-reiterated in “Memphis’ Mustang Sally” that does distinguish it in significant ways from the original recording(s). Over time, Memphis musicians fused their own local influences with something already-familiar to their audiences to craft what might be a minor variation on a theme but might also be something like a “new” song. How “minor” is that variation? Structurally speaking, it’s practically insignificant, but for anyone who is accustomed to hearing “Memphis’ Mustang Sally,” listening to the real “Mustang Sally” seems, well, off. That is, these two almost-identical songs seem like very, very similar, but not identical, songs.
The fact that (non-cover) pop songs also sound similar to one another, that pop artists copy (or steal from) one another, shouldn’t come as a surprise to anyone familiar with the genre. In fact, “popular music” itself, as we now know it, is basically the product of more than a half-century of wholesale, unapologetic and downright dirty thieving from an entire generation of jazz artists, folk singer/songwriters, church choirs and bluesmen and -women. It’s not just cover bands and obvious copycats who shoulder the guilt here. Not a single pop musician has entirely clean hands.
Interestingly, this recent Thicke/Pharrell/Gaye kerfuffle comes on the heels of another (un-litigated) copycat story involving Sam Smith’s “Stay With Me” and Tom Petty’s “I Won’t Back Down.” Just in case you’re unfamiliar with pop music, here are real-time comparisons of both the Thicke/Pharrell and Gaye songs, as well as the Smith and Petty songs.
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I’m not convinced that the former two songs are any less (or more) similar than the latter. I am convinced that the finer details of deciding that point are beside the point in the grand scheme of things. In the latter case, Smith acknowledged his song’s similarity to Petty’s and voluntarily agreed to share his royalties. Petty replied, sagely in my view: “No big deal. These things happen.”
Yes. They. Do.
I really do feel for pop artists today. Theirs is an industry crawling with pirates and thieves. (Mostly pirates.) The Recording Industry Association of America (RIAA) is, understandably, more concerned with piracy than copyright infringement (see the RIAA’s statement regarding “Who Music Theft Hurts”), partly because all music is digital now (read: easily shareable/steal-able),partly because the “track” has fully supplanted the “album” as the dominant product, but mostly because MONEY. I’m not sure anything can be done about the piracy problem without some wholesale and dramatic change in the industry. There’s just no un-ringing the Internet bell. Save the possibility of a real-life Cookie Lyon emerging in the industry and smacking-upside some heads, I don’t see how to save pop music artists from pirates except perhaps by federalizing the industry.
[That’s not a joke, btw. Why not consider making musical artists federal employees? And, oh yeah, WHY DO WE STILL NOT HAVE A SECRETARY OF CULTURE IN THIS COUNTRY?! Several years ago, I nominated a few people for just such a position on this blog, for whatever that’s worth.)
All due respect to Marvin Gaye’s genius, but this recent judgment against Thicke/Pharrell is terrible for pop music. What is worse, it reflects a fundamental and fundamentally ahistorical misunderstanding of the genre. Pop music, for better or worse, is and has always been an art form dependent upon not only homage and collaboration, but also unacknowledged influence and unauthorized appropriation.
We ought remember that things like “influence” and “appropriation” are the essential generative operations of everything we qualify with the adjective “popular.”
I’m not precluding the possibility of outright stealing in pop music, nor would I want to excuse such. Nevertheless, ceteris paribus, I’d prefer we err on the side of blurred lines when drawing proprietary boundaries for an art form marked by (to borrow from Timothy Warner) its “tendency to reflect existing trends rather than progressive developments.” I’m inclined to see Thicke and Pharrell as committing the sort of infraction that many of my (perhaps naive, perhaps inattentive, often inexperienced) students commit– honestly, not nefariously– when they engage in what is strictly speaking “plagiarism.” For example, when students reproduce verbatim something from my lecture, I know that, technically, they should have cited me. But I also understand that they (tacitly) take it to be the case that whatever I say in class is something akin to a composite reproduction of what might be called “general knowledge” on the topic. They don’t know which elements of my lectures are “my” unique contributions to the subject and, of course, they cannot know that without considerable research or being experts on the matter themselves. If a student made an audio recording of my lecture, transcribed it, reproduced it and turned it in as a paper, of course I would fault them with plagiarism. Short of that extreme case, though, I’m inclined to see much of their copycatting as what musicians call “riffing,” i,e,, internalizing the structure and content of a composition and attempting to articulate the same in their own way.
That’s how we learn, after all. That’s also how we create. We take what is given and we riff. Maybe, eventually, after a lot of work, if we’re inspired or talented or lucky, some of us will be able to contribute something genuinely original… but not without being influenced by and appropriating a lot of the work of others. Nothing is created ex nihilo. Not by us mere mortals, anyway.
Tl;dr version:
1. In re pop music, piracy = a real problem, impossible to solve without complete industry overhaul and/or un-ringing the bell of the Internet
2. In re pop music, thievery = just in the nature of the beast, can’t be regulated without destroying the genre
3. Creation requires pre-existing material. Correspondingly, appropriation is inevitable
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∴ Thicke and Pharrell should not have been fined. Marvin Gaye is still a genius. It’s long past time to recognize “Memphis’ Mustang Sally” as an original song. Copying isn’t always cheating.