MUSIC

Brian Wilson, Bonnie McKee and others react to 'Blurred Lines' verdict

Are tempo, feel or instrumentation now copyrightable? Songwriters study the 'Blurred Lines' verdict

Singer-songwriter John Hiatt was onstage several years ago at McCabe's Guitar Shop in Santa Monica when he paused to introduce a new song to the audience.

"The trick with a new song," said Hiatt, a songwriting veteran whose work has been recorded by Bob Dylan, B.B. King, Bonnie Raitt, Iggy Pop and many others, "is that even when you're playing it for the first time, people feel like it sounds familiar."

He waited a beat, then added, "but not so familiar you wind up in court."

For Hiatt it was a punchline, but for Robin Thicke and Pharrell Williams it was a punch to the gut when a Los Angeles jury awarded the estate of soul singer Marvin Gaye nearly $7.4 million on Tuesday at the end of a two-week trial over whether Thicke's 2013 hit "Blurred Lines" constituted homage or copyright infringement of Gaye's 1977 song "Got to Give It Up."

And in the wake of that decision — which Thicke and Williams' lawyers quickly announced they will appeal — the music community has been debating an issue that comes up regularly in the record industry but rarely rises to the high media profile (or the multimillion dollar payout) that the "Blurred Lines" case has reached.

"It's very confusing, I must say," said veteran songwriter Mike Stoller, who with musical partner Jerry Leiber wrote dozens of the biggest rock, pop and R&B hits of the 1950s and '60s for Elvis Presley, the Coasters, the Drifters and others. "I hear a lot of similarities. I certainly hear 'inspired by.' Whether it's identical is something else."

And that continues to be a divisive subject. Many professional musicians argue that however similar the two recordings sound, the structure of the melodies and chord progression — the bones of every song — are not so close that the legal standard of infringement was established by "Blurred Lines."

The jury's verdict "must have been based on emotions," said Joe Escalante, bassist for long-running Southern California punk rock band the Vandals, who by day is an attorney specializing in entertainment law. "Because it is not based on any notions of what is protectable under copyright law today," he said. "Ironically, public opinion is, if anything, moving further from this kind of protection."

Other musicians who concede that the legal threshold of infringement may not have been reached in this case nonetheless cheered the verdict as a rare example of the value of music being upheld in a court of law in an era when the creative efforts of musicians everywhere have been hampered by free digital file sharing or streaming services such as Spotify and Pandora, which pay out fractions of a penny each time a consumer listens to a song.

"From a musician's standpoint, any protection at adjudication is terribly welcome," said multi-instrumentalist and composer Van Dyke Parks, best known as Beach Boys' creative leader Brian Wilson collaborator on the widely acclaimed "Smile" concept album. "We need everything we can get to protect the commodity of intellectual property."

In the short term, some corners of the music business are taking a wait-and-see approach to changes the "Blurred Lines" verdict might portend.

"The verdict has the potential for significant ramifications for pop music creators — songwriters and producers — as well as the overall industry," said Chris Sampson, vice dean of the contemporary music division at USC's Thornton School of Music. "The ruling appears to go beyond the elements of a song that may be a copyright — primarily melodies and lyrics — and extends to tempo, feel and instrumentation."

Marvin Gaye's biographer, David Ritz, sided with Gaye's family, though he said he's uncertain whether from a legal standpoint "Blurred Lines" technically infringes the copyright on Gaye's song. But looking at the case in reverse he argued that the jury's verdict was justified because, "There would be no 'Blurred Lines' if there had not been 'Got to Give It Up.' It never in a million years would have happened."

The concern in the music world, however, is if this ruling sets a precedent. "It brings up some difficult questions: Can you copyright a certain combination of instruments with a similar feel?" USC's Sampson added. "Are you able to copyright elements that make up a genre? Trying to meet these standards could potentially inhibit creativity to the point of bringing songwriting and production to a standstill."

Nevertheless, he said, "We will not be altering our curriculum as a result of this ruling."

Longtime rock, R&B and pop music manager Irving Azoff worried about a chilling effect in the creative community as a result of the verdict.

"Somebody might say, 'It would be cool to do a Steely Dan-inspired summer song,'" Azoff said. "I hope this doesn't mean that people will basically say, 'We can't do stuff like that anymore.'"

Among rank and file musicians, some effects are being felt already.

"It's definitely changing the way people are doing things," said songwriter Bonnie McKee, who has written hits for such pop stars as Katy Perry, Christina Aguilera, Britney Spears and Kelly Clarkson. "A lot of times, if you're not getting inspiration right away, we'll listen to stuff to get inspired. In all the rooms I'm working in now, people are much more self-conscious about that."

"I've heard lots of [songs] where I'm, like, 'Oh, this sounds like 'Teenage Dream,'" she said. "But I'm not going to sue someone for being influenced by that song. Today, older artists see [doing] that as a gold mine. It strikes fear into the hearts of songwriters," she said.

"Over the years, I've written things that reminded me of songs I grew up with, and now that's going to be a red flag. Even right now, I'm afraid to mention that."

Williams and Thicke insisted that in crafting "Blurred Lines" — which Thicke under oath conceded that he had very little to do with creatively after raking in $5.6 million, compared with Williams' $5.1-million share of the hit's profits — they were trying to channel the spirit of Gaye's upbeat song, not steal anything from an artist both claim to admire.

"Feel, not infringement," is how Williams described his intention during his day in court.

Beach Boys leader Brian Wilson said the same thing about one of his group's big early hits, "Surfin' U.S.A.," which he built on melodic elements of a song by of one of his rock 'n' roll heroes, Chuck Berry.

"I just took 'Sweet Little 16' and rewrote it into something of our own," Wilson, 72, said during an interview this week at the Capitol Records Tower in Hollywood.

He was surprised — and not a little hurt, he said — when Berry's publisher later suggested that he'd done more than pay tribute to Berry, charging that "Surfin' U.S.A." plagiarized Berry's "Sweet Little 16." Berry prevailed and writing credit and publishing royalties were signed over to him — just as the man sometimes called the Father of Rock 'n' Roll also won a case against John Lennon, arguing that the Beatles' 1969 hit "Come Together" ripped off Berry's "You Can't Catch Me."

Another Beatle, George Harrison, also lost in court when publishers of the Chiffons' 1963 hit "He's So Fine" sued after claiming that Harrison's solo hit "My Sweet Lord" had copied the earlier song.

When rap music was young in the late 1970s and 1980s, hip-hop acts often "sampled" key snippets off earlier recordings by R&B, soul and rock acts into their own recordings — often without credit.

In a 1991 lawsuit, Grand Upright Music Ltd. vs. Warner Bros. Records, a judge found that rapper Biz Markie's "Alone Again" illegally used sections of Gilbert O'Sullivan's 1972 hit "Alone Again Naturally" and not only ruled that they had committed copyright infringement but said Markie should be subject to criminal prosecution for the theft of music.

"'Thou shalt not steal' has been an admonition followed since the dawn of civilization," U.S. District Court Judge Kevin Thomas Duffy wrote in that decision. "Unfortunately, in the modern world of business, this admonition is not always followed."

The advent of the Internet has made theft of music markedly easier on many levels, from lost potential sales through person-to-person file sharing to the ease with which today's musicians can instantly access — and, if they choose, incorporate — everything from individual instrumental tracks to complete recordings from pop music's biggest stars of the past while they're in recording studios.

More than ever, the distinction between artistic homage and legal infringement is truly a blurred line. Veteran songwriting pro Stoller offered his own take on the whole situation.

"I feel for them all," he said. "But if I were the all-powerful, omniscient god in heaven, I would probably say that Robin Thicke, who agrees he didn't write any of it, should give his shares to Marvin Gaye's heirs."

Times staff writer August Brown contributed to this report.

Copyright © 2016, Los Angeles Times
75°