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August

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Good News for Robin, Katy & One Direction: Music Copyright Expert Says Nobody’s Ripping Off Anybody

by Dr. Harrington

Christmas Decorations With Shallow Depth of Field

Three minutes of Robin Thicke, Marvin Gaye, Funkadelic, Katy Perry, Sara Bareilles, One Direction, The Who, Lady Gaga and Madonna.

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I was interviewed about Robin Thicke’s Blurred Lines, and three (3) other music copyright infringement matters that are in the news now, by ABC News on Friday, August 16, 2013.  Because they wanted higher fidelity and more reliable communication (I assume), they asked if they could call me on a landline.  And in 2013, I do not have a landline, printer or cable TV subscription.

Living in Nashville, and relatively close to downtown, I drove down to the studio and had a lot of fun being interviewed.  In fact, after I had talked for awhile and answered questions, I was told, “Thank you so much.”  I think I then asked,

“Thank you for what?”

“The interview.”

“That was it?  Wow!  That was fun!”

Now to the ABC article, reprinted below.  (The title of this post is borrowed from the title of the ABC article below.):

http://www.mix97fm.com/common/more.php?m=58&ts=1376906421&article=E296BF5408B611E386DEFEFDADE6840A&mode=2

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From the ABC News interview with me:

Hey music fans: it’s time to stop accusing artists of ripping off other artists.  Because according to an expert in music copyright law, nobody really has a case.

Exhibit #1: Robin Thicke‘s “Blurred Lines.”  Robin and his co-writers just went to court to to establish that “Blurred Lines” doesn’t rip off two particular songs: Marvin Gaye‘s “Got to Give It Up. Pt.1” and “Sexy Ways,” by the group Funkadelic.   But let’s say Robin was to get sued anyway.  Would he lose? Music copyright law professor Dr. E. Michael Harrington says no.

Dr. Harrington, who’s on the faculty of the Berklee College of Music, has served as an expert witness in hundreds of music copyright matters.  Comparing “Blurred Lines” to “Got to Give It Up,” he says, “I can hear the similarity and you can see where maybe they’re even copying or even imitating…the style of ‘Got to Give It Up.’  And I can hear that right away…but the melody’s not that close at all, so the copyrightable parts of this are really not that significant.”

As for “Sexy Ways,” Harrington says, “The opening melody of it is similar to a section about 1:26 into Robin Thicke’s song…and that’s very close, but that’s very brief, but I don’t think it’s that original.”  That’s the key, according to Harrington: if what you’re copying isn’t that original to begin with, and has been used many times before, it’s fine.

Exhibit #2: Katy Perry‘s “Roar.”  Fans have been up in arms about the fact that the song’s intro sounds remarkably like the intro to “Brave” by Sara Bareilles. In fact, Katy is an admitted fan of Sara’s song.  But could Sara sue Katy for ripping her off?  Again, Harrington says no.

“There are some similarities but nothing significant,” he explains. “They’re both in the key of B flat. And they keep repeating this piano [part]…but so what? That’s called a repeated chord. It’s just, y’know, that’s part of a style. There’s nothing really there. I mean, I could break it down technically, more, but I would say don’t bother filing that lawsuit.”

Exhibit #3: One Direction‘s “Best Song Ever.”  There were rumors that the legendary rock band The Who was going to sue the British boy banders because the intro to that song sounds like their 1971 classic “Baba O’Riley.”  Who guitarist Pete Townshend, who wrote the song, says he has no plans to sue, but could he if he wanted to?  Harrington says sorry, but no.

“I mean I can definitely hear the similarity,” he says, but points out that the notes used in the Who song and the notes in the 1D song are different. “Two of the three notes are the same,” he says, “But you’re talking about just, the basic, kinda…’get into this bass note, to this chord, and this bass note.’ That can’t be an infringement.”

Harrington adds, “It’s kind of what they do in the advertising world. You always hear something that sounds like something else, but they know how to come close to reference it. They call it referencing. So One Direction, I would definitely say they’re definitely referencing The Who.”

Exhibit #4: Lady Gaga‘s “Applause.”  Fans of Madonna and Gaga have been feuding for ages now, and more fuel was added to the fire when Madonna’s fans accused Gaga of ripping off the Queen of Pop’s song “Girl Gone Wild” in the chorus for “Applause.”  Do they have a point?  Harrington says not even close.

“No, and I listened a few times,” he laughs. “The others, I can hear things, but this…I don’t get it.”

Copyright 2013 ABC News Radio

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4 thoughts on “Good News for Robin, Katy & One Direction: Music Copyright Expert Says Nobody’s Ripping Off Anybody

  1. David Small

    I would strongly disagree with the analysis of Robin Thicke’s “Blurred Lines” / Marvin Gaye’s “Got to Give It Up.” By the way, I studied at Berklee in ’80 and have was raised on R&B. I practice coyright litigation and entertainment law here in Dallas. I think there are no blurred lines here at all. Marvin Gaye’s “Got to Give It Up” was quite an original groove. The bounce is so unique that the avid R&B listener knows exactly what it is when it comes on. When I heard the Thicke song for about the first 5 or 6 times, I literally thought it WAS the Marvin Gaye track. The counterpoint of all of the rhythm section instruments makes Marvin’s arrangement quite unique. Arrangements, like compositions, are also the subject of copyright protection. The Thicke song does more than imitate Marvin’s composition and arrangement. It recreates it. The bass line and chord arpreggiations are spot on. Couple that with the percussion, you’ve stolen a song dude. I like Thicke’s version of the song. But it is hardly an original composition.

    Reply
  2. C Bret Campbell

    I am no attorney, and honestly don’t care a hoot about listening to any of the songs above (save the originals listed).
    That said, if I ever went to law school, entertainment and copyright law would have to be a focus, as they are simply fascinating.
    So, here’s my two cents for what it’s worth. I feel that a truly “original” composition is nearly an impossiblilty. There are only 22 possible keys in western music. Right from the start, we are limited… Within any key, there are only certain notes that work within a melody or a “leading bass line”, so more limitations fall into place. Almost every song we have heard on the radio can be likened to the simple melodies we recall from childhood… Row Your Boat, for example. The first bar of that one shows up all over the place! What I’m saying is that it is nearly impossible not to “infringe” on someone’s work.

    My understanding is that only the melody and lyric are copyright protected. The part that the court seems to focus on is “how much” of the protected work has been infringed – “I can name that tune in 3 notes!” – and is it undeniably recognizable in that “time.”

    These issues are certain to crop up more often, as more music acts make their way up the ladders of the industry. I am quite concerned about the protection of “younger” acts and their integrity not being destroyed by over-zealous industry lawyers.

    Michael, I’d love to hear your thoughts on that.
    BTW, I’ve been looking for an email subscription area on the page, here… guess I’ll plug into Google Currents to keep up 😉

    Reply
  3. Dr. Harrington (Post author)

    Thank you for your post, David. I love the music of Marvin Gaye, have analyzed more than 230 of his songs, and use his music in classes I have taught and evidence in lawsuits in which I have served as expert witness.

    I agree with you that Marvin Gaye’s “groove” and “bounce” were “quite original.” But are there any music copyright infringement lawsuits in which “groove” and/or “bounce” (aside from sampling/sound recording copyright issues) were held to be copyrightable expression? Is there an agreed upon/standard definition of “groove” or “bounce” in any case law?

    Can you cite for me a successful music composition (not sound recording, but music composition) copyright infringement lawsuit in which plaintiffs have prevailed when there was NO copying of MELODY, harmony or rhythm? Objectively, there is NO protectable expression (melody, harmony, etc.) that has been copied by Thicke.

    What do you mean by “counterpoint of all the rhythm section instruments?” Has that phrase been used in any case law?

    I would argue that Thicke is NOT an arrangement of Gaye because none of Gaye’s melodies, harmonies or harmonic rhythm were recreated. And because both songs have lyrics, it seems that there is no significant similarity of words/lyrics between Gaye and Thicke.

    Gaye’s song uses 4 unique chords – the Gaye chord progression is: -I-IV-V-I-V/V-IV-V-I-V/V-I-. Thicke’s song uses 2 unique chords – the Thicke chord “progression is simply -I-V-. There is no copying of copyrightable expression involving harmonies of the two songs.

    What is extremely close between the songs is the tempo: Gaye is approximately Q = 123; Thicke is approximately Q = 121. They are very close, not identical, but tempo is not copyrightable.

    The accompanying percussion in both songs might both use a struck Coke bottle as well as typical drum set and cymbals. Instrumentation is not copyrightable.

    I work extensively in advertising. In advertising, “referencing” is very common. Thicke, in my opinion, references Gaye, but does not infringe the copyright of Gaye.

    Again, if there is an example of music copyright infringement WITHOUT the copying of MELODY, please let me know.

    Reply
  4. Dr. Harrington (Post author)

    Thank you for your post, Bret.

    I agree with your thoughts about the originality of music. Especially when it comes to popular music, audiences do not strongly desire originality. I think what they crave more than originality is familiarity – the sound, instrumentation, type of singer(s), type of singing, etc. need to be familiar and not necessarily very original. (Hip hop audiences do not seem to crave accordion, jew’s harp or solo clarinet – classical music audiences do not seem to crave accordion or jew’s harp, for example.) In all original expression in popular music and popular literature, for example, there have to be cliches. We do not want original pitches (or words) – we want unoriginal pitches (or words) connected in original expression. I believe that originality comes about by means of stringing together unoriginal expression. At some point, it crosses over from “unoriginal expression,” to “original expression.” The three (3) words, “yabba dabba do,” are original – the are lyrics to The Flintstones. The four (4) words, “I miss you Baby,” are NOT original as they have been used by many. In a similar fashion, melodies usually don’t become original until there have been a few pitches connected.

    Regarding “subscription,” please enter your email address under “Newsletter.” I have been remiss at doing the newsletter and subscription. I need to fix that soon! What suggestions do you have re subscription?

    Again, thanks a lot for your very good insight, Bret!

    Reply

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