Joe Escalante Will Interview Me Today

About Robin Thicke v. Marvin Gaye 

This post’s interruptions are now getting interrupted.  The newest interruption led me to write poetic, rhyming verse.  (You can read this rhyme above and instantly realize why I do not write rhyming verse.)  The newest interruption is very cool – Attorney/Talk Show-Podcast-Netcast Host/Vandals Founder Joe Escalante will interview me live on KTLK-AM 1150 this afternoon at 9 PM EDT, 8 PM CDT, 7 PM MDT, 6 PM EDT.  If you are in Melbourne, Australia, the interview will be live tomorrow (way in the future – Monday) at 11 AM.

Do you know Joe?
I know Joe

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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 nows, 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.

So, 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!”

The interview was about Robin Thicke’s Blurred Lines and whether it had infringed Marvin Gaye’s Got To Give It Up, and whether Blurred Lines had infringed Funkadelic’s Sexy Ways.  _____________________________________________________________________________

Before I get into some of the items that are surrounding Robin Thicke, I’d like to pose a question about the introductions to two different songs –

Funkadelic’s Sexy Ways (released in 1974)

and

Diana Ross & The Supreme’s Love Child (released in 1968)

Both songs begin with solo electric guitar strumming chords that, to some, sound very similar.  Was the Supremes’ famous song’s famous intro copied by a related artist so audiences would pay attention to the rest of a newer, unfamiliar song?  Is the guitar intro of Sexy Ways copyright  infringement?  A rip off?  A theft?  A foolish idea presented in a blog?

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But back to the Buzz of The Month – just how guilty is Robin Thicke?  Has he infringed not only one famous song –  Marvin Gaye’s Got To Give It Up –  but has he also infringed another – Funkadelic’s Sexy Ways ?

1.

I started to write the following re this Marvin Gaye v. Robin Thicke, or Robin Thicke v. Marvin Gaye stuff:

Listen to Marvin Gaye’s classic big hit, Got To Give It Up.  The groove of that song – funky bass, with percussion that might include a struck Coke bottle.

Gaye Q= 123

Thicke Q = 121

Very close in tempo.  So what?

Gaye is in the key of A Major.

Thicke is in the Key of G Major.

Gaye has a distinct chord progression.

Thicke has only two chords – the I chord and the V chord.

The “groove” sounds similar.  (The “groove” is similar.  Is a “groove” felt more than heard?  Felt and heard?)  The songs have a similar “feel.”  This leads to four (and many more) questions –

1.  What is a “groove?”

2.  How legally significant is a “groove?”

3.  What is a “feel?”

4.  How legally significant is a “feel?”

I then paused and went about other projects and work.  I didn’t know when or if I’d come back to it.  But then came the email from and interview by ABC News, which resulted in my August 19, 2013 post in which I answered questions about Robin Thicke v. Marvin Gaye (and Robin Thicke v. Funkadelic), Sara Bareilles v. Katy Perry, The Who v. One Direction, and Madonna v. Lady Gaga.  I was told about the article summarizing my ABC interview – I then posted it and moved on to other items and was going to leave the world of Robin Thicke until a friend told me that an attorney has posted on my site that he “strongly disagree[d]” with my analysis of the Thicke situation.  That lead me to quickly and briefly address his points.

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Here is what I wrote to the attorney.  You can read his letter and my response here (August 19, 2013 post)

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.

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2.

Now, for the other possibly problematic musical similarity –

Listen to Funkadelic’s 1974 song, Sexy Ways.  Never mind the little joke from above – is the Funkadelic opening electric guitar solo strumming an infringement of the opening electric guitar solo strumming of The Supremes’ “Love Child.”  

But pay attention to the first vocal melody, -3-5-3-2-1-, sung to the words, “I just want to say” at 0.08-0.10 of the song.  Even though the words, “I just want to say,” occur four (4) more times in SEXY WAYS, the melody -3-5-3-2-1- never occurs again.  This itty bitty less-than-two-second melody (-3-5-3-2-1-) is only heard once in the song.

This same itty bitty less-than-two-second melodic phrase, -3-5-3-2-1-, is heard in Robin Thicke’s Blurred Lines. Uh-oh.  But when -3-5-3-2-1- occurs in Blurred Lines, it is no longer itty bitty.  It is now larger.  (If 3-5-3-2-1- gets one more note, perhaps it becomes “bitty,” and “itty bitty” is rendered inappropriate.)

3-5-3-2-1 of Sexy Ways has now grown to

3-5-3-2-1-6 of Blurred Lines.

Oh no – we’re back on 3-5-3-2-1 which means 3-5-3-2-1-6 is nearby (they are very closely related obviously).  But this leads me back to several posts of mine re Gretchen Wilson and the copyright infringement action brought against her.  Part of that was discussed in my July 28, 2013 Who’s Tripping Down The Streets Of The City post, so I will not repeat it here.

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