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

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.


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.):


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




When Is A Musical Introduction Copyrightable? Katy Perry, White Zombie, The Pixies, Neil Young, Isaac Hayes


I really liked Frank Reynolds’ post from yesterday.  I hope he doesn’t mind but I’ve reprinted it below.  All I’ve done to change his text is italicize it and BOLD some of it:

“I believe the sandals commercial is like the Black Eyed Peas song that rips off a portion of I’ve Had The Time Of My Life. So, let’s just blame for the whole thing.

Great questions posed Dr. H.! It’s definitely not infringement in relation to copyright, and I don’t think they owe Lennon/McCartney (okay, probably just McCartney in this case) anything other than gratitude for coming up with the cool intro idea (which isn’t a copyrightable element). I wouldn’t call it copying, but rather paying homage if they’re even aware that they did it. It’s like the tradition of incorporating other people’s ideas in the blues genre. No one knows who wrote it the first time. I remember a lecture you gave on that, and it shuts up the Zeppelin haters when I use that logic on them. Cheers E. Michael!”

*   *   *   *   *   *   *   *   *

I think an introduction can be copyrightable, i.e., worthy of copyright protection, but with respect to The Beatles, and Sandals, there is no problem.  I agree with Frank  –  from a copyright perspective, the intro of the Beatles’ “Getting Better” has not been infringed by the intro of the commercial.  Here are the songs again:

Sandals – Do It All Again

The Beatles – Getting Better

If we agree that there are introductions that are NOT copyrightable, i.e., do not possess enough originality to be worthy of copyright protection, does it follow that there are introductions that ARE copyrightable?  Copyrightable introductions will be worth pursuing later, but not today.

I thought I would start to listen more carefully and analyze introductions to songs to find the least and most COPYRIGHTABLE introductions, as well as the “in-between” introductions, i.e., introductions that would exhibit some copyrightable elements.  I believe that there is a sliding scale of copyright protection – that some introductions are not copyrightable as musical compositions, some slightly so, some more so, and some extremely so.  The length of the excerpt, both in terms of temporal length as well as number of attacks and/or articulations, as well as its originality would also be factors used in determining how copyright protection should be afforded an introduction.  (That last sentence also applies, of course, to music that follows the introduction.)

My quick take is that there are more introductions that ARE copyrightable than NOT copyrightable.  I need to establish a few guidelines in order to conduct my analysis and report my findings.  Let’s say that we are looking at introductions of more than a few seconds and more than a few notes/attacks/articulations.  (This can get squishy very fast, can’t it?).

I’ve also started down this road  –  1.  delving into the construction and creation of music, and 2.  how copyright is involved in, and relates to, music.  And that brings me to a line from the song, “You Made Me Love You:”

“I didn’t want to do it, I didn’t want to do it”

I am doing a few things here:

1.  I am asserting that copyright is fluid – that some things are protectible and some not, and some lie “in-between,” i.e., they exhibit some copyright worthiness.  This is driving the conversation NEAR the ballpark, but not in the ball park, of defining copyright.  [Oh no.  Not yet I won’t.]

2.  I am starting to use various words and phrases that might be identical in meaning or nearly identical.  For example – “copyrightable” might be the same as, or similar to, “worthy of copyright protection.”  “Copyright-IBLE” might be the same as “copyright-ABLE,” and so on.  But we are not yet ready for too many SYNONYMS.

To paraphrase Documentarian Marty DiBergi, “But enough of my yacking, let’s boogie…to the introductions of various songs.”  All of these introductions represent very little worthiness of copyright protection as musical compositions.  It is important to note that I am not making musical judgments as I feel these songs have great and musical introductions.  [“Musical” can be a highly complimentary adjective.]  But the copyrightability of these introductions is not analogous to their musical merit.

Here are seven (7) intros today.  Maybe we’ll do seven (7) more tomorrow.

(Again, these are intros that are NOT very copyrightable.)

The Doors  –  Back Door Man

Isaac Hayes  –  By The Time I Get To Phoenix

 Frank Black  –  Hang On To Your Ego

Katy Perry  –  Circle The Drain

Neil Young  –  Without Rings

Pixies  –  Bone Machine

White Zombie  –  Thunder Kiss ’65 

Your thoughts?