August 18, 2013

Robin Thicke, getting the jump on copyright claims that "Blurred Lines" ripped off Marvin Gaye and Funkadelic.

After the owners of the rights to Gaye's "Got to Give It Up" and Funkadelic's "Sexy Ways" threatened to sue Thicke, Thicke filed a preemptive lawsuit.
The lawsuit says Thicke [and others] have "the utmost respect for and admiration of Marvin Gaye, Funkadelic and their musical legacies," but must "reluctantly file this action in the face of multiple adverse claims from alleged successors in interest to those artists."
You can listen to all 3 songs at the link. I like this lawsuit, because "Blurred Lines" isn't copying those other 2 songs. It's a tribute to that old style, not a copying. Naturally, the Gaye and Funkadelic property owners feel the normal human greed and would like some "Blurred Lines" cash thrown their way, but these threats of lawsuits deserve legal pushback, and I like seeing the new artist doing something that will deter that tactic. I'm not an intellectual property expert, so I'll let others weigh in on the likelihood that Thicke will get the judicial remedy he seeks.

Those earlier artists benefit when the younger generations get their ears tuned to the old sound. If you go to the YouTube "Got to Give It Up" page, you'll see people saying things like "The Blured Lines lawsuit brought me here." Me too! When's the last time you listened to "Got to Give It Up"? I'm a long time Marvin Gaye fan. I bought the single "Stubborn Kind of Fellow" when it came out in 1962. It was one of the first records I bought, and it was Gaye's first single if you don't count 3 failed efforts at marketing him as "the Black Frank Sinatra." But "Got to Give It Up" is late 70s Gaye, the sort of thing we loathed at the time and called "disco." I listened to it today, and I probably would otherwise never have listened to it.

Gaye has been dead for almost 30 years, so there's no way of knowing what he would think of the claims the owners of his intellectual property are making today. And why isn't stuff this old in the public domain already and completely open to picking over and reenvisioning and outright note-for-note copying? It seems odd to clutter the court with a preemptive lawsuit, but what is Thicke supposed to do about the predation his success attracts? Congress should redo the copyright law, shorten the terms of ownership, and thereby limit the potential for lawsuits and threats of lawsuits, which are especially bad when the artist is not around even to have a belief about whether his rights are infringed.

ADDED: Look at how Madonna reacted to what was much more of a rip off:
“I certainly think [Lady Gaga] references me a lot in her work. And sometimes I think it’s amusing and flattering and well done”... Madonna said sometimes Gaga’s work also appears to be a “statement about taking something that was in the Zeitgeist, you know, 20 years ago and turning it inside out and reinterpreting it.”

“There’s a lot of ways to look at it. I can’t really be annoyed by it... because, obviously, I’ve influenced her.” But the Material Girl became coy when the conversation turned to “Born This Way.” “When I heard it on the radio …I said that sounds very familiar,” Madonna said.

Asked if that felt annoying, Madonna responded, “It felt reductive.” Pressed as to whether that was a good or bad thing, Madonna told Cynthia McFadden to “look it up” — we did; the term means “minimal” or “crude” — before smiling slyly and taking a sip from her tea cup.
Maybe Gaye, had he lived, would have displayed a similar attitude. Unfortunately, Gaye was murdered, and so we are deprived of the chance to see him sip tea and smile and use words we need to look up — or whatever his version of that would be — when some reporter pushes him to say what he thinks about the similarity between "Blurred Lines" and "Got to Give It Up."

CORRECTION: The text is corrected to show that Gaye died almost 30 years ago (not almost 40 years ago).


Jason said...

IP rights should survive the death of the originator by a pretty good amount. These royalties don't just support the artist. They also go to support the artist's children, to studio musicians who are much younger than the artist as well. Plus, the songs continue to deliver value to radio stations and to listeners alike. Why should they become free?

Also, why shouldn't an artist have a portfolio that still has value, late in his career? Suppose he wants to sell his portfolio of songs to someone who thinks they can get more value from it to raise cash to live on in retirement? If copyright doesn't survive the author or original artist, the present value of that portfolio will become lower and lower as the artist gets older. Perhaps the artist has a spouse who will outlive him or her by many years... Alice Coltrane comes to mind. John Coltrane died at around 40. I hope she gets the royalties he generated, now, more than 40 years after Trane passed away.

Also, if IP rights vanished when the author died, you'd have people waiting in the wings for the artist to die rather than buy the rights from a living artist, who should have payment for his or her work.

Now, I don't think we should still be paying royalties to the family of J.S. Bach. But the artist's life plus 75 years... or the lifespan of his youngest child, or something like that seems reasonable.

Jason said...

I don't think the Gaye estate has a claim here. "My Sweet Lord" this ain't.

Here's why:

AaronS said...

Puhlease. If this were remotely real then Marvin Gaye and Funkadelic would have sued each other.
A year is enough for pop music property rights. People should not be getting rich off of pop songs. If we drained some of the money out of entertainment we might end up with better entertainment.

Ann Althouse said...

"They also go to support the artist's children, to studio musicians who are much younger than the artist as well."

The royalties go to the studio musicians? I don't think so!

How old are Gaye's 3 "children" now? He died 40 years ago? Are the children of artists supposed to inherit not just the parent's amassed wealth but an ongoing stream of income for most or all of their lives? Why should they get the money rather than easing the restrictions on new artists who could recycle or reuse the music?

Ann Althouse said...

In the interest of preventing outright ripoff, the law preserves the ability of rights-holders to scare a working artist by merely threatening to sue. This can be nothing but a shakedown. It's one thing to stop somebody from doing a blatant copy of "Stubborn KInd of Fellow" — but I'd prefer for that to be in the public domain — quite another to claim a song sounds like another song and demand money. I don't like these situations where the side with the money to pay lawyers wins. Thicke has enough money to fight, and he's standing up for the interests of many artists who would simply cave to the shakedown because it's cheaper than fighting.

Jason said...

The royalties go to the studio musicians? I don't think so!

You need to get out more.

Jason said...

More on residuals for studio musicians:

Jason said...

Althouse: "Royalties go to studio musicians? I don't think so!"

Another example from the UK (they use the term 'session musicians,' and you search the term 'session' and scroll down a couple of instances you can see it clearly.

Ann Althouse said...

Jason, you are talking about contracts, not copyright law. The document from the musicians union is about contractual agreements to distribute royalties that go to the owner of the copyright. I'm not disputing that agreements like that can and should be made. I don't know what those contracts say about who would get the money if a copyright holder is successful suing about somebody else's recording, which is what we are talking about here.

Jason said...

payments like that can and should be made

Except when your children are too old, right? Or you're in an industry that people don't like? Or you think "people shouldn't be getting rich off pop songs," as Aaron has decreed. (who the f**k is he to declare how much someone should be allowed to make, anyway?)

Really, a simple "oops! I didn't know that about the music business! I stand corrected" will suffice, professor.

Jason said...

Last I looked, the Film Musicians Secondary Market Fund paid out about 90 million to musicians and their heirs per year. Recording engineers got another 9-10 million or so. Works out to about 1 percent of movie revenues.

There's a separate system in place for radio/pop/TV, as well, but it's a lot less organized and more fractured. It's strong in Nashville and to a lesser extent, anymore, Los Angeles. Lots of working musicians who aren't rich by a long shot have been able to buy homes and send kids to school on these streams of income after many years in the studio.

Aaron doesn't know shit about that, though. He's worried that someone, somewhere, might get rich.

God forbid.

Ann Althouse said...

Jason, do you realize how long they've made copyright? It's 75 years after the death of the artist! The term should be much less, like 40 years after the death.

This is a post about copyright. Obviously, you are really interested in how musicians are paid, but why aren't you more concerned with whether working musicians can use material that is out there? Copyright is supposed to further creative activity, not inhibit it.

And please stop writing in an abusive style and do not name individuals who are not famous and not participating in this discussion. These are moderated comments, and I will not approve those things.

Ann Althouse said...

I agree that Aaron is going to a ridiculous extreme in the other direction and that there is no basis to treat pop music worse than fancy schmancy music or literary fiction or whatever. The govt shouldn't be making distinctions like that.

Bob_R said...

1. Jason needs to learn who gets paid under current US music copyright law. He should not feel bad, Levon Helm died a bitter old man. He never figured it out.

2. I'm amazed that anyone has ever watched the Blurred Lines video where the dancers have their clothes on, or that they would watch the unrated version without hitting the mute button. (It was chore, but I did it so I would not be completely ignorant of what I was posting about.)

3. Emily Ratajkowski's makes this post worthy of the "Breasts" tag.

4. Thicke owes no more to Gaye and Funkadelic than they owe to James Brown.

5. Our copyright laws are crazy. Curse you Sonny Bono.

Jason said...

but why aren't you more concerned with whether working musicians can use material that is out there?

They can. They just have to pay the licensing (it's not difficult) or they can write their own.

Jason said...

40 years after the death of an artist doesn't support a younger spouse, or the spouse of an artist who dies young. 70 probably does, though. Maybe a little bit more.

Case in point: Buddy Holly's widow, Maria. She's now 77 years old. She's still going strong, and still owns the rights to Buddy Holly's musical legacy.

I'm sure Buddy would want his music supporting her after died. Buddy died when he was 22, and so didn't get a chance to.

I suspect this had something to do with the time frames when they were drafting legislation.

If you don't know why they picked life plus 70 years, then you might be committing the fallacy of Chesterson's Fence.

Tyson K said...

You don't have to publish this comment, just wanted to note that Gaye died in 1984, which means he hasn't even been dead 30 years, much less 40.

Ann Althouse said...

Thanks, Tyson. I've corrected it.

I knew he died in 1984... I'm just overestimating the decades these days!

rcocean said...

Its always interesting that the Libertarians are always AWOL in these copyright discussions. I thought it was all about the "Free Market" and "FREEEDOOOM".

Well, copyrights are government monopolies - they are not "The Free market". In the US Constitution copyright were only allowed because they were to "encourage the arts and scientists". Certain Judges like Stevens and Beyer wanted to actually enforce the constitution, but the rest wanted to leave it up to congress. So "Limited duration" now means Congress can define it as 1,000 years.

mishu said...

I don't get why the spouses and children musicians and singers should be treated so special. 75 years after after the artist's death? What happens if life expectancy goes up? 100 years? Why should these have greater entitlement to a living greater than spouses and children of a factory worker, programmer or middle manager at some mega corporation? What they usually get is a year's salary, maybe a couple more if the person purchased more life insurance.

Jeff Gee said...

You never know what a jury will do, but “My Sweet Lord” was note-for-note “He’s So Fine,” verse and chorus. In this case, as several people have already noted, all three songs just sound like they belong to the same genre. Most songs, especially hit songs, “sound like” other songs. You could fill an iPod with songs that are one or two notes away from being “Johnny B Goode” or “Memphis.” (R. Meltzer once wrote that ‘Dylan once released an entire ALBUM of ‘Memphis’ (“Bringing It All Back Home”), noticeable to the point of distraction on ‘Outlaw Blues’.”) The number of possible singable melodies is large but it’s not infinite, and if you thumb through a fake book for hit songs of the rock n roll era and beyond, you’ll see an awful lot of ‘hooks’ that consist of a single note repeated for several bars, followed by a note a half step up or down.

Bob_R said...

@rcocean - Libertarians not interested in intellectual property? I admit it may be like our seventh favorite topic, but come on.

Jason said...

Your family own land? How long do you want the land to stay in the family? Why should a song portfolio be treated worse? Did you make the land? Did your dad?

jr565 said...

The first time I heard the song I commented that it reminded me a lot of Marvin Gaye, and Got To Give it Up in particular.
Some of the falsetto notes and the repetitive groove are similar.
But c'mon. The two songs are completely different melodically.

What I would say is that Thicke did an homage to Gaye in his style but didn't copy his song.

That would be like a band doing a "Beatlesque" song and getting sued for it by Yoko Ono.

If you talk about melody lines you can make a clear argument that something was stolen (if the melody line is the same). But how do you sue someone over stylistically similar?

jr565 said...

The best lawsuit of this kind was when John Fogerty was sued by Fantasy Records for making songs that sounded like CCR. EVen though John Fogerty wrote all of those songs.

AaronS said...

Pop music is not land. Pop music is not medicine. Pop music is performance. Marvin Gaye's entire oeuvre in my possession is worthless. Just pretty notes on a page suitable for framing. Would Marvin Gaye want his music performed as widely as possible in 2013 or withheld? When Marvin was performing who would rather see Robin Thicke? Pop music is full of musicians using some body else's drum beat, getting someone else's guitar sound, copying someone else's style.

Jason said...

Life insurance doesn't solve the problem. The insurable interest in a portfolio of songs cannot be greater than the NPV of the income from the portfolio.... Which cannot be readily predicted, anyway.

Meanwhile slash the length of time on the copyright, you also slash the NPV and the insurable interest. You cannot usefully substitute life insurance for the value of that portfolio because the value of the portfolio is what you're insuring.

Jason said...

Pop music is performance.

Nonsense. Only the performances are performances. We're not talking about concert tickets. Once you put out a record that is offered for sale, we're talking about an asset that generates a stream of income for somebody.

drozz said...

Aren't IP and copyright distinct?