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Dave Carlock - A Day In The Life
BLURRED LINES CONTROVERSIAL BUT NOT PLAGIARISM
Originally Posted: 08-30-2013 8:16 PM
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One of the summer’s biggest songs, “Blurred Lines”, has been banging in car stereos and dance clubs nationwide since its release in mid-March, though the single’s success is knee-deep in controversy. Artist Robin Thicke and collaborators Pharell Williams and rapper T.I. have joined forces to file a lawsuit against the family of Marvin Gaye.

What does Marvin Gaye have to do with “Blurred Lines”? Some say everything! Marvin Gaye’s family, in particular, contends that “Blurred Lines” is in violation of the late Marvin Gaye’s song copyright for “Got To Give It Up”. A similar claim has also come forth from Bridgeport Music, the owner of the copyright for George Clinton’s “Sexy Ways”, who claims Thicke sampled a portion of the song.

So why are Thicke, et al., suing Gaye’s estate who hasn’t even filed a suit against them? Sometimes the best defense is a strong offense, and I don’t believe that Gaye’s estate has a legal leg to stand on, despite the fact that “Blurred Lines” made me think of “Got To Give It Up” the first time I heard it. But why not? In copyright law, there is something called the idea/expression dichotomy, which rules that one cannot protect an “idea”, but merely the “expression” of that idea, in a tangible form.

Let’s look at it this way: have you ever been hungry for a Whopper? You know, the star burger at Burger King? When you walked into the restaurant, you check the menu and you can get a host of different food including various burgers, French fries, sodas, and if you have a young child with you, they may enjoy getting a souvenir King’s Crown themed on the chain’s mascot, a Burger “King”. This general experience was all put together and refined by Ray Kroc’s McDonald’s chain in the 1950s, complete all the way to a clown named Ronald McDonald giving toys in a “Happy Meal”.

So did Burger King “rip off” McDonald’s by offering the same combinations of foods, with a child-themed character as the mascot? Of course they didn’t, or else Burger King wouldn’t exist. Neither would Wendy’s, Hardee’s, In & Out Burger, Carl’s Jr., Rally’s and the list goes on and on.

The IDEA of combining burgers, fries, sodas, & children’s characters is not protectable intellectual property. However the specific EXPRESSIONS of the ideas that we’ve come to know as The Big Mac®, Ronald McDonald®, The Hamburgler®, and The Whopper® are protectable. The Golden Arches and other company logos are protectable as “trademarks”, described as being, quite literally, the company’s marks used in their trade.

How does all this apply to Marvin Gaye’s “Got To Give It Up”? One must know what is capable of being copyrightable intellectual property. So here we go:

Are lyrics copyrightable? YES.
Are melodies copyrightable? YES.
Are song titles copyrightable? NO.
Are beats copyrightable? NO. As long as they are replayed, not sampled.
Are chord changes copyrightable? NO. Chord changes have been shared forever.
Are the “vibes” or the “feel” of a track copyrightable? NO. As long as they are replayed, not sampled.

Careful listening to and comparison of “Blurred Lines” and “Got To Give It Up” prove out that there are no lyrics or melodies borrowed or plagiarized. There just aren’t. And while it seems clear to most people that the two songs have a similar “vibe” and even a similar arrangement of instruments, such as the simple Rhodes electric piano pulsing basic chords, the light cowbell gently pushing the groove along, and some falsetto singing, there is no true case for copyright infringement. Not even the chord changes are the same, and if they were, it still wouldn’t matter since chord progressions aren’t copyrightable.

With the law clearly on their side, Thicke, et al, have launched a lawsuit to protect their own product’s reputation and to avoid any lost record sales they could incur if the Gaye’s estate threw the first legal punch. In a record industry that clearly needs one of the biggest hits of the summer to sell records, their preemptive legal strike was smart business. Especially if one considers that Thicke, et al, offered a settlement of six figures which Gaye’s family refused. With the law on their side, let’s see if Gaye’s family was foolish to pass on that offer when Thicke was willing to “Give It Up”!

For your listening pleasure, other songs that were hits after borrowing an “idea” but not the idea’s specific “expression”:

Queen’s “Another One Bites The Dust” v.s. Chic’s “Good Times”.
Styx’s “Renegade” v.s. Queen’s “Bohemian Rhapsody”.
Madonna’s “Express Yourself” v.s. The Staples Singers’ “Respect Yourself”
David Bowie’s “Space Oddity” v.s. Elton John’s “Rocket Man”
The Beatles’ “I Wanna Hold Your Hand” v.s. Roy Orbison’s “Pretty Woman” (their bridges)

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Dave Carlock
DAVE CARLOCK -
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