Thursday, March 12, 2015

Thicke and Pharrell's Melancholy Elephants shuffle onstage

Nobody likes Robin Thicke or his marginally rapey song, and Marvin Gaye is a demigod, which means that everybody is happy if Thicke's song is determined to be infringing and all his pots of money are handed over to Gaye's family.

Pharrell just got caught in the crossfire.

That seems to be the consensus, and I have to agree with it. Unfortunately, I think the verdict does usher in the age of Melancholy Elephants.

To recap, Thicke (who says he was too out of it to have a part in it) and Pharrell wrote "Blurred Lines" which they seem to acknowledge has the "feel" of Gaye's "Got To Give It Up". It doesn't have the protectable elements of the earlier song - the notes. Nevertheless, a jury decided it was infringing and told the pair to pay $7.4 million to Marvin Gaye's estate.

The Future of Music Coalition gives a great breakdown of the legal aspects. Although you can't copyright "feel" or "groove" - which I would hope is self-evident - the court looks at "extrinsic" and "instrinsic" factors in determining whether something is infringing. "Extrinsic" factors are objective ones, such as the actual notes played.
The intrinsic test is more subjective and aims to determine “whether the ordinary, reasonable person would find the total concept and feel of the works to be substantially similar.” Pasillas v. McDonald’s Corp., 927 F.2d 440, 442 (9th Cir. 1991).

So the test of "feel" has been around for some time. It's not a new factor in determining these cases. But many people think that if "feel" or "groove" are protected, musicians will shy away from any attempt to perform the types of music they grew up loving, or as Future of Music Coalition puts it: 

If the case ends up setting a legal precedent, it could also chill expression, if songwriters shy away from stylistic homages to earlier works. (FMC)
Or the Atlantic:
The entire history of popular music has, in large part, been driven by songs that evoke other songs, whether when Bo Diddley’s strumming style birthed rock or the “trap” beat transformed hip-hop over the past few years. It seems counterintuitive, but creative copying often accompanies innovation... (Atlantic.)
Or Deadspin:
I encourage vocal fans of this verdict to demonstrate their solidarity by deleting and/or destroying every piece of music they own featuring an unlicensed sample or bearing a notable resemblance to an earlier piece of music. But they won't, and they shouldn't, because that would entail deleting just about everything. Even if you loathe Thicke, this is no cause for celebration, because the size of the Gaye estate's bounty is only going to encourage more lawsuits like this one. (Deadspin.)

And I agree.

But where do the melancholy elephants come in? Not because "pachyderm" means "thicke skinned" although that might have something to do with it.

They came in because of a 1983 story by Science Fiction writer Spider Robinson - it's the title. Although it's a short story, it's quite a long read for a modern, Twitter-using human (3 pages) so I'll summarize it.

One day in the future, Dorothy goes to her senator to ask him to quash a bill. It's a bill that would give copyright in perpetuity, because who would argue that you shouldn't keep control over your creation just because you're dead? Dorothy herself stands to gain a lot from her late husband's estate.

In the course of the story, the senator realizes he hasn't heard new music for years. There's only so many variations on the few notes that are available.

Pick a figure for maximum number of notes a melody can contain. I do not know the figure for the maximum possible number of melodies--too many variables--but I am sure it is quite high. "I am certain that is not infinity. "For one thing, a great many of those possible arrays of eighty-eight notes will not be perceived as music, as melody, by the human ear. Perhaps more than half. They will not be hummable, whistleable, listenable--some will be actively unpleasant to hear. Another large fraction will be so similar to each other as to be effectively identical: if you change three notes of the Moonlight Sonata, you have not created something new. "I do not know the figure for the maximum number of discretely appreciable melodies, and again I'm certain it is quite high, and again I am certain that it is not infinity.  (

 I won't give away the ending.

Since the story was written, copyright has been extended to 70 years beyond the death of the last author, so Dorothy is already set for the foreseeable future.

Now we are asked to refrain from not only the notes of the composition, but also its "feel". And elephants - and families - never forget.

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