"Blurred Lines" and Marvin Gaye: Can You Copyright Cool?
When I first heard "Blurred Lines," I was driving in my car. I knew I'd heard it before, but I couldn't place the song. So I Shazamed it. Still nothing. I didn't recognize the title. About a half-an-hour later . . . Abracadabra! I remembered Marvin Gaye's extended groove, "Got to Give It Up." I replayed Gaye's song, and the similarities were obvious.
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Robin Thicke and his cohorts, Pharrel and TI, recently filed a preemptive lawsuit to protect their song from Marvin Gaye's estate. ("The lady doth protest too much, methinks.") Thicke claims in a GQ article that he was 'influenced' by "Got to Give It Up," and that he was reproducing a 'sound' from an earlier era. Obviously.
My question is: Can you plagiarize a vibe, an attitude? Can you copyright cool? You can pose, be a poseur when you imitate, but can you get sued/lose money for that? Isn't this where most pop music comes from? Most bands I've watched grow have imitated their heros.
It turns out, according to Forbes, you can copyright cool and can sue/be sued if an imitation has "substantial similarity of expression":
It is axiomatic that copyright law protects the expression of ideas [emphasis added] but not the ideas themselves. Sometimes the distinction between an idea and its expression is clear-cut but at other times the distinction can be obscure. As a result, courts have relied on the following two-prong test to determine copyright infringement:
1. Copying of a prior work; and
2. A substantially similarity to the prior work sufficient to constitute improper appropriation.
Proof of copying is necessary but not sufficient to determine copyright infringement. There must also be a substantially similarity to the prior work sufficient to constitute improper appropriation, where "substantial" means substantial in degree as measured either qualitatively or quantitatively and "similarity" means similar in the eyes of the ordinary member of the intended audience.
More than the lawsuit, I'm curious how 'aware' the creators of "Blurred Lines" were of their 'borrowing', especially considering the title -- if you'll excuse the pun, blurring the lines between the song's benefactor and the new product. Or is that the whole point of the the preemptive lawsuit -- proof of how aware Robin and his buddies were when they created the song and controversial video? "Blurred Lines" looks/sounds more like an advertising campaign that it does a pop song. And a very good campaign at that, creating "devotion beyond reason."
I'm also curious if this kind of imitation raises red flags for composers anymore. In a culture where being cool or being original is so revered -- at least it used to be -- does this recycling suggest something more sinister for the future of both creators and consumers of pop culture? New York University's Mark Crispin Miller seems to think so and has made a career arguing about the dangers of our consumer culture. He argues, "Once a culture becomes entirely advertising-friendly, it ceases to be a culture at all."
Is he right? I don't feel like the Black Keys are a sign of the end-times -- I think the Keys are bitchin' -- even if they are "commercial." What I am interested in is the ironic distance a song such as "Blurred Lines" incorporates.