8.22.13 BLURRED LAW

This article originally appeared in the 8.22.13 issue of Metroland.

ROBIN THICKE SUES MARVIN GAYE’S FAMILY makes for a great headline, doesn’t it?  It brings to mind the sad and shameful legacy of white exploitation of black music and musicians:  Bo Diddley!  Pat Boone doing Tutti Frutti! Elvis ripping off Otis Blackwell!  Lester Chambers!  This headline set off a stream of anti-Robin Thicke invective, that no-talent coddled rat-bastard thief!  Oh, the humanity! I was moved to grasp my dog’s paw and launch into a spirited white-boy version of “We Shall Overcome.”

            But wait.  What if the headline said “T.I. Sues Marvin Gaye’s Family” or “Pharrell Sues Marvin Gaye’s Family”?  Doesn’t have the same sting?  Oh, that’s different?  Well, no, it’s not.  Because T.I. and Pharrell are suing Marvin Gaye’s family.  In fact, they’re Thicke’s co-plaintiffs.

            What’s going on?  This all revolves around Thicke’s little slice of ear candy, the big fat hit Blurred Lines, which T.I. and Pharrell co-wrote with him.   (If you haven’t already, I recommend you watch the improbably charming adult version of the video for the song, which features lots of naked women, and the iPhone version with Thicke, Jimmy Kimmel and The Roots)   In interviews, they freely admitted that the tune was inspired by Marvin Gaye’s Got To Give It Up.  Apparently, that was enough to get Marvin Gaye’s kids (Gaye was murdered by his father in 1984, leaving three kids, Frankie, Marvin III, and Nona) demanding money and threatening a lawsuit.

            At the same time, publishing company Bridgeport Music was also demanding money and threatening a lawsuit against Thicke and friends, claiming that Blurred Lines infringed on the George Clinton / Funkadelic song Sexy Ways.

            So, Thicke, T.I., and Pharrell decided to bring matters to a head, and brought suit for what’s called a declaratory judgment, asking the court to declare that Blurred Lines doesn’t infringe either song.  Since the Gayes and Bridgeport own the songs at issue, and because they’ve all threatened to sue Thicke & Co., they are defendants in the case.  In other words, they’re not being sued for money damages (although they may end up paying Thicke & Co’s attorneys fees if the case goes the distance).

            Now I’d like you to put this down and go to YouTube and listen to the songs (if you wanna see them Blurred Lines nekkid wimmins you gotta go to Vevo) and make up your own minds.

            This strikes me as nothing but proper reaction to a shakedown.  Write a hit song, expect to get landed on by somebody claiming to have been ripped off.  Blurred Lines doesn’t infringe either song.  If it does, then so does half of Prince’s catalog.

            As a general matter, copyright protects lyrics and melody; it doesn’t protect style, feel, groove, etc.  Being influenced by something, or writing a song that’s “like” another song isn’t necessarily infringement.  Influence and copping styles is how music flourishes and grows.  Every musician and songwriter is influenced by other musicians and songwriters.  Duh!  

            But did they really have to march off to court?  Well, yeah.  Bridgeport is extremely litigious, many refer to it as a copyright troll (it also has been accused of stealing George Clinton’s catalog—a dispute that I hear will be playing out soon), and it likes to sue people in Tennessee, where it gets wacky results.  About ten years ago Bridgeport got the Tennessee federal appeals court to rule that any digital music sample was automatically an infringement, no matter how small and even if the sample was unrecognizable.  This insane decision, which as we lawyers like to say is still “good law”, has impeded the progress of music-making ever since.  You don’t wanna get sued by Bridgeport in Tennessee.

            On top of that, there was plenty of chatter about Thicke & Co ripping off the Marvin Gaye song, which was not doing their reputations a whole lot of good.  So rather than wait to get dinged by Bridgeport in Tennessee, face a second lawsuit who-knows-where from the Gayes, and see their names continue to get dragged through the mud, they sued, in their home turf of California, one lawsuit that basically asks the court to tell Bridgeport and the Gayes to just STFU.  For all the crap they’re getting (and Thicke’s getting the worst of it), it was the right thing to do.

            It’s also gotta be noted that the actual songwriters of Got To Give It Up and Sexy Ways aren’t involved in this at all.  George Clinton even tweeted his support for Thicke & Co.  I don’t know anything about Marvin Gaye’s kids, maybe they’re nice people, who knows, but there’s always something unctuous about a great artist’s kids trying to wring every last dollar out of Mommy’s or Daddy’s “legacy”.

            Gotta feeling this is all going to go away quietly.  Hope not.  I wanna see Thicke (and T.I. and Farrell) completely vindicated.

Paul Rapp is an earnest entertainment attorney who used to play in a popular band that stole stuff from everybody.  All the time!