3.5.15 NOT HAPPY

This article originally appeared in the 3.5.15 issue of Metroland

The “Blurred Lines” case, in which Marvin Gaye’s kids are trying to shake down Robin Thicke, Pharrell and TI, is in the midst of trial right now in LA.  It’s not going very well for Team Gaye.  The judge knocked the stuffing out of the Gayes’ case last month by ruling that the jury would not be allowed to hear the Marvin Gaye recording of “Got To Give It Up,” the song allegedly infringed by Thicke & Co. in writing “Blurred Lines.”

            Why, you ask?  Well it’s like this.  With any recording, there are two copyrights: one for the song, the composition, and another for the performance of that song, the recording.  What constitutes the song is typically limited to the melody and lyrics, and sometimes a unique chord or song structure.  Everything else is embodied in the performance.

            Here, the Gaye children are claiming that “Blurred Lines” infringes the song “Got To Give It Up,” which they own.  However, they do not own the recording of “Got To Give It Up.”   That is owned by Motown Records, which has the same parent company (Universal) as Interscope, which released “Blurred Lines”.  And Motown isn’t about to sue its cousin.

            What the Gayes are left with is what was submitted when the song “Got To Give It Up” was registered at the Copyright Office: sheet music.  That’s what they own, and that’s what they have to show was infringed by Thicke, Pharrell and TI.  Not Marvin Gaye’s voice, not the groove, not the background vocals, not the bass line, not the drum sound or the instrumentation.  The melody and lyrics.  Not a whole lot to go with.

            So it’s been a hard slog at trial, with the jury being presented with piano-and-voice versions of the competing songs, and with Thicke giving a mini-concert of the various songs he says influenced the songwriting process (a medley including "With Or Without You," "Let It Be," "No Woman No Cry" and "Man In the Mirror").  Then the jury had to suffer through the Gayes’ musicologist experts trying to tie the competing songs together, including comparing the “hook lines” “keep on dancin’” and “took a good girl” which both come “immediately after the bar line” and “share three out of four notes.”  What? 

            That’s the best the Gaye camp has got, apparently.   They also made a big deal out of the fact that Thicke, Farrell and TI listened to “Got To Give It Up” during the songwriting and recording process, which proves exactly nothing.   As Bert Sommer used to say “That’s show-biz babe!”  This lawsuit should never have been brought, and it never should have been allowed to go to trial.  We’re talking here about influence, not stealing, and if Marvin Gaye’s kids got a piece of every tune Marvin Gaye influenced, they’d all be richer than Warren Buffett.

            The trial should wind up this week and we’ll probably get a verdict sometime next week.

            You may have heard that a library in Trumbull, Connecticut (near Bridgeport) recently removed a recently-donated painting of Mother Theresa out of concerns of copyright infringement.  I guarantee you that this wasn’t a librarian’s decision, because librarians, every single one of them in the world ever, are so much smarter than this.  The trustees of the library, and any attorney they consulted, should be publically shamed, tar-and-feathered, or perhaps taken out back and whooped good.  And the same goes for the knucklehead reporters who were on this story.

            The painting showed Mother Teresa surrounded by numerous activist women, including Margaret Sanger, the founder of Planned Parenthood.  The painting had been in the library for months when complaints started coming in from local Catholic leaders.  The library appeared to be holding tough until someone mentioned there might be a copyright issue with Mother Teresa’s image, and down came the painting.

            The problem is that no one can own a copyright in a person’s image. And there’s no “right of publicity” claim here either, as Mother Teresa was a rather famous person and her image isn’t being used to sell things.   And then there’s the small issue that she’s a dead woman from India whose image has popped up in Connecticut.

            So the Catholics came up with a scare tactic that smoked the ignorant and cowardly trustees of a little library and a piece of art got banished as a result.  I could see nonsense like this happening in Alabama or East Texas.  Or Iran. But Connecticut?  In 2015? Really?

Paul Rapp is an attorney ensconced in his mountain lair deep in the Berkshires, where he makes nougat, watches old movies, and drinks prodigious amounts of bourbon.