Student Podcast Contest: Blurred Lines

podcastlogoJournalism History conducted a national student podcast competition during the fall of 2020.

In the second-place episode, William Paterson University student Ryley McKiernan investigates the history of copyright law through the lens of the 2013 song “Blurred Lines,” featuring insights from an interview with Jason Lee Guthrie, a media historian at Clayton State University.

Transcript

Ryley McKiernan: Music lacks the physical presence of other works of art, which helps explain why judging copyright for it can be so difficult.

Teri Finneman: Welcome to Journalism History, a podcast that rips out the pages of your history books to re-examine the stories you thought you knew, and the ones you were never told.

I’m Teri Finneman, and I research media coverage of women in politics.

Nick Hirshon: And I’m Nick Hirshon, and I research the history of New York sports media.

Ken Ward: And I’m Ken Ward, and I research the journalism history of the Great Plains and Rocky Mountains.

Teri Finneman: And together we are professional media historians guiding you through our own drafts of history. Transcripts of the show are available at journalism-history.org/podcast. This week, the Journalism History podcast is featuring the winners of our national student podcast competition. Throughout the week, you’ll be hearing from students across the nation as they share their stories of journalism history.

Ryley McKiernan: I’m Ryley McKiernan, a sophomore at William Paterson University majoring in journalism. Stick around for an in-depth look at musical copyright law and the legal case surrounding the 2013 hit “Blurred Lines.” This episode features insight from Clayton State University professor Jason Lee Guthrie.

The landscape of copyright is one fraught with many different factors that must be taken into account. There is an exact definition to copyright, but how that definition is applied is often left up to the judge on individual cases. Every case and claim of copyright is different and therefore rulings can often end up in murky waters. Professor Guthrie explains why that is.

Jason Lee Guthrie: Yeah. I mean that — this really touches on the central difficulty of music, copyright, um, and why copyright for music is different than pretty much all other creative mediums. Um, and in some ways more interesting, um, and, and that’s not just me that thinks that. There’s several copyright scholars, uh, that would agree. Um, so when you’re thinking about infringement, you just, like you said, a judge ultimately is tasked with determining whether or not infringement has occurred. So obviously if in whatever medium that you’re looking at, whether it’s, um, art or photography or film, you know, if the judge has some knowledge of the medium and the way things are made, especially as digital technology progresses and becomes more and more sophisticated, well, that’s going to be a benefit, but at least in visual mediums, you can see something, right? So when, when you’re talking about music and, and, um, audio-only mediums in general, but especially music, uh, you’re asking a judge to not only be an expert in the law, but also to be fairly expert in music theory and musicology.

Ryley McKiernan: Music lacks the physical presence of other works of art, which helps explain why judging copyright for it can be so difficult. The difficulty in discerning infringement begs the question: Why is it that certain artists often either win or settle their cases? Some of the biggest artists in history have been embroiled in copyright lawsuits from the likes of Led Zeppelin to Katy Perry. The former recently had a case concerning accused plagiarism in the song “Stairway to Heaven” that nearly went to the Supreme Court, though it was shot down by said office. The latter, in question to her song “Dark Horse,” was originally found to have infringed, but the ruling was later overturned. “Blurred Lines” was released by Robin Thicke in 2013. The song reached No. 1 on numerous charts around the world and grossed millions in sales. At the time of this podcast, the censored version of the music video is approaching 700 million views on YouTube. Only a few months after release, the writers of the song filed a rare lawsuit against the estate of Marvin Gaye after the estate made what the writers felt were unlegitimized claims of copyright infringement of Gaye’s song “Got to Give it Up.” The writers sought a statement from the estate that no such copyright had taken place. Thicke and others would lose this suit, upon which Gaye’s estate filed a counterclaim, which was heard and saw the court hand down a judgment against Thicke and company. The judgment sparked outrage through the music community, causing over 200 unassociated artists to file a statement condemning the result. So, why is it that the writers of “Blurred Lines” lost their case when many other artists have emerged from court victorious? Before answering that question, it’s important to realize not everyone in the defense against the Gaye estate’s counterclaim lost. Clifford Harris Jr., more commonly known as T.I., was a featured performer on the track and received as much songwriting credit as Thicke and Williams, but was not found to have infringed.

Jason Lee Guthrie: If he is listed as a full-on writer, then the reason that he wasn’t held accountable would be because whatever part, whatever portion of the writing that he was responsible for, didn’t have anything to do with the, you know, infringing melody.

Ryley McKiernan: Copyright judgments are not necessarily universally blanketed, as clearly seen in this case. That left Thicke, along with writer and performer Pharrell Williams, on the hook for the judgment, which eventually tallied over $5 million. How is it that the court came to their decision? Well, in the most basic of analysis, it would seem that they couldn’t. After all, “Got to Give it Up” was never actually played in court for the judge or jury to hear. Without hearing the song in question, how could a court come to a judgment?

 Jason Lee Guthrie: That, that really is the place where music copyright in particular becomes very complex, um, and very dependent on the particular judge, as well as other factors in the case. Um, and you know, uh, we’ll probably talk about that some, but there are other, uh, social factors and media influence factors and industry influence factors that come in, um, that really a lot of times, you know, kind of bring the weight down on one side or the other, you know. Does this count as infringement or did this not count as infringement?

Ryley McKiernan: Professor Guthrie elaborated, using the context of the suit against Led Zeppelin’s “Stairway to Heaven.” In the case of copyright, a copyright suit, if it’s an iconic song — which I think everyone could agree “Stairway to Heaven” is something of an iconic, legendary piece — does, does that play into the, into the ruling?

Jason Lee Guthrie: Well, it shouldn’t play into the judge’s understanding of the law, right? But does it? I mean, almost certainly it does, right? Especially when you’re talking about an area of the law that has so much room for interpretation. I mean, we’re all human beings. Like, the judges are usually older. You’re talking about an older classic song. This is probably in all likelihood a song that, that judge listened to, you know, in their teenage and college years, you know? I mean, so it’s like, yeah, you have to include all of that. And so there’s no, there’s no way to know exactly how all of that’s going to play out to say that like, like that’s what, that’s why copyright is so, you know, interesting to study because it is really hard to predict.

Ryley McKiernan: With the understanding that factors outside of the actual song can make an impact in acknowledged gray areas, it’s clear that Thicke did not play his cards all that well.

Jason Lee Guthrie: Some of the confounding factors in this particular case, um, are tied with what you’re talking about and with the, ultimately the way that this one went down. You know, if you look at, um, some of the journalistic coverage of this case, I mean, this, this one, um, started, you know, several years ago, I think, 2014. Um, and, uh, there, there were some confounding factors in that, uh, Robin Thicke, um, had made some public statements about being influenced by Marvin Gaye, uh, and even the particular song in, in question that was ruled, you know, to be infringed. And then he kind of walked it back when he realized that, um, you know, maybe I opened myself up to…

Ryley McKiernan: He started doing damage control.

Jason Lee Guthrie: Right. And then the damage control almost went, um, almost made it worse, um, because he, he made it legal before the Gaye estate, you know, even took it to that level. And then I think at one point he actually tried to sort of pass the buck and say that, you know, he claimed to be a songwriter and was officially, you know, had a songwriter credit, um, uh, on the official filing of the song. But actually he was too high in the studio when — and so it was really Pharrell that did all the writing and he had just said that. And so he, he really just bungled the PR aspect.

Ryley McKiernan: The newfound revelation of Williams’s role as the primary songwriter would explain why he and Thicke filed a motion preventing “Got to Give it Up” from being played in court. Thicke’s brazen openness with the press landed the case in hot water, giving the Gaye estate a leg to stand on. Even without the song, the jury found that “Blurred Lines” exhibited qualities of the Gaye track, finding Thicke and Williams liable for the infringement. The claims of the Gaye estate that the track copied the feeling of “Got to Give it Up,” rather than any direct section or arrangement, were found to be true. Legally, the judgment established a new precedent concerning what could be considered copyright infringement. Previously, suing for the vibe or feeling of a song was almost assured to lose in court.

Jason Lee Guthrie: Yeah. All cases, um, set precedent. And I would say, if anything, that’s especially true in copyright.

Ryley McKiernan: This new precedent could’ve been completely avoided had Thicke and Williams offered a stipend to the Gaye estate before the song’s release. Sampling is a process in which the writer of a song cribs a portion of an existing piece, but receives permission, officially called “clearance,” to do so. The clearance is most typically bought, either in the form of a flat sum or part of a royalty. It acts as a way to protect the writer of the new song and specifically protects their monetary gains. Think of it like a sports team signing a young, promising player to a contract before said player has had the opportunity to win awards, such as MVP, that they would later be able to bring into negotiations had a contract not already been signed. If Thicke and Williams had gone to the Gaye estate aware of how their song was influenced by “Got to Give it Up,” the deal they likely would have reached would’ve been for far less than the estate was eventually awarded by the court after the song went on to make millions. Sampling, like an early contract, is just a smart business investment, legally and monetarily. The Gaye estate would almost certainly grant the clearance for the sample. Most artists do. Artists typically only deny clearance if they have a specific issue with the song in question. Otherwise, turning down sample clearance is akin to turning down free money. The support from the aforementioned hundreds of artists seemed to stem from the new precedent perceived to have been created. Regardless of how artists may feel, legally, the case is settled and the precedent is cemented. A motion of appeal from the three songwriters was filed, though the court of appeals upheld the original ruling in 2018. The legal ramifications from this case are widespread. The vibe of a song is now technically something that is considered protected. That is what makes this case as important as it is and why we still talk about it today. It single-handedly changed what is considered to fall under the umbrella of copyright law.

It’s hard to say within what limits an artist may be influenced by other music with this decision. What measure of a song’s vibe is to be considered to be infringement? There doesn’t seem to be a clear answer to this question at the moment. The frustration of the artists was likely borne out of fear of how ramifications of the ruling could legally affect them. Some may have felt that it would make it more difficult to write and create music without fear of a lawsuit, while others may have felt that it would open the door to a lawsuit for songs they had already written. Undoubtedly, those that wrote the letter on the appeal were acting in an attempt to protect their own interests. At face value, it seems that this decision makes it more suffocating for an artist to create. But it’s arguable that the ruling also serves to protect the interests of the artist. At its core, it sets a precedent for a more fervent defense of the atmosphere that artists often strive to cultivate in their work. It’s not a stretch to say that artists have their own distinct styles that they carve out for themselves that makes them and their music wholly unique. They have their own nuances and flair that make their work their own and this ruling works to protect that flair. Sure, it’s not an aspect of the work that can be put on paper. Music will always just be a collection of notes, rhythm, and melody. But there would be no reason for different people to write music if the flair of someone could be quantified so strictly. I think the legal reality of this case is that it’s quite easy to become frustrated with the ruling of the court, and perhaps it was a bit of a heavy-handed verdict. The original amount that Thicke and Williams were ordered to pay amounted to over $7 million. But it’s easy to become lost in that frustration and not realize how the case may actually serve to protect one of those dissenting voices in the future. Artists seek for their work to become more than a simple arrangement of notes, and this resolution seems to protect that effort that goes into the work.

The impact of the case can already be shown. Katy Perry’s song “Dark Horse,” mentioned earlier, was subject to a lawsuit from a group called Flame for very similar claims as the Gaye estate alleged with “Blurred Lines.” Flame claimed that the song “Dark Horse” featured a similar feeling – sounding familiar? – in the form of what is known as an ostinato to their song called “Joyful Noise.” For context, an ostinato is essentially a repeating pattern. Flame went to court on this claim because they had no other claim. The songs feature two different chord progressions along with completely different melodies. The closest Flame could come to proving an exact cribbing is in the first few notes of each song’s ostinato, which were played on exactly the same note, that being a C. But a note can’t be copyrighted.

The Perry case was overturned after a ruling was handed down in the Led Zeppelin case. Led Zeppelin found themselves in similar waters as Perry. They were being sued by a band named Spirit for alleged copyright infringement of their song “Taurus.” Spirit’s claim was on the basis of perceived similar arpeggios. An arpeggio is a way of playing a chord where the notes are played individually in different order rather than played at once. But again, they were arguing that the songs were similar and shared a feeling, not identical. Just like Flame couldn’t copyright a note, Spirit couldn’t copyright an arpeggio. Both of the cases of Led Zeppelin and Perry were heard after the judgment in the “Blurred Lines” case was handed down in October of 2014. The court ruled in favor of Led Zeppelin, and that ruling led to the overturning of the Perry case due to the similarities between them.

Even still, it’s difficult to say that either of these cases would have had a chance in court before the ruling for the Gaye estate in the “Blurred Lines” case. Doubly so for Perry’s case, where it was originally decided that she had somehow infringed on Flame. Both of the alleged plagiarism in “Stairway to Heaven” and “Dark Horse” take a very similar argument as the Gaye estate did. The ruling in the “Blurred Lines” case is only barely over six years old, and the impact of it is already clear. One can only hope that the rulings for Led Zeppelin and Perry bring some sort of clarity to what constitutes copyright as to the vibe of a song: copyright of the fundamentals, down to singular notes, would potentially destroy the music industry.

There is zero doubt that we’ll be talking about the case of “Blurred Lines” for years to come. And, at the end of the day, Professor Guthrie thinks the court got it right.

Jason Lee Guthrie: Yeah. The, um, I, I, yes, I think that, to me, there was a form of copying that should have gone through the proper channels for this particular song in this particular case. Uh, that they should have taken the high road and just given the Gaye estate, uh, you know, we were talking like instead of fifty percent cut, it would have, could have been five percent or even less. I mean, it could have been a one-time payment if they had just negotiated it upfront.

Ryley McKiernan: I hope this episode helped you come to your own conclusions and maybe you even learned something. Stay happy, healthy, and, of course, ever inquisitive.

Teri Finneman: Thanks for tuning in, and be sure to follow us on Twitter at @JHistoryJournal. If you like our podcast, leave us a rating and a review wherever you listen to podcasts. Until next time, I’m your host, Teri Finneman, signing off with the words of Edward R. Murrow, “Good night, and good luck.”

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