Blurred Lines sounds a lot like a Marvin Gaye song. Photo: Getty
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If you think Robin Thicke's Blurred Lines plagiarises Marvin Gaye, you don't understand songwriting

A jury's view that Robin Thicke and Pharrell’s Blurred Lines copied Marvin Gaye’s 1977 song, Got To Give It Up is based on a fundamental misunderstanding of what songwriting is.

Blurred Lines, the much-loathed, much-loved song performed by Robin Thicke and Pharrell Williams, sounds a bit like Got To Give It Up by Marvin Gaye. Anyone with good hearing would agree with that, surely. After all, it’s got a similar tempo, a similar feel, and they both feature a bloke singing in a high voice. The question currently being debated is whether Thicke and Williams owe sufficient debt to the Gaye track to be on the losing end of a court case which concluded yesterday. Having been found guilty of a breach of copyright, they now face a $7.4m bill for damages.

For many people, this is a no-brainer. When they hear the two songs one after the other, blaring out of a laptop speaker, they’ll state categorically that one of them – the one from 2013 – surely couldn’t have existed without the other one, from 1977. And yes, that’s probably the case. After all, the borrowing of sonic palettes is endemic in popular music – indeed, most forms of music. Thicke has frequently cited his love of Gaye’s music in interviews (although, as became clear during the case, it was Williams who actually wrote Blurred Lines). But the view that Blurred Lines plagiarises from Marvin Gaye is based on a fundamental misunderstanding of what songwriting is. Let’s be clear: these two songs are fundamentally different. They have different structures, different melodies, different chords. Were it not for the similarity of the sparse arrangement (an offbeat electric piano figure and a cowbell clanking away at 120bpm) the court case wouldn’t even have taken place. 

Yes, the two songs sound similar. But you can’t copyright the sound of something. If the implication is that you now can, there’ll be about 20,000 indie bands from the last 30 years getting extremely nervous that they’re about to hear from the Velvet Underground’s lawyer. George Michael will be getting ready to hand over his house to Earth Wind & Fire. A cataclysmic explosion of litigious activity awaits. Because, based on this ruling, everyone will end up owing money to everyone. 

The judge in the case knew this. He tried to create a level playing field by not allowing Gaye’s track to be played in court alongside Blurred Lines. Only the sheet music, and reconstructions thereof, were permitted as evidence. Lawyers for Gaye’s family had to prove to the jury some kind of link between the two tracks, despite the primary illustration of said link being ruled inadmissable.

A press release from 2013 by Gaye’s family's lawyers repeats one of the initial allegations circulating online, namely that the bassline and the cowbell patterns in Blurred Lines were stolen from Got To Give It UpThis blog post by Joe Bennett does an excellent job of describing why this certainly isn’t the case; yes, Blurred Lines uses a bass, and a cowbell, but the groove is completely different. The only similarities you're left with are the speed of the track, and the “vibe”. But there’s nothing in copyright law about “vibe”.

In the end, the case appears to have hinged on melodic fragments of Blurred Lines that were adjudged to have breached copyright. (It certainly wasn’t the dubious lyrics.) But in this blog post, written before the ruling, Dan Reitz details very nicely why a) no one has done anything wrong, and b) the worrying implications of the ruling should it go against Thicke and Williams.

“The Gayes’ musicologist,” he writes, “has chopped the music up into pieces that are so small that it would fundamentally change the process of songwriting if they won. If three common notes within a single similarly-shaped phrase is all that is needed to successfully sue someone, then the floodgates of litigation are about to swing wide open.”

Countless songs in the popular music canon have way more resemblance to each other than the two featured in this court case, but few people pick up on them, simply because they're styled differently. (Mashup artists have been making hay with this for years.) By styling Blurred Lines in a similar way to Got To Give It Up, Thicke and Williams laid themselves open to incorrect accusations of plagiarism. They tried to use the legal system to point out that “vibe” cannot be copyrighted, that “vibe” cannot be written down, but, incredibly, they contrived to be found guilty. We only have 12 notes in the musical scale, fellow musicians. Be very careful which ones you choose next. Lawyers are getting hungry.

Photo: Getty
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The UK press’s timid reaction to Brexit is in marked contrast to the satire unleashed on Trump

For the BBC, it seems, to question leaving the EU is to be unpatriotic.

Faced with arguably their biggest political-cum-constitutional ­crisis in half a century, the press on either side of the pond has reacted very differently. Confronting a president who, unlike many predecessors, does not merely covertly dislike the press but rages against its supposed mendacity as a purveyor of “fake news”, the fourth estate in the US has had a pretty successful first 150-odd days of the Trump era. The Washington Post has recovered its Watergate mojo – the bloodhound tenacity that brought down Richard Nixon. The Post’s investigations into links between the Kremlin and Donald Trump’s associates and appointees have yielded the scalp of the former security adviser Michael Flynn and led to Attorney General Jeff Sessions recusing himself from all inquiries into Trump-Russia contacts. Few imagine the story will end there.

Meanwhile, the New York Times has cast off its image as “the grey lady” and come out in sharper colours. Commenting on the James Comey memo in an editorial, the Times raised the possibility that Trump was trying to “obstruct justice”, and called on Washington lawmakers to “uphold the constitution”. Trump’s denunciations of the Times as “failing” have acted as commercial “rocket fuel” for the paper, according to its CEO, Mark Thompson: it gained an “astonishing” 308,000 net digital news subscriptions in the first quarter of 2017.

US-based broadcast organisations such as CNN and ABC, once considered slick or bland, have reacted to Trump’s bullying in forthright style. Political satire is thriving, led by Saturday Night Live, with its devastating impersonations of the president by Alec Baldwin and of his press secretary Sean Spicer by the brilliant Melissa McCarthy.

British press reaction to Brexit – an epic constitutional, political and economic mess-up that probably includes a mind-bogglingly destructive self-ejection from a single market and customs union that took decades to construct, a move pushed through by a far-right faction of the Tory party – has been much more muted. The situation is complicated by the cheerleading for Brexit by most of the British tabloids and the Daily Telegraph. There are stirrings of resistance, but even after an election in which Theresa May spectacularly failed to secure a mandate for her hard Brexit, there is a sense, though the criticism of her has been intense, of the media pussy-footing around a government in disarray – not properly interrogating those who still seem to promise that, in relation to Europe, we can have our cake and eat it.

This is especially the case with the BBC, a state broadcaster that proudly proclaims its independence from the government of the day, protected by the famous “arm’s-length” principle. In the case of Brexit, the BBC invoked its concept of “balance” to give equal airtime and weight to Leavers and Remainers. Fair enough, you might say, but according to the economist Simon Wren-Lewis, it ignored a “near-unanimous view among economists that Brexit would hurt the UK economy in the longer term”.

A similar view of “balance” in the past led the BBC to equate views of ­non-scientific climate contrarians, often linked to the fossil-fuel lobby, with those of leading climate scientists. Many BBC Remainer insiders still feel incensed by what they regard as BBC betrayal over Brexit. Although the referendum of 23 June 2016 said nothing about leaving the single market or the customs union, the Today presenter Justin Webb, in a recent interview with Stuart Rose, put it like this: “Staying in the single market, staying in the customs union – [Leave voters would say] you might as well not be leaving. That fundamental position is a matter of democracy.” For the BBC, it seems, to question Brexit is somehow to be unpatriotic.

You might think that an independent, pro-democratic press would question the attempted use of the arcane and archaic “royal prerogative” to enable the ­bypassing of parliament when it came to triggering Article 50, signalling the UK’s departure from the EU. But when the campaigner Gina Miller’s challenge to the government was upheld by the high court, the three ruling judges were attacked on the front page of the Daily Mail as “enemies of the people”. Thomas Jefferson wrote that he would rather have “newspapers without a government” than “a government without newspapers”. It’s a fair guess he wasn’t thinking of newspapers that would brand the judiciary as “enemies of the people”.

It does seem significant that the United States has a written constitution, encapsulating the separation and balance of powers, and explicitly designed by the Founding Fathers to protect the young republic against tyranny. When James Madison drafted the First Amendment he was clear that freedom of the press should be guaranteed to a much higher degree in the republic than it had been in the colonising power, where for centuries, after all, British monarchs and prime ministers have had no qualms about censoring an unruly media.

By contrast, the United Kingdom remains a hybrid of monarchy and democracy, with no explicit protection of press freedom other than the one provided by the common law. The national impulse to bend the knee before the sovereign, to obey and not question authority, remains strangely powerful in Britain, the land of Henry VIII as well as of George Orwell. That the United Kingdom has slipped 11 places in the World Press Freedom Index in the past four years, down to 40th, has rightly occasioned outrage. Yet, even more awkwardly, the United States is three places lower still, at 43rd. Freedom of the press may not be doing quite as well as we imagine in either country.

Harry Eyres is the author of Horace and Me: Life Lessons from an Ancient Poet (2013)

This article first appeared in the 20 July 2017 issue of the New Statesman, The new world disorder