Red Dog Music | Oct 9, 2018 | 0
Is a cowbell really worth $7,300,000?
On 10/03/2015, courts in the United States awarded $7,300,000.00 in damages to Nona and Marvin Gaye III with regards to a very questionable copyright infringement from Pharrell Williams, linked into his joint smash hit with Robin Thicke: “Blurred Lines”. The claim was that the song stepped on the toes of the legendary Marvin Gaye’s 1977 song “Got To Give It Up”.
All news sources seem to be covering it as it’s causing a lot of controversy in the music world. The overall view is that it is relevant, not just to this individual claim but also fear-inspiring as to what the future repercussions are for the world of copyright. Opinions currently divided into two distinct camps: the first being in the corner of the Gaye estate – poor Marvin – his work obviously ripped off. The other camp is on side with Farrell and Robin; of the mindset that they have been unfairly cheated out of their well earned wages.
We know our Red Dog Blog readers are keen to get a referee to jump into the ring and offer a bit of an explanation as to what the hoo-ha is really all about. We know you want to know what the real position is and how this high profile lawsuit may directly affect you. Ultimately, you’re musicians and you want to know what this really means and what to expect when your secret project is unleashed and makes it big! Here is our ten pence worth on the big debate…
The crime scene
Tribute and homage vs plagiarism and rip offs; the principle of copyright is easy to grasp on an ethical level. It is a set of rules designed to prevent musicians being taken advantage of in an industry where artists are often under-compensated and taken advantage of. The finer details of the law make it a much more cloudy mix, making it quite tricky for the average musician to distinguish the wood from the trees. Dependent on which country you are reading this in, there will be unique outlines for what infringement comes down to. In some cases it is set number of notes copied, certain length of time sampled or certain phrases being duplicated.
Without getting too hung up on the nitty-gritty for each country, it is perhaps best to view the topic of copyright in its simplest of forms to see how it really should apply to this case. Copyright is a bit like an inventor’s patent: a legal brand that says, “I made this, I should profit from this and if you want to use it, ask me nicely or give me some doh-lllaah!” What is more relevant to this case is this effective ownership of a sound can be passed on to others. In this case, the ownership of the copyright was passed from Marvin Gaye to his relatives after his death.
The infringement aspect is comes down to reproducing or performing the work without the said thumbs up of the copyright holder. So if you were to do a cover of Wigfields classic “Saturday Night” to a heavy metal back line, you need to ask Wiggy for her nod and wink. Without it, she will come calling for her share of your moolah, should it hit number one for a record breaking duration. The same applies to chopping and pinching samples of the original without her permission. Should you construct a new Drum & Bass monster classic called “Like The Way You Move!” that loops her Euro tones over and over a fat chain beat, again expect a few headaches and a few legal experts calling for their cut.
It is not just a financial battle field. You may not care if you lose all money, so long as the number one holds and you reap all the fame and get to go on Graeme Norton’s next celeb-shine-fest. Should Wiggy take offence to your creations, she has fair play to enforce a halt to your ongoing attempts to stardom.
But what if you just love Wiggy’s work? What if you have a collection of 80’s and 90’s gear, all the synths and sequencers and drum machines set up to make the ultimate Wigfield tribute? What if you wanted to make a song that sounds a lot like her, but generate a whole new masterpiece with new beats and chords and call it “Sunday Morning!” Close enough to be considered ‘similar’ but different enough to be a whole new song? This is the tangled world that this recent case has entered into and the real reason why it’s getting people onto their soap boxes to chime in.
The crux of the whole argument at hand is that Nona and Marvin believe Pharrell Williams crossed the blurred line of copyright (gettit???) Essentially they are saying “Blurred Lines” is a copy of their daddy’s classic 1977 hit “Got to give it up”, going back to our outline of reproducing and performing without the golden/dollar thumbs up. This has resulted in Farrell and Thicke being pressed into coughing up around three quarters of their revenue earned from their fresh, modern hit.
Listening to both tracks back to back you will probably agree that they do have similar theme. On both songs, there is a certain grove that makes you tweak your right gluteus maximus on three beats, followed by a good swoopy squeeze with your left on the fourth. Go on, try it! Now that it has been pointed out, you can’t help but notice you doing it yourself and the same reaction will pop out unexpectedly. Surely this indepth musical analysis is solid enough to warrant a $7.3 million payout? End of story. The sad reality is it seems that the ‘pinch, pinch, pinch squeeze’ vibe and the “well, it sounds the same” thought process is about as far as the jury went in their review of the evidence before them.
It is mind boggling to think that such a huge case hinged on so little professional counsel. Should a police officer find a pair of people on a pier, both wet and one dead, would the officer immediately accept the story that “one friend simply drowned by accident”? Would a simple snap-shot of the wet body be put forward to an untrained jury as evidence of a drowned body? Well, maybe in some trials… but generally you would expect an autopsy by a trained doctor. You would want someone qualified to say if it was an accidental drowning or if it was strangulation. At a trial, you would look for concrete evidence as it is critical to a fair judgement. A soggy corpse may not be all it seems, all that glitters is not gold, and perhaps sounding similar does not mean it is the same. To play devil’s advocate, we have come up with a few findings in our own musical autopsy. The end goal is to reveal if this really should be considered a copyright infringement from a technical, as well as an ethical point of view.
The cursory examination.
Straight away a few things stand out that we can cross of the sheet. No sampling! Not a split second of the original has been directly copied and reproduced. Generally this is the number one offender in infringement cases, remember Ice Ice Baby? Moreover, if Pharrell and Thicke did do a chop-and-plop job, they would have had to redo the whole song, given the whole tempo is different. Similar, but technically different with “Got To Give It Up” striding at 122 beats per minute, and “Blurred Lines” swaggering at a cooler 120 beats per minute. Similar, but not the same.
Next up in our cursory examination, the lyrics. Well this is a bit of a no brainer again. Words are different. Let’s not dwell on this one, scalpel please, we need to start cutting.
Next up, we have the chord movements and progression. This is now getting a little more juicy and interesting. This was indeed touched on in the case itself. Yes, a similar grouping of chords from both artists but different patterns. Different is again the operative word. I have always felt this to be a flimsy complaint across most copyright issues. Take the chord group C, G Am & F and search the internet for songs with these chords. You may get a surprise. There is a limit to the number of notes and chords available. It stands to reason that chord combinations come up again and again throughout different songs.
The chords used clearly indicate the whole key of each song. “Blurred Lines” sits in the key of G, “… Give It Up” lies in A. Similar to an untrained ear, but technically again we show a real difference between the two. The C# in the melody from “Got To Give It Up” would sound horrifically discordant if placed directly into “Blurred Lines”. So far, the songs are very different and clearly uniquely crafted.
So what ties the songs together to the tune of $7.3 million in compensation? What sounds are emerging to create the ‘tweek, tweek, tweek, squeeze’ butt-dance? Well, it really comes down to the funky groove. In our muso terms, the beats and da bass! Another quick sneaky listen and you will agree the funk element is key, and all accusation stems from two factors. The wandering & returning jibbery bass line, and above all – the smoking gun – the cow bell!
To say that Marvin Gaye has all rights to this overall combination of beat& bass is absolutely ludicrous. On this front, I would really press Goldie to go to the courts in the US and sue for his cut on all jungle/drum and bass music that followed him over there. Goldie, if you read this and take my suggestion, I would like a couple of tickets to see you play as my cut for the idea. Back to the audio-autopsy at hand; let us now put down the scalpel and bring out the forceps. We are looking for what is the same and not just similar.
Let’s get back to this cheeky bass line that ebbs and flows, in all honesty this type of playing is not unique to either song. This pattern of playing can be seen in many works in the thirty six years between both songs, so we can’t grumble on the style. Are they the same line? Well under our microscope the answer is again a solid no. Both lines are different. Different progression of notes and different placements of notes mark the two as unique. Chewing deeper on the scales used, Gayes classic flows a tried and tested pentatonic minor scale, Blurred Lines opting for a more contemporary mixolydian mode. Boom! Da bass is just different. Similar, but not the same.
So the only tangible thing left to lock into is this hot cowbell action on both tunes. It seems this can be the only thing to be worth a $7.3 million cheque. Obviously Marvin invented the cowbell and has mastery over all use of this item. Let’s just forget about Hillbilly music from the 1920’s. Let’s also choose to ignore the bit in Straus’ “Eine Alpensinfonie” that uses rhythmic cowbells. I have personally played with a band that used a little hot cowbell action for novelty. I’m really glad that we never made any money for us to lose in court!
No, we get that this is not an exclusive instrument, but was Marvin Gaye’s sound directly copied? What is this syncopation malarkey that we also keep hearing about? The syncopation aspect is simply adding accent to a weak beat, giving the effect of warping and displacing a standard rhythm into something a little more interesting. Sounds fairly romantic and something that we might owe entirely to the funk-meister-Marv, but again, no. A great deal school children in Scotland get the same compulsory highland country dancing lessons each year for the school Christmas dance. We will all tell you that the syncopated “Scotch Snap” was perfected in the Highlands aeons ago. So really, no infringement and no permission required to adopt this style rhythmic emphasis.
But surely, the cowbell is a direct copy and explains this rip off? Pharrell and Thicke just programmed the exact same line into their own track. With factual analysis, we can see that they are again entirely unique patterns. Similar, but not the same. A good drummer will tell you that Marvin Gaye has a 6 strike, three pair pattern culminating on the 8th beat. “Blurred Lines” is actually a slightly more complex 7 strike-per-bar, more intermittent pattern, leading to fruition on the 16th note.
So the smoking gun is just an old bit of pipe; the cowbell line is different from song to song.
Overall, I have had a good look through the evidence before me and can’t see any part that has been directly pilfered. I am obviously open to correction, but I would really like to know of one technical point that shows a clear copyright infringement has taken place in this case. Overall the new work is completely a new composition and unique in every substantial way. To the layman (and the US courts) it has a similar groove leading to a similar listening experience. To us musicians, we really know that it’s different by solid, definable measures.
The reality is that Williams and Thicke are good chums that pulled an all-night working session. They both share a mutual love of Marvin Gaye’s original tune and both set out to compliment it by writing a new song that mimics its vibe. Despite his youthful looks, Farrell is no one hit wonder and has been in the game long enough to grasp the ins and outs of the copyright game. As a talented musician he emulated the Gaye sound, but used his musical knowledge to adapt and modernise it into a unique, new song. I am sure he felt very safe in the knowledge that because his work was technically original he would never be in this position of sacrificing so much money. Overall, this is evolution and not duplication.
His technical certainty left him with a low guard and probably left him with the false belief this song would never be challenged. The problem is that a panel of Mr and Mrs Joe Average made the call. The average listener has little concept of the technical differences between beats and progressions. Mr and Mrs Joe Average just really picked up on the aforementioned ‘tweak, tweak, tweak, squeeze’ effect and judged accordingly – perhaps wrongly – from a feeling. Can we really copyright a feeling?
Write a song and roll the dice.
Coming back to you, the muso! What does the judgement really mean? Can you get stuck into your awesome black metal Wigfield tribute? How will the dust settle in the music world? Sadly this in itself will remain a blurred line. Should it do well, there is bound to be someone knocking for their cut of your money. All this case proves is that a piece of work can be technically unique, but with the right legal team and the right jury, anything can happen and you can still miss out on your hard earned money.
Thankfully most musicians work to an unofficial code of respect. Don’t muck around with others work or if you do, ask for the golden thumbs up. These things will always pop up but generally if a record label will back you, they will have learned to cover their bases first. Cases like this are the extreme examples that slip through the net.
This case says more about Marvin Gaye’s progeny than it does about the future of the music industry. Coming out of the trial he claimed it to be a success for all artists and the music industry. This is a very hard pill to swallow as he and his sister had no musical input on either song, but will soon be laughing all the way to the bank. Coupled with their winnings, the added publicity had doubled lined their pockets with a spike in sales and interest in “Got to Give it Up”.
Let’s take a minute to consider the musician at the centre of the similarities – Gaye’s drummer Bugsy Wilcox, tapper of the smoking-gun-cowbell. I am willing to bet a sausage roll that he just received a token session payment on the day for his contribution. What are the odds of the Gaye family sharing a cent of the payout with Mr Wilcox and his family? I am willing to bet two sausage rolls nothing is passed on.
If Marvin Gaye was here today, I think he would have been quite flattered by Pharrell Williams and Robin Thicke’s tribute in “Blurred Lines”. I also think that he may be shocked by recent events. Imitation is the highest form of flattery and Marvin Gaye left a massive legacy for others to gain inspiration. I am sure he wanted to influence other musicians in a positive light. The sad message is now out there and it is brutally clear as day for all musicians to see. Do not create anything that resembles or hints towards Marvin Gaye’s music or you will expect a court appearance with attorney Richard Busch.
The question is not whether a cow bell is really worth $7,300,000 US dollars, the question is whether $7,300,000 million US dollars is worth killing off the memory and influence of the once great Marvin Gaye. In my mind’s eye, a pretty poor success for all artists and for the music industry.