I recall as a first year law student attending a lecture on music copyright by Clyde Spillenger. The professor played a recording of Sweet Georgia Brown by Bernie and Pinkard (the “Harlem Globetrotters song,” if that helps). He then played a folk recording of Hava Nagila (that one Jewish song that you know). He asked students to consider the respective similarities in the songs’ top-line melody (there were none), its chord structure (again no relation), and other shared instrumental features (clarinet versus tambourine/vocals). Asking for a show of hands, he then asked how many students would find these two recordings to be substantially similar enough to support a finding of plagiarism. More than half the class raised their hands. I looked around for ironic smiles betraying some kind of joke. None. Many of these bright students are now judges, prosecutors, partners, and professors. And yet at least 20 of them are badly tone deaf. It occurred to me then that if these future professionals cannot make a good determination of plagiarism in music, no jury should ever be trusted to do so. The fact that juries continue to render bad verdicts in favor of plagiarism (like the latest Blurred Lines verdict) only proves my point.
Blurred Lines
Yesterday, an amicus brief was filed in the Ninth Circuit Court of Appeals in support of Pharrell Williams and Robin Thicke’s appeal of the Blurred Lines verdict. Combining an unlikely mix of more than 200 artists (my favorites involve the combining of Hans Zimmer, R. Kelly, Danger Mouse, and Wayne Kirkpatrick with the likes of Fallout Boy and Rikki Rocket of Poison) the brief joins in opposition to the controversial $5.3 million jury verdict awarded to the Marvin Gaye Estate for the allegedly illegal similarities between Blurred Lines and Marvin Gaye’s Got to Give It Up.
The highlight of the Amicus Brief is this quote from one of my favorite judges in history, the Honorable Learned Hand (that really is his name). Writing on how no song in popular music is truly original, Hand offers that
“It must be remembered that while there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing; and much fewer still suit the infantile demands of the popular ear. Recurrence is not therefore an inevitable badge of plagiarism.”
I have yet to hear a better verbal take-down of popular music than Learned Hand’s rhetoric on the infantile demands of the popular ear.
The Blurred Lines verdict has been resoundingly criticized by many for the simple reason that the songs do not actually sound alike (particularly with respect to top-line melody and chord structure/sequence). The drum vibe is of course similar though nothing else. But mash them up together (like Beca in Pitch Perfect) and juries don’t stand a chance against finding in favor of plagiarism.
My legal opinion is that admitting mash-ups into evidence is likely to be the main reason the Blurred Lines verdict gets overturned by the Appeals Court (they are just way-too suggestive of similarities that are more manufactured than actual). My non-legal opinion is that Blurred Lines is an awful song, particularly in its message and its Pepé Le Pew attitude toward women.
Let’s Get it On While Thinking Out Loud
You may have also heard that Ed Sheeran is now in legal hot water for the alleged similarities between his Thinking Out Loud and Let’s Get it On (Marvin Gaye again). Sheeran clearly channels Gaye here: the slow drums, the anticipated bass groove hitting that crucial third-over-the-root and coming early again on the fifth [I- I/III– IV- V]. Plagiarism this is not. But if a jury hears this mash-up, it’s all over for Ed.
http://https://www.youtube.com/watch?v=4Gd1I3DmEd4
Yes, Ed Sheeran may not have copied Marvin Gaye, but he may have indeed copied Matt Cardle. Listen to this.
http://https://www.youtube.com/watch?v=3ISkvjoz9iU
Ok. Even a competent jury might be justified in calling this copying. But in Ed’s defense, both of these songs sound like others before it. They both after all use the magic-four-chords in pop music. Google “Axis of Awesome four chords” if you don’t know.
If homages to riffs, loops, and chord patterns now constitute legally actionable plagiarism, this will indeed spell bad news for songwriters and recording artists for the simple reason that writers of pop music all draw from the same well.
My favorite recent example of musical copying is Katy Perry’s not-even-trying-to-hide-it rip-off of Sara Bareilles’ Brave (which she even similarly titles, Roar). Same empowering message, same little piano vibe, same, um, song(?). To this day, if I hear this song on the radio, I still can’t tell which of the two songs I am listening to until I hear either the word “Brave” or “Roar.” This entire mash-up below is wonderful; go to the 3:02 mark on the video for the tap-out chokehold.
http://https://www.youtube.com/watch?v=a2zymm8xHIQ
We listen to what we are comfortable with. To borrow Learned Hand, songwriters are bound by the “infantile demands of the popular ear.”
Plagiarism and Christian Practice
The discussion of plagiarism has taken a new hue for me these days after reading Paul Griffith’s Intellectual Appetite {H/T Grant Macaskill and his forthcoming work on intellectual humility}. Billed by the publisher as offering in part a “theological defense of plagiarism” (not quite in the way you’re thinking), Griffiths mounts a sustained critique at the culture’s fixation with “ownership” and the commodification of words, knowledge, and learning. Following a thoroughgoing distinction between “the studious” and “the curious” (the former aligned with virtue and the latter its related, but perverse cousin) Griffiths insists that “the curious seek to own what they know; the studious seek to act as stewards of what they know.” Griffiths reminds his readers that all of us live on borrowed breath and that Christians, as participants in God, are to respond to his gift in ways that are not coherent with the motivations behind ownership and mastery. His careful analysis deserves far more space than I can give it here, but I’ll leave it with this quote:
God is sole owner and we are granted stewardly use of what he owns for a shorter or longer time …. The paradigm of speech … is confessio, speech offered to God in dual acknowledgement of its speaker’s insufficiency as speaker, and of God’s all-sufficiency as giver of all speech, the one in whom, as logos, all human speech participates….
For the studious Christian, all speech and writing has the first and last beloved, the God of Abraham and Isaac and Jacob, as its first and last audience, and is therefore and thereby informed and embraced by assumptions that make ownership impossible and demarcation a matter of secondary interest.[1]
Griffiths has much more to say, including the necessary responses to all of your “yeah, but…” reactions. Given the characteristic of grace, participation, and mimesis shot through the New Testament, Griffiths touches on something that should cause us to scrutinize our own motivations behind ownership and access to control of knowledge. For Christian living, originality (however conceived) is clearly not the goal. Learning is. The Apostle Paul says, “What you have learned and received and heard and seen in me—practice these things, and the God of peace will be with you” (Phil 4.9). Imitate me, he says. Hunter Thompson learned to write by transcribing word-for-word Hemingway’s A Farewell to Arms and Fitzgerald’s The Great Gatsby. I’m presently learning German by transcribing word-for-word sections of Bultmann’s Theologie Des Neuen Testaments. Imitation for its own sake. As Christians, we are invited to learn by copying what’s already there, beginning and ending with our imitation of the life of Jesus.
Disclaimer: For my students who may be reading this, no you may not so “imitate” other written work on your own exegesis projects!
References
[1] Paul J. Griffiths, Intellectual Appetite: a Theological Grammar (Catholic University of America, 2009), 176-77; also 154-55).
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