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Would citing an earlier example of a similar groove/feel, which predates both parties, be an effective argument/defense?
i.e. if composer A wrote a song with a green onions, bo diddley or a jazzy minor blues groove and composer B wrote a song with a similar groove/feel AND subsequently sues artist A for copying him, would citing the “origin groove” be something that would help composer A in court?
Would citing an earlier example of a similar groove/feel, which predates both parties, be an effective argument/defense?
That is a possible defense if the earlier work is in the public domain. For example if Williams and Thicke could prove that both they and Marvin Gaye were influenced by the same pubic domain work.
Neither Bo Diddley (who died in 2008) not Booker T (who is very much alive) would have works in the public domain. The question would be whether Booker T’s Green Onions, or any of Bo Diddley’s works were influenced by earlier PD works, and of course they were. Whether a jury would buy that probably depends on which way the wind is blowing that day.
That verdict is ridiculous and should be appealed. SOOO much of music is about being inspired by the musicians that came before and taking something they’ve done and adding your flair to it. It’s an homage or like hey I was really inspired by you and your work. I mean everybody is like oh who does that band sound like. Oh well it’s a mixture of x, x, and x. Just my two cents.
SOOO much of music is about being inspired by the musicians that came before and taking something they’ve done and adding your flair to it.
You’re correct Michael. Classical composers frequently “borrowed” from each other. Jazz and blues are both traditions which were handed down from generation to generation, musician to musician.
But…we recently went through a long thread here recently in which someone was nearly rabid over their IP rights. So, on one hand we want to be protect and profit from our works, but on the other people are calling this verdict wrong.
What if someone rips-off U2 or Coldplay for the millionth time, then someone rips the knock-off from Soundcloud or an RF site and put’s it into a video? The first infringement is OK, but the second is not?
Food for thought: What if Williams and Thicke took a calculated risk? Suppose they were fairly certain that their song would earn millions of dollars, and continue to earn a lot of money into the future?
In reality they were probably willing to give up a slice of the pie, if they got called on it, and the fight was just about how big a slice.
Even with a 7.9 million dollar verdict, Pharrell and Robin will be just fine.
That is a possible defense if the earlier work is in the public domain
Ahhh…thanks Michael.
I wonder if it would have been noticed if when Thicke was promoting Blurred Lines, he hadn’t said he always liked Marvin’s “Got to Give It Up” and wanted to write something that had a similar feel.
I wonder if it would have been noticed if when Thicke was promoting Blurred Lines, he hadn’t said he always liked Marvin’s “Got to Give It Up” and wanted to write something that had a similar feel.
Yes, that was very judgment on his part.
And…if the song hadn’t become a major hit and earned huge amounts of money they wouldn’t have been a target, like every other Marvin Gaye knock-off that didn’t generate a lawsuit.
But, see my post above re “calculated risk.” There’s more than enough to go around.
To see what all the fuss is about, I went back and watched youtube videos of both the Marvin Gaye song and Blurred Lines. One difference that stood out to me is that Robin Thicke has a naked woman in his video. Clearly that changes things. 😉
Seriously, tough call. Very similar tracks but then again so many songs sound similar and there are no lawsuits (that we always know of).
I never understood why the 50’s wasn’t just one big lawsuit. Same 4 chords and similar melodies in almost every song. 😉
>In reality they were probably willing to give up a slice of the pie, if they got called on it, and the fight was just about how big a slice.<
It this were the case, wouldn’t it have been smarter to settle out of court? Or maybe it was the other side who insisted on a jury?
I think it’s a disturbing thought that a groove and feel is subject to copyright infringement. Look at a genre like reggae and how influential Bob Marley was in that genre. It could probably be argued that a lot of tracks could be comparable to Bob Marley. Another example would be Elvis, and how he inspired musicians at the time, and even now with genres like rock-a-billy. It’s a bad precedent to have an estate, not the musician because he’s dead, be able to go after generations of musicians that were inspired by the music for 70 years. I do get that the law needs to be there, but a verdict like that has such broad implications of what could happen. Everybody wants their music to be able to take care of their family when they are not here anymore, but there is a difference between someone legitimately just ripping your work off and someone being inspired by something you’ve done.
>In reality they were probably willing to give up a slice of the pie, if they got called on it, and the fight was just about how big a slice.<
It this were the case, wouldn’t it have been smarter to settle out of court? Or maybe it was the other side who insisted on a jury?
Maybe Thick and Williams thought they could win. Maybe the Gaye family was holding out for more. They are the ones who have to accept any settlement offer.
I think it’s a disturbing thought that a groove and feel is subject to copyright infringement. Look at a genre like reggae and how influential Bob Marley was in that genre.
In your example, Michael, you are talking about a long recognized genre, with fairly standard structure and techniques.
I’m not sure that you can fit the Marvin Gaye groove under a generic umbrella, like reggae, or blues, etc. There are somewhat unique elements to his creation that the plaintiff’s successfully argued were used by Thicke and Williams.
The verdict and the argument go deeper than just “they copied his style” (which they admitted). So, I don’t think everyone who picks up a Harmon mute should be worried the Miles Davis’s estate is going to sue them.
I didn’t notice it mentioned here, but my understanding from an interview I heard on npr was that the ruling had nothing to do with groove or feel, but that it was based on the melody being notated and copyrighted by Marvin Gaye.
I appreciate your legal expertise MichaelL, thanks for clearing that up.
@MichaelL, regarding your U2/Coldplay argument a few posts up….
If the ripoff were a song that had stylistic similarities yet an identity of its own (melody, chord structure, etc) I do feel that it is within the ballpark of okay, whereas the straight out theft of a track such as that is surely a violation. Kind of apples and oranges, IMO.
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