In Defence of Robin Thicke

Robin-thicke

It would be nice if we could have all forgotten about ‘Blurred Lines’. The combination of catchy beat, salacious video and those just-too-‘rapey’ lyrics ensured the song dominated cultural conversation for longer than the 4 minutes and 31 seconds it deserved.

The second life of ‘Blurred Lines’ was given its punctuation mark earlier this year, when on Tuesday 10 March an eight-person federal jury in Los Angeles found Thicke and his co-writer, the seemingly ageless Pharrell Williams, had copied elements of Marvin Gaye’s 1977 song ‘Got to Give it Up’ writing their pervasive hit. The punishment was a $5.3 million (USD) payout to the Marvin Gaye Estate, one of the largest orders for damages ever handed down in a music copyright case.

Yesterday, Thicke and Pharrell at last lodged their appeal. We should be rooting for them to succeed.

While there are no shortage of reasons to detest Mr. Thicke — ranging from his sexual politics to theft of collaborators’ song-writing credits to his attempts to win back his ex-wife via over-confessional album — his original loss in court was no cause for celebration. Reduced purely to the music, the jury got it wrong, and the ramifications for that decision stretch far beyond Thicke and Pharrell and into the murky intersection between copyright law and the creative industries it is intended to protect. The verdict demonstrates just how draconian copyright law has become — a trend that bodes ill for artists and the public, though it may help plug a few short-term spreadsheets.

The basis for the claim by the Gaye estate was quite simple: ‘Blurred Lines’ sounds similar to Marvin Gaye’s ‘Got to Give it Up’. It boasts a similar walking bass line, use of percussion and, well, ‘vibe’ to the funk original. Pharrell may not have helped the cause by publicly professing that their song was a ‘homage’ to the R&B giant. The question stands: do these similarities amount to outright theft?

Music aficionados, journalists and experts have been near-unanimous in answering “No.” The original verdict was dismantled by a myriad of scathing critiques, zeroing in particularly on how the jury do not appear to have followed the judge’s instructions to base their deliberations only on the sheet music, and how the old paradigms of copyright do not reflect how today’s R & B is composed in the studio. Most persuasively, the main melody and lyrics of the tracks are entirely dissimilar.

Although it is difficult to muster much sympathy for Thicke and Pharrell, whose lawyer wryly noted that the verdict is not going to bankrupt my clients, the issue goes beyond the bank balance of two music superstars. Frankly, for ‘Blurred Lines’ to constitute a copyright violation, the grounds for theft in copyright law must have become very broad indeed. That creates a precedent that will do artists and their fans few favours – but plays into the hands of the estates and corporations that increasingly dominate the copyright conversation.

The immediate dangers of this precedent are two-fold. First, the magnitude of the payout for what was initially considered a long-shot case will undoubtedly inspire more litigants eager to gamble on a courtroom payday. Mr Busch, the lawyer who represented the Gaye family, has boasted that he and his colleagues are already combing through a deluge of submissions for follow-up battles. More importantly, the decision may have a chilling effect on artists, discouraging them from playing with older ideas to avoid the threat of lawsuits. Big-name artists and labels can shake off these slings and arrows, or buy up the rights to older ‘inspirations’ to head off potential litigation, just as Bruno Mars and his team quickly settled a dispute over ‘Uptown Funk’ following the ‘Blurred Lines’ decision). Up-and-comers, however, lack the million-dollar buffer to put up a fight. Yet it is these lower-rung artists who are often most in need of copyright protection themselves.

Copyright has always struggled to accommodate multiple masters — but in recent decades the balance has drastically shifted. The law was first developed in the early days of European publishing, and quite literally invested the right of copying an original work with its creators. Who those ‘creators’ were, what an ‘original work’ was, and how long this right lasted differed from country to country. The English saw copyright as a business right, intended to protect owners and publishers from a loss in their investment. The French saw the author as creator, insisting on the moral right not to have one’s work stolen or modified without consent. The fledgling United States interpreted copyright as a tool of public interest; the Constitution gave gave Congress the power to secure for Authors the exclusive right to their writings, in order “to promote the progress of Science and useful arts.”

In effect, copyright in the eighteenth and nineteenth centuries operated much as patents for technology and medicine do today. Creators were given a limited period of exclusivity for their work — initially 12 years — after which it would pass into the public domain, for use by all. This protected writers and publishers against cheap knock-offs and enabled artists to earn a decent, consistent living without necessarily resorting to touring or patronage. The balance began its inexorable shift as the media and creative industries grew in power in the new world of mass production; rights holders began to furiously, and successfully, lobby governments to increase protections and increase the years of exclusivity.

Today, copyright is big business. International treaties now protect copyright for the period of the author’s life + 70 years, which all but guarantees that new works created in 2015 will not enter the public domain until the 22nd Century. ‘Works’ now encompass music, photography, film, games, software and even coding; any idea that has been given tangible from, from a teenager’s diary entry to a Candy Crunch application update, is under copyright. And just as the market for copyrighted ‘products’ has exploded, the battles for copyright holders have multiplied.

In Louis Menand’s comprehensive article on copyright for the New Yorker, he concludes that today’s copyright disputes are rarely about a clash of philosophies: they’re a series of battles between interest groups. He identifies three sets of conflicts that have set the contours for today’s billion-dollar tussles:

  1. Hollywood vs Silicon Valley — ‘Hollywood’ businesses, those corporate entities that own copyright goods and whose model relies on exclusively producing and distributing content, battle ‘Silicon Valley’ businesses, like Google and Facebook, which profit from aggregating and sharing pre-existing works.
  2. Freelancers vs Salaried Creators — Freelancers, whose survival depends on generating ongoing sales revenue from their creative works, battle the access-dependent interests of salaried creators, like academics and tech employees, whose primary incomes instead come from salaries and grants.
  3. Creators vs Consumers — Creators, eager to protect their livelihood, battle the wider public, who want (and have always wanted) to get the most they can for the lowest price – or for free. Whereas copying by consumers once required great difficulty and expense, the internet and digital media have given anyone with a computer the capacity to breach copyright with ease, forcing creators to open an often-confused front against their own customers.

What Menand neglects is a pivotal fourth conflict, exemplified by the ‘Blurred Lines’ case: the battle between the creators themselves; or, more specifically, between today’s creators and the the rights-holders of yesteryear. Creator-Creator stoushes rarely concern the outright theft or piracy that typify consumer crackdowns. Instead, they turn on the legal ideas of “fair use” or “transformative copying”. They go to the heart of the creative process itself.

Steve Jobs popularised a quote he attributed to Pablo Picasso (although has been variously traced to T.S. Elliot, William Faulkner and Igor Stravinsky): “Good artists copy, great artists steal”. Agree with the sentiment or not, we cannot escape the roots of much great art in the past: a re-invention of, or reaction to, what has come before. Theft is invariably where all artists begin, whether it’s musicians meddling with arrangements, painters sketching from the great masters, or authors cutting their teeth in fan fiction, even as the best end reaching further still. In the days before copyright, artists were more brazen: the great Greek and Roman writers drew from the same set of plots, vying to outdo one another, and venerated William Shakespeare frequently swiped his stories, characters and even choice lines from older plays and books.

In today’s post-modern parlance, we like to dress up theft in bland terms like “homage” and “reference”, but make no mistake — artists steal all the time. Artists know they steal. Sometimes it is accidental or subconscious — often not. Traditionally copyright has made allowances for artists by separating the idea (which cannot be copyrighted) from the expression of that idea (which can). For instance, the idea of an orphaned superhero who fights crime cannot be protected (ask Tony Stark). But if you happen to dress him up like a flying marsupial with gadgets and a gravelly voice, expect a phone call from Time Warner.

Copyright is thus a source of constant tension for today’s creators. They rely upon the law’s protections to safeguard their work and source of income, even as their art inevitably draws inspiration from the work of their fellows and forebears. Awareness of this conflict helps explains why artists themselves so rarely launch copyright suits — and when they do, remain demure about it. The recent settlement for similarities between Sam Smith’s ‘Stay With Me’ and Tom Petty’s ‘I Won’t Back Down’ was initiated by the producers rather than Petty himself; the song-writer released an quasi-apologetic statement when the deal became public explaining “these things can happen.”

The folk traditions of music have always allowed for borrowed verses and recycled arrangements. Bob Dylan, questioned over his own unattributed use of 19th century verse, civil war poetry and fragments of Japanese prose in his works, insisted “It’s an old thing — it’s part of the tradition.” Indeed, few musicians are as oft-imitated and “quoted” as Dylan himself. The AV Club recently compiled a list of 33 far more brazen lifts than ‘Stay with Me’ or ‘Blurred Lines’ that haven’t graced the courts (what music fan hasn’t clocked the similarities between Cat Stevens’ ‘Father and Son’ and The Flaming Lips’ ‘Flight Test’?). Allusions in hip-hop arrangements, Tarantino films or episodes of The Simpsons do little to diminish the originals, and may instead introduce them to a new audience.

Yet decision to seek restitution is rarely in the hands of the artists themselves. The great expansion of copyright in the last century has ensured that for 70 years after the creator’s death their property remains exploitable. This is no accident – the expansion of copyright limits in the United States has been spearheaded by Disney, which in 1976 and 1988 faced the immediate prospect of Mickey Mouse falling into the public domain, and fought bitterly for extensions in Congress. Disney won. Mickey’s debut Steamboat Willie is now due to enter the public domain in 2023, which suggests that we are only a few years away from a new burst of corporate lobbying to see the limits pushed back further still.

This seismic shift leaves works in the hands of creators’ estates (like the Gayes) or, if valuable, sees the rights snatched up by large corporations like Disney. The children and grandchildren of artists have access to a stream of revenue that no longer depends on creating new works, but exploiting the old. Lawsuits with big payouts have thus become low-hanging fruit for cash-hungry estates. The frivolous nature of these cash-grabs (commonly initiated in hopes of a speedy settlement) is exemplified by the recent lawsuit lawsuit was initiated by the Faulkner Estate against Woody Allen and his film Midnight in Paris over the following line spoken by Owen Wilson’s time-travelling protagonist:

“The past is not dead! Actually, it’s not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party.”

The Estate alleged that this paraphrase of Faulkner’s quote, “The past is never dead. It’s not even past,” from Requiem for a Nun was an unlicensed use, requiring compensation. The audacity is staggering — a single line, one that explicitly references the author no less! — and the suit was thankfully dismissed, but it is symptomatic of the zealous policing of second-generation rights-holders that is fast becoming the new normal.

The ‘Blurred Lines’ decision draws together these terrible tendencies in today’s copyright law. It is a decision made possible by the extensions in copyright duration well beyond the a creator’s death, the trend towards litigation by second-generation rights holders, and a contraction of what is considered “fair use” of a copyrighted work. The result is a copyright regime weighted heavily in favour of old intellectual property.

Not everyone has a problem with this. Sonny Bono, who sponsored the US Copyright Extension Bill in 1998 (and had it posthumously named after him), argued that copyright should continue “forever”, allowing descendants to benefit in perpetuity, as they can with land investments or personal property. Yet this veneration of copyright as a business and moral right wilfully dismisses the third arm of copyright law: public interest.

Extending copyright for the works of Gaye, Faulkner and Disney for additional decades, and expanding our idea of what is considered a ‘breach’, does not encourage the original artist to produce more work — it just allows corporate owners to cash in for longer. By reducing art to another investment in a conglomerate’s portfolio, we lose sight of its social and cultural purpose. Cinderella, Frankenstein and Hamlet rest in the public domain for us to use, share and re-invent at will; why should we deny future generations Superman, Indiana Jones and Bugs Bunny?

The corporations that have pushed relentlessly for copyright expansions have themselves profited mightily from the public domain; where would Disney be without the fairy tales of the Brothers Grimm or Hans Christian Anderson, horror films without Stoker’s vampires or Shelly’s Monster, or much of English theatre, television and literature without free rein to play with the works of Shakespeare? They’d be poorer, certainly — but so would our culture. And beyond the big names there are thousands upon thousands of out-of-print works that are left entirely unavailable because there’s no cost-effective way to wrangle their rights or republish.

Fiefdoms that erect high walls around the works of the past, and discourage today’s artists from engaging directly with their forebears, do not protect creativity, but rather shut it down. We gain little by allowing our cultural heritage to become yet another source of inherited wealth, bolstering a rich few whilst limiting access to the many. In doing so, we contravene the original impetus for copyright law — to grant an artist limited exploitation of their work, allowing them to earn a living and maintain creative control, and then pass the work into the public domain, for general use and the enrichment of society as a whole.

Robin Thicke and Pharrell are not exactly struggling artists, nor is ‘Blurred Lines’ likely (or worthy) to endure like the works of Marvin Gaye. But judicial precedents matter. Crushing two well-lawyered superstars ensures it will be even easier for rights-holders in the future to lean on cash-poor artists and make their works disappear. The more draconian the interpretation of copyright laws, the more likely artists will be found in breach, or will censor themselves to escape liability — confirming a view of art as a measurable commodity, to profit its owners in perpetuity.

Robin Thicke is hardly a sympathetic canary, but his defeat was a powerful warning that international copyright law has turned against not only the public interest, but the artists it was made to protect. If we value our culture over profit margins, we should be cheering his appeal on. We have a fight on our hands.

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