The Fight over “Blurred Lines:” What Parts of a Song are Copyrightable?

Stephen Carlisle February 5, 2015

Two recent court cases have put this question firmly in the spotlight: what parts of a musical composition are copyrightable?

The first is the ongoing court fight between the Estate of soul legend Marvin Gaye on one side and Pharrell Williams and Robin Thicke on the other. Williams and Thicke have sued for a determination that their song “Blurred Lines” does not infringe the Marvin Gaye composition “Got To Give It Up.” The two sides have sparred bitterly over what elements make up the “song” and how many of those elements made it into the sheet music that was deposited with the Copyright Office. ¹

For their part, the Williams-Thicke attorneys argue:

“No songwriter considered a hi-hat part, vocal ‘woo,’ falsetto vocal style, omission of a guitar, keyboard part, or other element of a sound recording of the song to be the song itself. And if they did, they included that element in the written composition they published with notice…” ²

The Judge, after ruling that the copyright in “Got To Give It Up” is limited to what was in the sheet music in the Copyright Office, then ruled he would allow the playing of the sound recording, but only if stripped of the elements not included in the sheet music, including the “percussion and back-up vocals.” ³

In case you are interested, here is a mash-up of the two songs: ⁴

In the other case, a composer had sued various Defendants who had copied from 45 of his musical compositions into 63 other musical compositions. ⁵ Twenty-two of the claimed infringements were based on alleged similarities only in the chords of the song, and another twenty-nine alleged similarity only in the “beat” of the song. ⁶

Prior to my present position, I taught undergraduate and graduate university courses in “Copyright and Music Publishing” and “Entertainment Law.” The question of “what parts of a song are copyrightable” came up fairly frequently. Even further back in the mists of time, I received a Bachelors’ of Music degree from the University of Miami. So hold on, this may get a little technical.

From my point of view, the copyrightable elements of a song are the main melody line (always) and the lyrics (always). Everything else is “it depends.” This is because the melody line can go virtually anywhere. The next note can go up or down, in a multitude of intervals, or be repeated. Then toss in the varying time values of the note (quarter note, eight note, etc.) and you have the potential for a nearly infinite number of variations. The lyrics, while most predictably commenting on the inherent vagaries of romantic love, are also infinitely variable. See e.g. Duran Duran’s “The Reflex,” which even the band’s members have admitted, makes no sense at all. ⁷

The problem with claiming copyright in chord progressions is their function in the song. The chords have to support the melody line in a way that is pleasing to the ear, and makes melodic sense in the context of where they are in the song. All musical compositions use the same basic method. A musical “key” is established by playing a particular chord that establishes the song’s “home base,” known in music theory as the “tonic.” Other chords are used that move away from the tonic in a way that creates tension and interest until the song inevitably heads back to “home base” and a feeling of pleasant resolution to the ears of the listener. Certain chords within that musical key can serve as substitutes for each other, and this is where the craft of the songwriter reveals itself.

But there are only so many chords which are useful, and the basic chord progressions are as old as music itself. Here is a funny rant by a musician who shows us how many popular songs use the chord progression of Pachelbel’s Canon in D, written before 1700: ⁸

Bass lines suffer from the same predicament. The bass note must not only support the melody notes and be pleasant to the ear, but must also support the chord being played at the same time. So while the melody note can go anywhere it wishes, the same is not true for chords or the bass line.

The exception here is when the bass line is the melody of the song at the time it is being played, such as Queen and David Bowie’s “Under Pressure,” which was so famously copied by Vanilla Ice’s “Ice, Ice, Baby.” Another is the synth bass intro to Weather Report’s “Birdland.”

And then there are the constrictions of musical genre. Consider this is this rather pointed mash-up which very humorously criticizes how much country music has become bland and homogenized: ⁹

Are these songs all infringements of each other? Not by a long shot.

Country music is generally written on or for guitars. The guitar is basically tuned to the key of E minor, the pitches being E, A, D, G, B and E again. Since the guitar sounds the best when it is being played the lowest on the neck and using as many strings as possible, this will usually result in a sharp key being used. So, if you write in the key of E major, E will be your first chord (the tonic), A will be the “fourth” chord and B will be the “fifth.” If you write in A, you share the A chord and E chord with the key of E, and you share the A and the D chord with the key of D. And so on. The result is that many songs will contain the same or very similar chords and chord progressions, and thus sound very much alike.

Lastly, there is the “beat.” Certainly music which contains only percussion instruments is capable of copyright protection, as the percussion family contains both tuned elements (marimba, vibraphone, tympani) and untuned elements (cymbals, woodblocks, cowbells). However, the modern drum set as we know it, a collection primarily of drums and cymbals, is a relatively recent 20^th century invention. When and who came up with the basic beat for swing jazz, rock, funk or reggae is lost in the mists of time, and drummers freely utilize these elements without fear of consequences. Probably the most famous drum beat in popular music, James Brown’s “Funky Drummer,” ¹⁰ which has been sampled by Run-D.M.C., N.W.A., Raekwon, LL Cool J, and The Beastie Boys, ¹¹ yielded no royalty payment to Clyde Stubblefield, the drummer on the recording. ¹²

The Judge in the Batiste case proceeded in this fashion: if the Plaintiff claims was for chords only or beat only, that count was dismissed. Only where there was sufficient evidence of other copying, for example, beat and chords together or similarity in lyrics or the melody, any similarities in the beat or chord progressions would be considered as part of a “holistic impression of similarity.” ¹³ In the final analysis, only three of the 63 alleged infringements survived the Defendants’ Motion to Dismiss. ¹⁴

Turning back to the “Blurred Lines” dispute, I think the Gaye estate is not going to prevail. Remember that the test for infringements is “substantial similarity,” not just similarity. The basic rhythm tracks between the two songs are very similar, but I do not find that the melodies of the songs are substantially similar. And in my opinion, the former will not serve to bootstrap the latter. Certainly it does not rise to the similarity present in the “My Sweet Lord” case, ¹⁵ (a case resulting in a finding of infringement) or the “How Deep Is Your Love” case (which resulted in a finding of infringement, reversed for lack of proof of access). ¹⁶

The lines between what is copyrightable and not copyrightable in a song is indeed, quite “blurred.”