Years Of Brainwashing The Public Into Thinking Everything Creative Must Be 'Owned' Has Led To This New Mess

from the culture-is-about-sharing dept

We have already written about the ridiculousness of a jury awarding over $7 million from Pharrell Williams and Robin Thicke to the children of Marvin Gaye, because their song “Blurred Lines” sounds kinda (but not really) a bit like Gaye’s “Got to Give it Up.” The ruling is problematic on multiple levels, as many commentators are just now realizing. Copyright lawyer Fred von Lohmann pointed out that, technically, everyone who bought copies of “Blurred Lines” is now infringing as well — and that could apply to many others too, including Weird Al who famously did a hilarious parody of “Blurred Lines” called “Word Crimes.” Weird Al, somewhat famously, makes sure to get permission to do his parodies, even though he could probably just use fair use. But… if “Blurred Lines” is infringing, there’s no fair use argument to be made and Weird Al doesn’t have permission from the Gaye Estate.

In other words: what a massive mess.

But that’s just getting down into the technicalities, which may not matter if the Gaye Estate doesn’t push the issue — but could certainly come up in future cases. Plenty of other folks have pointed out that no matter what you think of any of the parties involved, this ruling is bad for music, bad for musicians and bad for songwriters. And, yes, musicians are concerned:

Los Angeles composer and producer Gregory Butler said Tuesday afternoon that his friends and colleagues in the industry were stunned by the verdict.

“You’ve made it illegal to reference previous material,” said Butler, also a managing director at music startup WholeWorldBand. “I’m never going to come up with something so radically different that it doesn’t contain references to something else.”

Joe Escalante, an early member of the Vandals punk rock band and an entertainment law attorney, said he was concerned that the jury’s decision had been driven by emotion rather than what’s protected under copyright law.

“This may put a smile on the Gaye family’s face, but it’s a dark day for creativity, and in the end, this will be a net loss for music fans,” he said. “Good news for lawyers and the bitter everywhere.”

And that just hints at how it’s bad for culture as well.

“Culture” itself is based on the very idea of common ideas that are shared. Common ideas are the core of every cultural movement. You share a “feel” because you want to identify yourself with a particular culture. Music in a genre has similarities for a reason. People identify with it for a reason. Locking up “the feel” of music decimates that nature of culture. We lose the “shared” part of “shared culture.” And you would think that those who are often at the forefront of pushing the shared culture on everyone — the major record labels — would recognize this. And yet, they’re partly responsible for this mess. Because they’re the ones who have been pushing this myth for years that every single scrap of cultural output must be “owned” and doing anything they don’t like to build off of it must be “infringing.”

To be fair, this case is going to be appealed, and others have made perfectly reasonable arguments for how it’s somewhat unique, in part based on the fact that Robin Thicke was an incredibly unsympathetic player in all of this — admitting to lying and being inconsistent with his statements — a fact that the Gaye’s lawyer gleefully exploited. There is also the simple fact that this is a jury ruling and has no direct precedent-setting ability. That comes from appeals court rulings (and Supreme Court rulings), so we need to wait for any real precedent from this case. Of course, there have been some similar cases in the past, and the results often show the same sort of confusion about copyright, which is troubling.

And, it all seems to come back to this weird concept that people believe in this myth of “ownership” over cultural touchstones. The very things that should be shared: the “feel” of music, the “groove,” the cultural sharing point that everyone builds off of. In discussing this case on Twitter, and talking about the horrible implications of the ruling, I noticed more than a few people on Twitter brush off all the concerns with a simple kind of “dude, they copied Gaye, so good ruling.” Amazingly, one songwriter insisted that the ruling was correct and when I looked at his personal webpage it was all about how his music was “inspired” by other famous bands. Watch out, because now those bands could come after you.

This case has strayed far from actual copyright law into a made up fantasy land of copyright law — one where people are punishing Thicke because they don’t like him or the way he acted. They’re also punishing both Williams and Thicke because of this amorphous idea that they must have “ripped off” Gaye because the songs feel the same. Even the press is confusing this. You see idiotic headlines, like this one from Vulture, which claims the lawsuit was about plagiarism. Except plagiarism isn’t illegal. Copyright infringement is — and plagiarism and copyright infringement are not the same thing. And even if this were “plagiarism” the question is plagiarism of what? Musicologists who have compared the two songs note that they’re actually really, really different. The only thing that’s the same is “the feel” of the songs. And “feel” is not something covered copyright.

But people know that plagiarism is “wrong” so they look at what Williams and Thicke did here — copying the “feel” — and they insist that it must be “wrong,” even if copyright is only supposed to cover the specific expression written down in the sheet music for Gaye’s song. The actual notes in “Blurred Lines” don’t match that sheet music at all. But rather than sticking to the letter of the law, or even bothering to understand that copyright only covers specific expression, we keep getting this message pushed on us, by the RIAA, the MPAA and others, that every bit of culture must be “owned.” And you can’t do anything without a license. And people have heard that refrain so many times, that it infects their psyche.

As Kal Raustiala and Christopher Sprigman note in their own writeup about the ruling, the incredible thing is just how wrong it is on copyright. Yes, there may be some elements that were copied, but those are not the elements covered by copyright:

In short, what the ?Blurred Lines? team copied is either not original or not relevant.

So when they see a situation here, where a less-than-likable character has made a song that was inspired by another, they assume that something must be wrong with it, and even if the law doesn’t actually apply, dammit, they’re just going to say that it does. It’s the inevitable result of constantly pushing for a society where every bit of culture is owned under lock and key and the idea of sharing, remixing, reusing is deemed subversive, rather than the way that culture happens.

Whether or not this case really does have a long-term or wider-term impact may not really matter that much. But the results here are indicative of something bigger: and it’s a dangerous view that undermines the very nature of culture itself.

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Comments on “Years Of Brainwashing The Public Into Thinking Everything Creative Must Be 'Owned' Has Led To This New Mess”

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Ninja (profile) says:

Maybe it would be good if this set a precedent that triggers some heavy mayhem. I mean, if the copymorons push so hard that it comes back to bite them hard and there’s a serious disruption both in the businesses and in the creative scene as well maybe the MAFIAA and friends will be forced to back down and the Congress actually go for a comprehensive overhaul of this broken system. For me this seems the only way to make things work: hit the money hard and everybody will be more than willing to sit down and talk about this madness.

Anonymous Coward says:


On the issue of plagiarism not being illegal, especially with regards to music, yes copyright on the recording only protects the specific expression, but wouldn’t a copyright by a songwriter on the song itself protect against plagiarism? I realize that is not the case here as musically or lyrically they are not the same. I was speaking specifically to the claim that plagiarism isn’t illegal in the music industry.

Leigh Beadon (profile) says:

Re: Question...

Plagiarism is likely to be infringement, but the plagiarism aspect doesn’t really matter. Meaning if I copy your song and credit it to you, but don’t have permission, that’s infringement — and if I copy your song and pretend I made it myself, again without permission, then that’s the exact same kind of infringement. The fact that one is plagiarism and one is admitted copying makes no real difference to the legal question.

Anonymous Coward says:

Re: Re: Question...

I get that. But what you are saying effectively is that plagiarism is infringement but not all infringement is plagiarism. But if all infringement is illegal that would then by definition make plagiarism illegal which is in turn contrary to the assertion that plagiarism isn’t illegal. See my point?

Leigh Beadon (profile) says:

Re: Re: Re: Question...

It’s more that it’s important for people to understand the distinction. There is a common, and entirely fallacious, belief that copyright is mostly about protecting a creator’s moral rights and ensuring they get attribution and credit — but it’s not, at least not in the US. It’s solely about economic rights and attribution/plagiarism doesn’t enter into it. (On the flipside, some people believe that as long as you credit someone, what you are doing is less likely to be infringing – and again that’s simply not true.)

Richard (profile) says:

Re: Re: Re: Question...

But what you are saying effectively is that plagiarism is infringement but not all infringement is plagiarism

Plagiarism is not necessarily infringement – if you plagiarise from the public domain then that is fine by copyright.

So not all plagiarism is infringement and not all infringement is plagiarism – they are separate concepts.

Anonymous Anonymous Coward says:

Good News

If copying the ‘feel’ of another song means what I think it means, then every hip-hop song can be eliminated with the exception of the original hip-hop song. To my ear, they all sound the same.

Of course, that is exactly what my parents probably said about rock and roll, even as they held parties where they they ‘taught’ other old folks to do the twist.

Oh wait…

Votre (profile) says:

Re: Re:

No. Everybody needs to get royally pissed and vocal about this – and stay royally pissed and vocal about it until it is overturned on appeal. And do it again every time another BS lawsuit like this one comes up.

Especially now that misguided emotions and public opinion plays such a huge role in the outcome of so many of these so-called copyright cases.

Now is not the time for silence just because you’re personally tired of hearing about it. Go watch The Simpsons or something if you’re bored. Maybe even order in a pizza while you’re at it.

Those of us with a stake in this game have too much to lose sitting quietly and hoping for the best.

Anonymous Coward says:

Re: Re:

Are you volunteering to pay their lawyers for the appeal?

Are you volunteering to pay the lawyers for all the new artists that have a song idea but are now too afraid of getting sued to put it out there?

That is the real harm here: not whether one musician has to pay off the greedy offspring of another musician. The harm is how this chills our culture and expression, that which makes us truly human. We’re trading it away for some strange romantic notions while fat cats pile up weird bits of green paper.

Reality bites (profile) says:

The music mafia wins again. History shows Intimidation by paid enforcers always works.

Take a bribed deaf, dumb, inebriated puppet judge and use the dense prick as a sledge hammer to pound justice into the ground.

Until the mafia lighten up, no one should purchase a album except by direct purchasing from the artist.

Time to start the parasites out of existence.

jupiterkansas (profile) says:

The goal of art is not to create something new and original. The goal of art is to contribute something to the conversation. Every contribution enhances the conversation and if enough people contribute, it becomes a piece of culture. That’s what made rock and roll a thing – lots of people doing it – and now rock and roll is a part of culture.

All the new and original stuff does is change the conversation, which is what makes the new and original stuff important. Most art does not do this.

And in today’s world of pop culture, much of that conversation revolves around the copyrighted content of others. That’s why having a robust public domain is necessary. Copyright stifles the conversation we call culture for the sake of profit.

The ridiculous thing is that if Thicke really wanted to copy Marvin Gaye, he could have easily just paid a licensing fee to do a cover like lots of artists do. The fact that he didn’t shows that he wasn’t intending to copy.

Anonymous Coward says:

Who pays the lawsuit???

I really don’t know much about this stuff but I’m confused on who pays the suit. Williams and Thicke wrote the song but I’m assuming a label published and distributed the ‘infringing’ song.
Wouldn’t the label be responsible since they act as the agent of and probably took the lion’s share of profits on any infringement?

Anonymous Coward says:

Interesting next question

Weird Al, somewhat famously, makes sure to get permission to do his parodies

Except here, he got permission from someone who does not actually own the intellectual property. While he probably could have argued fair use, the fact he got a license looks bad, at least as far as maximalists are concerned. Is he now also liable for infringement, or does the fact he reasonably believed that he got the licence from the right people protect him?

Mike Masnick (profile) says:

Re: Re: Interesting next question

Fair use protects him. He only gets permission for social reasons.

Here’s the thing: fair use doesn’t protect him here. Because the copyright is owned by the Gayes. Blurred Lines itself is infringing and he made a copy of that infringing work. Thus, in this case, fair use doesn’t work. That’s how fucked up this ruling is.

ribeekah says:


Well, well, when we don’t pay attention to what is happening around us and think that they are unrelated, everything eventually comes full circle. For the longest while, there has been an ongoing debate about GMO foods and Monsanto, et al desire to control the food system although they are yet to invent a seed out of thin air. A biomedical company has won the right to certain genes. And that’s what I know about or has been reported in the news. This is just the latest development in the metamorphosis of rapacious capitalism.

Mason Wheeler (profile) says:

You know, this kinda reminds me of a different song in a different genre. Alan Jackson’s country hit The Talkin’ Song Repair Blues is obviously, blatantly “inspired by”/”in the style of” Johnny Cash’s Hot Rod Lincoln. But do you know what the Cash estate did when Alan Jackson released the song?

Nothing. More specifically, they did not sue Alan Jackson or his record label and try to interfere with the success of his song. And why should they? Hot Rod Lincoln was a song from decades ago; it was no longer current, not bringing in any money from record sales. Even assuming a favorable legal theory, what was there to interfere with?

Just saying…

JP Jones (profile) says:

Re: Re:

There’s a bigger fallacy at issue here. Even if they could compete, the only situation where this would have been an issue for Johnny Cash’s estate is if someone heard Alan Jackson’s song and then decided NOT to buy Johnny Cash’s song because they’d bought Alan Jackson.

Why would this happen? If someone liked the Alan Jackson song there’s a good chance they’d like Johnny Cash’s song too, which means Alan Jackson’s song increases the likelihood of a Johnny Cash purchase. If they weren’t going to buy the Cash song anyway, either because it’s not selling anymore, they hadn’t heard it, or a myriad of other reasons, then Cash’s estate hasn’t lost anything.

The chances of similar songs harming either artist is much less likely than the opposite. You see this most commonly in Hip-Hop and Rap music when “competing” artists make group songs. Rather than dilute or harm their music, these artists recognize that including other musicians in their music brings groups of fans together, which potentially increases the revenue for all involved.

Art and culture are not scarce resources, and the more people involved the more valuable they become. This is why a video game that allows modding is more valuable than one that doesn’t, and why movies, books, and shows that incorporate pop-culture references draw such big crowds. People love the shared culture and are drawn to it. People also love the familiar, and enjoy slight changes to an old favorite. Treating culture like coal or tables (scarce resources) simply doesn’t make sense and makes it less valuable.

Knud Sandbæk Nielsen says:

Patented scale

There was a law suit in Denmark. It wwas about a song with the first four notes in a minor scale. 1234321, or i.e. a b c d c b a. There was a settlement.

This is outrageous, because they actually settled the case over what has been used in the 16th century, and thus should be impossible to patent.

I would like to have been a consultant in all that kind of cases, because I know I can shoot down all claims of originality.

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