Art by Jon McCormack.
This episode was written and produced by Fil Corbitt.
Can you steal from yourself? Can you copyright a mood? We look back on some important copyright cases that could have an impact on the entire future of music making. Featuring Adam Neely and Sandra Aistars.
MUSIC FEATURED IN THIS EPISODE
Mercurial Vision by Marble Run
Rafter by Speakeasy
Chromium Blush by Ray Catcher
Allow Me (Instrumental) by Kilgore
Keffel by Sketchbook 2
Vienna Beat by Radiopink
MUSIC DISCUSSED IN THIS EPISODE
Under Pressure by David Bowie & Queen - EMI, Elektra
Ice Ice Baby by Vanilla Ice - SKB Records
U Can't Touch This by MC Hammer - Capitol Records
Super Freak by Rick James - Gordy Records
It Was a Good Day by Ice Cube - Priority Records
Footsteps in the Dark by The Isley Brothers - T-Neck Records
Alone Again (Naturally) by Biz Markie - Cold Chillin, Warner Records
Alone Again (Naturally) by Gilbert O'Sullivan - MAM Records
Paper Planes by MIA & Diplo - XL Records, Interscope
Straight to Hell by The Clash - CBS Records
Run Through the Jungle by Creedence Clearwater Revival - Fantasy Records
The Old Man Down the Road by John Fogerty - Warner Records
Blurred Lines by Robin Thicke & Pharrell Williams - Star Track, Interscope Records
Got to Give it Up by Marvin Gaye - Tamla Records
ONLINE CLIPS USED IN THIS EPISODE
Additional Clips Used in this episode
The Hollywood Reporter - 'Pharrell Williams' Contentious 'Blurred Lines' Testimony Unsealed (Exclusive Video)'
Twenty Thousand Hertz is produced out of the studios of Defacto Sound and hosted by Dallas Taylor.
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View Transcript ▶︎
[Music Clip: Ice Ice Baby]
You're listening to Twenty Thousand Hertz.
Probably the most famous case of music plagiarism is still Ice Ice Baby by Vanilla Ice. The song copied the exact intro from Under Pressure by David Bowie and Queen.
[Music Clip: Under Pressure]
When Ice Ice Baby came out [Music Clip: Ice Ice Baby], people would hear that iconic bass line and be totally jarred when some guy yelled “let’s kick it!” instead of the piano coming in [Music Clip: Under Pressure].
Initially, Vanilla Ice famously claimed that the songs were different.
[SFX: Vanilla Ice demo: [Mouths Under Pressure riff] that’s the way their’s goes, ours goes [mouths Ice Ice Baby riff]... that little bitty change, it’s not the same.]
He later admitted to simply sampling the song. He claimed that he was just joking about them being totally different. Queen and David Bowie threatened a lawsuit, but settled out of court. Now they get royalties and all of them were added to the songwriting credits.
[SFX: Vanilla Ice interview: Vanilla Ice: “Rap Music is Sampling and people who don’t understand rap music they say ‘oh he borrows this or steals this…’ rap music, every major rap artist in the world samples music, you know?”]
Adam: The Vanilla Ice thing became such a joke because he wasn't approaching it with any degree of sophistication.
That’s Adam Neely.
Adam’s a bass player and also makes music education videos on Youtube.
Adam: It’s not the best song, but I do on an intellectual level agree with, I do think that Vanilla Ice, when he did that, is very much continuing in the tradition of Mozart and Beethoven and anybody who has built a new melody, a new structure, off of old material. That is what music is. That is what remixing is, and that is an integral part to the lifeblood of music-making.
But Mozart and Beethoven wrote the notes down and new musicians played new music. In the case of Vanilla Ice, this sample is a direct copy of Queen’s original recording. That’s why sampling caused a big stir in the copyright world.
Another famous example of extremely obvious sampling is MC Hammer’s 1990 song “U Can’t Touch this”...
[Music Clip: U Can’t Touch This]
The beat in MC Hammer’s track is sampled from the Rick James Song “Super Freak”...
[Music Clip: Super Freak]
Rick James sued, but the case was settled out of court.
Sampling threw a giant wrench into the gears of copyright law. In acoustic music, you could argue that this chord progression or this vocal melody is similar to that one. In sampling they are exactly the same. It’s literally a copy and paste. It’s a bit of a recording of a song being played within another song.
Sampling has a rich history especially in early hip hop. Many songs even had layers of samples. So in the early days, figuring out who borrowed what, and who got credit, was difficult.
Here’s another example called “It was a Good Day” by Ice Cube:
[Music Clip: Ice Cube]
That was sampled from “Footsteps in the Dark” by the Isley Brothers:
[Music Clip: Isley Brothers]
Ice Cube just used a small part of the intro from that record and built a whole new track out of it.
There are literally thousands of examples like this. Entire new genres of music developed out of sampling and reimagining older music into something new. But over time sampling came under legal scrutiny and became much harder to do.
In 1991, rapper Biz Markie lost a copyright lawsuit to Gilbert O' Sullivan for the song “Alone Again.”
[Music Clip: Biz Markie’s Alone Again ]
And here’s Gilbert O’Sullivan’s Original Song:
[Music Clip: Gilbert O’Sullivan’s Alone Again]
The songs share a beat, a piano chord progression, and the title and lyrics “Alone Again”.
In the end, this case really scared the music industry. After this point, it started to become much more difficult to get samples cleared when producing music for commercial release. Some people even say this case marked the end of the golden age of sampling.
Today, sampling has become much more standardized….and also more expensive. Even a small sample can cost a huge amount of money. Sometimes paid up front, and sometimes paid over time through royalties.
Here’s a hit song from 2007, “Paper Planes” by M.I.A.:
[Music Clip: MIA]
And here’s “Straight to Hell” by the Clash:
[Music Clip: Clash]
M.I.A. and producer Diplo built an entire song out of this short instrumental part that the Clash only play twice in their own track.
M.I.A. and Diplo simply got permission, and The Clash were all named as songwriters in advance. No lawsuit, no charges of theft. The Clash embraced the M.I.A. song, saying it was a great use of their work. But the creative possibilities of sampling are still challenged by the legal requirements of copyright.
[music in]
The ownership of a song is broken down into two parts. First is the underlying composition: This is all of the elements that someone wrote, basically the sheet music. Then, there’s the physical recording of the song; which is the performance of the musicians and the tones of their gear.
Sampling requires an artist to get both types of copyright permission.
For the recording, a record label will usually own those rights because they paid for the recording session. So that specific recording of the song belongs to them, but they don’t own the idea of the song. The IDEA on the other hand, is frequently co-owned by the artist and the publisher. So a musical artist might only own a small portion of their own work.
[music out]
In the early 90s John Fogerty was sued for plagiarism.
Fantasy Records, the Publisher of Creedence Clearwater Revival’s song Run Through the Jungle, claimed that John Fogerty’s solo song Old Man Down the Road infringed on their copyright.
But John Fogerty was the singer of Creedence Clearwater Revival. So that literally means he was sued for plagiarising himself.
Here’s Run Through the Jungle:
[Music Clip: CCR - Run Through the Jungle]
And here’s Old Man Down the Road:
[Music Clip: John Fogerty - Old Man Down the Road]
So John Fogerty wrote and sang in both songs, but that doesn’t mean he’s the only copyright holder. Remember there are separate rights for writing and recording, and any mainstream artist has to split their earnings with publishers and record labels.
John Fogerty had left with Fantasy records and started a solo career. He spoke in detail about this case during an interview at the grammy museum.
[SFX: Fogerty interview: John Fogerty: “Okay you got the old song, the new song. Fantasy Records is the publisher of the old song. They still have to pay that songwriter, me, right? It’s roughly 50-50. The new song, which was written also by me, called Old Man Down the Road, I’m the songwriter but I’m also the publisher. So if Fantasy prevails, then the new song is nothing and those guys own the whole thing”]
As Fogerty put it, he was being sued for sounding like himself. The melodies were similar but not exact, the guitar riff was related but not the same…
In court, Fantasy Records hired somebody to program the melodies of each song into a computer to compare them. Remember this is in the mid 90s.
[SFX: Fogerty interview: John Fogerty: “What he did was, he programmed the melody of Run Through the Jungle into the computer… beep boop boop...it really sounded like that folks. After that they played, now here’s Old Man Down the Road… beep boop boop… right.”]
Fogerty said the jury looked… confused. When it was his turn to demonstrate, he famously pulled out a guitar and played it in court. He explained how they were different, and that the similarities existed because he was the same person playing the same genre of music.
And...he won the lawsuit.
Some saw this lawsuit as an attempt by Fantasy Records to silence one of their former artist’s. Fogerty as a solo artist was successful enough to mount a defense, but not all songwriters have that kind of money. He countersued and eventually won a supreme court case that basically said, if companies like Fantasy Records lose a copyright lawsuit, they have to cover the lawyers fees of the defense.
[music in]
But even with that ruling, this stuff is expensive.
Sandra: You'll often hear people say that a right without a remedy is no right at all. And I think that's been true for a lot of individual creators and small businesses.
This is Sandra Aistars, a law professor at George Mason University. She sees the current system as cost prohibitive for many small creators.
Sandra: For instance if you are a individual or a small business, and you don't have an army of lawyers at your disposal to deal with all of your business matters, you're going to have to make the decision on a daily basis, "Do I sit down and compose or do I sit at home crawling through the internet trying to find infringements, and then trying to track those people down and deal with them to be able to remain viable as a small business."
You can probably guess what most artists choose.
Sandra: They just try and shoot more images, write more songs, go on tour to try and keep themselves afloat as creative businesses, and they let the copyright protection aspects go by the wayside.
[music out]
Sandra says it can be incredibly expensive to defend yourself against a copyright suit, or to even bring one to court to begin with.
Sandra: That's because copyright is a body of federal law, and so you have to go to the federal courts. There's no small claims proceeding, it's not like when you have an argument with your landlord and you can both go to small claims court. You know, you don't necessarily have to have lawyers, and it doesn't cost you much to resolve this dispute fairly. That doesn't exist in copyright.
But there is a push to change this.
Sandra: There has been an effort over the past couple of years to pass legislation that would create such a system within the copyright office, where whether you are a plaintiff or defendant, you could have access by voluntary agreement to this forum that would act essentially as a small claims court.
[music in]
Copyright law has been getting a lot of public attention. In recent years there have been a spat of high profile cases. The one that’s made the most headlines and seemed to send shockwaves through the music community was Pharrell Williams and Robin Thicke vs. Marvin Gaye.
[SFX: Montage of people on the news and youtube saying “Blurred Lines” Rick Beato - “blurred lines”
CNN - “Blurred Lines”
MSNBC - “blurred lines”
Berklee -“blurred lines” ]
We talk about Blurred Lines, and what it might mean for the music industry, after the break.
[music out]
[MIDROLL]
[music in]
In 2015 Robin Thicke and Pharrell Williams released a song called “Blurred Lines”. It received public scrutiny for many reasons. Pharrell Williams has even gone as far as saying that he regrets writing the song.
But outside of the lyrics, there is more to this story. The estate of Marvin Gaye asked for a songwriting credit on “Blurred lines” because they said it was similar to Marvin Gaye’s 1977 song “Got to Give It Up”. Pharrell Williams and Robin Thicke actually sued first to get a ‘declaration’ that their song did not infringe Marvin Gaye’s work. And then Marvin Gaye’s family were forced to defend.
[music out]
There was a corner of the internet that seemed elated that these flashy new pop stars were getting called out for being unoriginal. Proof that “they don’t make ‘em like they used to.” Then there was another group that was seriously concerned. This case wasn’t for a melody, lyrics, or any specific element. It was for the “feel” of a song. The style itself. This is unprecedented. Let’s listen.
Here’s the beginning of Blurred Lines by Robin Thicke and Pharrell Williams.
[Music Clip: Robin Thicke & Pharrell - Blurred Lines]
And here’s the beginning of motown classic Got to Give it Up by Marvin Gaye:
[Music Clip: Marvin Gaye - Got to Give it Up]
Now, there are some obvious similarities.
The two songs are about the same tempo - roughly 120 beats per minute - and they have basically the same instruments; Drums, some high pitched percussion, bass, and energetic voices.
Let’s zoom in on the different parts. We recreated each part and layered it on top of the original songs to help focus on each sound.
Let's start with the percussion. Here’s Blurred Lines:
[Music Clip: Robin Thicke & Pharrell - Blurred Lines]
And here it is in got to give it up:
[Music Clip: Marvin Gaye - Got to Give it Up]
So Blurred Lines uses cowbells, and Got to Give it up uses a coke bottle. They’re playing different grooves but achieve a similar feeling.
The next thing is the Drums. Here’s the drum kit in Blurred Lines:
[Music Clip: Robin Thicke & Pharrell - Blurred Lines]
And here’s Got to Give it up:
[Music Clip: Marvin Gaye - Got to Give it Up]
Also similar, but not exact. The kick and snare drum are pretty much the same [SFX], but this is a super common drum beat. You can probably find a million songs that use the same kick-snare-kick-snare pattern [SFX].
The little drum fills at the end of the phrase are also similar, all of these are common expressions in drumming, so you can’t copyright them.
Up next is the bass line. Here it is in Blurred Lines:
[Music Clip: Robin Thicke & Pharrell Blurred Lines]
Here it is in Got to Give it up:
[Music Clip: Marvin Gaye - Got to Give it Up]
Similar but not the same.
Next is the vocals. Marvin Gaye’s song uses a recording of people at a party. Robin Thicke and Pharrell Williams used their own woops and shouts. So again, different but achieving a similar feeling.
To wrap up, let’s listen to the originals one last time.
Here’s Blurred Lines:
[Music Clip: Robin Thicke & Pharrell - Blurred Lines]
And here’s Got to Give it up:
[Music Clip: Marvin Gaye - Got to Give it Up]
Ok, that was a lot of close listening. But it’s important to remember that these songs didn’t exist in a vacuum. Drums, percussion, bass, and vocals at 120 beats per minute describes hundreds, if not thousands of songs. And this is just in the Motown and Pop genres. And that’s exactly what makes this case important.
These elements are almost universal, and each part in isolation could be considered common expression. So how is it that anything we just played for you can be copyrighted?
A lot of musicians were shocked this case went to court in the first place. In every genre, the music that came before helps to give new music context and meaning. So it’s not surprising that Marvin Gaye would have a huge influence on today’s artists.
[music in]
Pharrell was asked about this influence in court. Here’s a clip from his deposition, published by Hollywood Reporter back in 2015.
[SFX clip: Pharrell Williams
Lawyer: Is it your testimony that you and Mr. Thicke never once during the creation of Blurred Lines spoke about, discussed, referenced the song “Got to Give it Up” by Marvin Gaye?
Pharrell: I did not go into the studio with the intention of making anything feeling like, to sound like Marvin Gaye.]
However, before the trial Pharrell gave an interview about the song and said that he was inspired by Marvin Gaye. [SFX clip: Pharell Williams
Lawyer: do you remember, I asked you if Marvin Gaye at all came into your mind at all during the creation of Blurred Lines, and you said no. Do you remember that?
Pharrell: Yeah.
Lawyer: You say in this interview “I was trying to pretend that I was Marvin Gaye”.
Pharrell: mmhmm.
Lawyer: So I guess Marvin Gaye did in fact come into your mind.
Pharrell: You asked me about Got to Give It Up.
Lawyer: I asked you about Got to Give It Up?
Pharrell: Yeah, you asked me about Got to Give It Up.
Lawyer: So Marvin Gaye came into your mind when you were creating Blurred Lines, but not Got to Give It Up…
Pharrell: No, when I look back.
Lawyer: Do you see here anywhere where you say “when I look back”?
Pharrell: No, no, no… I’m telling you, I’m answering you.]
[music out]
Ultimately, Pharrell Williams and Robin Thicke lost this case. The verdict was a 5.3 million dollar payout to the Marvin Gaye family, plus 50 percent of the royalties of the song. They appealed...but they lost again.
The judge wrote in the majority opinion that the decision was quote “Far from heralding the end of musical creativity as we know it...” unquote.
In a dissenting opinion another judge wrote that this decision quote “allows Marvin Gaye’s Family to accomplish what no one has done before: copyright a musical style.”
Adam: Well now you can just own a style of music, which is absolutely ridiculous.
This is Adam Neely again.
Adam: The problem is, in recent years, intellectual property holders have started bringing in musicologists and music theorists into the courtroom, and then those music theorists and musicologists do that same thing of finding connections between songs and finding, hey, yeah, you know, Blurred Lines really does kind of sound like Got To Give It Up, and here's why.
Musicology at a basic level, is the study of music in a cultural context. And musicologists often try to find common ground between different musical styles. Adam thinks this field is being misconstrued in court.
Adam: Musicologists and music theorists are kind of gleefully doing what they've always done in the classroom, but now in the courtroom it has very real world effects that are deleterious to the entire craft and the entire history of music-making.
But musicology is not the only thing considered in a copyright case. The testimony of the artist can play a huge role.
Here’s Sandra Aistars again.
Sandra: I think there is some obligation, on creators of all stripes, that where you're going to incorporate the work of someone who came before you, you should give a nod of credit to them.
Sandra: When you have a jury that is in place to hear all of the arguments of the parties, understand all the testimony of the experts, and then apply their own understanding and experience in the world... And one might agree or disagree with the jury's ultimate conclusion...but that to me is how the process is supposed to work.
[music in]
As an audience, and as a culture, we share a common goal.
We want artists to freely express themselves, and be able to male make a living doing that. But the line between inspiration and theft is just… blurry. Who owns what part of which song, and what parts belong to all of us…
Adam: At the end of the day, the whole system probably should be rebuilt in a very, very different way than it exists right now, but I'm not going to call for that, because that's way beyond the scope of me, lonely bass player, music YouTuber, who just has opinions about music.
Sandra: In terms of the basics of copyright law, the structure is there and it's worked for hundreds of years and there have been controversies for hundreds of years.
Sandra: But look how creative our culture is, look how exponentially we expand our creativity year over year, decade over decade.
Sandra: Over the past several years there's been a review by Congress of every aspect of the copyright laws. And they had something like 20 hearings, and heard from a 100 witnesses in those hearings, and then had public round tables all around the country
Sandra: And now they're in the phase of thinking about, well, are there things that should be changed about the law to update it for the future?
In the muck of lawsuits and red tape, creating art can be... confusing. Most everything is inspired by something else. If we're scared to create something because it might accidentally be similar to something else, we’re stifling our creativity.
Sure, the law needs to protect work, but creatives can’t be terrified of being inspired. And just in case, for my own legal safety, maybe I should tell you that this whole Twenty Thousand Hertz podcast is heavily inspired by Radiolab, 99 Percent Invisible, and Song Exploder. So, Jad, Roman, and Hrishikesh, please don’t sue me.
[music out]
[music in]
Twenty Thousand Hertz is hosted by me, Dallas Taylor, and produced out of the sound design studios of Defacto Sound. Find out more at defactosound.com.
This episode was written and produced by Fil Corbitt and me, Dallas Taylor, with help from Sam Schneble. It was sound edited by Soren Begin, it was sound designed and mixed by Nick Spradlin.
By the way, that whole blurb where people record their own credit… that was inspired by Studio 360. The writer of this episode, Fil Corbitt, is also the host of another podcast called Van Sounds, it’s a unique blend of music journalism, travel writing, and experimental radio. Find Van Sounds right here in your podcast player.
Thanks to Sandra Aistars and Adam Neely for speaking with us. And I highly recommend you go immediately subscribe to Adam Neely’s fantastic YouTube channel.
Also, if you’re a teacher or professor and you want to use Twenty Thousand Hertz in your classrooms - go for it! Our mission is to make the world sound better, and to help everyone understand sound in a deeper way.
Finally, there are sooo many examples of other songs that sound similar. There are also sooo many other lawsuits we couldn’t get to. If there’s another case you’d like to hear us cover in the future, tell us all about it. We’re on Facebook, Twitter, and Reddit. Our subreddit is r/20k. ...and as always, if you’d like to contact us directly, you can do that at hi at 20k dot org.
Thanks for listening.
[music out]
