Did Pharrell Williams and Robin Thicke deserve to be accused of plagiarism and sentenced to pay $7 million in damages? Adrien Tharin, a Geneva lawyer based in California, explains how this harsh decision reveals some flaws in the American legal system.
You know it. You heard it. Over and over again. The syncopated melody is immediately identifiable and immediately catchy. Nearly two years after its release, it will still get you up on your feet as soon as you hear its distinctive triple first note. Older folks heard it on the radio. Younger people discovered it when they first saw a young model in a highly sexualized but good-natured music video.
In July 2013, “Blurred Lines” garnered praise as it reached the heights of pop music: several weeks on top of the charts, more than 40 platinum records worldwide, and more than 380 million views on YouTube. The magic touch of Pharrell Williams and the voice of handsome forty-something Robin Thicke created a single that travelled the globe. “Hey hey hey” is still called out millions of times a day.
And then the verdict on March 10: the two acolytes were sentenced to pay more than $7 million to the family of Marvin Gaye. The case in one word? Plagiarism. Your favorite song actually plagiarized an older single by the 70s icon called “Got to Give It Up.” Seriously? Listen to them. Compare them.
You don’t need a degree in music theory to realize that the eurythmics of the two songs certainly have similar rhythmic tempos. But the bass lines, tonalities, and chords are different, and the two songs’ melodies are never the same even for a moment. On the other side of the Atlantic, the verdict came as a shock and the music industry understood its consequences. We’re all the musical descendants of Bach, but can an original composition still exist if so little can make us plagiarists? There are two ways to understand the decision.
It stems from a particular feature of the U.S. legal system. Civil cases (not just criminal cases) are decided by juries. Depending on whom you ask, juries are either easily manipulated or a way peers can render justice. One unique aspect of jury-based trials is that for the jury, every case is completely new. They have no prior practice or experience. Their judgement is closer to the heart and more instinctual. It incorporates everything a legal expert doesn’t: everything except a law library.
Thus, two important factors need to be taken into account. First, how difficult it is to predict the outcome of a trial, especially when a jury is asked to decide if two songs seem similar. Second, the increased importance of experts (bearing in mind that experts are nothing but professionally qualified individuals who are paid to say what they are saying). Through their experience, judges are more distant and more skeptical of experts’ impartiality. On the other hand, juries are more likely to take an expert’s word at face value. In the case discussed here, jurors heard from several musicologists. Catchphrases, unusual melodies, repetition of the same note, hook, and base keys; the two songs were dissected, analyzed, studied, and studied again to demonstrate their similarities or differences. The Gaye camp was more convincing even if your ears told you otherwise.
This was also because of Williams and Thicke’s lawyer’s incomprehensible strategy. Due to the high cost of legal proceedings in the U.S. and the unpredictable nature of juries, most copyright violation cases are resolved out of court. The parties and their lawyers send each other strongly worded emails; they get insulted; they make threats; a figure is proposed; it is discussed; they come to an agreement and go on with their lives. The author of the composition that was allegedly plagiarized will receive some money or a percentage, or even a mention in the “credits” of the plagiarizing work. On the rare occasion that a trial is initiated, it’s usually by the author of the original work. The authors must demonstrate, among other things, that their work and the copy have significant similarities. It’s a relatively difficult task. It’s easy for defendants to say that their work has their own original creative elements and thus they aren’t plagiarizing.
In this case, the opposite occurred, strangely enough. Williams and Thicke went to the courts first and tried to obtain a declaratory judgement stating that “Blurred Lines” did not plagiarize Gaye’s song—a reversal of roles. Thus, they had to prove that the two songs were not similar—a task much more difficult than proving they didn’t plagiarize the original.
They did not want to reverse the burden of proof. By firing the first shot rather than waiting for the Gaye family to do so, the duo forfeited the protection a trial, some perspective, and preparation could have given them. The Gaye family was no longer reticent about going to trial after being subpoenaed. They were no longer undecided about hiring an expert since one would be used to oppose them. They didn’t want to leave the late Marvin’s memory defenseless. And if there was a possibility of a private settlement, losing the first battle drastically increased its cost.
Several explanations have been offered to explain this tactical error. According to some, the two singers (and Williams in particular) didn’t want to have their reputations questioned. This was especially in reaction to Internet comments that noted the similarities between the two songs. Others believe it was a way to force the trial to stay in California and to avoid other jurisdictions. The only commentator absent from this non-debate is Howard King, the two celebrities’ own lawyer, who has already announced that his clients would appeal the decision. A case to be continued.