Sampling, repurposing a snippet of another musician’s music, is an integral part of contemporary music, especially in hip-hop and R&B. Such songs by artists gain immensely popularity, and many of the artists openly admit to using other’s works for their creative purposes.

However, as much as this practice has become prevalent, many lawsuits that garner even the pop culture’s attention arise. Considering how there are many more agreements and settlements between artists that avoid court proceedings, sampling undoubtedly remains a disputable practice. In a recent example, as a previous article that our blog has highlighted, it appears that single words such as “oh” that were in Jay-Z’s hit song, “Run This Town,” are non-copyrightable.

However, a recent California decision addresses a type of sampling that goes beyond the actual word of another artist’s music, but its “feel” and “groove”. In March 2015, California jury determined that Pharrell Williams and Robin Thicke’s popular song, “Blurred Lines” infringes Marvin Gaye’s “Got to Give it Up”, awarding $7.36 million in damages to Gaye’s estate. The trial focused on detailed analyses of chords and notes in both “Blurred Lines” and “Got to Give It Up”.

It is obvious to the listeners that unlike the aforementioned case in which Jay-Z’s hit song was under scrutiny, there are not specific words or phrases that overlap between Williams’ and Gaye’s songs. In fact, Williams contended during the trial that despite his immense respect for Gaye’s music, he insisted that he did not use elements of it, but rather was only trying to mimic the “feel” of Gaye’s late 1970s music. The plaintiff further argued that the allegedly copied note sequences do not explicitly appear on Gaye’s actual sheet music. However, the musicologist called by Gaye’s family testified that the notes are “implied” by the sheet music’s indication to harmonize the chords in question.

A particularly interesting aspect about this lawsuit was that it was not a subjective debate over the “groove” or “feel”, which are certainly intangible and generic ideas. Rather, “groove” was broken down into what could be considered as musical text that could be objectively quantified, and thus could be copyrightable. It appears that ultimately, what convinced the jury that “Blurred Lines” copied “Got to Give it Up” was not the “feel” that the listeners subjectively had but based on structural analysis where selected experts determined which elements of the songs could be quantified.

This decision undoubtedly raises many implications, both musically and legally. Such regulations of the “feel” for a certain genre may have chilling effect on musicians who are recreating particular elements of another artist’s sound for creative purposes. Critics of this decision also argue that such sampling dispute may not necessarily have to do with creativity, but disputes over the “almighty dollar” of successful musicians. On the other hand, this verdict could also give proper credit and recognition to deserving artists, especially for those who have historically been denied copyright protections.

In addition to the musical implication, this decision undoubtedly raises difficult questions about properties of music that can be copyrightable. Considering the previous decision in which explicitly written words such as “oh” were not considered copyrightable, the verdict seems especially contentious and does not provide clear guidelines. How can a “feel,” which is more difficult to quantify than lyrics, constitute copyright infringement? Are expert and musicological analyses more appropriate standards than the listener’s immediate and gut feeling about songs similarities? This controversial lawsuit, in which appeal is still pending, begs for new consideration of understanding copyrightable elements beyond what is musically recorded and textually written.

 

 

Sophie Ha is a J.D. candidate, 2017, at the NYU School of Law.