The music world is up in arms.
In case you’ve been living under a rock, here’s what happened: Last week a jury decided that Robin Thicke and Pharrell Williams had violated the copyright of Marvin Gaye’s “Got to Give It Up” with their hit song “Blurred Lines”. The song made $16.67 million dollars, so the songwriters were ordered to pay $7.4 million for copyright infringement. Various parts of the web are either decrying the decision as the end of the music industry as we know it or celebrating the fact that Robin Thicke is getting the comeuppance he deserves.
First things first, this is not the end of the world. It’s one case decided on the particulars of this situation. It doesn’t change existing law — though it’s not unimaginable that the precedent could encourage more people to seek such lawsuits in the future. But it does hold some real lessons for musicians trying to understand the nature of musical influence, copyright infringement, and writing original music. Here are the ones that stood out most to me:
Lesson 1: Don’t Take the Easy Way Out
It’s not uncommon for people to write songs based on another song, especially in the commercial world where you’re trying to replicate the “feel” of another song. Writing “sound-alikes” (songs that sound like other songs) can be great musical exercise — helping you learn how to create sounds you haven’t tried before or trying out entirely new forms of songwriting — adding arrows to your quiver, so to speak.
But if you’re writing an original song that you’re putting out there under your own name and hoping will be a hit, you should be a lot more careful about this practice. We all know how easy it is to game the system in production — just move a few MIDI notes around — but we should hold ourselves as musicians to higher standards. Changing the voicings of a few chords doesn’t constitute a new song. You might occasionally use a template or existing track to get a drum sound you want, but avoid using an entire song as your template. Bottom-line: write your own music.
Lesson 2: Acknowledge Your Influences
This might seem counter-intuitive, but this case was a little unusual. The song is clearly an homage to Marvin Gaye in feel, everything from the syncopated drums to the hooting in the background, but as Professor Joe Bennett points out, the actual sheet music, which was meant to be the basis of the decision, is completely different for the two songs. So how did the jury arrive at the decision that it infringed upon Gaye’s copyright?
Well, Thicke admitted in interviews that they had been influenced by “Got to Give It Up”, despite not crediting the song officially in any capacity. The New York Times noted that they could have included the usual “contains an interpolation of” goodwill gesture in the album notes. On top of that, Williams’ story didn’t match Thicke’s. Williams claimed he wasn’t influenced by Gaye’s song at all, while Thicke ended up claiming he had almost no hand in writing the song. I have no idea if this inconsistency played a role in the final decision, but it seems like a question of intention: did they intend to rip off Marvin Gaye or pay him homage? If they’d been more consistent and open about the influence “Got to Give It Up” had on them, it would have been a lot easier to make the latter argument — and even help new audiences discover the awesomeness of that original track.
Lesson 3: Don’t Skirt the Line
There are obviously numerous challenges around applying copyright to music. Music is made up of so many elements — melody, counter-melody, harmonies of all sorts, chord voicings, instrumentation, timbre, tonality, rhythm, dynamics, lyrics, syncopation, bass lines, and so much more. How do you determine which ones matter and to what degree? At the end of the day, the decision is going to be made by a jury of mostly non-musicians with no background in copyright law, so it’s likely going to be a fairly arbitrary decision (a risk that leads most of these cases to end in a negotiated settlement).
The biggest lesson for musicians is simply to avoid that line as much as possible. That’s not an easy thing in a world where we have so many musical influences swirling around us at all times. But when in doubt, push yourself to be that little extra bit different. Ask yourself one more time before hitting publish: is there anything else I can do to make this song even more original?
Lesson 4: Get Permission
I spoke with an industry expert last week who mentioned that Williams could have paid a fraction of the ultimate damages to obtain a song license to sample “Got to Give It Up” up-front. I have no idea what the actual rate would have been, but there are certainly lots of ways to gain licenses for use of others’ songs, whether through Harry Fox or Loudr.fm for cover songs, or through publishers for samples. At Harry Fox, a “mechanical license” to record and distribute a cover of someone else’s song costs 9 cents per copy — not too crazy. Copyright also covers “derivative” works, so if you’re planning to write a Weird Al-style parody of a song, you still need to get permission.
If you’re sampling a song, you can contact the publisher or rights holder directly. Recently, British indie rock band alt-J simply asked Miley Cyrus if they could sample her vocal line for their new song “Hunger of the Pine” — and sure enough, Miley said yes. Isn’t it nice when musicians support each other like that?
Lesson 5: Protect Yourself
Copyright exists to protect and support musicians and to encourage invention and innovation. If you’re an established musician, you probably have some big label taking care of copyrights and tracking down people using your songs illegally. As an independent musician, it’s way harder. The truth of the matter is that these big lawsuits only really matter for the mega-hits when millions are at stake. That said, there are some ways we can protect ourselves as musicians:
- When you create a song, there are two rights created — the right to the recording called the “master” and the right to the song itself called the “publishing”. If you don’t have a publishing house or label, then you own both rights. If you do, then they probably own the “publishing” rights to the song (which you might see denoted with a “p” in a circle). Check out Loudr.fm’s FAQ on the matter, and to apply for a copyright, go to Copyright.gov and fill out a form. There is a registration fee, but once your copyright is registered, it will be way easier for you to launch legal proceedings against someone for infringing upon your rights.
There are other options. I’m personally a fan of Creative Commons licenses, which allow other people to re-purpose your music as long as they credit you. This is a great option for independent artists who aren’t ever likely to launch a major legal battle and who might be pleased for other musicians to remix or sample their work, especially if it puts their music in front of new audiences, but who still want some credit for the original. Check out the different types of licenses they offer here.
- YouTube allows you to register your songs using their Content ID program, which will track down others who use your music in their videos and allow you to either block it, allow it, or monetize it in some way. Apparently, this program is set to change, but it’s worth keeping an eye on!
- Lastly, make it really easy and obvious on your website for people to contact you about licensing opportunities. This is quickly becoming a great source of alternative income for musicians, so make it obvious that you’re open to it and invite requests. If you’re flexible, you’re going to get some great offers!
Lesson 6: Be Generous and Grateful
At the end of the day, so many things in the music industry come back to treating others with respect. Too many musicians today feel entitled to the music of others because of how accessible it is online — a feeling I’m definitely guilty of myself sometimes. But if we collectively want a healthy music industry, it pays for all of us to go the extra mile. Ask a musician for permission to use his/her work, and return the favor when others ask to use yours.
If you’re interesting in learning more about copyright for musicians, we recommend checking out Donald Passman’s book All You Need to Know about the Music Business. It’s a wealth of knowledge in this area.
Then go out there and start making some great original music!