Living In the Thicke of the Marvin Gaye Verdict
The verdict is in– $7.3 million dollars for plagiarizing a bass and drum groove. It’s a staggering judgment and it’s not over. Robin Thicke and Pharrell Williams will have to indemnify their publishers for this amount plus lawyers’ fees for having the audacity to be a Marvin Gaye fan. In addition, the real pain is about to begin in the form of injunctions, future profits, lawsuits in other territories, and the public bitch slapping these two artists are going to deal with over the next five years. And worst yet—every artist must now live in the shadow of this decision.
What can creatives learn? Don’t steal? Well, that hardly seems to apply, especially when what this case boiled down to was the sound of the Gaye recording, Got to Give it Up, featuring a somewhat similar bass line. A bass line and a general beat has never been considered part of a composition’s copyright. Otherwise, the Bob Marley estate would have a suit against every Reggae song in the world.
I asked veteran music lawyer, Matt Greenberg, his thoughts about the verdict. He said the jury, “appears to have found infringement on the basis of what are generally non-protected elements and perhaps were influenced by the optics of the case.” In other words, the personalities of the defendants; their fame, social habits and hubris versus the legacy of a beloved artist, Marvin Gaye and his grieving family.
That hubris might have been truncated if Thicke’s lawyers had reviewed a chapter in my book, Confessions of a Record Producer, called, The Myth of Copyright Protection, which has been referenced in dozens of articles and music business curriculums. In it, I outline several cases that seemed like slam dunk winners for plaintiffs but fell on deaf ears due to the lack of a jury’s ability to tell (or counsel’s inability to communicate) the difference between the two copyrights that embody a track: composition (lyrics and melody) versus sound recording (the recording of the musical beats).
The case that came to mind and which I tried to mention in my interview on FOX news this week was the Tommy Page 1992 suit brought by Percy Sledge for, I’ll Be Your Everything, where a jury found no infringement because despite the two songs’ blatant similarities, Sledge’s lawyers failed to prove one very important part of the equation for an infringement suit—access. You must prove access to the original material. In Page’s case, even though the Sledge song was a #14 hit on Billboard, Page claimed he had never heard the song. He claimed that his song–by the same title–which uses the same opening lyric and same melody line– was coincidence. A jury bought it because Page said “God was my inspiration.”
However, in this week’s case with Pharrell/Thicke, God was not involved but Thicke’s drug use. His access was conceded when he admitted in a GQ interview to conspiring with Pharrell while high when he said, “Damn, we should make something like [Got to Give it Up].”
In light of such a blatant confession, why Thicke’s lawyers didn’t offer a more aggressive settlement prior to jury deliberations is beyond me. Possibly no one could have anticipated a verdict this large. Maybe one lesson to be learned is an old one about glass houses: if you’re going to be arrogant and “borrow” from masters (and everybody does in this business)—don’t brag about it in main stream press.
And the lesson to the lawyers—if your client is an ass, don’t count on the jury taking the time to understand arcane nuances between the sound of a groove and the melody of the song.
Another veteran music lawyer, Neville Johnson said to me in an email, “Thicke and Williams were horrible witnesses and sank their own ship. It’s not the end of the world for composers, if anything, it will prevent future infringements and promote innovation and creativity.”
In Pharrell/Thicke’s defense my gut tells me they had, at best, a only a vague idea that they did anything wrong. In today’s creative music environment, with EDM and liberal use of sampling it’s no wonder artists are confused as to what is and is not allowed. The case law is confusing and even the top lawyers will often tell you that only eight people in the world can tell you if you stole a song— and they are called a civil jury.
Interesting math note: at 9.1 cents a copy (the compulsory statutory rate for a cover song) and 7.1 million copies sold domestically, it would have been far, far cheaper for Thicke and Pharrell to err on the side of respect and give Gaye full credit.