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Thicke is It

Robin Thicke recently took the unusual step of defending himself against an alleged but unfiled claim of appropriation in the copyright sense.  A copy of his Complaint is at the very end of this post.

And here are YT versions of the relevant songs, so that you can judge for yourself.  Legally speaking, the rules here are clear enough to state but exasperatingly difficult to apply.  If Robin Thicke (and his producer) sampled without permission, that is likely copyright infringement.  If the recordings sound alike (rather than the compositions, or what the music industry calls the “publishing”) but no sampling is involved, then in all likelihood there is no legal wrong.  For non-lawyers, copying a musician’s recorded “sound” may offend one’s sense of justice, but it very rarely counts as copyright infringement.  And pieces of pop music are sometimes characterized as bearing an artist’s “trademarked” sound, but that phrase, too, is legally inaccurate. It is rare that an artist can claim successfully any kind of legal right in his or her or their “sound,” and those rare exceptions usually involve cases where the knockoff artist is, in effect, intentionally trying to mislead the audience about the identity of the artist.  Here, as much as Robin Thicke’s sound evokes Marvin Gaye, no sensible person thinks that Marvin Gaye is performing Blurred Lines.  Last but far from least, there is the question of “substantial similarity.”  This applies only to the compositions (what in the Tin Pan Alley days would be thought of as the sheet music that preceded the recording session).  Is the composition Blurred Lines “too similar” to the compositions underneath Marvin Gaye’s or Funkadelic’s recorded tunes, assuming (as we probably should) that the latter two were available for copying?  That’s a surprisingly close question, because it is rarely right to answer the question simply by listening to the recordings themselves.

My own sense is that Robin Thicke may have a strong case, and strong enough at least to justify the PR move that the lawsuit probably amounts to.  Marvin Gaye’s fans may have a different view of his ethics.  Judge for yourself.

Robin Thicke, Blurred Lines:

Marvin Gaye, Got to Give it Up:

Funkadelic, Sexy Ways:

Here’s a mashup of Thicke and Marvin Gaye:

The Complaint.