by Sam Redd, Communications Intern and Kevin Erickson, Communications Associate

It’s happening again: another contemporary hitmaker is involved in a lawsuit with the estate of a well-loved musician over alleged unauthorized use of elements of the latter’s past work. In this case, the issue is Robin Thicke’s 2013 hit “Blurred Lines” and the Gaye family’s claim that the song illegally appropriates elements from Marvin Gaye’s #1 hit “Got to Give it Up,” released in 1977. After more than a year of legal wrangling, it now appears that the dispute may be one of the rare infringement cases that makes it to trial. But there’s a surprising wrinkle: in the course of litigating this dispute, Thicke may have let slip one of the music business’s more troubling open secrets.

What’s Going On?  The story so far:

On August 15, 2013 Thicke, producer Pharrell Williams, and cowriter/rapper T.I. sued the Gaye family seeking a court ruling declaring that “Blurred Lines” doesn’t infringe any of the Gaye family’s copyrights, in a preemptive attempt to protect the Blurred Lines earnings. (Read the lawsuit). In response, the Gaye family filed a countersuit on Oct 30, 2013 alleging the “Got to Give it Up” infringement, and that another Thicke song “Love After War,” infringed on Gaye’s “After the Dance.”

Since then, the legal wrangling has gone back and forth, with evidence gathering and rival motions. In September, a media firestorm erupted when depositions given last April by Thicke and Williams were made public. Most recently, on October 30, a federal judge concluded that the case will need to go to trial.

In an April deposition, the Gaye family’s lawyers grilled Thicke on his numerous statements in interviews of having been inspired by Gaye in the creation of Blurred Lines. For example, Thicke had told GQ magazine:  

Pharrell and I were in the studio and I told him that one of my favorite songs of All Times was Marvin Gaye’s ‘Got To Give It Up”  I was like, “Damn! We should make something like that, something with that groove,” then he started playing a little something. We literally wrote the song in about a half hour and we recorded it.

Thicke contended this backstory for the song was an invention, borne out of professional jealousy, and because he thought it would help sell records. In reality, Thicke claims, “Pharrell had the beat and he wrote almost every single part of the song.”

Gaye family lawyers went on to point out that Thicke does receive between 18 and 22% of the songwriting credit and publishing royalties from Blurred Lines. To this, Thicke responded that the practice of a songwriter and performer sharing credit for writing any given song is common in today’s music industry, whether the performer arranged some vocal harmonies or just gave his/her opinion on the songwriter’s finished product. In a separate deposition, Williams essentially confirmed this account, saying “You know, people are made to look like they have much more authorship in the situation than they actually do. So that’s where the embellishment comes in.”

We Heard It Through The Grapevine: Songwriters routinely get shortchanged

While media headlines fixated on revelations about Thicke’s admission of substance abuse issues and romantic travails, we’re more concerned with what the story means for musicians and composers. Performers receiving credit and payment for a part of the creative process that they may have had nothing to do with? And the revelation that this is currently normal in the mainstream industry? It’s impossible to really know just how pervasive this practice is, but Pharrell’s claim that it’s fairly common jibes with what many industry observers have anecdotally heard over the years: many big-name acts routinely claim a share of the songwriting substantially larger than their actual contributions.

Why would a performer take songwriting credit that they didn’t earn? There’s a few possible reasons. Thicke points to his own ego as a factor: “After making six albums that I wrote and produced myself, the biggest hit of my career was written and produced by somebody else and I was jealous and I wanted some of the credit.” This may not be an uncommon justification, as in this current era of pop hitmaking, many stars have carefully constructed their images as auteurs who bear principle creative responsibility for all their output.

Perhaps another factor is money. Claiming songwriting credits means that Thicke gets an automatic share of the mechanical royalties from every sale of the song, in addition to the contractually stipulated royalty rate for his performance. And for a song like “Blurred Lines” that ends up being a huge hit on commercial radio, the financial reward paid out by PROs could be significant. Remember that because of a loophole in US copyright law, AM/FM stations are only obligated to pay songwriters and publishers, not performers or sound recording owners. This puts us out of step with most of the developed world (with the exception of North Korea & Afghanistan) and means the only way Robin Thicke would get paid at all for all those FM radio plays is by claiming a part of the songwriting credit.

If a superstar performer requests a share of the songwriting credit greater than their actual contribution to the song as a condition of a song’s release, songwriters may not have much choice but to consent to taking a smaller cut.  If that’s what it takes to land a song on a Beyoncé record, for example, many songwriters would conclude it’s worth the sacrifice. This is probably of less concern to someone like Pharrell, a superstar performer in his own right with significant negotiating leverage of his own; he can afford to be generous. But for many songwriters who only work behind the scenes, this practice could amount to a serious reduction in their overall earnings. And it’s worth remembering: songwriters don’t typically get a cut of merchandise sales and endorsement deals the way featured performers can.  

Time To Get It Together (to fix the Performance Royalty loophole)

Are there solutions? Well, one obvious fix would be to close that loophole allowing AM/FM radio to avoid paying performers when their music is played. Eliminating the performance rights exemption would mean that performers would be compensated for radio plays of their song, and wouldn’t have to encroach on the songwriters’ earnings to get paid. (Paying performers is also, quite simply, an issue of basic fairness, as we’ve noted many, many times.) Numerous legislative attempts at addressing this problem have been made over the years, and we wouldn’t be surprised to see it come up again in the 2015 Congress.

As for the infringement claims themselves, it’s difficult to predict where the courts will land, but the Gaye family’s case seems weaker than many we’ve seen, despite the assertion of “substantial and objective similarities” in signature phrase, vocal hook, backing vocals, keyboard, and bass line. But there’s another interesting wrinkle: yet to be mentioned here is the role of EMI Music Publishing, the major publisher that adminsters the rights to “Got To Give it Up” and “Blurred Lines.” The Gaye family claims: “EMI has allowed conflicts of interest between the financial treasure they are accumulating through their relationship with Williams and the hit “Blurred Lines” to overshadow and supersede their obligation to protect Marvin Gaye copyrights.” (EMI representatives also allegedly “intimidated” the Gaye family from suing for copyright infringement when “Blurred Lines” was initially released.) 

Whether or not the Gaye family’s allegations are ultimately found to be true, the case does raise questions about the role of major publishers in an ever-consolidating music industry, and how effectively they can serve their various songwriter partners in cases where their loyalties may be divided. 

Additional research by Ian Dahlman

Photo: Debby Wong / Shutterstock.com