[Pictured, Petey the Don’t Sue People Panda from the TV show South Park]
Copyright has a strange and twisted history. In Britain it has its roots in the 1710 Statute of Queen Anne, set up to bust the monopoly of the Stationers’ Company, which had almost exclusive control of who got to publish what, like if Penguin Books was actually run by the Penguin from Batman. The law handed some publishing rights and legal protections back to individual authors, with the goal to encourage “learned men to compose and write useful books“.
So, three centuries passed, during which I am told some shit went down, and now a dead man has sued a washed-up R&B star over some drum sounds.
Wherever you stand on the controversy about Blurred Lines’ lyrics and video, in my opinion it is a great discredit to Pharrell, the composer who had nothing to do with either, a man who survived cancer while crafting some of the defining songs of our era and wearing some of its dopest hats, to accuse him of “ripping off” Gaye with the beat.
As a huge fan of Marvin, and of the alleged subject of ripoffery Got To Give It Up in particular, I would hate to see someone trading on his musical legacy without proper acknowledgement. But this isn’t the case here, as, as the article linked above states “they’re pretty openly spoken about being inspired by Gaye on that track.”
An important distinction should be made between sampling the actual Gaye record, which they didn’t do, and creating something taking inspiration from it, which they did. This is where the bizarre legal process of copyright law (the American strand in particular) kicks in. Surely they used some kind of mechanical or objective measure to measure the sameyness of the two songs right? Nope: the verdict was decided entirely by the opinions of a panel of “musicologists”.
Any other trial where no hard evidence could be brought against a suspect would be thrown out of court, but in Copyrightland you can win a whole case without it. The point isn’t that their opinions aren’t informed, which I am in no place to dispute. The point is that they’re just opinions. And I don’t know if you’ve met people in the 21st century at all, but their opinions on music aren’t aways unanimous. Applied to the world of law, this leads to bizarre inconsistencies. For example, had they openly made a parody song in the “Wierd” Al Yankovic vein, there’s a good chance they would’ve been protected under fair use. More shockingly, when struggling (and alive) songwriter Rebecca Francescatti sued Lady Gaga for apparently quite blatant use of her music without permission, a similar group of opining experts ruled in favour of meat-dress-lady, who is now launching a counterattack to reclaim 1.4 million dollars in legal costs. When copyright goes unenforced, such as with the legendary drum break in “Amen Brother” by the Winstons that forms the backbone of Jungle music, opportunistically litigious music makers can leap in and try to copyright it for themselves in a tedious version of Finders Keepers.
Can we see a pattern here of who might be winning in all these situations? Yep, lawyers. I don’t blame them: they’re no more going to fail to exploit shaky, byzantine and morally dubious laws than my dog is going to cruise past a 16oz ribeye on the kitchen floor.
To find a solution to this, we need to ask big and difficult questions about intellectual property, and indeed private property in general. From a left-wing perspective, does an artist’s family have the exclusive right to earnings from their work? Gaye was no Russian Oligarch, but doesn’t this lead to the further cementing of privelege much like the inheritance of any substantial unit of wealth? And surely even from a capitalist perspective, doesn’t this hoarding of Intellectual Property constitute a tax on innovation and creativity that is the lifeblood of free trade? Furthermore, where do we draw the line? Should we dig up the skeletons of Bach and Vivaldi and make them duke it out over the former’s borrowing of melodies from the latter in his Concerto for Four Keyboards?
Queen Anne could not have envisioned a world so overwhelmingly saturated with cultural content, from Catcher In The Rye to Gay Knights and Horny Heroes. Samples, remixes and covers shift about at a mesmerising rate. I once met a girl who thought Nina Simone’s “Feeling Good” was written by Michael Buble. It was harrowing, but not suprising in the modern age.
If we are to build a society based on sharing instead of greed, then I would hope the world of art, which brings great joy and unity and mostly now costs nothing to reproduce, should be the place we can start. Lots of people are already operating in this way, such as those using Lawrence Lessig’s brilliant Creative Commons scheme. I’m not qualified to speculate too much on the values of a dead soul legend, but I don’t believe that, if he came back to life and re-recorded What’s Going On, he would follow the lyric “only love can conquer hate” with “except for that hat guy who made that Happy song, fuck him”.
Music is the universal language, and the answer to who really owns an artistic idea is off dancing somewhere with some angels on the head of a pin. I’m very conscious of how many musicians from Gaye’s era were exploited, but from an artist’s point of view, if not an estate or a record label’s, the short-term gain of a cash injection from a pop star is not worth it for a world where ideas can’t be freely exchanged. A world where “learned men” can “compose useful books” without litigation skulking over their shoulder. A world where, as Kyle from South Park says in the “Free Hat” episode:
“When an artist creates, whatever they create belongs to society.”
For a whole raft of uncleared samples and degenerate musical theft, check out my bandcamp.