COPYRIGHT
Music publishing

 

 

This guest blog is by Jonathan Coote

 

2014’s ‘Uptown Funk’ by Bruno Mars and Mark Ronson is a 70s and 80s collage of influences, a knowingly reverential homage to the songwriters’ musical amours. However, for eighties electro-funk band Collage, this knowing veneration seems to sit too close to home. They are suing Mars and Ronson alongside co-writers, Sony’s Music Entertainment, Sony’s RCA Records, Warner/Chappell Music, and Atlantic Records for copyright infringement of their 1983 track ‘Young Girls’. The band are following in the well-trodden footsteps of other forgotten gems including ‘Oops Upside Your Head’ from the Gap Band (who were given song-writing credits alongside Mars and Ronson in 2015) and the unrealised lawsuit from The Sequence for ‘Funk You Up’.

 

Pitchfork obtained a statement from Collage, which says that there are clear copied elements “present throughout the compositions […] rendering the compositions almost indistinguishable if played over each other and strikingly similar if played in consecutively”:

 

“Upon information and belief, many of the main instrumental attributes and themes of ‘Uptown Funk’ are deliberately and clearly copied from ‘Young Girls,’ including, but not limited to, the distinct funky specifically noted and timed consistent guitar riffs present throughout the compositions, virtually if not identical bass notes and sequence, rhythm, structure, crescendo of horns and synthesizers rendering the compositions almost indistinguishable if played over each other and strikingly similar if played in consecutively”.

 

Two recent U.S. copyright trials have provided different answers about how musicological evidence and style influence the “substantial similarity” needed for Collage to have a successful claim. This is both in terms of how important it is for copied elements to be “present through the compositions” and the use of mash-ups. Marvin Gaye’s estate successfully sued Robin Thicke and Pharrell Williams for copying Gaye’s ‘Got to Give It Up’ (1977). Although the saga continues, the aptly-named ‘Blurred Lines’ (2013) now stands for the blurred boundaries of a song’s stylistic feel and copyrightable expression. The second involved the estate of Spirit singer Randy Craig Wolfe (Randy California) suing the Led Zeppelin songwriters , claiming that the distinctive chromatically-descending guitar arpeggios of the iconic ‘Stairway to Heaven’ introduction (1972) copied Spirit’s song ‘Taurus’ (1968).

 

Both of these claimants’ songs were released before the U.S. Copyright Act 1976’s implementation in 1977 so ostensibly only scores were available under the Copyright Act 1909. Yet in the Gayes’ family lawyer’s opening statement, Richard Busch played the jury a mash-up of the vocals from ‘Got to’ over the keyboard part of ‘Blurred Lines’. In contrast, at the ‘Stairway’ trial no mash-up of the two songs was allowed, instead Led Zeppelin’s musicological expert Dr. Lawrence Ferrara played a mash-up of ‘Taurus’ with folk song ‘To Catch a Shad’ (Modern Folk Quartet, 1963). Perhaps uncoincidentally, the mash-up’s use ended up on the winning side in each case because a mash-up sounds like conclusive evidence of a song’s similarity. In fact, Jimmy Page claimed it was his son-in-law showing him a mash-up which first alerted him to ‘Taurus’.

 

Having tried this on DJ’ing software I can attest that if played over each other ‘Young Girls’ and ‘Uptown Funk’ do work quite nicely, although they are clearly distinguishable, whether in the rhythm of their beats and in almost every aspect of the vocals. I think that their sparse instrumentation simply makes them into a DJ’s dream (i.e. easily mixable into any funky dance track). By the logic of misleading side-by-side comparison ‘The Grey Album’ would have led to lawsuits from The Beatles claiming that Jay-Z rather than Danger Mouse had misused their work. Actually, the main thing that struck me when listening to ‘Uptown Funk’ with ‘Young Girls’ was the similarity of the riff at 0:06 in ‘Young Girls’ to George Clinton’s Funkadelic song ‘(Not Just) Knee Deep’ (1979) made iconic in De La Soul’s ‘Me, Myself and I’ (1989).

 

Perhaps the reason for the different outcomes in ‘Stairway’ and ‘Blurred Lines’ was that even if Marvin Gaye’s notated music was not copied, Williams was clearly influenced by Gaye’s style (although not necessarily ‘Got to’). On the other hand, Spirit themselves had to contend with the claim that ‘Taurus’ was not itself original. Much was made of the antique nature of the original descending chromatic lines with Dr. Ferrara describing it as a 17th Century “Lament” used in contemporary contexts like ‘Cry Me a River’ (Davey Graham, 1963) and ‘Michelle’ (The Beatles, 1965). In response, Spirit’s lawyers distinguished Ferrara’s list due to different tempo and style from ‘Taurus’ and ‘Stairway’.

 

However, musicological evidence’s reliance on percentages and numbers in both trials could also change the outcome for Mars and Ronson. The Gayes’ musicological experts’ testimony focused on the “constellation of similarities” between the songs, with musicologist Judith Finell stating how: “the nature of the similarities, the level of detail of the similarities, and the multitude of them [and the fact] they occupy all but three measures of ‘Blurred Lines’ in one form or in a coinciding form, [means that]  I would find it impossible that that level of similarity could exist accidentally”. Finell describes how some exhibited melodic material crucial to ‘Blurred Lines’ was present in 83 out of 118 bars (70%) of ‘Got to’. Similarly, Spirit’s lawyer describes how in ‘Stairway’ “nearly 80% of [the] pitches of the first eighteen notes match” those of ‘Taurus’. Treating notes, especially, through percentages is not how musicologists work, instead preferring to understand melodic shapes and importantly the relationship between notes and establishing this context within the work as a whole.

 

Pre-trial analysis of the independent musicologist Professor Joe Bennett gives another view of ‘Blurred Lines’: looking at the basslines, Professor Bennett said: “When compared note for note like this, the dissimilarity is obvious. These basslines use different notes, rhythms and phrasing from each other. They’re even taken from different musical scales. Thicke’s bass notes are all taken from the mixolydian mode; the Gaye baseline is based around the pentatonic minor scale” saying that IF the bassline was copied then Thicke’s team “changed most of the pitches, moved lots of notes around, and deleted some notes. Or put another way, they wrote an original bassline.” And yet the jury disagreed, and Thicke and Williams lost this case.

 

The stakes are pretty high for Bruno Mars. To date, it’s his biggest song and reportedly earns $100,000 a week on Spotify and (so far) the song has sold over 6,100,000 copies and is the second longest-running No.1 song on a Billboard chart.

 

What the outcome of this will be for Ronson and Mars remains to be seen, especially in regards to their woolly assertions of “distinct funky specifically noted and timed consistent guitar riffs present throughout the compositions”. Whilst there have been apocalyptic pronouncements on the end of copyright as we know it, the main threat may come from the incomprehensibility of musicological evidence.

 

‘Uptown Funk’

http://pitchfork.com/news/69413-mark-ronson-and-bruno-mars-sued-over-uptown-funk/

http://entertainment.ie/music/news/Bruno-Mars-and-Mark-Ronson-sued-for-copyright-infrigement-on-Uptown-Funk/386934.htm

 

‘Blurred Lines’

http://www.khpslaw.com/Motion-for-Judgment-as-a-Matter-of-Law-New-Trial.PDF

http://mcir.usc.edu/inplay/Pages/documents/williamsfinelldepo.pdf

http://twostrikes.gregoryweinstein.com/the-blurred-lines-of-musicological-expertise/

http://musicologynow.ams-net.org/2015/03/blurred-lines-ur-lines-and-color-line.html

http://www.wipo.int/wipo_magazine/en/2015/05/article_0008.html

https://thump.vice.com/en_uk/article/we-talked-to-a-lawyer-about-how-the-blurred-lines-verdict-will-impact-copyright-law-in-dance-music

 

‘Stairway to Heaven’

http://arstechnica.co.uk/wp-content/uploads/2016/06/expertreportdefense.pdf

http://arstechnica.co.uk/wp-content/uploads/2016/06/johnsondec.pdf

http://arstechnica.co.uk/wp-content/uploads/2016/06/zepjudge.pdf

http://www.musiclawupdates.com/?p=6322