The verdict in the “Blurred Lines”/“Got To Give It Up” trial was announced on Wednesday. Robin Thicke’s 2013 hit, the jury declared, was too close to Marvin Gaye’s 1977 hit, and two of Gaye’s children were awarded a bucketload of money: $1.61 million of Pharrell Williams’ profits from the song, $1.77 million of Thicke’s profits, and a whopping $4 million in damages.
The reaction from critics was immediate: the decision was bad news, a disaster, a blow to creative expression, and bad for pop music. That’s all true, even if you think that “Blurred Lines” is a creepy song and/or that Robin Thicke is a vaguely icky person and/or brought this on himself by suing the Gayes first, all of which are not wholly unreasonable positions to hold.
It’s worth having a look at the jury’s actual verdict in this case. They found that Williams and Thicke infringed on “Got to Give It Up,” but that the infringement was somehow neither “willful” nor “innocent.” (The case’s verdict form also asked the jury if Thicke’s “Love After War” infringed on Gaye’s “After the Dance,” to which they wisely said nope.)
The one convincing argument in favor of the “Blurred Lines” decision is that what a musical composition is, legally, is very different from how pop songwriting works in the present day. As far as the law has generally been concerned, a song is pretty much just its lyrics and melody. And if you strip “Got to Give It Up” and “Blurred Lines” down to the parts that are legally the songs — if, say, you sing them accompanied only by a ukulele (please don’t try this) — you’ll find that they are no more similar than “The Yellow Rose of Texas” and “Yellow Submarine.” But nobody listens to either “Got to Give It Up” or “Blurred Lines” for their lyrics and melody alone.
Groove construction is part of the recording process rather than the songwriting process, the legal argument goes. That’s simply not true now — songwriting and recording are often the same thing, and beatmakers and producers now often get songwriting credit. You can claim copyright protection for a specific recording, but not for a groove or vibe, which seems unfair when that’s often the selling point of a hit.
To clarify with some examples: Arrangement (instrumentation and timbre, not legally protected) is what His Name Is Alive’s “Universal Frequencies” got from the Beach Boys’ “Good Vibrations”; melody (legally protected) is what the Beach Boys’ “Surfin’ U.S.A.” got from Chuck Berry’s “Sweet Little Sixteen,” or what “Stay With Me” got from “I Won’t Back Down”; vibe (not legally protected) is arguably what Berry’s “Maybellene” got from Bob Wills and the Texas Playboys’ version of “Ida Red.” (It’s also arguably what Marvin Gaye’s 1964 single “You’re a Wonderful One” got from Lonnie Mack’s 1963 version of Berry’s “Memphis, Tennessee.” Nobody’s immune to influence.)
Note, though, that both of those comments about vibe have “arguably” attached. Sounding similar-but-different is a necessary part of pop; recording a song that sounds a lot like another song but doesn’t duplicate its “compositional” elements is how genres happen. Vibe is also much harder to quantify than lyrics or melody, and that’s where the “Blurred Lines” decision’s chilling effect comes from.
The last time something like this happened was the 1992 Gilbert O'Sullivan/Biz Markie lawsuit. Before it, there was an informal understanding that including samples on hip-hop records was fine as long as you didn’t use more than a few bars; after it, lawsuit-fearing artists and labels demanded that every sample had to be cleared, and the result was that the art of sampling was kneecapped. (This is also why, for instance, Karmin’s 2011 single “Crash Your Party” was, absurdly, officially co-written by John Coltrane, who died several decades before several of his “collaborators” were born and didn’t actually write anything heard in “Crash Your Party”: it includes a sample of Black Sheep’s “The Choice Is Yours (Revisited),” which in turn samples a Ron Carter bass improvisation from a McCoy Tyner recording of Coltrane’s “Impressions.”)
And now, as a result of the “Blurred Lines” decision, musicians’ lawyers are going to be all freaked out about not just songs that sample or quote other songs but songs that sound too much like other songs. There is no standard for how much one recording’s groove can happen to sound like another’s, because there cannot be a standard for it. And when there’s no standard for what’s legal and what’s not, that’s a textbook example of a chilling effect: there is no degree of resemblance that is safe. Imagine if, after “Rapper’s Delight” came out, nobody had been willing to release a song with the same basic sound for fear of being sued.
One of the jokes that was going around after the “Blurred Lines” verdict was announced was that, if musicians owed money to their influences now, the Velvet Underground were due for a gigantic payday. But considering that the Velvets’ 1967 “There She Goes Again” opens with the same riff as Gaye’s 1962 single “Hitch Hike,” that money might not stay with them for long anyway.
Douglas Wolk is a freelance journalist and critic who writes about music, comic books and other things for TIME, The New York Times, The Washington Post, Rolling Stone, and a bunch of other places. He’s also the author of Reading Comics: How Graphic Novels Work and What They Mean and Live at the Apollo. He also wrote the Judge Dredd: Mega City Two comic series, recently collected as a graphic novel.