Forensic Musicology – interview in Danish broadsheet

Screenshot of newspaper article
Article from this week’s Weekendavisen. Click the image to download Danish version.

I was interviewed recently for the Danish broadsheet newspaper Weekendavisen, which ran a feature on musical plagiarism, referencing Robin Thicke’s Blurred Lines. The text below is a (partly Google-powered) translation from Danish. For any native Danish speakers reading this, the original will probably make more sense – download here: Weekendavisen article 24 October 2014.

Slørede grænser (Blurred Boundaries)

[translated from Danish. Written by Anders Boas. Reproduced in translation by kind permission of Weekendavisen.]

The same way that a house is made ​​of bricks, wood and nails, a piece of music is build of pitches, harmonies and rhythms. But the same way that very few people see each brick in a house, it is a minority that hear the individual notes when listening to the latest hit.

But both in domestic and foreign courts artists, lawyers and musicologists are struggling from note to note about the line between musical building blocks that anyone can build songs from, and the combination of these building blocks that are protected by copyright.

In the Californian court, the heirs of the legendary soul singer Marvin Gaye are in conflict with superproducer Pharrell Williams and singer Robin Thicke. The Gaye family claims that Williams and Thicke have plagiarized Marvin Gaye’s song Got to Give It Up 1977 on their hit Blurred Lines, which in 2013 was by far the best-selling single in the world.

Documents from the case has provided invaluable knowledge about Thicke’s alcohol and drug abuse, and his lack of participation in the work of writing the hit he is co-credited of writing, but the case also raises more fundamental questions.

Normally, two songs need specific pitches and rhythms in common before one can speak of a plagiarism, and according to the British music professor Joe Bennett of Bath Spa University, who researched and analyzed the two compositions, the two songs are very dissimilar in this respect.

But the recordings of the two songs do indeed sound remarkably similar with their disco-era bass line played on electric piano and an accompanying syncopated cowbell-figure. The similarities have also been noted in media such as the New York Times, Rolling Stone and Vice, and Thicke has also previously stated that with Blurred lines he wanted to make a track that was reminiscent of Gaye’s Got to give it up, even if it in court Thicke’s own contribution was explained away by reference to substance abuse.

But why do we think that the two tracks sound so similar when the pitches and rhythms played are not really identical? Here we have to return to the fact that very few people listen to music only as pitches and rhythms, but instead as a complete recording with a particular sound and feeling:

“You can compare it to when you walk down the street and hear a brass band. All the songs they play will be different, but the listener will hear some apparent similarity just because all the songs are arranged according to the same principles and played on the same instruments,” explains Joe Bennett.

Maybe this is the reason that a musicologicist’s report commissioned by the Gaye family does not identify specific musical notes that are copied in Blurred lines. Instead it states that Williams and Thicke have made some of the same ‘creative choices’ that appear in Gaye’s Got to give it up. Both songs use, for example, falsetto singing, a cowbell rhythm and party-noise. But the accusation is similar in many ways to accusing a spy film of plagiarising James Bond, because both films include fast cars, scantily clad ladies and spectacular technology.

If the court finds that these common stylistic choices are enough to talk about plagiarism, then, according to Joe Bennett it could have major implications for future songwriters:

“You could suddenly be judged to have plagiarized a song, without actually copying anything, just by using some characteristic elements to celebrate a particular musical style or genre. That has the potential be really restrictive of creative activity in music production and songwriting.”

While the dispute about Blurred Lines concerns some rather unspecific similarities between the two numbers, then the Maritime and Commercial Court of Denmark recently gave judgment in a case involving two songs that undoubtedly have notes in common.

Here the matter in dispute, however, is not a world hit, but two commercials with singing, purple oysters for the telephone company Oister. The stumbling stone is a sequence of three identical pitches that originally came from a piece of music created by the production company Silverbullit to one advertisement for Oister, but was later re-used in music to another advertisement for Oister in music that was not written by Silverbullit.

So the case doesn’t concern a piece of unforgettable art, and one of the members of Silverbullit in the case called advertising music a ‘second-class job, “and explained that he feared that his voice would be recognized. It did however not prevent applicants from arguing at length that the work of combining the three notes with a text consisting of Oister’s name and the old reggae expression ‘oi’ was a individual creative act and therefore protected by copyright.

The Maritime and Commercial Court agreed, and the decision sets according to lawyer Mads Jørgensen who defended the telephone company in case a new limit to how small pieces of music that can be protected by copyright.

The problem is that writers never know in advance whether they violated the blurry line between the common building blocks and the protected song elements.

Indeed according to copyright expert Peter Schønning who advised Silverbullits lawyer in the case, the song writers do not even even have to have heard the plagiarised number to be sentenced for stealing from it. Songs from the desk drawer can of course not be violated, but just the fact that a song is released and has been heard on the radio is reason enough that it is the defendant who must prove that he has not heard the song.

The decision of the Maritime and Commercial Court does according to Peter Schønning however not mean that the song pieces on three notes will automatically be protected by copyright law in future cases. The boundary between building blocks and protected tunes i definded by looking at the entity from case to case. According to Peter Schønning the risk of infringing the copyrights of others, however, as a general rule is less if a creative task can only be solved in very few ways:

“If for example, it is unlikely that two songwriters independently will be able to reach the same combination of tones by accident, then it will often be protected.”

BUT what is real the risk that the two songwriters write the same song independently of each other?

A popular argument is that there are only 12 different pitches in an octave and therefore only a limited number of possible combinations of these pitches. But actually the 12 tones combines in a lot of different ways. In a tone row of three tones the twelve tones could only be combined at about 1700 ways, but in a tone row with six tones to the twelve tones combined in almost three million ways, while a tune of nine notes can be combined in more than five billion ways.

So although there is some risk that two composers independently might create the same short tone rows, the risk falls dramatically as soon as we see talk about longer melody pieces.

But of course we need to take into account that a melody is not just a series of tones, but is a series of tones played at specific times:

“I sometimes try to illustrate this by showing that the introduction to Kate Bush’s Wuthering Heights can be said to be stolen from Brahms’ Quintet in B Minor (1891), because they have six tones in order in common. But the fact is that this it is bad musicology, because when you look at the rhythm of the two melodies, they are completely different and sound different to the listener, ” explains Joe Bennett.

The problem is that the twelve tones are not the only choice that songwriters have to deal with. It is far from all the many possible combinations of tones that makes sense musical. Firstly, there are very few songs that include all twelve notes. The scales, which most songwriters use as a starting point for example, consists only of seven, or even five notes.

Meanwhile, all genres have several musical standards that will further restrict which combinations of tones and rhythms that will make sense in the given genre, so the same way that a screenwriter can’t suddenly introduce a fire-breathing dragon in a social realist film, then songwriters’ options also are limited significantly by the genre in which they are working.

Consequently, there is unfortunately no formula that can tell us how great the risk really is that two songwriters independently of each other will create the same tune, and hit makers as Pharrell can never be sure if their latest hit will plagiarize a song they’ve never heard, at least until they receive the court’s decision in a specific case.

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