'Blurred Lines' ruling makes influence illegal

Tonight, all over America, in venues large and small, musicians will perform on one of Earth’s most feared instruments: the five-string banjo. Nearly all of them will do their best to sound exactly like the late Earl Scruggs, inventor of the three-finger technique that defines bluegrass banjo.

For decades, Scruggs’ admirers have followed his model with slavish precision. This never bothered him. In fact, he relished it. In the revised edition of his instructional book, he approvingly quotes the critic Walter Carter: 

The most profound measure of Earl Scruggs’ influence is the simple fact that the five-string banjo is the only instrument on which the overwhelming majority of players copy the style of just one man.

A less generous approach would have been undignified — after all, even Scruggs followed other musicians, such as Mother Maybelle Carter.

Originality in music is incredibly rare, perhaps even impossible given that the voices of predecessors linger in every musician’s ear. That’s why the recent judgment that Robin Thicke and Pharrell Williams stole from Marvin Gaye’s 1977 song “Got to Give It Up” in crafting their 2013 hit “Blurred Lines” is so misguided. There is more at stake than reputations and bank accounts. The verdict threatens the very possibility of culture, which is fundamentally a process of collective plagiarism.

The jury in the “Blurred Lines” case went well beyond most prior music copyright enforcement, which had focused on melody and lyrics. Thicke and Williams were found guilty of replicating Gaye’s “groove” — the feel of his work. This is an alarmingly subjective legal test. To return to Scruggs: If the feel of a work is sacrosanct, many bluegrass songs would be illegal, so derivative and rigid is the genre.

There is, of course, a sense in which the groove defines a song as much as lyrics and melody do. A dance hit depends on its rhythm, just as a famous guitar solo is distinguished by qualities such as timbre and attack. But the fact that law customarily privileges lyrics and melody merely emphasizes how incompletely law can grasp art. Incorporating additional facets of a composition — what Gaye family lawyer Richard Busch ambiguously described as a “constellation” of elements — into the calculus won’t enable the law to actually hear. It is a recipe for endless lawsuits and would represent, in effect, the criminalization of influence. 

Listening to “Blurred Lines” and “Got to Give It Up” side by side, it is hard to discern the problem. The opening bars of the songs are comparable, but the degree of overall resemblance is not high. For one thing, “Got to Give It Up” is harmonically complex, while “Blurred Lines” is a monotonous bore. The bass lines, which pump the blood of these songs, are dramatically different. In “Got to Give It Up,” the bass moves around the rhythmic center of the piece, weaving ahead of and behind the beat. In “Blurred Lines,” the bass is unwavering. The note patterns are not at all alike either. Gaye’s synthesized bass spans a wide range of pitches as it traces the chords, while the bass in “Blurred Lines” does its job with as few changes in pitch as possible. Gaye’s children might have won themselves a tidy sum by crying infringement, but they insult their father’s art by insisting on its similarity to a lesser piece of music.

More troubling, though, is that no one appears to have considered the social meaning of mimicry. If you pay attention to the debate among lawyers and songwriters, the only concern is property and who can extract financial gains from it. But what about the collective life we create through art? That, too, is at issue in decisions such as these.

It is by means of repetition and incremental variation that cultures become both distinctive with respect to each other and, at the same time, internally diverse. We can talk about “Appalachian culture” in part because old-time folk tunes from the North Carolina Piedmont kind of sound like the ones from Eastern Kentucky, though they also sound different enough to become individual objects of fascination. Thanks to the mobility of cultural artifacts, there is both unity and multiplicity within the larger milieu they engender.

Culture, in other words, is a social phenomenon. It is not the creation of one or another artist, but of many doing somewhat similar things. Under certain economic arrangements, a sturdy defense of artistic copyright may encourage the production of cultural artifacts, but it also discourages the repetition and adaptation that make cultures themselves.

That is why the “Blurred Lines” suit involves so much more than the distribution of riches. The jury probably did not notice that it was weighing the balance between individual financial incentives and the construction of culture. The Gaye estate got its share. So did the property regime that continues to slowly, subtly privatize collective life for the benefit of the few. Artistic property law is not going away anytime soon — even though, as Scruggs and so many others have shown, it’s possible to earn a healthy living while being widely imitated. But we should still recognize that lawsuits like the “Blurred Lines” case are built on a fundamentally anti-social ideology with implications far beyond competing ownership claims.

By the way, some say it was not Scruggs but another North Carolina banjoist, Snuffy Jenkins, who invented the three-finger style. Scruggs acknowledged the influence.