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Whose Music is it Anyway?
By Nell Beck | | March 9, 2018 @ 5:15 pm
I don’t mean to ruin your mood, but remember Robin Thicke? Blue-eyed man-child who was launched into stardom with his blatantly sexist and predatorial song, “Blurred Lines”? Do you remember when that song brought about a lawsuit?
Ken Freundlich certainly does. As an entertainment lawyer, he worked directly on the Robin Thicke vs. Marvin Gaye case, in which the family of Marvin Gaye filed a suit alleging that Thicke’s “Blurred Lines” copied Gaye’s “Got to Give It Up.” In the end, Thicke and Pharrell Williams were found guilty of violating copyright law, and had to compensate the Gaye family $5.3 million, along with 50 percent of the song’s royalties.
But this is not always how copyright cases work out. In fact, music copyright is often an extremely complicated and nuanced issue - what counts as copying? Where is the line between influence and reproduction? All of this, and more, was addressed by Freundlich, NPR Music Critic Ann Powers, and Clive Davis Institute of Recorded Music Director Jason King when they served as panelists at “Whose Music is It Anyway? A Discussion on Music and Copyright.” The talk was hosted by Assistant Professor of Ethnomusicology Kathryn Mets in the Birenbaum last Wednesday night.
In the nearly two-hour long talk, the three panelists addressed many of the issues associated with copyright law, exposing a variety of social and philosophical dilemmas. The conversation was informative and relevant, especially for Oberlin students, who tend to be particularly invested in both music and politics.
On the surface, the basis for copyright lawsuits seems fairly simple. As King put it, there are two stipulations upon which a copyright infringement may be taken to court: substantial similarity and proof of previous access to the original song. If someone wishes to file a suit against a musician for unlawful stealing, they must prove that the similarities within the pieces go beyond imitation of rhythm (which isn’t grounds for suing), as well as prove that the artist had access to the original track. But, put into practice, it all gets pretty muddied, especially when looked at in terms of exploitation and appropriation.
The Thicke case was more than just a simple copyright lawsuit. In the chapter that Powers read from her new book, Good Booty: Love and Sex, Black and White, Body and Soul in American Music, she reflects on a trend of white artists co-opting black music, and then benefitting from it. “I think that’s the history of America, frankly,” King pointed out. It happened with rock and roll music, when Elvis gained massive fame by doing what Ike Turner, Lloyd Price, Ruth Brown, Ray Charles, and Fats Domino had already been doing. And it happens now, when white rappers like Eminem win all of the Grammys. “I could name fifty more deserving artists than him,” King said.
Sampling is another interesting realm of music copyright theory. It was frequently used in hip-hop in the eighties and led to the creation of some great works such as Public Enemy’s “It Takes a Nation of Millions to Hold Us Back.” This all came to a screeching halt, though, in the nineties, when many artists began filing lawsuits against sampling. One such lawsuit happened in 1991, when Gilbert O’Sullivan sued Biz Markie for sampling several bars of the familiar piano riff from his 1972 song, “Alone Again (Naturally),” in his song, “Alone Again.” O’Sullivan won the case, with the judge even writing the words “Thou shalt not steal” at the end of the ruling.
At one point, an audience member asked the panelists about the sampling case involving Vanilla Ice and his song “Ice Ice Baby,” which took from David Bowie and Queen’s “Under Pressure” without permission. In that specific case, Vanilla Ice was particularly vilified by the public, but all of the panelists agreed that he definitely deserved it; as King put it, “there was a souring toward Vanilla Ice because he was worthy of souring.” And again, he, too, was a flawed artist who was profiting immensely from a system that rewarded white rappers.
Looking towards the future of music copyright, all three panelists agreed that there is much work to do. The last time the copyright law was updated was in 1991, yet music production and distribution is changing more rapidly than ever before. In the age of Spotify and Youtube, it is becoming harder and harder for musicians to benefit from music copyright laws. While free music streaming services are widely used and enjoyed by the public, artists often suffer financially because they are not receiving compensation for their music.
But then again, it goes both ways, and easily accessible streaming services can often be very beneficial to artists who are just starting to put themselves out there. King, who also works as a professor at NYU, said, “I have second-year students making six figures” after putting their music on some of theses streaming sites. This elicited a few bemused laughs from the audience.
As Freundlich, Powers, and King all expressed, music copyright is a difficult area of law, but it is also important and influential; it protects the rights of artists and allows them to feel secure in their career. However, straddling the line between subjectivity and objectivity isn’t easy, and copyright law can’t seem to keep up with the times. Even more pressing than figuring out what counts as stealing and what doesn’t is remedying the exploitation and racial bias that so dominates music copyright law today.
Contact contributing writer Nell Beck at firstname.lastname@example.org.