Originally posted on March 14, 2015
The significance of the Thicke/Williams ruling for recording musicians
No one in the music world expected it. Stevie Wonder told the Gaye family not to waste their money. But when the Marvin Gaye estate were victorious in their claim that Robin Thicke and Pharrell Williams had infringed the copyright of Marvin Gaye’s composition “Got To Give It Up”, it made the usually smug and self-satisfied music industry as skittish as a rabbit surrounded by rattlesnakes.
Producers, songwriters and publishers are shivering in their John Lobb boots
because the court’s decision changed the legal definition of copyright infringement. Having testified as a forensic musicologist, the premise was that copyright in a song should be based on an analysis of melody and lyrics. This is why my well-shod colleagues and I never believed the Gaye estate would win. No melodies or lyrics were copied, not even any significant instrumental melodies. According to prior legal practice, the judge should have thrown out the case.
Because the arrangement is now legally of value as part of the composition, why should any arranger, or any studio musicians simply give away a valuable commodity?
But conceding that Thicke & Williams’ song “Blurred Lines” did not copy any of Gaye’s melodies or lyrics, the court nevertheless ruled that the similarity of the “feel” of the rhythm section was enough grounds for a decision of copyright infringement. Denying Thicke & Williams’ declaratory relief counter-suit, the judge imposed a fine of $7.3 million. To clarify, this created a totally new criterion for plagiarism. This changing of the goalposts has the industry fearing a copyright goldrush, a hurricane of lawsuits from the estates of legacy artists such as James Brown, Smokey Robinson and Bo Diddley against a long list of current hitmakers.
Howard King, Pharrell Williams’ lawyer, has written, “Should the verdict be allowed to stand, a terrible precedent will have been established that will deter the record labels that fund new music from getting involved in creations built on the shoulders of other composers. No longer will it be safe to compose music in the same style as another song.”
That’s very worrying to the 21st century’s brave new music industry based on TV exposure, soft-porn music videos and computer generated generic music. There has never been a time when originality is so far down the list of priorities. It’s been so easy for so long. Steal a little from here, a little from there, sample this, time-stretch that, fire up the auto-tune and wait for the royalties to pour in.
But now, writers and producers have been plunged into a waking nightmare: If they can’t base their ‘new’ hits on previous hits, what on earth can they base them on? It’s a creative catastrophe where the Emperor’s new clothes are revealed to be old clothes stolen from artists of the 60s and 70s.
And it’s not just pop records that will be affected by the Gaye decision. What about the arrangers and orchestrators who work for film composers? Under the gun of time, the composer scribbles out 6 bars of a top line with some chord symbols and writes on the side of the page, “big orchestra, elec. gtr. lead. Lots of funky brass! M=83, 2:24 seconds”. They give that to their “orchestrator” (see how they cleverly don’t even call him an arranger because they know that has compositional connotations) and say “Expand this to 2 minutes 24 seconds and have it ready by 3 o’clock with a full mockup.” After the Gaye decision, the orchestrator can expect credit and royalties as co-composer.
And what about films? Movies based on other movies? Directors influenced by other directors? Movies based on books? Movies based on comic books? What about Quentin Tarantino whose films are influenced by the genres such as film noir, blaxploitation and ‘spaghetti westerns’?
And what about chefs? Does a restaurant serving ‘French Cuisine’ have to give credit and royalties to one of Louis XIV’s chefs?
And while we’re attacking Robin Thicke, why not extend this to the nudity in the “Blurred Lines video”? Thicke and his manager Jordan Feldstein wanted to guarantee the song’s success with a controversial viral video. Nudity guaranteed the video would be banned. But let’s ignore Thicke’s misogynistic amorality and greed for a moment.
Wasn’t the nudity copied from the nudity in other music videos by Justin Timberlake or Lady Gaga or Miley Cyrus etc.? Or was the idea stolen from the nudity in paintings by Rembrandt or Ingres – or Greek or Roman statues? Or based on a million porn films? I’d call that a case of naked plagiarism!
BUT HERE’S WHAT NOBODY’S TALKING ABOUT:
While they all wrestle with those embarrassing problems, there is another group of artists the music industry has never given a moment’s consideration to. And those hitherto invisible artists now have publishers and songwriters firmly in their sights. Be afraid. Be very afraid. The Arrangers are coming.
Previously, arrangements have been considered to be legally owned by the publisher and songwriter. As I explain in my book, The Invisible Artist, throughout the history of popular music, arrangers have had no rights whatsoever in their own work. The catchy brass introduction to “Dancing In The Street” was not written by the song’s credited songwriters, Marvin Gaye, Mickey Stevenson and Ivy Joe Hunter. It was written by Motown arranger Paul Riser, one of pop’s most prolific arrangers of hits. Although that brass melody was Riser’s composition, it was deemed to be owned by the songwriters and their publishers. Riser’s only remuneration was his arranging fee (around $10-20 per song). His fellow rhythm section musicians in the Funk Brothers never dreamed that the grooves, the rhythmic ‘feel’ they created would ever be of value. They accepted that they had regular work paid at $2.50-10 per song.
Most people, even musicians, do not understand what an arrangement is. I’ll begin by saying what it’s not. It’s not a chord progression and it is not simply orchestration – giving specific instruments previously written melodies. Since popular music began in the 1900s, arranging has been a job given to composers and orchestrators who make musical decisions that enhance the song and the performer. Sometimes those decisions are purely technical – they add appropriate accompaniment.
But sometimes arrangers create a genre with a rhythmic “feel”. They go beyond the technical to compose new melodies, important memorable ‘hooks’. Where this is true, I have argued for years that arrangements deserve to be qualified as co-composition. Now, the courts have not only agreed with me, they’ve ruled that rhythm patterns are equally as deserving as a string arrangement by Paul Riser, a French Horn melody by George Martin, a whistling tune by John Altman… or even a funky brass line by Richard Niles!
The Thicke/Williams ruling is a landmark case for arrangers because it states that the arrangement is a significant and integral part of the composition. A song is now legally defined as a melody, lyrics and its arrangement, whether it is a brass or string melody written by arrangers or a “feel” created by the rhythm section. As an important element of a hit, the arrangement has a monetary value—in the Gaye case, $7.3 million!
Pop has indeed eaten itself—at a very expensive restaurant!
The Gaye estate is taking the money and running. Good luck to them. But no one has mentioned that the rhythm arrangement on “Got To Give It Up” was not written by Marvin Gaye alone, though he owned the rights to it according to copyright law, as it was interpreted at the time. His co-arrangers were the rhythm section, Jack Ashford, Bugsy Wilcox and Johnny McGhee. Because they had no choice at the time, those musicians knew that any recording sessions they took part in were considered ‘work for hire’. They accepted that they were earning small amounts of money while the songwriters and publishers would be making a fortune when the song became a hit.
Warning to all songwriters and publishers: Those days are gone!
Because the arrangement is now legally of value as part of the composition, why should any arranger, or any studio musicians simply give away a valuable commodity? From now on, we lonely scribes and brothers in rhythm sections are in a position to make a deal with our employers.
Fanfare, if you please! I present:
The Recording Musician’s Bill Of Rights
Songwriters and Publishers [represented by ASCAP and BMI] (S&P)
Arrangers and Studio Musicians (A&S).
This would be a legal form Agreement signed for every track, whether recorded in a major studio in LA or a bedroom in Philadelphia.
- S&P state that the work done by A&S is copyright-protectable and guarantee A&S credit as co-composers.
- S&P grant A&S a percentage of the writer and publisher royalties to be split equally between all A&S. I suggest that 20% would be reasonable, but the amount will have to be negotiated and agreed by ASCAP, BMI, PRS and all relevant performing rights societies around the world.
- The Agreement would not be optional, subject to negotiation for each recording, but apply to every recording made by members of performing rights societies.
- No recording would be released in any media without one of these signed Agreements lodged with the NARAS (or maybe ASCAP or maybe the IRS – I haven’t quite worked that out!)
- A&S agree to use their musical expertise to ensure that their work would not infringe the copyright of a previously released record. In the event of a lawsuit, A&S would indemnify S&P against lawsuits pertaining to the arrangement, but not for any infringement caused by the songwriter’s melody or lyric.
For those songwriters and publishers beginning to foam at the mouth, I suggest you look at Point 4 again. This will guarantee that no further litigation will affect you as a result of the minefield created by the Thicke/Williams ruling. And when songwriters and producers begin to infringe copyright by being too ‘inspired’ by an old track by James Brown, the arrangers and musicians will have the musical expertise to stop them in their plagiaristic tracks.
In return for a piece of the action you are getting piece of mind!
The Recording Musician’s Bill Of Rights will ensure that the Judge’s radical reinterpretation of what constitutes copyright-protectable intellectual property does not cause chaos throughout the music industry. It will also mean that for the first time in over 100 years of popular music, the talented backroom boys (and girls like bassist Carol Kaye) will be treated as artists rather than as faceless hacks. They will not have to worry about having enough money to order another cup of coffee at a restaurant where they are listening to the radio playing a hit with their catchy guitar riff.
BTW, to anyone who wants to know if I am going to sue my previous employers for all the hits I’ve worked on for the last 40 years, the answer is:
No, I’m too broke to bring a lawsuit because I worked as an arranger for too long.
Dr. Richard Niles is a composer, arranger and author living in California. His book “The Invisible Artist” is available from Amazon. Buy it for endless hours of guilty pleasure.