by Robert Fink
Nothing puts musicology in the headlines like a big, juicy verdict in
a musical copyright case. And they don’t come much juicier than the 7.4
million dollar judgment handed down last week by a federal jury which,
enabled by extensive musicological expert testimony, decided that Robin
Thicke and Pharrell’s hit song “Blurred Lines” is substantially similar
to Marvin Gaye’s “Got To Give It Up,” and thus infringes on its
copyright.
What is (Forensic) Musicology?
Most reactions to the verdict have focused on the specifics of the
case and the implications, if it is upheld on appeal, for the creative
future of popular music. But one ethnomusicologist
has come out swinging, criticizing harshly the role that musicological “expertise” played in the trial:
It seems to me that [this trial] has impaired, rather than bolstered,
any reputation or value that musicology might have had in the popular
imagination…Collectively, [Ingrid] Monson and [Judith] Finell’s
testimony was presented by the Gayes’ attorney as objective data that,
based on their expertise in music, proved a decisive similarity between
“Blurred Lines” and “Got to Give It Up.” Musicology was positioned as a
science — a clear misrepresentation of a discipline that straddles the
boundary between the Humanities and the Social Sciences.
As much as I support Gregory Weinstein’s vision of a thoroughly
cultural musicology (“Elements of a musical work only have meaning to
the extent that they are heard and understood by people with particular
cultural positions and values”), I take a slightly more equivocal view.
As a sometime forensic musicologist, I understand that “musicology”
is a term of art in copyright proceedings. It refers to a type of
practical expertise that we in the academy would recognize as basic to
our training in music theory: the ability to recognize, parse, and
compare musical structures, and then communicate, with some degree of
precision, their structural similarity. When Judith Finell, the Gaye
family’s forensic musicologist, testified in court that “The
musicologist’s job is to understand the important and unimportant parts
of a musical work,” she was making a claim with which many professional
music theorists would resonate. (They might prefer the less loaded words
“structural” and “non-structural,” but the distinction is the same.)
And on these terms, the outcome of the “Blurred Lines” case was
undoubtedly a public win both for musicology-understood-as-music-theory,
and for a certain kind of structural listening.
A “Constellation of Similarities”
The victory is all the more impressive because it was snatched from
the jaws of defeat. The Gaye family suffered what seemed like a
crippling reversal early in the case, when a judge ruled that, since
“Got To Give It Up” was released in early 1977, nine months before the
U.S. Copyright Act of 1976 went into effect, the case would proceed
under the fantastically antiquated provisions of the Copyright Act of
1909. The jury would not be allowed to compare the two songs
as recordings; they could only consider the notated version of Gaye’s song on file at the Library of Congress.
Thus musicological analysis was critical to the case; Finell and
Monson needed to get the jury to hear similarities between the two songs
in the abstract — to, in effect, teach them how to listen
structurally, under the pressure of an adversarial process where
everything said was subject to cross examination. They needed to
convince jury members that, even though the authors of “Blurred Lines”
were well aware of the existence of “Got To Give It Up” and would have
been very careful to avoid surface coincidences that were easy to hear,
the songs were, at a deeper level, substantially similar in melodic,
harmonic, and rhythmic structure.
The jury’s massive financial judgment shows how completely they were
willing to sign on to Finell and Monson’s analytical claim of a hidden
“constellation of similarities” between the two songs. Would that I
could have convinced skeptical colleagues, or at least a room full of
restive undergraduates, to swallow so easily my own most gnostic
readings of the constellations of subliminal detail that (I thought)
tied musical artworks together!
This little figure over here connects to this one over there, can’t you hear it?
Objection, your Honor. May I approach the bench?
Idea vs Realization
One incorrect lesson observers are drawing from this verdict is that
it means you can be sued for copying the “feel” or “vibe” of an existing
song. Nothing could be further from the truth. The argument was
ostensively made, and ostensively accepted by the jury,
only on
the basis of similarities that could be captured in musical notation.
For those of us working in forensic musicology, though, this is just as
destabilizing.
Here’s why: When musicology enters the world of forensic expert
testimony, it must, for the most part, leave behind conceptual modes of
thinking fostered by academic music theory. In forensic work, you follow
the copyright law, which distinguishes between an
idea, which cannot be copyrighted, and the
realization
of an idea, fixed in a given work, which can. This mode of
argumentation does not reward abstract thinking. A particular melody at a
particular place in a particular work, considered as a specific
sequence of notes, each with a specific duration, in an individual
relationship to an individual set of chords — that can be copyrighted. A
chord progression in the abstract, or the idea of a gapped scale, or
even the inspiration to drop a fuzzed-out guitar riff into a rock song
that sounds like a horn — that cannot.
(Sorry, Keef.)
Weinstein is correct to note that when Ingrid Monson adduced the use of a
ii-V-I turnaround progression as a “similarity” between the work of
Gaye and Pharrell/Thicke, she crossed a line. It’s not only the line
between the common and the unusual (although that line is legally
important as well); it’s the line between an idea (the chord
progression) and its realization (the actual notes, rhythms, and
simultaneities of the songs in question).
The “problem” is that academic musicologists are accustomed to move
seamlessly between idea and realization, blurring that epistemological
line, as they do their work. What we learn to do as music theorists is
to abstract hypothetical musical ideas from musical realizations,
evaluate those ideas for elegance and internal consistency, connect them
with other ideas, and then use the connections made to validate other
musical realizations by ascribing to them a similar elegance and
internal consistency.
The ideological implications of this sometimes slippery process have been thoroughly explored, some might say debunked, by
several generations of musicologists.
And that may be why I have found the clear lines within which I have
had to work as a forensic musicologist to be refreshing. I’ve
rediscovered there a “just the facts ma’am” phenomenology of music,
stubbornly shallow and literalist, yes, but also free from what Susan
McClary and Robert Walser once called “the hidden ideological claptrap
of musicological training.” You can try to push the boundaries a little,
to strip away some layers of “unimportant” decoration to show how two
melodies are “really” the same; but you will be confronted at every step
by trained cross examiners whose practical understanding of the
difference between
music and
musical ideas is sharpened by the money at stake.
This is why the “Blurred Lines” verdict worries me. In the continuing
battle between music-theoretical abstraction and the phenomenology of
copyright lawyers, musicology just captured a large swath of disputed
intellectual territory. The web of connections spun by Finell and
Monson, once accepted by a jury as “real,” greatly enlarges the grounds
upon which a musical copyright holder might claim infringement. And it
does so without even addressing —
as at least one perceptive pop critic has noted — the parametric imbalance in existing case law that privileges (white) melody and harmony over (black) rhythm and feel.
Hard Cases Make Bad Law
Or does it? I suspect that one reason the jury was willing to be led
down the musicological path by Finell and Monson was that, in this case,
allegiance to structural listening offered a way to punish an
unsympathetic pair of defendants and right, at least by proxy, a whole
history of unfair appropriation. An
old legal maxim
states that “hard cases make bad law,” by which it is meant that when
one side in a dispute has suffered what seems to be an extraordinary
wrong that existing statutes do not fully address, it’s tempting but
wrongheaded to reinterpret the law so as to relieve one’s moral
indignation.
Copyright cases don’t get much “harder” than this one. Not only did
Thicke and Williams embarrass themselves in court; they did it going up
against Marvin Gaye, perhaps
the tragic example of how
African-Americans have struggled for artistic freedom within a music
industry built on the systematic exploitation of their labor and
creativity. And if Gaye’s story is but one example of the pervasive
(love and) theft
that created American popular music, music itself is just one of the
American crops that black folk have planted, nurtured, and harvested —
only to see most of the cultural and economic capital
accrue to the rulers of an economic system built on white supremacy.
So — imagine
you are on that jury. You know that the two
songs are almost identical, deliberately so, with respect to those parts
of pop music — groove, feel, vibe — that you viscerally understand and
love. You think Thicke is an ass, and Williams a slippery liar. You want
to rule, and rule hard, for Marvin Gaye’s family, to strike a blow
against musical appropriation and, in the end, against racism itself —
but the judge has told you, thanks to some idiot technicality, that you
can’t consider anything but the precise notes and chords on some random
sheet of music paper from 1977, which, unfortunately, aren’t really the
same, note for note, as those in “Blurred Lines,” and so don’t support a
claim of copyright infringement as the law has been explained to you.
In this context, the elaborate musicological arguments presented at
trial by Finell and Monson would be almost impossible to resist. Just
agree to hear it their way, slide across the line between idea and
realization, and you are freed up to Do the Right Thing. As I noted
above, analytical techniques that purport to uncover musical “deep
structures” are inherently slippery in just this way. They can be used
to provide a quasi-objective rationale for musical relationships we
can’t really hear, but in which we want, for ideological reasons, to
believe. The courtroom used to differ from the seminar room in that it
enforced a somewhat higher standard of proof on such structuralist
fantasies. But those lines are blurred now.
Got To Give It Up
It should be evident that I think this case makes bad law, and I
doubt other judges and juries will follow its precedent. That fact does
nothing to diminish the real hardships that the musicological experts
and the jury in this case were trying to redress. But intellectual
property law is a blunt instrument for social change. Is the only way to
honor black creativity to monetize it? Do we need to mortgage the
future of popular music to repair the injustices of its past?
It seems to me that the true tragedy of this case is not, as Gregory
Weinstein believes, that musicology represented itself poorly; it is
that in its moment of triumph, musicology, despite its best intentions,
was an accessory in another
enclosure of the musical commons.
Structural analysis may be deployed at trial, as it so often is in the
academy, to pinpoint influence and thus defend the priority of the
genius in music history; but it provides thereby intellectual
justification for fencing off more of our shared heritage of sounds,
grooves, vibes, tunes, and feels from the people who need it most.
Turning music into property is not our job.
We’ve got to give it up.
Robert Fink is Professor of Music
at UCLA, where his work examines music since 1965. A popular lecturer
on campus and off, he is author of a study of minimalism called
Repeating Ourselves (University of California Press, 2005). The—wonderful—working title of his next book is
Beethoven at the 7-11: Classical Music in a Post-Classical World.
