So, Robin Thicke is in court. Not that that’s a surprise to people who are aware of his sensibilities, but the crime he’s accused of is perhaps not what you’d expect from the lord of all sliminess; Mr Thicke stands accused of plagiarism by the estate of Marvin Gaye over claims that Thicke’s infamous 2013 hit ‘Blurred Lines’ borrowed a little too liberally from Gaye’s song ‘Got to Give It Up’. Plagiarism in music is an extremely hazy area. To claim copyright infringement five things need to be proven: the work needs to be copyrighted; it needs to be original; the defendant must have copied it; the two pieces must share substantial similarities; and the copied part must itself be a substantial part of the claimant’s work.
The first and second conditions here are fairly simple. Works become copyrighted when they’re put in physical form, recorded or written down. For the work to be original it must not be plagiarised itself, that’s fairly self-explanatory. So far, so good.
The issues start rearing their heads at the third condition. How does one comprehensively prove that someone sat down with your work and copied it? The legal system generally acknowledges that this is impossible, so settles instead for proving that the defendant had access to the music. This is already problematic, as airplay is not proof that someone did ever access a song, leading to the situation where one could be found guilty of plagiarising a song they’d never even heard.
“Substantial Similarities” is also one of those vague legal terms that just seems to confuse things further. It leaves it up to the judge or jurors to decide how substantial a similarity between two works is and that creates a tricky grey area. The bass line from ‘Blurred Lines’ may sound similar to Gaye’s song but why is that similarity any more or less substantial than that between Oasis’ song ‘Morning Glory’ and R.E.M.’s hit ‘The One I Love’? This is the issue when you’re dealing with something as subjective as musical similarity, because unless it’s note for note copying, there’s no indication of how much must be similar.
Finally, what counts as a substantial part of one’s work? There are no length restrictions on this and it’s all down to recognisability. If a section from a song sounds identifiably like one from another it meets this requirement. This is why groups like electronic duo Justice aren’t considered plagiarists. They take samples but will often only turn them into completely different sounds. On the other hand, infamous cases such as the lawsuit against George Harrison, accused of plagiarising The Chiffons’ ‘He’s so Fine’ for his song ‘My Sweet Lord’ relied very heavily on the idea that the song had substantial similarities to more or less the whole Chiffons’ track.
So if ‘Blurred Lines’, and other songs that have been accused of plagiarism are indeed infringing copyright, the process used to decide that they have is a shaky one. In a time where so many artists have such wide access to music, it’s almost impossible to prove whether or not someone had access to a particular piece, and the nature of what constitutes a “substantial similarity” to a “substantial part” of one’s work is hard to define at best. It’s a problem that could lead to people being too quickly charged for plagiarism, or too easily getting away with it. More defined laws need to be made, the lines are too blurred.