By Ricky O’Bannon
robannon@bsomusic.org

In case you go out of your way to avoid pop music news, last month’s court ruling that Robin Thicke and Pharrell Williams owed money for borrowing too much of the musical vibe of Marvin Gaye’s “Got to Give It Up” for “Blurred Lines” was widely met with handwringing from music circles.

While the jury couldn’t locate any lifted melody or copied lyric, it found that the “feel” of the two songs — linked to musical elements that are pretty standard in many pop songs — were similar enough to warrant copyright infringement. Music writers have almost universally scoffed at the potential legal precedent that could come from the case, and it’s not hard to find articles written even almost a month after the decision wondering if this will ruin the artistic process as we know it.

While pop and classical music don’t often meet, they do share a legal system, and that fact spurred classical commentators like Los Angeles Times’ Mark Swed to question whether copyright standards ironed out in the 21st century wash with a centuries-old creative process.

“So-called creative thievery isn't just the privilege of pop musicians; it is the God-given right of all musicians and the very basis of Western music,” Swed wrote shortly after the “Blurred Lines” verdict.

“Music was born as an art of absorption. … You would be hard put to find a great composer who didn't use what came before, and the more progressive the composer, the bigger the bandit.”

In the grand scheme of music history, copyright law is fairly new. The question Swed and others raise is if current hyper-litigious standards were applied, how much great music would we have missed from composers like Bach who borrowed and reworked ideas by Vivaldi? And if the regular plagiarism litigation of the pop world akin to the “Blurred Lines” case finds its way to the classical realm, how damaging could it be for the art form?

Classical music historians often describe this borrowing not as misappropriation but as homage, where one composer uses music of another almost with an appreciative nod to the work of their peer or predecessor. Grieg borrowed from Mozart, Strauss from Beethoven and Stravinsky from Schubert.

“I don’t think homage versus misappropriation is the choice composers were making,” said Hank Reynolds. “In most cases, they were drawing from what was considered to be the public domain and making no pretense about it. It’s a mistake to judge them under a retroactive application of modern law.”

Reynolds is a music theorist, forensic musicologist and lawyer who has given music analysis and expert testimony in music copyright lawsuits. Copyright laws for music, he said, really came about in the 18th century in response to a growing middle class market and a new concept of individual artistic genius, which was associated with originality.

In the case of both “Blurred Lines” and many classical pieces that borrow stylistic elements, the question is whether homage or fair use rises to the level of misappropriation. To be proven legally, Reynolds said plaintiffs must prove both an economic and aesthetic component to infringement.

“Courts are reasonably well equipped to examine the economic issues, but virtually incapable of judging aesthetics,” he said. “They try to get around the problem with various legal formulas for finding infringement, all of which have problems.

“Ultimately, the misappropriation question is tossed to a jury comprised of people who are frequently themselves ill-equipped to judge and whose knowledge may come entirely from what the judge has allowed them to hear at trial.”

In general, infringement lawsuits for classical music are few and far between in part because there is often less money at stake than pop and that there are so many musical elements that proving the aesthetic infringement becomes difficult. Traditionally, copyright law has held that melody is sacred when judging originality while harmony is fair game. Where melody is king in pop, it’s often far less important when judging what makes a classical work tick.

The legal focus on melody has sometimes allowed clever workarounds. In the ’40s and ’50s, bop musicians composed contrafacts, which are new melodies written to the harmony and chord progressions of old standards. This allowed them to improvise over standard popular and jazz tunes without having to pay publisher fees.

Composer John Cage composed his own contrafact when he was denied permission arrange Erik Satie’s piece Socrate for a dance collaboration. With the dance already choreographed to the rhythms and structure of Satie’s piece, Cage opted to rewrite the melody and call the piece A Cheap Imitation.

Interestingly enough, Cage also has the distinction of being involved in one of the most high profile classical music infringement cases, when his publishers sued the rock band The Planets for a track on their classical-crossover album that paid homage to Cage’s 4’33 with one minute of silence. The band settled with the composer's estate for an undisclosed six-figure payment. Were Cage still alive at the time, he might have been amused to see that a piece that hoped to prove that any sound, even silence, was music reached its ultimate conceptual high point when that silence was legally argued as copyrightable music.

The often-quotable Federal Judge Learned Hand framed the current aesthetic legal standard by asking if one work took “so much of what is pleasing to the ear” of another. As ambiguous as the phrase may be, that standard tends to dismiss simple similarities or musical formulas that are common to a genre.

Part of the difficulty in judging the effect of pop music lawsuits on the classical world is that there have been very few legal plagiarism claims between composers to test the "so much of what is pleasing to the ear" standard. One recent case that could have ended up in court arose when audience members noticed a striking similarity in 2012 between Osvaldo Golijov's Siderus and accordion player Michael Ward-Bergeman's Barbeich.


With media attention growing, Ward-Bergeman explained that he had given his approval to Golijov and that the two had come to an agreement. The case raised questions about homage versus plagiarism, but it also suggests that classical composers might have their own understanding of musical borrowing that is resolved with a gentlemen's handshake instead of a cease and desist.