Walking the Bass Line: How Original Does a Riff Need to Be in the Post – “Blurred Lines” World

A bass line was on trial in the recent “Blurred Lines” case that ended on March 10 with a jury verdict for the heirs of Marvin Gaye to the tune of $7.4 million on a claim that Robin Thicke and Pharrell Williams infringed on the copyright of Gaye’s 70’s hit “Got to Give It Up”.

While the verdict is in, many in the music and legal communities are outraged by what they perceive as a tone-deaf outcome that could stifle creativity. Jack Ashford, who recorded the original bass line on “Got to Give It Up” and bassist Verdine White of Earth Wind & Fire are among those who have denied that “Blurred Lines” ripped off “Got to Give it Up”, because the melodic and rhythmic elements are just not that similar.

Some expect the jury’s verdict will be tossed out by the trial judge, Hon. John A. Kronstadt, highly regarded as a copyright jurist, who could soon rule there was no copyright infringement as a matter of law. In any event, an appeal is likely, which could drag on for years.

Meanwhile, should a bass player on a recording session worry that a funky riff that comes into his head and rolls off his fingers might be too close to something someone laid down on tape decades earlier? Copyright law is not supposed to stifle creativity, and freedom of speech laws like the First Amendment in the U.S. and similar laws in other countries act as a counter-balance to copyright laws to ensure freedom of expression.

But some music copyright cases, like “Blurred Lines” and others, can be most peculiar. In 1991, a lawsuit claimed ZZ Top stole John Lee Hooker’s 1949 guitar riff from “Boogie Chillen’” for their 1973 hit “La Grange”. ZZ Top argued that the upbeat chord pattern was not his property but traced back to the Delta blues idiom and was free for anyone to use. ZZ Top prevailed in the case and, ironically, a music publisher who later purchased the La Grange copyright from the Texas trio went on to sue others for ripping off the riff from them. Perhaps more ironically, the attorney for the publisher who bought La Grange — the same publisher who was suing songwriters for stealing the boogie riff from ZZ Top, even after John Lee Hooker unsuccessfully claimed ZZ Top stole it from him — is now defending Robin Thicke and Pharrell Williams in the “Blurred Lines” copyright case. That attorney, Howard King, is one of the foremost music copyright litigators in the country.

So back to the bass line in “Blurred Lines”, a common, laid back groove that walks with the same slightly funky gait as so many others in its R&B-flavored ‘hood. One day it’s walking the line without a care, the next it’s hauled into court on charges of robbing the Marvin Gaye copyright bank.

During the trial, the Gaye family’s musicologist, Judith Finnell, testified against the “Blurred” bass line, presenting the copyright law equivalent of a police line-up where the “Blurred” and “Give” bass lines stood side by side. The similar hi-hat and cowbells rhythm from the original recording of “Got to Give It Up” was indadmissible at trial, as the case was only about infringement of the composition and as the sheet music deposited with the Copyright Office in the 1970s did not contain any percussion. With percussion out of the picture, Finell’s analysis heavily focused on the bass lines.

Finell — who testified she was paid $100,000 to render her opinion on behalf of the Gaye heirs — claims the first four bars of each song is enough to put the “Blurred” bass line behind bars.

Whether you read or listen to the music, two things seem clear: they aren’t very close and neither is very distinctive. Finnell and another musicologist on the Gayes’ team argued that the rests between notes were one of the most substantially similar things about these songs. In other words, they both have silences in similar places. Of course the Gaye heirs don’t claim they own silence, or should be paid every time a bass player lays out, but their argument that silent spaces between notes are a key similarity between these songs strikes some as peculiar.

Finnell also testified the bass lines were similar because they each emphasized the root of the chord on a downbeat, or anticipating the downbeat. Pharrell and Thicke’s team presented another musical police line-up, this time adding a third bass line, from “Superfly”, the 1972 hit from Curtis Mayfield, pre-dating “Got to Give it Up” by five years, noting that all of the bass lines play the root of the tonic chord on the downbeat or anticipating the downbeat.

These commonplace ideas are not protectable by copyright law, King argued, and even if they were, “Superfly” pre-dates “Give”. King also argued that there were “no two consecutive notes in any of the melodic examples in the Finell Report that have the same pitch, duration, and placement in the measure” in “Blurred” and “Give”.

But these musical arguments seemed to go in juror number one’s ear and out juror number eight’s. The jury was persuaded by the Gayes’ well-regarded attorney, Richard Busch, who effectively made the case more about whether Thicke and Pharrell were liars than whether the songs were too close. King argued that his clients’ credibility was irrelevant, that being “influenced” by earlier music is only lawful but the way most music is created, and that the songs should speak for themselves. But the jury didn’t get any of that.

As of now, the “Blurred” bass line is out on bail, praying that Judge Kronstadt will let it off the hook. If it takes the rap as a copyright infringement, countless other funky and syncopated bass lines may be packing their bags and fleeing the country before the Gayes or other R&B singers or their heirs come gunning for them too.

Already, the Gaye heirs are reportedly eyeing another lawsuit, saying that Pharrell has got to give it up again because his mega-hit “Happy” is too close to Gaye’s lesser-known “Ain’t That Peculiar”.

Peculiar indeed.