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Category Archives: IP law

As I am planning both a) a new chapter on the use of law and legalistic discourse as a point of contestation and language for communication between fans and industry and b) my next project about transformative musical reuse, I am increasingly convinced that what the law says doesn’t matter.

The Robin Thicke/Marvin Gaye case had been on my radar as a major flashpoint for the second project, because it operated at the intersection of the issues that interest me, between a) a strict copyright interpretation that said the song was in the clear and b) one informed by the history of white theft of black music and/or distaste for the gender and sexuality ideologies of “Blurred Lines” itself that wanted Thicke to get nailed for it.

And indeed when the verdict came down the other week, it showed some of the principles I’ve begun to formulate in theorizing these two projects: first, that what people use to decide whether something is legitimate transformative reuse (even juries) is not what the law says, and second, that the value system currently animating legal action is not what the law says either.

In the “Blurred Lines” case, first, the musical elements that the law says are subject to copyright and the factors people use to assess similarity or originality are poorly aligned. Kal Raustiala and Christopher Jon Sprigman argue at Slate that “the problem—and the reason the verdict in Blurred Lines is such a disaster—is that the jury appears to have been swayed by things that were not supposed to matter.”  Legally speaking, Tim Wu notes in the New Yorker, “The question is not whether Pharrell borrowed from Gaye,” because clearly he did, “but whether Gaye owned the thing that was borrowed,” which Wu contends he did not.  Chris Richards at the Washington Post concedes, “Yes, ‘Blurred Lines’ approximates the rhythm and timbre of ‘Got to Give It Up,’” but, he asks, “is that theft? Listen. Both songs have cowbell-ish percussion that plunkity-plunks at a similar tempo, but the patterns are different. Both songs have rich, teasing basslines, but the notes and rhythms of each are dissimilar.”

The consensus from these variously musically and legally trained commentators, then, is that, while there are definitely elements of the song that are similar, the particular similarities are not of a sort that are protected. This is particularly the case given that Gaye’s composition falls under the copyright rules that only protect the written notes, not any of these more intangible or non-notatable aspects of the “feel” that show up in the recorded version.

This leads Raustiala and Sprigman to conclude that “what the ‘Blurred Lines’ team copied is either not original or not relevant,” but I want to contest that point.  By the letter of the law, no: rhythm, background noise, falsetto, funky bass, cowbell, or any of the other elements are not relevant, either because they’re not original to Gaye or not copyrightable or both. But they are clearly relevant to people who hear the songs, and that group includes jurors, which makes these aspects carry weight in legal cases whether they are supposed to or not. What the law says is not how people experience music, and neither is it how people hear similarity. Indeed, we could make an argument that, while none of the individual elements are unique to Gaye, the combination of them is what makes “Got to Give it Up,” and also what makes “Blurred Lines.” That’s not something the law can account for, but it is experientially true, and that has to be taken seriously even if for no other reason than that it impacts court decisions.

The second principle I have been formulating is that who did what to whom matters a great deal. As Richards notes,

An entire generation of American bluesmen died before sniffing the monthly private helicopter fuel budget of the rock-and-rollers who ran off with their sound. Others have settled out of court. And that’s one reason why a cheer went up on social media after Tuesday’s verdict was announced. This time, the young cads didn’t get away with it.

The history of white people stealing black music with impunity has everything to do with why this verdict “feels right” to people. Why, indeed, would the lawyers on the “Blurred Lines” side have gone to such lengths to position Pharrell Williams as the sole author, having Thicke disavow any role in composition and say that he was intoxicated when he claimed to have had a role, if not to try to ward off the specter of white people stealing black music?

Moreover, as Richards puts it, “Many people have a severe distaste for ‘Blurred Lines.’” Certainly, the song first came to my attention through the feminist critique of it as a rape culture anthem, in which Thicke sings that, although the “good girl” pretends not to be interested, he “knows she wants it.” (For a great side-by-side comparison of Blurred Lines with statements of actual rapists, see Sociological Images).  Thus, Wu says, “many find the song’s lyrics and its music video morally objectionable, and it does not help that Mr. Thicke, with his aviators and swaggering demeanor,” is an unappealing figure. To add that the song is stolen, Wu notes, “completes the ‘jackass’ narrative nicely.”

And indeed, the “jackass narrative” and swagger, while legally irrelevant, turned out to be quite relevant. The Gaye estate’s lawyers certainly knew it. Wu notes that,

taking advantage of the fact that Gaye is considerably more popular and respected than Thicke, [they] made a dispute between two groups of wealthy people seem like a battle between good and evil. Rather than focussing on what Gaye’s estate actually owned, the trial became a referendum on Thicke’s character. As for that, the verdict was already clear.

This, of course, is not how the law is supposed to work, but it is often how the law does work, in practice. In a dispute between a person or category that one likes more and a person or category once likes less, interpretation favors the liked. (This, incidentally, is also why murder committed by police on black youth immediately becomes a referendum on character. Legally it doesn’t matter if it’s a “good” person or a “bad” person, because they never deserve to be a dead person, and clearly it is much more serious here than in intellectual property law, but nevertheless it is vital that we take seriously that such things influence whether such incidents are considered legitimate or illegitimate violence.) Therefore, when nasty Thicke was bested by beloved Gaye, “there was far more Schadenfreude than sorrow,” in Wu’s phrase.

However, this case also reveals a second way in which the law doesn’t matter. The point of copyright is to encourage creativity, under the logic that the nation benefits from innovation and innovation will be incentivized through a short-term, government-granted monopoly on otherwise uncontrollable ideas. Thus, as Raustiala and Sprigman argue, while basic fairness might dictate that Gaye’s estate be compensated for the inspiration he provided to “Blurred Lines,”

Basic fairness is not the goal of our copyright system. The reason we have copyright—the reason we protect songs, books, and other creative works for the life of the author plus 70 more years—is to adequately incentivize artists to produce new creative works. Copyright, at bottom, is about ensuring the flow and growth of culture. We encourage new creations by making sure creators know they stand to reap the benefits.

This verdict, according to legal and musical commentators alike, does not encourage people to make more music. To the contrary, they argue, it makes people afraid that what they previously may have regarded as benign influence is now actionable infringement. Raustiala and Sprigman worry that the verdict “may end up cutting off a vital wellspring of creativity in music—that of making great new songs that pay homage to older classics,” hurting not just artists but the very public copyright law is supposed to serve.

This demonstrates the ways in which copyright, at least since the second half of the twentieth century, is increasingly no longer oriented toward encouraging creativity. The original copyright of 14 years plus a 14-year extension encouraged people to create new things. A copyright term for the life of the author would potentially encourage people to create new things for the rest of their lives.

By contrast, extending copyright past the life of the author, as started with the Copyright Act of 1976  (life of the author plus 50 years) and continued with the Sonny Bono Copyright Term Extension Act of 1998 (life plus 70) ensures that your descendants reap the benefits of what they own as the result of being related to you. Setting up separate, longer standards for corporate authors (120 years after creation or 95 years after publication) it ensures corporations get paid for the intellectual property they own. We may think that this is reasonable because those goals are important, but they aren’t tied to encouraging creativity any longer. They may possibly have that effect still, but the basic orientation has changed.

In this new orientation toward ensuring people get paid for intellectual property they own, the casualty is the “flow and growth” of culture, because old creativity becomes permanently fenced off, never available to enrich the ground on which new creation happens. Raustiala and Sprigman contend that “the jury’s verdict casts a huge shadow over musical creativity and takes what should be familiar elements of a genre, available to all, and privatizes them,” and while I’m cautious about declaring things created by marginalized populations “available to all” (see my Fandom, Public, Commons),  privatization is definitely the name of the game.

The orientation toward ensuring the owner gets paid is one toward safeguarding private property. It is not an orientation toward serving the public through creativity, and therefore it is not what US copyright law, in its inception, was for. This is, then, another way in which current legal wrangling is no longer tied to the law—in this case its origin.

In the end, then, while the “Blurred Lines” verdict may have been a miscarriage of justice, it is a very interesting and illuminating miscarriage of justice.


Toy company Goldieblox recently released a video of girl children rejecting the narrow toy options available to them and instead engineering a Rube Goldberg machine out of typically feminine toys to the soundtrack of the Beastie Boys’ classic 1986 song “Girls,” rewritten to have pro-Girls-in-STEM lyrics.

Controversy ensued. It was seemingly contained to the feminist internet or the technology/copyright internet, and happening in parallel in them with little cross-pollination except for feminist copyright scholars, so those not hooked into those circuits of knowledge circulation may have missed it. (I’d embed or link to the video but it no longer exists in that form.)

I’ll admit that my first thought when I saw the video was “That’s so cool of the Beastie Boys to authorize this!”

I then immediately had to revoke my own scholar card, because the whole point of fair use is that copyright holders don’t have to authorize it.

But after I copied out Section 107 of the copyright code 50 times in penance, I kept reading the various takes on it that went across my Twitter feed. And this tweet

baymtweetfrom @nancybaym (retweeted to me by @mikemonello) was when I knew I had to write about it:

This is an incredibly powerful example, and Baym is entirely right that such a parody would provoke horror in a lot of people (me included). And while in one sense it is a valid parallel, because it would involve a re-user producing a song dramatically opposite to the message of the original for the purposes of advertising, in another sense the two aren’t comparable at all.

A more powerful social position (pro-gun) co-opting a less powerful social position (pro-peace) just isn’t the same as a less powerful social position (pro-girl) co-opting a more powerful social position (wildly sexist). The Goldieblox controversy, that is, is a textbook example of the argument I’m starting to formulate: The meaning of an act of reuse depends on who’s doing it. (Not legally, of course, but culturally and maybe even morally.)

To know what to make of the Goldieblox “Girls” parody, then, “Who’s doing it?” is the key question.

Are they pro-girl transformative creators who only preemptively sued out of a need to protect themselves from beastly Beasties and their lawyers? (Also, is pre-emptive suing to have works declared non-infringing becoming more common [cf. Robin Thicke/Marvin Gaye], or am I just paying more attention now?) This is how their defenders and those focusing on the message of the video have portrayed it.


Or are the Goldieblox folks cynical opportunists who wanted to trade on the familiarity of “Girls” or the cognitive dissonance of the new lyrics against the misogynist original or who hoped there’d be attention-generating controversy?


My contention is that we get such wildly divergent responses to the piece because it’s not clear who’s doing it. Likely we’ll never be able to definitively answer that question, and in some sense they’re both of those things. Perhaps there’s an aspect of Rorschach testing here: What you see in this case indexes how you see the world generally.

However, Felix Salmon notes in the article linked by @mikemonello above, “Given the speed with which the GoldieBlox complaint appeared, indeed, it’s reasonable to assume that they had it in their back pocket all along, ready to whip out the minute anybody from the Beastie Boys, or their record label, so much as inquired about what was going on.”

This tips it much farther to the opportunist side—knowing about these legal machinations makes the “just pro-girl” reading much harder to sustain. But the feminist interpretation is still there, and it inclined a lot of people to support the video, even with the copyright infringement angle. Indeed, if Goldieblox had been less antagonistic there’s every chance the balance of support would have been in their favor.

But, as Salmon points out, “GoldieBlox neither sought nor received permission to create these videos: it never licensed the music it used from the artists who wrote it. That wouldn’t be the Silicon Valley way. First you make your own rules — and then, if anybody tries to slap you down, you don’t apologize, you fight.”

With further analysis, then, Goldieblox looks increasingly unlike an underdog.

In a Gigaom piece, (via @sivavaid), Jeff John Roberts says, “A quick visit to GoldieBlox’s website reveals terms of service that are about as reasonable as the Spanish Inquisition; the terms includes gems like this one: ‘We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Website.’”

The idea that a hyperlink needs a license shows them to be a) unfamiliar with how the internet works, b) unfamiliar with standard conventions of writing offline or on, and c) copyright maximalists when it’s their stuff, i.e. hypocritical.

Roberts adds, “At the same time, the Beastie Boys themselves long-ago eschewed the sort of beer-swilling sexism of their debut album, and became advocates for women amidst a general hip-hop climate of misogyny.” So even as Goldieblox looks less good when you look more closely, the Beasties are less bad.

And this sort of nuance is exactly why I contend that we have to tease this stuff out, to parse as precisely as possible who’s doing what to who and how.

Corynne McSherry demonstrates in her analysis for the Electronic Frontier Foundation that the Goldieblox video is probably fair use by the four-factor test. However, if this cultural moment shows anything it’s that it’s the cultural lives of intellectual property (to use Rosemary Coombe’s title) that are far more interesting.

One set of intellectual-property scholars defends sampling in music, calling for expanding fair use to encompass all acts of sampling and arguing that we should do away with licenses and payments for such samples (Schumacher 1995, Vaidhyanathan 2003). This position tends to support sampling as a form of creativity in hip hop that’s grounded in African-origin practices and notions of creativity that should be seen as valid rather than marginalized by the currently hegemonic Western notion of the Romantic author who produces a unique creation out of his individual genius.

Another approach to musical reuse points to the history of white appropriation of both the African American blues tradition (Hesmondhalgh 2006, Vaidhyanathan 2003) and indigenous music (Feld 1988, Seeger 1992). These authors tend to argue for more protection against reuse rather than less, including the need to get permission and provide payment.

At least in my reading so far—and I freely acknowledge I’m early in this project—generally these two arguments happen in parallel (even with Vaidhyanathan who makes both). However, as is my wont, I think the answer to this either/or framework is “Yes.”

Reuse of existing musical material in new work is BOTH a valid way to produce new creative works that should be allowed and protected AND a new instantiation of old practices of cultural theft. This is because the same practice means something different depending on who does it (and so maybe isn’t “the same” after all).

That is, we have to think about and take seriously the social structures that condition the action of reuse and position the people who do it. In other words, I don’t think it’s a coincidence that 2 Live Crew provides foundational court cases for both Critical Race Theory and copyright scholarship. Nor is it just happenstance that in the 1991 case Grand Upright Music, Ltd. v. Warner Bros. Records Inc., the judge admonished Biz Markie “Thou shalt not steal” (Brennan Center for Justice 2005, Tushnet 2004)

2 Live Crew’s obscenity case (written about by Kimberlé Crenshaw in “Beyond Racism and Misogyny: Black Feminism and 2 Live Crew,” to which I can’t find a web link) and their copyright case Campbell v. Acuff-Rose Music, Inc., and the Biz Markie case all take place against a cultural baseline that tends to assume African-American criminality. While probably this was not conscious in any of the cases, it’s never absent.

When black people reuse snippets of someone else’s work, it’s “theft.” When white folks like the Rolling Stones or Eric Clapton copy blues sounds or Moby samples blues recordings, it’s “homage.”  This of course reminds me of post-Katrina “looting vs. finding,” but also local arguments here at the U of I about the Chief Illiniwek mascot “honoring” Native Americans: “Let me honor you! Let me tell you what honors you!”

There’s something very important here about using cultural aspects of people who do or don’t otherwise get to speak for themselves. This could be literal, as in the case of people who are dead, who don’t speak English, or who—like Seeger’s example of the Suyá who aren’t legally considered adults or persons by the Brazilian government—don’t have recognized standing and therefore don’t tend to be asked.

More often it’s a figurative inability to speak for oneself–the yawning gulf between people with and without the cultural, economic, and legal wherewithal to assert and defend ownership over their creative products. It raises the question, as Hesmondhalgh’s piece frames it: Who gets to be an “artist” being “copied” and who’s just raw material?

Part of this also goes back to the kinds of things I was talking about in Fandom, public, commons about individual authors being both easier in general and built into Western notions of Romantic authorship in particular.

But I also think we have to think these two things at the same time, to ask: When is it one and when is it the other? The project I’m starting now seeks to look at specific cases and the power dynamics of reuser and reused that they embody. I want to examine the role the reused piece plays in the new object—does it invoke the original’s Benjaminian aura, does it comment on the original, does it simply trade on familiarity? Those are all really different, and they need to be teased out case-by-case.

Thus, as I did with the cultural meaning of fandom in my dissertation, I want to get at the big picture of what it means to reuse musical works in the contemporary moment by building a mosaic of close readings of specific reuses. The vitally important foundations provided by both the “more reuse freedom” argument and the “more reuse control” argument give the sense of general trends as “X structure produces Y.”

This opens up the possibility I want to use, to ask: What about this reuse? Or this one? How are these two musical artists positioned in relation to each other? When we look at the trends across all those individual reuses, what do we learn about intellectual property law, economics, creativity, identity, and social inequality in the contemporary moment?

And speaking of my dissertation defense, here’s the Prezi for that for those who were unable to attend, since I wasn’t able to have it streamed or live-tweeted.