Sunday, March 15, 2015

Blurred Lines, Ur-Lines, and Color Lines

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.

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