How the ‘Blurred Lines’ case could have chilling effect on creativity

The weeklong trial has featured pop singer Robin Thicke sidling up to a piano to play songs by U2, the Beatles and Michael Jackson. Superstar producer Pharrell Williams attempted under oath to parse the difference between vibe and theft.

Testimony in the Los Angeles federal court proceeding seeking to determine whether Thicke’s groove-heavy, cowbell-driven 2013 pop hit “Blurred Lines� infringed on Marvin Gaye’s 1977 hit “Got to Give It Up� has been nothing if not entertaining.

But let’s not mince words: The lawsuit being litigated against Thicke, producer-songwriter Williams, rapper T.I. and their song is about cash, not artistic theft. If it hadn’t hit big on the charts, no lawsuit.

Specifically, the case is mostly about Thicke’s ill-advised reference to Gaye’s song during interviews and the bid by Gaye’s estate and publishers to take advantage of the fuzzy line between inspiration and infringement, and monetize it.

Regardless of the ultimate verdict, the suit could have a chilling effect on creators, especially in an era when most every song in recorded music history can be accessed in seconds. What artist will acknowledge specific inspiration when it could be used as evidence in a copyright infringement suit?

“Feel but not infringement,� Williams said on the stand of the differences between his track and “Got to Give It Up,� which showcases Gaye’s inimitable falsetto and disco-inspired rhythm. “I must’ve been channeling that feeling, that late-’70s feeling,� he added. The Gaye estate, wrote Williams’ legal team, is “claiming ownership of an entire genre, as opposed to a specific work.�

Thicke even distanced himself from having much of a role in the creation of his biggest hit, claiming to be “high on Vicodin and alcohol� when he arrived at Glenwood Place Studios in Burbank.

That’s quite the admission, considering the track was one of the biggest of 2013. Before “Blurred Lines,� Thicke was a notable purveyor of blue-eyed soul. His work with Pharrell, one of most successful hitmakers of the past decade, helped make Thicke a household name and a earned him a sit-down with Oprah Winfrey.

By the time the final arguments were delivered Thursday and the case sent to the jury, questions about the creative process and the art of the song had been explored in detail. In an attempt to define boundaries of expression and composition that have been historically — and rightly — vague, jurors were fed details on the legalities of inspiration. Those issues are the meatiest to contemplate because to these ears, a side-by-side comparison of the songs in question reveals profound similarities in feel but hardly egregious and obvious enough to earn the Gaye estate a payout.

Which is to say, what else is new? Pop music is at its base a form of creative theft, one in which each new generation of artists builds on the vibes and ideas that influenced them during formative years.

For every visionary are a hundred thieves, and the only difference is one celebrates his theft while the others claim ignorance. What, after all, was Grandmaster Flash and the Furious Five’s “The Message� but a politicized riff on the Sugar Hill Gang’s party anthem “Rapper’s Delight�? Ray Charles’ classic “What’d I Say� echoes recordings as far back as the late 1920s.

Bob Dylan can’t release a new song without somebody screaming theft. Dylan’s response, as told to Mikal Gilmore in Rolling Stone: “Wussies and ... complain about that stuff. It’s an old thing — it’s part of the tradition. It goes way back.�

From a legal standpoint, the issue is whether “Blurred Lines� is an original work or “shares defining compositional elements� with Gaye’s song. This distinction explains why George Harrison’s “My Sweet Lord� was found in 1976 to have infringed upon the Chiffons’ hit “He’s So Fine.� The chorus and the vocal melody are virtually identical. Ditto Michael Bolton’s “Love Is a Wonderful Thing,� which was found to have lifted parts of an Isley Brothers song of the same name and resulted in an award of $5.4 million in 1994.

One key difference in 2015, though, is that outside sounds are so easily accessed in the studio. Where once an artist could be inspired only by music he or she had already heard and processed, immediate access to millions of musical ideas is now a search engine away. As a result, the recording studio is not the artistic bunker it once was but porous to all copyrighted work available on YouTube, Spotify, iTunes and other services.

Want a vibe like Gaye’s “Sexual Healing�? Pull up the track on Spotify and listen to how they pulled it off. It’s a genius song, so why not riff on its structure? As long as an artist doesn’t swipe the lyrics or swipe the main melody, where’s the harm?

In court, Williams said that Gaye’s work is sacrosanct, so, he asked, why would he want to steal it?

“The last thing you want to do as a creator is take something of someone else’s when you love him,� he said.

Producer Brian Eno, responsible for seminal work with artists including U2, David Bowie, Coldplay,

Devo and others, told me a few years ago that this new openness marks a vital shift. He noticed that during recent recording sessions artists often referenced old recordings as part of the creative process. We suddenly refer to music a lot in a way that never used to happen.

“When you went into the studio in the past, you went to a space that was actually, deliberately sealed off from music, because the only music you were supposed to be hearing in there was yours,� he said. “And this sudden thought that the whole library of recorded music is there and available to you as reference material, really, I think that’s changed the way people work a lot. So as a composer, I think it makes a really big difference, because it sort of erases history in a way.�

That flattening of era, genre and production techniques has helped spawn a mix-and-match pop music world in which a Motown-suggestive backbeat can couple with a mid-’90s Chicago house rhythm and a grand production sound inspired by “Pet Sounds�-era Beach Boys to create something new.

What occurred in the studio with “Blurred Lines� was that sort of history eraser and is similar to what occurs regularly. The difference is that “Blurred Lines� hit the profit bull’s-eye. It spent three months at No. 1 on Billboard’s Hot 100 and has earned $16 million, according to testimony.

As it was rising, Thicke told Billboard that at a August 2012 session, he had had Gaye on the brain.

“Pharrell and I were in the studio making a couple records,� Thicke said, “and then on the third day, I told him I wanted to do something kinda like Marvin Gaye’s ‘Got to Give It Up,’ that kind of feel ‘cause it’s one of my favorite songs of all time. So he started messing with some drums, and then he started going, ‘Hey hey hey...,’ and about an hour and a half later, we had the whole record finished.� He later said he was boasting about his input.

There’s one lesson to be learned, surely: Riff all you want on old stuff while brainstorming ideas. Just don’t talk about it, hey, hey, hey, and make sure to erase your Spotify history before leaving the studio. Hey, hey, hey.

Twitter: @liledit