Squelching Creativity – By Kal Raustiala and Christopher Jon Sprigman – MARCH 12 2015 12:27 PM

What the “Blurred Lines” team copied is either not original or not relevant.

Marvin Gaye, Pharrell Williams, and Robin Thicke

Marvin Gaye, Pharrell Williams, and Robin Thicke.

Photo illustration by Slate. Photos by NBCU Photo Bank, Frazer Harrison, & David Buchan/Getty Images.

“Blurred Lines” was the most talked-about single of 2013. Partly because it was an insidiously catchy pop confection that sat atop the Billboard Hot 100 for 12 weeks. And partly because of the controversy over whether the song, and especially the accompanying video (which racked up almost 400 million views), was misogynistic and “rapey.”

Now “Blurred Lines” is having a second moment. The song has been the subject of a pitched legal battle between the family of the late Marvin Gaye and songwriters Robin Thicke and Pharrell Williams. Members of the Gaye estate publicly accused the musicians of copying key elements of Gaye’s iconic 1977 song “Got to Give It Up.” Williams and Thicke pre-emptively sued the Gaye estate, seeking a court declaration that they did not copy Gaye. And this week the verdict came down. The “Blurred Lines” team was found liable for copyright infringement and ordered to pay nearly $7.4 million in damages.

This is one of the largest music industry copyright verdicts in history. But the biggest losers in this saga aren’t Williams and Thicke, who can readily afford the millions each. It’s all of us who love music. The “Blurred Lines” 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.

“Blurred Lines” unquestionably references “Got to Give It Up.” Indeed, Williams and Thicke made clear that the feel of their song and Gaye’s were very similar. The key issue in court was whether they crossed the line into copyright infringement—and where exactly that line is.

So, what precisely did Williams and Thicke copy? We should start by making clear that they did not copy any of the specific sounds on Gaye’s classic recording of “Got to Give It Up.” This is not a sampling case, like the famous 1990s suit between Rick James and MC Hammer over “U Can’t Touch This.” Cases like that, and a host of others, put what many consider a sad end to the era of free and easy use of sampling in popular music.

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