These cases rarely go all the way to a jury, but when they do, those eight people have to rely on intuition and musicologist testimony to decide if a song infringed copyright. In many cases, the artist makes his case in court - Thicke's testimony included a piano medley where he played other songs that sound like "Blurred Lines."
The line between theft and homage is indeed blurred, but there is a long history of plagiarism in music.
Ironically, by the end of the 1980s and the turn to the 1990s, Steely Dan's catalogue of funky jazz-inflected pop music was emerging as fertile ground for hip-hop's sample-heavy aesthetics. The Fagen-Becker hit "Peg" featured prominently, for instance, in the early De La Soul cut, "Eye Know" from 1989's Three Feet High and Rising; 3rd Bass borrowed significantly from the Dan's "FM (No Static At All)" on their 1991 tune, "No Static at All." A myriad of Dan-samples have turned up in hip-hop in the years since. Fagen himself made light of this in the 1999 Classic Albums series documentary on the making of Aja, rapping from Lord Tariq and Peter Gunz's "Déjà Vu," for its memorable sampling of the Dan's "Black Cow." Fagen could joke, perhaps, because after 1992's landmark legal case, Grand Upright Music vs. Warner Bros. Records, in which songwriter Gilbert O'Sullivan successfully sued rapper Biz Markie for sampling the tune, "Alone Again," samplers have had to be more dutiful in giving samplees due credit. Hip-hop's early manic cut-and-mix aesthetics haven't been the same since. It was particularly interesting for artists with songs on the charts at the time of the ruling, since they were suddenly on the hook for the samples in their hit songs. With the power to name his price, Prince collected $100,000 from Arrested Development for the word "Tennessee," which was lifted from his song "Alphabet Street." Their frontman Speech told us: "As the song moved up the chart the album got to #3 on the pop charts. And once it went down, the very week it went to #4, we got a call from Prince's representation. They waited for that song to sell as many possible copies as they could wait for."
British songwriters of the 1960s have been particularly visible in plagiarism litigation — unsurprising, maybe, for a generation of boys who never made any secret of black American musicians' influence on their sounds. That gushing admiration hasn't stopped black songwriters and artists from successfully getting their financial due and credit over the years for notable borrowings by Brit rockers. The most famous of these is likely George Harrison's ponying up royalties after a court decided "My Sweet Lord" was a little too much like The Chiffons' "He's So Fine." But Harrison's Beatles-compadre John Lennon also saw litigation — from none other than Chuck Berry! — for taking the opening lyrics to "Come Together" from another tune without permission. In the 1970s, Led Zeppelin saw a flurry of legal activity over their penchant for taking significantly from the earlier American blues artists that inspired them as lads. Chess Records, it turns out, didn't like seeing Zeppelin profit so easily from quotations and borrowings from artists in the Chess stable, like Willie Dixon and Sonny Boy Williamson.
The oddest case of litigation in pop music history, though, might be John Fogerty's being sued, effectively, for plagiarizing himself. That is, when Fogerty left Fantasy Records for Warner Brothers Records, he relinquished control over his earlier Creedence Clearwater Revival material to Fantasy, in exchange for contractual release. This came back to haunt him later, when Saul Zaentz of Fantasy sued Fogerty, claiming that the artist's 1985 solo number, "The Old Man Down The Road," was a self-plagiarism of the earlier CCR cut, "Run Through The Jungle." Bringing his guitar to the witness stand when the issue went to court, Fogerty was able to suggest the tunes were separate entities, and convinced a judge to dismiss the suit, thus precluding what might have been one of the most ironic creative-property decisions in pop music history.
Michael Borshuk is Associate Professor of African American Literature at Texas Tech University. He is the author of Swinging the Vernacular: Jazz and African American Modernist Literature, and for ten years, from 1999 to 2009, wrote on jazz for Coda magazine.
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