"Blurred Lines" and Marvin Gaye: Can You Copyright Cool?

When I first heard "Blurred Lines," I was driving in my car. I knew I'd heard it before, but I couldn't place the song. So I Shazamed it. Still nothing. I didn't recognize the title. About a half-an-hour later . . . Abracadabra! I remembered Marvin Gaye's extended groove, "Got to Give It Up." I replayed Gaye's song, and the similarities were obvious.

Robin Thicke and his cohorts, Pharrel and TI, recently filed a preemptive lawsuit to protect their song from Marvin Gaye's estate. ("The lady doth protest too much, methinks.") Thicke claims in a GQ article that he was 'influenced' by "Got to Give It Up," and that he was reproducing a 'sound' from an earlier era. Obviously.

My question is: Can you plagiarize a vibe, an attitude? Can you copyright cool? You can pose, be a poseur when you imitate, but can you get sued/lose money for that? Isn't this where most pop music comes from? Most bands I've watched grow have imitated their heros.

Read More: Is Robin Thicke's Banned YouTube Video Worth Fighting For?

It turns out, according to Forbes, you can copyright cool and can sue/be sued if an imitation has "substantial similarity of expression":

It is axiomatic that copyright law protects the expression of ideas [emphasis added] but not the ideas themselves. Sometimes the distinction between an idea and its expression is clear-cut but at other times the distinction can be obscure. As a result, courts have relied on the following two-prong test to determine copyright infringement:

1. Copying of a prior work; and 2. A substantially similarity to the prior work sufficient to constitute improper appropriation.

Substantial Similarity

Proof of copying is necessary but not sufficient to determine copyright infringement. There must also be a substantially similarity to the prior work sufficient to constitute improper appropriation, where "substantial" means substantial in degree as measured either qualitatively or quantitatively and "similarity" means similar in the eyes of the ordinary member of the intended audience.

More than the lawsuit, I'm curious how 'aware' the creators of "Blurred Lines" were of their 'borrowing', especially considering the title -- if you'll excuse the pun, blurring the lines between the song's benefactor and the new product. Or is that the whole point of the the preemptive lawsuit -- proof of how aware Robin and his buddies were when they created the song and controversial video? "Blurred Lines" looks/sounds more like an advertising campaign that it does a pop song. And a very good campaign at that, creating "devotion beyond reason."

I'm also curious if this kind of imitation raises red flags for composers anymore. In a culture where being cool or being original is so revered -- at least it used to be -- does this recycling suggest something more sinister for the future of both creators and consumers of pop culture? New York University's Mark Crispin Miller seems to think so and has made a career arguing about the dangers of our consumer culture. He argues, "Once a culture becomes entirely advertising-friendly, it ceases to be a culture at all."

Is he right? I don't feel like the Black Keys are a sign of the end-times -- I think the Keys are bitchin' -- even if they are "commercial." What I am interested in is the ironic distance a song such as "Blurred Lines" incorporates.

The "Blurred Lines" lawsuit sheds light on the current American zeitgeist. Poet David Lehmen suggests that if Modernism's axiom was "Make it new," Postmodernism's is "Get it used." The kid in the Atari t-shirt -- and I'm not making fun of that kid -- ironically wearing an advertisement is a good example of 'getting it used'. When kids danced around in mumus in the early '90s, they weren't being ironic -- they were sincerely imitating hippie culture, mimicking Woodstock images. The current '80s revival is different. Atari t-shirts are advertisements -- the only thing mumus originally advertised was the size of the women wearing them.

The self-conscious adaptation of advertising ersatz is something new, or at least it is to this observer. Now we've moved deeper into the '80s revival: Wayfarer sunglasses with dayglo arms aren't ironic, and it seems cut-off jeans are back -- cutoffs are only ironic when Will Farrell wears them.

Anyway, you get the idea. Everyone knows fads resurface -- that's not new. It's the ironic distance applied to some types of borrowing that is an interesting lens through which to view how pop-art is made today. Think Andy Warhol's Brillo Boxes . . . Times have changed since Andy's day, though. The Atari t-shirt seems like one of the first, truly ironic fads. At least Warhol acknowledged where he was getting his subjects -- it was impossible to deny, after all, it says Brillo right there on the box.

There has always been certain kinds of pop music that is made for the express purpose of its commerciality. "Blurred Lines" differs in that it is a rip-off explicitely made for commercial reasons.

Here's another example from a different medium. I watched the movie Ted the other night and got a similar impression from one scene in particular and, really, the entire formulaic movie as a whole. It's as if director and writer Seth Macfarlane couldn't care less that he's a complete and total schlockmeister. Clearly, he just framed up a potboiler plot on which to hang his one-liners. This of course isn't a new cinematic tactic either. Most comedians, when they break into the film biz, work in this genre.

But the scene in which Marky Mark Walberg's character remembers in a flashback his first encounter with Mila Kunus' character at a dance club, the scene is a sendup of a sendup. (The flashback recreates a dance scene from the first Airplane movie, which is a sendup of Travolta's dance scenes in an earlier movie, Saturday Night Fever.) The point being, you can't sendup a sendup even if you're trying to pay homage, which Macfarlane tries to do during several moments in the film.

Is he out of ideas, or does he believe his incorporation of the Airplane scene is super clever because of the ironic distance he creates? I argue that the distance is too great, and that Macfarlane's recreation has diminished resonance just like a copy of a copy fades -- pretty soon you won't be able to see it anymore, let alone laugh at it.

So in this case I agree with Mark Crispin Miller about the state of our popular, consumer culture -- people are running out of ideas and nobody gives a shit, even the creators themselves. Have you looked at a hip restaurant's menu lately? Talk about reaching ... At least irony in the '80s admitted what it was borrowing from, called attention to it. That was the point. What's disturbing about the new ironic distance is its apathy.

It's impossible to question whether or not "Blurred Lines" is a hit. The song is everywhere and has found new life given Miley Cyrus' foam-fingered lap-dance at the VMAs -- poor little thing, she's 'all grown up' now, even if she's simulacrum too.

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