Last year, a jury found that Robin Thicke’s 2013 song “Blurred Lines” had copied from Marvin Gaye’s 1977 hit “Got to Give It Up,” and a judge ordered Thicke and co-writer Pharrell to pay more than $5.3 million to Gaye’s relatives. The case is under appeal, and 200-plus musicians have signed a letter slamming the verdict as “very dangerous to the music community.” Within weeks of the jury’s decision, five writers from 1970s funk group the Gap Band quietly arrived in the songwriting credits of Mark Ronson’s 2014 smash with Bruno Mars, “Uptown Funk.”
Now “Uptown Funk” is facing another “Blurred Lines”-style challenge over its authorship. A lawsuit filed last month claims “Uptown Funk” lifts key elements from Minneapolis electro-funk band Collage’s 1983 single “Young Girls.” The “Blurred Lines” verdict was a big deal because it raised questions about inspiration and vibe—when does homage cross over into plagiarization? Collage’s case against “Uptown Funk” could move this line to new extremes, potentially stifling the very creativity that copyright law is supposed to protect.
While popular music has been recycling itself more and more over the past two to three decades, intellectual property has become more important to the music industry as a revenue source, says Kembrew McLeod, a communications professor at the University of Iowa. The “Uptown Funk” case seems to be a symptom of those dual trends. “We’re basically heading down a path where people are getting sued over imitating styles, or sensibilities,” McLeod says. “If we continue down this path, the music industry is going to litigate itself to death.”
Despite the ramifications the lawsuit might have for the music community, as a matter of law it’s hardly groundbreaking. In any copyright infringement lawsuit, the people suing have to show a few things. First, they legitimately have to own the copyright, which a quick search of the Library of Congress records indicates the plaintiffs in this case do. Then they have to prove the defendants copied their work, which in the absence of videotape of Ronson maniacally transcribing “Young Girls” while Mars does the Mr. Burns thing with his hands means demonstrating two points: that the defendants had access to the original, and that the two works are substantially similar. “It is your run-of-the-mill copyright infringement complaint,” says Mattias Eng, an entertainment lawyer at King, Holmes, Paterno & Soriano. “They check all those boxes.”
Lawyers representing Collage’s members and their estates argue that “Uptown Funk” and “Young Girls” would be “almost indistinguishable if played over each other.” They contend that “Uptown Funk” copies the older song’s “distinct funky specifically noted and timed consistent guitar riffs,” plus its “bass notes and sequence, rhythm, structure, [and] crescendo of horns and synthesizers.” To read the complaint alone, you might almost think that whatever “Uptown Funk” is promising, “Young Girls” gave it to us some 30 years earlier.
In reality, Ronson and Mars will be able to counter-argue that the two songs are similar in the same way that any two songs in the style the lawsuit calls “Minneapolis/1980s electro-funk soul” are similar—or any two blues songs, or reggae songs, or tropical-house songs, for that matter. “This is the worst one of these I’ve heard in the past four years,” says Jeff Peretz, professor of music theory at NYU’s Clive Davis Institute of Recorded Music. “Rhythmically, melodically, and harmonically, there’s nothing that lines up. The only similarity is in the one little guitar part. It’s basically an interval, the interval of a tritone, which is a trope of funk music.” By the same logic, Peretz tells me, Black Sabbath could sue Jack White and Rage Against the Machine for their use of a power chord. “You can’t copyright a style.”
Still, the plaintiffs may be able to find other musicologists who would argue the similarities go deeper than just a shared genre. Joanna Demers, chair of the musicology department at the University of Southern California, declines to comment on resemblance between the two songs without knowing Ronson and Mars’s motives. “Intention really does matter in these cases,” she says. Recall, for instance, how Robin Thicke bragged in an interview about how “Blurred Lines” was written quickly after deciding to “make something like” “Got to Give It Up.”
And yet perhaps awkwardly for Ronson and Mars, the credits to “Uptown Funk” have previously acknowledged that the song involved more than the pair’s original work. It’s not just the post-release addition of the Gap Band’s members to the credits, recognizing a similarity between the chanted portions in “Uptown Funk” and the 1979 hit “Oops Upside Your Head.” When “Uptown Funk” arrived, rapper Trinidad James, whose 2012 song “All Gold Everything” inspired the Ronson-Mars song’s “don’t believe me just watch” hook, also received a songwriting credit, along with the original track’s producer, Devon Gallaspy. “Arguably that’s a bad precedent, because it opens the doors for others,” says Peter Rosenthal, an entertainment lawyer at Ritholz Levy Sanders Chidekel & Fields. (Rounding out the credits for co-songwriters are longtime Mars collaborators Jeff Bhasker and Philip Lawrence.)
In another way, the “Uptown Funk” defense could be more difficult than that of “Blurred Lines.” Like that case, Collage’s lawsuit focuses on the composition itself, rather than the recorded version, which under American copyright law are two different entities. However, Gaye’s “Got to Give It Up” was subject to an earlier set of copyright rules, where only sheet music or written notation could be registered for copyright. Music since 1978, like “Young Girls,” is subject to a different set of rules. Collage’s lawyers, Rosenthal tells me, “will certainly argue that the jury should be able to hear and consider the recording, with all the funk bells and whistles, not just ‘the notes and lyrics on a page.’”
As the “Blurred Lines” verdict drove home, once the matter reaches a jury, there’s no knowing what will happen. While they’ve been willing to add songwriting credits in the past, Ronson and Mars evidently have decided to stand their ground and try their chances with this case, which has been brewing since late last year. According to an exhibit attached with the complaint, Collage’s lawyers contacted label executives about the alleged infringement as long ago as last November, then sent a cease-and-desist notice to streaming providers in March. But disputes over songwriting copyright infringement often end up being settled long before they ever reach a courtroom. “A lot of these lawsuits are essentially shakedown lawsuits,” McLeod says. “They don’t necessarily have strong legal grounding but in most instances it’s cheaper to just settle than to go all the way to trial.”
The impulse to mitigate risk may help explain why it’s becoming more common for songwriting credits, which used to be negotiated before release, to be updated after the fact. A notable example is the addition of Tom Petty as a co-songwriter for Sam Smith’s “Stay With Me.” More recently, EDM-brah duo the Chainsmokers—who, as it happens, Ronson has been tearing into on Twitter—added two members of sappy rockers the Fray to the credits for their hit “Closer.”
If the purpose of copyright law is to reward creativity, at a certain point this new frontier for litigiousness is ultimately going to be counterproductive. “Of course new stuff is gonna sound like old stuff,” McLeod says. He then draws a comparison to another art form. “New literature is gonna play on old literary themes. If we started preventing people from invoking other literary styles, for instance, that would just be the death of literature. And that’s what’s potentially happening in popular music.”
A small saving grace is the fact that songwriters hit with these types of lawsuits generally have the means to pay for them; less popular artists, let alone do-it-yourself indie bands, most likely will continue to be spared. “Whenever there is a hit that big, it is virtually guaranteed that there will be some sort of claim, or claims,” Eng says. “They run the gamut, from ‘ridiculous’ to ‘cause for concern.’”
As for the legal clash over “Young Girls” and “Uptown Funk,” it’s still in the early stages. “This complaint is the first shot across the bow,” Rosenthal says. In the meantime, the music community would do well to heed that ancient proverb: Don’t believe me, just watch.