Second-Guessing Inspiration Has No Place in Music Making (Guest Column)

Today’s songwriters and artists are plagued by ambulance chasers suing for ‘copyright infringement.’ Is the ‘Blurred Lines’ verdict to blame?

Jeff Rabhan Hitmakers Guest Essay Illustration
Cheyne Gateley/Variety

When Robin Thicke and Pharrell Williams prophetically titled their song “Blurred Lines,” no one could have predicted, sampled or interpolated the tidal wave of internet-hatched accusations of theft directed at industry hitmakers, or the onslaught of frivolous and dubious claims that this deeply flawed verdict would bring to light.

Relying heavily on emotional testimony and the views of laypeople to determine what constitutes “infringement,” the 2015 verdict has set copyright law (as it pertains to music) back to the Motown era. Simultaneously it has altered the precious creative process for artists and songwriters in the studio, who justifiably fear being run over by ambulance-chasing attorneys in the court of public opinion long before the courtroom forces marginal players looking to cash in on hit records to face the music. Front and center is what “inspired” a song and how it “feels” — two of the murkiest words to explain in the English language and even tougher to define by law.

Tor Erik Hermansen of Norwegian production team Stargate (Rihanna’s “Only Girl [in the World],” Beyoncé’s “Irreplaceable”) notes: “The American legal system is partially to blame. Suing for ‘feel’ is the musical version of ‘almost pregnant.’ If ‘feel’ is now the bar, then let’s shut down entire genres of music — disco, funk, trap and more.”

But why stop at just music? If “feel” applied to fashion or even furniture making, there would be no H&M, no Ikea, and most of us would be sitting on folding chairs listening to Beethoven in tunics made of animal skins.

“Real creators know that every song comes from something inside, a playlist of every song you ever heard that colors your own music,” adds Hermansen. “Yet the process of making music hasn’t changed for half a century — only discussing what inspired you on every platform is new, resulting in a belief that if you have success, someone out there feels they had a part of that.”

Legit cases rarely surface publicly. Most bogus shakedowns live on social media, where the accuser has the upper hand. Armed with musicology reports offering nuanced “expert opinions” digging deep into the indecipherable weeds of musical theory can assemble mobs screaming, “Thief!” before the writers or publishers even know the claim exists. (Labels now employ or contract their own musicologists to flag potential problems and cut them off at the pass.)

One head of business affairs at a major publisher was starkly blunt about the position companies are forced to take. “We must determine how much it will cost us to fight versus making it go away,” says the insider. “Merit alone cannot determine action on our part — it simply isn’t responsible business for any publicly traded company, as the cost to defend is always higher than the win. And none of us like it one bit.”

Songwriting between creators often begins with sharing stories, discussing inspirations and favorite artists, playing songs and finding that shared space before ever writing a single lyric or
making a beat.

“Inspiration is where 99% of sessions begin,” notes Andy Steinway, a manager at Hallwood Media, which represents top songwriters and producers like Murda Beatz (Drake’s “Nice for What”) and Jozzy (Lil Nas X’s “Old Town Road”). “So where do you draw the line when you leave the window open to let the magic come in if inspiration is now considered theft?”

Writers now must question their own process — was there a song in their head when they wrote that melody? Did I mention any artist in that session? Some of today’s biggest hitmakers have even succumbed to volunteering percentages of songs preemptively (for instance, Ed Sheeran crediting TLC’s “No Scrubs” for influencing 2017’s “Shape of You”) just to avoid the possibility of claims. The “Blurred Lines” verdict has shackled the way creators communicate, injected fear into every writing room and endangered the creative process.

Lest we forget, there are only 12 notes in a musical scale.

Online culture deserves blame — vicious and emotional, all it takes is a Spotify account and some surfing on whosampled.com or a mashup site that points out “structure” to start the flames. These voices do more than just gain likes and retweets — they delay releases, lock up funds for songwriters and bring major film studios to their knees. And while most writers and publishers agree that having a jury of your peers determine the veracity of a music copyright claim is like having your fantasy football-enthusiast neighbor referee the Super Bowl, the process remains deeply flawed.

Human experiences are loaded, and musical memories are more powerful than a judge’s directive. Artists have a part in squashing this blackmail culture the moment they go online and mention “inspirations” to prove their authenticity. Bottom-feeders adept at playing the angles rise with long-lost relatives of marginal writers who are certain their loved ones never got their “due.”

Creators must fight back. Today’s claims are won or lost in the public forum long before the jury renders a verdict. Winning a defamation claim would send a chilling message to those making false online statements crafted to gain leverage and manipulate the narrative. And D&O insurance aside, publishing companies collectively must find the right high-profile test case to crush a bogus claim and ultimately challenge the “Blurred Lines” ruling. But as one top-level executive points out: “If we’re gonna pick a fight, we better be sure we’re gonna win it.”

Ever since early humans pounded on drums, music (and most crafts for that matter) has been about studying the masters — interpret, then create — until now. Says Steinway: “The greatest hitmakers of all time know that the rare air doesn’t belong to them — it is leased.”

Jeff Rabhan is executive director at the Los Angeles Academy for Artists & Music Production.