Tonal Concept and Feel

Abstract

In the world of music-copyright litigation, “feel” has lately become a controversial word. Musical feel, some have argued, is becoming too propertized. When a jury in 2015 found the writers of the hit song “Blurred Lines” liable for infringing Marvin Gaye’s “Got to Give It Up,” observers protested that the two songs’ true point of similarity was nothing more than their shared feel—something that should be freely available to anyone. Pharrell Williams, one of the defendants, similarly tried to explain his disagreement with the outcome by insisting that “you can’t copyright a feeling.”

In the few years since, the same criticism has been leveled against subsequent, equally newsworthy infringement trials involving Led Zeppelin and Katy Perry. Those claims eventually lost, unlike the one in the Blurred Lines case, but they still proved remarkably hard to shake. After failing to secure a dismissal on summary judgment, Led Zeppelin won at trial, only to see that verdict overturned on appeal; it took a rare en banc rehearing for the noninfringement verdict to be reinstated—six years after the case began. The Katy Perry claim, meanwhile, would have ended in liability had the trial judge not vacated the jury’s infringement verdict, a decision that at the time of this writing remains on appeal.

Where a song’s compositional details end and its overarching gestalt begins is, of course, endlessly contestable. Pretty much everyone agrees that a song’s feel—whatever that is—shouldn’t be proprietary.