Yesterday a federal jury awarded the Estate of Marvin Gaye $7.3 Million finding that the Robin Thicke and Pharrell Williams, songwriters of the hit song “Blurred Lines,” had infringed on the Marvin Gaye song “Got to Give it Up.” Even though the judge rejected the Gaye family’s most dangerous argument – – that a song’s copyright extends not just to composition of music and lyrics but also to production quality and “feel”— – the verdict is still highly troubling. The judge ruled that the jury had to make the determination based just on the sheet music of the two songs due to a technicality in the way copyright registration worked for songs recorded before 1978. And I just don;t see how the jury could make a determination that the new song infringed on the old. For all their similarities, “Blurred Lines” differs substantially and audibly from “Got to Give It Up” in both melody and lyrics. Musician Questlove, defended Thicke and Pharrell in an interview with Vulture, saying: “Look, technically it’s not plagiarized. It’s not the same chord progression. It’s a feeling. Because there’s a cowbell in it and a Fender Rhodes as the main instrumentation — that still doesn’t make it plagiarized. We all know it’s derivative. That’s how Pharrell works. Everything that Pharrell produces is derivative of another song — but it’s an homage.”
So what’s the difference between an homage and an infringement? $7.3 Million that’s what. Always a difficult distinction to define, this case will set a precedent that blurs the line between homage and infringement to the extent that it will produce a landslide of similar claims. Bob Dylan could sue Bruce Springsteen;Little Richard could sue the Beatles; The Beatles could sue everybody. Normally copyright infringement lawsuits rest on protectable original elements of the song that are directly or substantially copied in the allegedly infringing song. Here there is very little that is directly copied from the original song in “Blurred Lines.”
This decision will also make new artists more wary of writing and recording songs that derive their feel from an prior artist who influenced them. That is how a lot of new music is created in all genres. Sure, if the new artist is signed by a major label, the label can pay off the earlier artist to get permission. But unsigned or indie artists do not have access to that kind of capital and all artists already receive such a small portion of the revenue generated by music that having to share any of it with a prior artist who they feel they didn’t directly copy will be painful. And its the ARTIST not the COMPANY that bears the ultimate risk. Recording contracts with songwriter artists all contain an indemnification clause: A promise that the artist is bringing only wholly original music and lyrics to be recorded. In the clause the artist also agrees to pay any damages awarded if it is decided that the material was not original and infringed on someone’s copyright. So that means this $7.3 million may very well be coming directly out of Thicke and William’s pockets – not the label’s.
It is ironic that the Gaye family did not initiate the lawsuit. They merely sent Thicke and Williams a letter asserting their claims. Thicke and Williams’ lawyers then decided to file a preemptive lawsuit for a declaration that the song did not infringe. This is allowed by The Copyright Act and is done occasionally when you feel you have a strong hand. Of course, in hindsight, the Gaye family would have likely taken alot less money for accreditation on the song and a small royalty on future sales. What’s also ironic is that in a pre-trial deposition Thicke tried to distance himself from the songwriting credit saying it was writing exclusively by Pharrell and that he was listed as a co-writer just to appease him because he felt the song was going to be huge hit and he had insisted on a piece of the songwriting. He also testified that he accepted all the accolades for co-writing the song early on because he was high on alcohol and Vicodin most of time; he also added that he does not consider himself to be an honest person generally. But you can’t have it both ways. If you are listed as a co-writer on the copyright registration, that entitles you to royalties and makes you liable for infringement. Also, intent is not an element of infringement. Even if you didn’t mean to copy it you can still be liable if the song infringes on an earlier song. The most famous case of that principle is George Harrison’s “My Sweet Lord” which was found to be a “subconscious” infringement of the early pop hit “He’s So Fine” by The Chiffons. What I don’t understand is why Thicke’s lawyers allowed him to testify as he did when they knew it would not be a defense anyway. There was no benefit to it and made Thicke look like an idiot.
The “Blurred Lines” case is likely to have far-reaching implications especially given how tight copyright control has gotten. Prior to 1976, a copyright was good for 28 years and if you filed for a renewal, you got another 28 years. After 56 years it became public domain. That allowed for wider, freer dissemination of music, literature, and film. Copyright law always sought to balance protection with artistic freedom. The basic premise was that an artist or composer would have the benefit of the rights in the work for his or her lifetime, then the art would belong to the world.In 1976, however, as studio power and money grew to epic proportions, copyrights were extended to the author’s lifetime plus 50 years. Then in 1998, rights-holders got another extension, dubbed the “Sonny Bono Act” named after the artist-congressman who proposed the bill (though it should have been dubbed “The Walt Disney Act” because they were the biggest promoters of it). That extension gave copyright holders the rights to a work for up to 120 years. This decision, combined with the lengthy period of time and the consolidation of media companies will have a stifling effect on artistic expression.
Oh, by the way, the lawsuit brought so much attention to the Gaye song, that its sales shot through the roof.