Pin It
Blog
Ninth Circuit Blurs Lines Even Further
April 17, 2018

By Michael F. Snyder and Kelly L. Hoffman

On March 21, 2018, a split Ninth Circuit Court of Appeals handed down a verdict confirming copyright infringement in the case of the song “Blurred Lines,” and the decision left many in the music community “all shook up.” The song, recorded in 2012 and released in 2013, hit number one on the Billboard Top 100 songs in 25 countries and became a best-selling single with more than 14.8 million sales. It was also nominated for Record of the Year and Best Pop Duo/Group Performance at the 2013 Grammy Awards.  As the song rapidly climbed the charts, media interest in the song grew due to its collaborative qualities. The group of artists involved included Pharrell Williams, a well-known producer, Robin Thicke, a relatively “new kid on the block,” and seasoned rapper Clifford “T.I.” Harris. When one journalist interviewed Thicke about the song-writing process, he candidly offered that after listening to “Got to Give it Up” by Marvin Gaye, they wanted to create a song with a similar feel and sound.[1] That’s where the song-writing process gets blurry.

When Gaye passed away in 1984, ownership of the copyrights to his songs’ sheet music transferred to his children. After hearing through the grapevine that Marvin Gaye’s family was considering a copyright infringement suit, Williams, Thicke and Harris tried to “turn the beat around” in their favor by suing for a declaratory judgement that their song did not infringe Gaye’s copyrights.

There are two copyrights for any piece of recorded music: one for the composition and another for the sound recording. The musical composition refers to the music, as well as the lyrics, of the song and the author is generally the composer. The sound recording is the fixation of the music in a recording. In the music industry it is not unusual for an artist to retain the rights to the composition while the studio behind the record takes ownership of the rights to the sound recording.[2]

In October 2014, a judge determined that Gaye’s family had sufficiently established that elements of both songs may be considered substantially similar and the case moved to trial. Williams and Thicke immediately filed a motion in limine to exclude the sound recording of “Got to Give it Up” from being played in court. Since the copyright to the sound recording did not belong to Gaye’s family, the judge agreed to exclude it, limiting the case to the written composition of each song.

On March 10, 2015, a unanimous jury returned a verdict finding Williams and Thick (but not Harris) liable for copyright infringement to the tune of $7.4 million in damages. The verdict created a frenzy of protest from musical artists. Singers and songwriters ranging from Keith Urban and John Legend to Weird Al Yankovic and Bill Withers criticized the verdict and its implications for musicians of every genre. Mark Swed, a classical music critic from The Los Angeles Times weighed in as well, stating “John Williams all but lifted the core idea of his Star Wars soundtrack score from the Scherzo of Erich Korngold’s Symphony in F-sharp Major, written 25 years earlier.”[3]

In August 2016, Williams and Thicke filed their appeal with the Ninth Circuit. In support of the two, more than 200 musicians filed an amicus brief claiming “the verdict in this case threatens to punish songwriters for creating new music that is inspired by prior works.”[4] The brief encapsulated the feelings of countless artists, who argued that Williams and Thicke were being punished for replicating “a feel and a style and a genre” which are not copyrightable elements of music.[5] Among the many to join the brief were John Oates, of Hall & Oates, Hans Zimmer, of Earth, Wind & Fire, Jennifer Hudson, The Black Crowes, and Rivers Cuomo, of Weezer.

After the copyright infringement verdict was upheld on appeal March 21, 2018, many in the music industry are wondering “What’s Going On?” The 2-1 decision was condemned by the Honorable Jacqueline Nguyen, one of the judges on the case, who warned that the ruling “strikes a devastating blow to future musicians and composers everywhere.” She further explained that the songs “differ in melody, harmony and rhythm, ”calling the Court’s refusal to acknowledge those differences a “dangerous precedent.”[6]

In the wake of the decision, artists now have to navigate the muddied waters (or find a bridge over the troubled waters) between plagiarism and derivation. Even Gaye’s family must consider whether their own copyrights infringe on those of any song that came before their father’s music. As the collective of musicians so aptly stated in their brief, the verdict eliminates “any meaningful standard for drawing the line between permissible inspiration and unlawful copying.”

Will the music industry succumb to walking on eggshells in order to play it safe, or will they fight for the right to derivate?

 

 

[1] Phili, Stelios. “Robin Thicke on That Banned Video, Collaborating with 2 Chainz and Kendrick Lamar, and His New Film”. GQ. (May 6, 2013)

[2] 17 U.S. Code § 106

[3] Swed, Mark “‘Blurred Lines’ verdict would rock Amadeus and other great composers”. Los Angeles Times. Los Angeles: Tribune Co. ISSN 0458-3035. (March 14, 2015)

[4] Gardner, Erig “”Blurred Lines” Appeal Gets Support From More Than 200 Musicians” (August 30, 2016)

[5] Dowd, Kathy Erich “Nick Lachey, Keith Urban Speak Out Against Blurred Lines Verdict”. people.com (March 14, 2015)

[6] O’Connor, Roison “‘Blurred Lines’ copyright ruling is a ‘devastating blow’ and sets dangerous precedent for musicians, judge warns” (March 22, 2018)