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The “Blurred Lines” of music and copyright: Part two

Possibly the highest-profile copyright case of the past 12 months centered on a trial between the creators of the catchy tune, “Blurred Lines”, and the Marvin Gaye estate over the song’s supposed similarities to the 1977 hit, “Got to Give it up”. The jury’s decision to award the Gaye family $7.4 million has been met with some consternation in both law and music circles, with Pharrell Williams reportedly telling the media that this verdict spells disaster for the creative industries. We asked two Oxford authors to give their opinions on the case in this two-part blog, which will look at the jury’s decision from a musical perspective, as well as a law perspective. In this second part, Neil Wilkof, co-author of Overlapping Intellectual Property Rights, discusses how evidence was presented to the jury.

The infrequency of two high-profile songsters or their representatives going all the way to trial over claims of copyright infringement, means that such a case usually receives heightened public scrutiny. This is especially so when mere sampling of the plaintiff’s song is not at issue. In recent years, few cases have drawn more public attention than the dispute between the Marvin Gaye estate and singer/songwriter Robin Thicke and song producer Pharrell Williams, over whether the song “Blurred Lines” infringed Marvin Gaye’s 1977 hit, “Got to Give It Up.”

After eight days of testimony, a jury in US federal court in Los Angeles, decided unanimously that Thicke and Williams had infringed the 1977 song. Rapper T.I., who was also a named defendant, was not found liable. Perhaps the most interesting aspect of the evidentiary part of the case was that the Gaye estate was not allowed not introduce the full recorded rendition of the song “Got to Give It Up”, since the estate owned the copyright only in the sheet music to the song (though it appears that the judge did allow modified versions to be heard by the jury). The jury awarded the Gaye estate an overall amount of nearly $7.4 million in damages. The evidence had shown that the song had generated over $16 million in profits, including more than $5 million for Thicke and Williams.

Robin Thicke, performing, by City Year. CC-BY-2.0 via Flickr.
Robin Thicke, performing, by City Year. CC-BY-NC-ND-2.0 via Flickr.

Those who engage in copyright law sometimes forget that the issues of what is protectable, and what is not, and how much needs to be copied, are devilishly difficult and reasonable people can disagree. Nowhere is this uncertainty more acute than with a musical composition, comprised of various artistic layers, laced with the fact that a musical work is meant to be performed, which adds a further layer of complexity. As the well-known US judge,  Learned Hand famously said in fashioning his “abstractions test” for distinguishing between idea and expression in copyright in the case of Nichols v. Universal Pictures, “[n]obody has ever been able to fix that boundary [between idea and expression], and nobody ever can.”

Imagine that you are a member of the jury in this case, who is told that a melody, song structure, and aggregation of notes are protectable, but that a genre, style, or groove is not; that the case is only about the rights in the sheet music, but not about the percussion and the singing. You may comprehend the differences between these categories as they apply to a song, or you may not. Add that both sides brought expert witnesses in the form of musicologists, each of whom presented a view that was meant to fatally undermine the testimony of the opposing expert. All of this uncertainty derives from the nature of music and the way that copyright law has been developed to protect the interests of both rights holders and the public. As one entertainment lawyer observed about the jury’s decision, “[n]o verdict ever surprises me. Trials are like slot machines—you never know when you’re hitting on lucky sevens. There are always risks in trying any case because there are so many factors one can’t control.”

Nevertheless, reaction to the verdict by the cognoscenti was almost unanimous that the jury had gotten it wrong, For example, Professor Christopher Sprigman of the New York University Law School stated that while melody is protected, a musical genre is not. He then observed, “[i]t’s not a jury of musicologists. You have a jury falling back on their intuition. I’m not sure that their intuitions are so great here.” The problem was, however, that the kind of analysis that is required to determine what exactly is being protected by copyright and, if so, has infringement taken place, does not have the luxury of professorial time and reflection. The immediacy of a courtroom is a very different dynamic.

“Imagine that you are a member of the jury in this case, who is told that a melody, song structure and aggregation of notes are protectable, but that a genre, style or groove is not.”

At the end of the day, this case was decided by a jury. As such, beyond the difficult legal questions involved, it seems that broader questions of credibility and reasonable motivation were at issue. After all, from the juror’s point of view, one does not need a law or musicology degree to assess when someone is telling the truth. Or, as a retired London, IP-savvy judge once told me over lunch, “I seldom, if ever, could really tell if a witness was lying” (unless there was an admission or the like). In this context, portions of the closing argument, as reported, are revealing.

Counsel for the Gaye estate stated that “[W]hat it boils down to is, ‘Yes, we copied. Yes, we took it. Yes, we lied about it. Yes, we changed our story every time.’ It boils down to this: Who do you believe? Are you going to believe Robin Thicke, who told us he’s not an honest person?” (Thicke disclosed in deposition that he had lied in interviews, and he was both high on Vicodin as well as inebriated while in the recording studio with his partner).

In retort, counsel for Thicke and Williams replied “[W]hy would Mr. Williams need to copy anyone to create a hit. Why would Mr. Thicke and Mr. Williams endure a proceeding like this, when their personal financial details are revealed to the world?”

This argument is a version of the time-worn claim: “would my client be so stupid as to have committed the wrong attributed to him?” Maybe “yes”, maybe “no”. In my experience, this kind of argument is risky strategy (as the same English judge observed, a claim such as this would likely merit a question from the bench: “Is this your best argument?”, often leaving distraught counsel with little choice but to find the first available hoe to start digging his own hole). In any event, closing argument as framed seemed to require the jury to decide between credibility and stupidity (or more precisely its claimed absence). When no one believes your credibility, and when you are also viewed as acting stupidly, it may difficult to convince the jury otherwise, no matter what the law professors may think.

Featured image: “Vinyl Player”, by Fabio Sola Penna. CC-BY-2.0 via Flickr

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