US copyright law and the “Blurred Lines” jury verdict

The intersection of music and US copyright law is in the news, thanks to the recent jury verdict regarding the song “Blurred Lines” by Robin Thicke, T.I., and Pharrell Williams. “Blurred Lines” created a sensation in 2013, not only for catchy music that led to the sale of nearly 15 million singles, but also for lyrics and a video that Robin Thicke himself admitted in an interview in the magazine GQ are degrading to women. (He later said that the admission was an ironic joke, and that in fact the lyrics and the video are pro-feminist and liberating for women, but not many people seem to agree.)

The writers of the song openly acknowledged heavy sampling of Marvin Gaye’s song “Got To Give It Up.”  The owners of the rights to that song—Marvin Gaye’s surviving family members— thought that the sampling crossed the line separating permissible and impermissible borrowing, and made an accusation of copyright infringement in out-of-court communications. In response, and in anticipation of a lawsuit, the three writers of “Blurred Lines” went to federal court seeking declaratory relief: they wanted a court judgment confirming that “Blurred Lines” was not a copyright infringement (with respect not only to Marvin Gaye’s “Got To Give It Up,” but also the Funkadelic song “Sexy Ways” owned today by Bridgeport Music). See the complaint here.

The Gaye family and Bridgeport Music counterclaimed, seeking damages.  After discovery, the “Blurred Lines” artists moved for summary judgment, asserting that there were no relevant facts in dispute and asking the judge to rule as a matter of law that there was no copyright infringement. The judge disagreed with them, and allowed the dispute to proceed to a trial.  See the judge’s summary judgment decision here.

Foreign lawyers, take note: an appeal in the US is generally based on an alleged mistake of law, so one likely basis of any appeal is this summary judgment decision.

Details of many of the pre-trial procedural maneuvers can be found here.  Bridgeport Music reached a settlement, but the Gaye family claim proceeded to trial.  And just last week, the jury in the case issued a verdict in favor of the Gaye family members.

There’s no shortage of critical commentary by IP law scholars, IP law practitioners, musicians, and other informed observers.  As  Columbia professor Tim Wu put it in The New Yorker magazine:

A serious error has been made: the judge overseeing the case should never have let the case go before a jury. The ruling against Thicke was a mistake, and it should, and likely will, be reversed on appeal . . . The question is not whether Pharrell borrowed from Gaye but whether Gaye owned the thing that was borrowed. And this is where the case falls apart. For it was not any actual sequence of notes that Pharrell borrowed, but rather the general style of Gaye’s songs. That is why “Blurred Lines” sounds very much like a Marvin Gaye song. But to say that something “sounds like” something else does not amount to copyright infringement.

The New York Times music critic had this to say:

Owing to the specifics of copyright law, the jury was instructed to base its decision on the sheet music, a fact that reflects how inadequate copyright law is when it comes to contemporary songwriting and production practices. In 2015, the arrangement of notes on a sheet of paper is among the least integral parts of pop music creation. We’re decades beyond the time when a songwriter penned a tune on paper, then gave it to musicians to perform. . . Besides, in an age in which popular music is incredibly diverse, with more sonic references, instruments and digital trickery available than ever, using sheet music as a measure of a song’s originality is a weak tactic, and possibly an irresponsible one. The “Blurred Lines” verdict is a victory for an outmoded law, but also an outmoded way of thinking about music.

Speaking of jury instructions, they’re the other likely basis for an appeal.  Here you can see the actual jury instructions provided in the “Blurred Lines” trial.  You IP litigators out there might enjoy comparing them with the model copyright infringement jury instructions in the 9th federal court circuit, where the “Blurred Lines” case was adjudicated.

Here’s a contrary law professor view, finding the jury verdict “hand-wringing” but predicting that the legal issues–the summary judgment decision and the jury instructions–will be upheld on any appeal.

And here’s a practitioner comment on the evidence made available to the jury.

On the human interest side, here’s a New York Times profile of the lawyer who represented the Gaye family.

Finally, you can listen for yourself to the similarities between the two songs.  Here’s “Blurred Lines” (not the version with topless women):

And here’s a video of Marvin Gaye’s “Got To Give It Up”:

Same vibe and style, yes.  Same melody?  Not at all!

The same melody in 2 different songs really was at issue when George Harrison lost a copyright infringement lawsuit in 1976 involving his 1970 hit “My Sweet Lord” and its uncanny musical similarity to  the 1963 hit “He’s So Fine,” written by Ronnie Mack, recorded by The Chiffons, and owned at the time of the lawsuit by Bright Tunes Music.  George Harrison denied any intentional copying, and Judge Richard Owen discussed “subconscious” plagiarism in his decision:

Did Harrison deliberately use the music of “He’s So Fine”? I do not believe he did so deliberately. Nevertheless, it is clear that “My Sweet Lord” is the very same song as He’s So Fine with different words, and Harrison had access to “He’s So Fine.” This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.

You can find the complete decision at the Music Copyright Infringement Service, a joint project of the Columbia and USC law schools.  A nifty feature lets you hear, for both the complaining work and the defending work, the complete sound recording and a rendition of just the isolated melody.  Even more nifty : a superimposition of the isolated melodies.  When you listen to the superimposition of melodies, it’s hard to disagree with Judge Owen : “My Sweet Lord” is indeed the very same song as “He’s So Fine” but with different words.

For background of and details on the “My Sweet Lord” case, see this article originally published in 910 magazine, as well as this article from the Performing Songwriter site (with several embedded videos, including the following alternate superimposition of the recorded versions of the two songs).

There was a very different outcome for John Fogerty, the songwriter and singer behind the group Creedence Clearwater Revival, when he was accused of copying . . . himself!  Among his many songs: “Run Through The Jungle,” written in 1970 and recorded by Creedence Clearwater Revival; and “The Old Man Down The Road,” published in 1985 by John Fogerty as a solo artist.  “Run Through The Jungle” was owned in 1985 by Fantasty Records, and Fantasy sued Fogerty for copyright infringement–he was sued for writing a new song that was too much like his own earlier song!  A jury found in favor of defendant Fogerty.  Unfortunately for him, the court denied his request for attorney’s fees, because Fantasy hadn’t brought its suit in bad faith.  The legal fees issue went all the way up to the US Supreme Court, which clarified the standards to govern a trial court in awarding (or not) attorney’s fees in copyright disputes.  (The federal circuits had been divided on this question of statutory interpretation.)

This Law Talk will close with a preview of a class being offered at NYU :

Recycling Pop Music: Innovation, Imitation and Originality

Course description here .  Oh, to be a student with the time to study such things!

6 thoughts on “US copyright law and the “Blurred Lines” jury verdict

  1. Very nice post, Drew. The way I see it (I’m not a lawyer), the key sentence is ‘The writers of the song openly acknowledged heavy sampling of Marvin Gaye’s song “Got To Give It Up.” ‘ In other words, since the source of inspiration is clearly acknowledged, it’s not a case of plagiarism per se (the kind I have to put up with when students don’t cite their sources). The Gaye family should have been elated by the tip of the hat to Marvin’s musical legacy — as well as the generated new interest by the younger generation of listeners, who will discover Marvin Gaye and maybe even buy a song or two on iTunes.

    I find it somewhat unsettling that current copyright laws make it possible to engage in pure, opportunistic rent-seeking behavior. It simply stifles innovation. Rather than debating where precisely we ought to draw the line between imitation and innovation, shouldn’t we ask whether copyrights ought to be abolished once and for all? (Of course, this is a normative, political and economic question.)

    • It may seem like copyright laws stifle innovation, but imagine what would happen if creators didn’t have any copyright protection at all! I think that a better question than whether to have copyrights is how to reform copyright law, both the substantive and procedural rules. Quite a few people spend quite a lot of time thinking about copyright reform. Maybe I’ll tackle that in a future Law Talk blog . . .

      • I can try to imagine, but it’s perhaps more informative to look at historical evidence. AFAIK, the German chemical industry in the second half of the 19th century grew by innovative leaps and bounds in the complete absence of domestic patent rights, which were only introduced much later. At the same time, France’s chemical industry, which did benefit from patent protection, fell behind. Presumably, the Germans needed to keep on innovating their processes to stay ahead.
        For another example of how patent rights kill innovation, consider the steam engine. Watts did not invent the steam engine, but his innovation made existing steam engines significantly more efficient. As soon as he got awarded a patent, he stopped innovating and spent the rest of his life suing and bankrupting anybody brazen enough to further improve on the design. Only after the patent expired, did inventors come forward with their improvements and only then did the production of the steam engine really take off. Bottom line, Watts may have delayed the industrial revolution by over 20 years. Boldrin and Levine have an excellent book on the topic, easily and freely accessible online.

        • Thanks for pointing out the Boldrin and Levine book, located at http://levine.sscnet.ucla.edu/general/intellectual/against.htm. It’s a serious argument, but clearly not the conventional view. The Journal of Economic Literature (a journal of the American Economic Association) says this about it:

          In their recent book, Against Intellectual Monopoly, Michele Boldrin and David Levine conclude that patents and copyrights are not necessary to provide protection for either innovation or creative expression and should be eliminated. The authors note the many flaws of the U.S. system of intellectual property protection and argue that other means are available to appropriate the benefits of invention and creative expression. While the authors overlook important functions of intellectual property, they provide support for further reforms of intellectual property law.

          If Law Talk takes on copyright reform, I’ll look forward to your further insights!

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