Before We All Freak Out Over the "Blurred Lines" Copyright Infringement Decision...
/I have to admit, I was surprised. I didn't expect Pharrell Williams and Robin Thicke to lose their case (to the tune of $7.4 million) for infringing on Marvin Gaye's "Got to Give It Up." The musicians' lawyer remarked during the case: "This affects the creativity of young musicians who hope to stand on the shoulders of other musicians." I am not so sure, but there are some lessons to be learned here.
- The song "Blurred Lines" and its music video were highly controversial. Even if we ignore the salacious aspects of the video, it is hard not to recognize that, as Tricia Romano famously stated in The Daily Beast, the song is kind of "rapey." You can see how the Gaye family might not want their song associated with date rape. The Gaye family settled with Sony. Perhaps they just didn't like the remaining defendants! Remember, this was a jury trial, not a bench trial. While Robin Thicke may have charmed the jurors with a special toned-down performance, his testimony that he was high on drugs and alcohol may have turned the jurors off. Jurors are usually "nullified" more often by perceived moral failings than judges.
- There has been ample precedent for findings of infringement in songs. The famous "I Love New York" jingle case, in which Saturday Night Live parodied a mere four notes of a song, acknowledged a taking (and therefore copyright infringement) of the original song, citing cases such as Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir.), Cert. denied, 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392 (1936); Life Music, Inc. v. Wonderland Music Co., 241 F.Supp. 653 (S.D.N.Y.1965). However, the plaintiff in that case lost because of a fair use affirmative defense. Copyright infringement can occur musically in the span of four notes--it doesn't take a musicologist to find the possibility of infringement in so many popular songs today. Most cases settle or hinge on peripheral issues, or on the questions of fair use.
- Sometimes, artists should just publicly shut up. An actual statement by the U.S. Copyright Office was issued following the dust-up between the photographer of the "Monkey Selfie" and Wikimedia, because the photographer bragged publicly how the monkey took the picture. While the photo might not have been as popular without its backstory, you can be sure there would have been a grant of copyright to the photo if the public was not made aware of the story behind the photo. Likewise, by acknowledging "Blurred Lines" was a tribute to Marvin Gaye, the defendants opened themselves to liability. Too much of what infringing artists say can be used to demonstrate their infringement in a court proceeding.
Questions of music copyright infringement should be considered on a case-by-case basis, and should be vetted by an attorney. However, creativity ought not to be stifled, and the rewards of creating a great work that has the faint sniff of another great work can often outweigh the risk. Just ask Sam Smith, newly minted Grammy winner, and best friend to Tom Petty, the victim of his copyright infringement.
Related: Photography Law is Monkey Business (and other legal issues artists should ponder)