©2016. Published in Landslide, Vol. 8, No. 3, January/February 2016, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
“Blurred Lines” by Robin Thicke featuring T.I. (Clifford Harris Jr.) and Pharrell Williams was the undeniable hit of the summer of 2013, spending 12 weeks at the top of the Billboard Hot 100 and ultimately reaching the number two spot on the year-end Billboard Hot 100.1 In addition to its chart success, the song was newsworthy for its risqué music videos, which prompted many critics to claim that the song was disturbingly representative of a modern lack-of-consent attitude toward sexual relations.2 The song was soon in the headlines again, when on August 15, 2013, Williams, Thicke, and Harris filed a complaint against Bridgeport Music Inc. and the heirs of Marvin Gaye, seeking a declaratory judgment that “Blurred Lines” did not infringe Marvin Gaye’s “Got to Give It Up.”3 On March 10, 2015, a California district court jury found that there was “substantial similarity” between “Blurred Lines” and “Got to Give It Up,” and ordered Thicke and Williams to pay $4 million in damages and $3.37 million in earned profits to Gaye’s heirs.4 The judgment was subsequently reduced to approximately $3.2 million in actual damages, and the award of profits from Williams’s share was cut from approximately $1.6 million to $357,000.5
The decision sent shockwaves throughout the entertainment industry. Many pundits and legal commentators began to cite the case as a cautionary tale, and many have pondered the “chilling effect” that the decision will ultimately have by inhibiting and discouraging creativity.6 Ultimately, the “Blurred Lines” decision is notable because it is an exemplar of how rare it is for music copyright infringement cases to go to trial and the hefty damages awards that can be decided by juries.7 Custom and practice dictates that the overall likely effect of this decision is that it will be used as a footnote by attorneys while counseling their clients to settle in the prelitigation and pretrial phases of music copyright conflicts.
The Uniqueness of Music Copyright Litigation and Blurred Lines
Music copyright cases are unique, costly, difficult, and complex, so it is always a risk to have a jury trial when music copyright is the subject. Coming into a trial, jury members don’t know the law. They need instructions, and these are provided by the judge (with input from the litigants). Like a recipe, the instructions contain the steps the jury should follow, along with questions it should resolve and the criteria it should use. But if a judge’s recipe is bad, it’s likely that the cake—the jury’s decision—will be bad, too.
Juries are unpredictable as they are in any type of case, and in some cases, the issues have been taken from the jury for being too difficult for anyone but an expert to understand. However, copyright, as intricate as it is, does not meet that threshold. Typically, the issues involved in determining whether there was an infringement of a copyrighted work and what the appropriate level of damages should be in a given case are not prohibitively complex.8
Notably, the “Blurred Lines” litigation started in a nontraditional manner with the alleged infringers, Williams, Thicke, and Harris, preemptively filing a claim for declaratory relief that “Blurred Lines” did not infringe “Got to Give It Up.” The court denied the summary judgment motion, largely based on the fact that there was conflicting expert testimony, primarily by musicologists, as to the similarity of the compositions to present “a genuine issue of material fact.”9 While some commentators have remarked that the preemptive filing was a procedural strategy to ensure that the federal venue would be in Los Angeles, others have noted that it is a peculiar strategy to sue an opposing party that is seeking a settlement, insofar as it almost guarantees a long and costly legal battle.10 It is therefore unlikely, in the wake of the “Blurred Lines” case that we will see a proliferation of claims filed by alleged infringers, even where there is serious ambiguity as to whether or not there is a triable issue of fact. Following the favorable verdict for his client, the Gayes’ attorney, Richard Busch, stated, “My opinion is that they believed the Gayes didn’t have resources and the wherewithal to fight. My belief then was they were being bullies. I bet now they regret it.”11
Further, the “Blurred Lines” case is also unique in that the court found that the sound recording of “Got to Give It Up,” and in turn “Blurred Lines,” was inadmissible as evidence at trial in assessing the similarity of the compositions. Following the court’s denial of the summary judgment motion, Thicke and Williams filed a motion in limine to exclude the sound recording of “Got to Give It Up” as evidence on the basis that the copyright in the underlying composition was filed in 1977, and under the Copyright Act of 1976 (1976 Act), works created prior to 1978 are governed by the Copyright Act of 1909 (1909 Act). While today, under the 1976 Act, copyright protection is afforded when a work is “fixed in any tangible medium of expression,” under the 1909 Act, releasing a phonographic record of a composition was not considered publication for the purpose of registering a copyright in the underlying composition—the sheet music, including all elements of the composition, needed to be deposited with the Copyright Office for the publication requirement to be met.12 In essence, the sheet music that Gaye registered with the Copyright Office represented “the lyrics and some of the melodic, harmonic, and rhythmic features that appear in the recorded work.”13
This should have been an enormous win for Williams and Thicke, as many of the publicly perceived similarities between the compositions were the manner in which the respective master recordings were produced. Interestingly, many of the shock and awe reactions to the hefty damages found in this case were heavily steeped in the idea that the court had found that paying homage by imitating the “feel” and/or “vibe” of a previously released master recording, and more generally genre, was found to be infringement.14 This should not have been the case, as many of those elements were excluded as evidence by virtue of the inadmissibility of the sound recordings. The jury purportedly found substantial similarity between the compositions based on sheet music alone, but is clear that this finding was significantly colored by Thicke’s testimony and the jury instructions that they received.
View the deposition of Robin Thicke and Pharrell Williams at https://youtu.be/bqpot5VNobY.
Thicke’s testimony likely did not engender sympathy with the jury, as it largely contained brash statements. For example, in response to the inquiry “Do you consider yourself an honest person?” Thicke replied, “No. That’s why I’m separated.”15 Further, when Thicke was asked if “Got to Give It Up” was one of his favorite songs of all time, Thicke replied, “I would say after the—my own hundred songs, yes, it’s one of my favorite songs.”16 Finally, and conceivably the most damaging, was Thicke’s admission that he was inebriated and under the influence of Vicodin when “Blurred Lines” was composed and that he had little, if anything, to do with its authorship. In a case where the jury was tasked with assessing infringement based on lead sheets and without the ability to compare the master recordings that led to the litigation, Thicke’s testimony likely had an enormous prejudicial effect.
A closer look may show that the judge erred in his instructions to the jury by blurring the lines between what does and doesn’t constitute copyright infringement. It is important for a jury to be told that “unlawful copying” arises only if the claimant’s evidence satisfies two tests: the factual question of “did they copy?” and the subsequent question of whether the copying was legally improper. This two-part test somewhat resembles the familiar inquiry in an auto accident case in most jurisdictions. In other words, it isn’t enough for an injured pedestrian to show that a driver hit him. To succeed, the pedestrian must also prove the driver who hit him was driving too fast or otherwise acting “unreasonably.” In copyright law, the second criterion can get very fuzzy. With such unhelpful names—“substantial similarity test” or “improper appropriation”—the judge essentially asks the jury to determine whether the copying of protected elements was “too much.”
Problems arise when only the first criterion (whether any copying took place at all) is emphasized to an extent that it drowns out the second part. Inconsistent and misleading, the court’s Instruction 44 in the “Blurred Lines” case contains directives that may have led jury members to think it was their job to impose liability for what copyright lawyers know is perfectly lawful behavior—copying. Instruction 27 given to the “Blurred Lines” jury reads, “Anyone who copies original elements of a copyrighted work during the term of the copyright without the owner’s permission infringes the copyright.”17 This instruction on its own indicates that all copying of original elements is unlawful, which is simply false. Copying original material is often perfectly lawful and ethical. People find inspiration in past works all the time. Copying an idea, even an original idea, is not merely within the law—it’s encouraged by it.
The line into illegality is crossed when too much of an original expression is copied without authorization. This distinction between lawful copying of ideas and “too much” copying of expression is what the jury members should have focused on in the “Blurred Lines” case. It could very well have been the case that, based on substantial evidence, the jury was persuaded that copying had, in fact, occurred. That being the case, Instruction 28, which speaks to how much of the original Marvin Gaye material was copied (the second part of the test), may have been glossed over by the jury figuring they could ignore the need to assess how “substantial” the copying was. It could look to a careful juror as if any copying of the Gaye composition brings liability.
Finally, Instruction 43 also suggests to jurors that copying an idea can count as infringement. The jurors are told, among other things, to notice if the claimant’s work and the other work contain similar ideas. The instruction then tells the jurors that they can find infringement if they perceive that the “total concept and feel” of the two works “are substantially similar.”18 The instruction does not tell the jurors to disregard any similarity in “concept and feel” that results merely from the same ideas being used in the works being compared. As a result, the jury may think itself duty-bound to find infringement if two songs have the same “feel” simply because the songs share the same idea—in which case, the jury will have been led to a misguided conclusion.
However, jury instructions are just one of the landmines music copyright litigators face. The types of experts often brought in during copyright litigation cases can sometimes be anything but helpful. “Anytime you go to a jury, you are taking a crap shoot of what they will understand and get out of the testimony,” says one music publishing executive. “You could have the musicologist testify for hours and hours, and at the end no one will know which way is up.” Besides, adds Atlas Music Group CEO Rich Stumpf, “When you talk to the musicologists and you ask them for an opinion, it all seems to be subjective.”19
During depositions and at trial, it is common in these types of cases for composers or hired musicologists to play an instrument to perform the composition or demonstrate their analyses. This is fraught with difficulties for the lawyers.20 It is difficult to discern live whether the notes are being accurately played, and it is impossible to go back and cite to a particular rendition when questioning a witness. And it is equally all but impossible for a court reporter to transcribe what is happening. These are problems unique to litigating music copyright cases.
Custom and Practice: We Hear about the Exceptions, Not the Rule
Custom and practice in the music industry often yields a far different result than the unique situations that become newsworthy litigations. The common law school adage that litigation is, in essence, two parties throwing money into a fire until one party yells “stop!” is another reason besides complexity that keeps music copyright cases out of court. Litigation is exorbitantly expensive. Typically, a would-be plaintiff in a music copyright case is less wealthy and well-known than the potential defendant. It is often not worth it to pursue a poorer defendant, as damages are often measured by the defendant’s profits from the infringing song. Music copyright cases are notoriously expensive to bring, so usually defendants are the successful composers and own the successful songs. The owner of the original work generally only discovers the alleged infringement after it has become popular and the infringer wealthy, and courts have recognized that a musical thief may be more likely to steal from an obscure composer than a prominent composer. So if you represent a plaintiff in a music infringement case, be prepared to face a well-financed defense.21 The “Blurred Lines” case is an anomaly in that the infringed work was a successful song and Gaye’s estate a rather wealthy plaintiff.
As a result of the “Blurred Lines” case, we are more likely to see preemptive writing credits given to original composers whose works are allegedly infringed, the prompt settlement of cases of alleged infringement to avoid costly litigation and negative press, and fewer lawsuits overall in response to this dangerous precedent. A brief review of some recent music copyright disputes helps to illuminate this point.
Tom Petty and Sam Smith
In April 2014, Sam Smith released “Stay with Me,” which went on to become an international hit. Tom Petty and his music publishing company noticed substantial similarities between “Stay with Me” and Petty’s 1989 hit “I Won’t Back Down,” written by Petty and Jeff Lynne. Petty’s publisher contacted the publishers for “Stay with Me,” noting substantial similarities between the melodies and choruses of the two compositions. One of Smith’s representatives issued a statement that “[n]ot previously familiar with the 1989 Petty/Lynne song, the writers of ‘Stay with Me’ listened to ‘I Won’t Back Down’ and acknowledged the similarity.”22 The parties quickly reached a settlement where Petty and Lynne would be credited with 12.5 percent of the composition. When asked about the infringement, Petty stated, “All my years of songwriting have shown me these things can happen. Most times you catch it before it gets out the studio door but in this case it got by. Sam’s people were very understanding of our predicament and we easily came to an agreement.”23 Most telling of Petty’s reaction to the perceived infringement and how he had intended to proceed with remedying it was his further statement: “The word lawsuit was never even said and was never my intention. . . . Sam did the right thing and I have thought no more about this. A musical accident no more no less. In these times we live in this is hardly news.”24
The Gap Band and “Uptown Funk!”
“Uptown Funk!” the ubiquitous 2014 hit by Mark Ronson featuring Bruno Mars has been a musical juggernaut. As of October 2015, the video has over one billion views on YouTube,25 is the best-selling single of 2015 so far with 5.4 million downloads,26 and spent 14 weeks at number one on the Billboard Hot 100 Chart.27 Minder Music, the publishing company that controls the composition “Oops Upside Your Head,” a hit for the Gap Band in 1979, believed there were substantial similarities between the compositions and “filed” a claim through YouTube’s Content Management System (CMS). When publishers, usually multiple, enter claims for the same composition in the CMS that exceed 100 percent, YouTube stops paying royalties for the performance of that composition and places such monies into an escrow account.28 In the wake of the settlement, the composition now has 11 writers.29
Danny Zook, manager of one of the former Gap Band artists, Trinidad James, noted that, in his opinion, the “Blurred Lines” decision likely had an effect on the manner in which the dispute was handled stating, “Everyone is being a little more cautious. Nobody wants to be involved in a lawsuit. Once a copyright dispute goes to a trial, it is subject to be decided by public opinion—and no longer resolved based entirely on copyright law.”30 In this digital age, such a simple and inexpensive tool is certainly an effective way of getting the attention of an alleged infringer, and will likely be utilized in future cases where the song in question has received a significant number of streams, views, or plays. While the “Blurred Lines” case may make alleged infringements even more cautious about copyright infringement lawsuits due to the enormous amount of press that surrounded the case, this is largely the reaction du jour of what has been long known—one can never accurately predict the outcome of any litigation, particularly a music copyright dispute.
Miguel and Smashing Pumpkins
Just this summer when R&B singer Miguel released his immensely popular album Wildheart, he credited Smashing Pumpkins singer Billy Corgan with a cowriting credit on the summer smash hit “Leaves.” Drawing what looks like an initially subconscious parallel between his “Leaves” and the 1996 Smashing Pumpkins recording “1979,” Miguel claims it was not until after the song was completed that he realized it was reminiscent of “1979.” He reached out to Corgan and ended up crediting Corgan as a writer on “Leaves.”
Miguel has indicated that he was particularly mindful of the attribution to Corgan in a post-“Blurred Lines” world. In fact, according to Corgan, after Miguel’s representatives sent him the track, their respective representatives negotiated the terms of the resolution just like they would any other deal. “It’s the same thing that happened with Sam Smith and the Tom Petty song,” says Corgan.31
Miguel’s most notable quotation on the subject of the Corgan cowriting credit is his statement indicating there is nothing new under the sun. “We’re all standing on the shoulders of giants. There’s nothing that hasn’t been done[. T]here’s going to be moments where you do things that are reminiscent of other things. And even if you’re not aware of them, I think it’s just best out of respect to reach out.”32 Corgan says he agrees with Miguel’s statements about the credit being about respect for the prior art. Corgan has previously lamented the “Blurred Lines” verdict, seeing it as a slippery slope, and notes that he has been musically ripped off thousands of times and usually just lets it slide because it’s just not worth litigating. “Do I really want to get into it? Do I want to hire the lawyer and make the case and make somebody feel bad? Or do I want to just let it go?”33
What the above copyright disputes all have in common is that they were settled expeditiously out of court, as has long been evidenced by custom and practice. Not only are music copyright litigations costly, but they can also have the undesired effect of extremely negative publicity, as Thicke’s testimony in the “Blurred Lines” case clearly demonstrates.
For many, the “Blurred Lines” verdict was received as the tolling of the proverbial death knell of musical creativity, with lawyers and potentially record labels playing an increased role in the creative process in order to limit exposure to potential infringement liability.34 Ultimately, the practical effect of the case is that alleged infringers will be more likely to settle claims early on in order to avoid costly music copyright litigation and the unpredictable verdicts that juries may reach inherent therein, as the lines between infringement and inspiration, and appropriation and admiration, can be quite blurry indeed. As frequent legal commentator Bob Lefsetz aptly put it: “As for this decision producing a rash of these lawsuits, give me a break. Were the courts littered with cases after Bright Tunes v. George Harrison for ‘He’s So Fine’/‘My Sweet Lord’? No.” He concluded, “So the only story here is people might think a bit harder over whether they’ve copied a tune, and if they have, and the song makes bank, they’re gonna get a phone call.”35 This latter statement is particularly poignant—in order for the majority of copyright disputes to escalate to a level of complaint, whether formal or informal, the infringing work in question will likely need to enjoy a considerable amount of commercial success.
1. Hot 100 Songs: Year End 2013, Billboard, http://www.billboard.com/charts/year-end/2013/hot-100-songs (last visited Dec. 21, 2015).
2. Dominique Mosbergen, Robin Thicke’s “Blurred Lines” Dubbed “Rapey,” Hit Song Under Fire from Critics, HuffPostEnt. (June 18, 2013), http://www.huffingtonpost.com/2013/06/18/robin-thicke-blurred-lines-rapey_n_3461215.html.
3. Complaint for Declaratory Relief, Williams v. Bridgeport Music, Inc., No. CV13-06004-JAK (AGRx) (C.D. Cal. Aug. 15, 2013), ECF No. 1.
4. See Special Verdict, Williams, No. CV13-06004-JAK (AGRx) (C.D. Cal. Mar. 10, 2015), 2015 WL 1476803, ECF No. 320.
5. Order re Plaintiffs and Counter-Defendants’ Motion for Judgment as a Matter of Law, Declaratory Relief, a New Trial, or Remittitur, Williams, No. CV13-06004-JAK (AGRx) (C.D. Cal. July 14, 2015), ECF No. 423.
6. See Ed Christman, “Blurred Lines” Verdict: How It Started, Why It Backfired on Robin Thicke and Why Songwriters Should Be Nervous, Billboard (Mar. 13, 2015), http://www.billboard.com/articles/business/6502023/blurred-lines-verdict-how-it-started-why-it-backfired-on-robin-thicke-and.
7. See Harley Brown, “Blurred Lines” Verdict: Music Lawyers Weigh In, Billboard (Mar. 11, 2015), http://www.billboard.com/articles/news/6495167/blurred-lines-verdict-music-lawyers-react (reporting that Robert Jacobs of Manatt, Phelps & Phillips stated, “But will it really affect how songwriters and producers practice their craft or how labels and publishers decide what they will release? If history is any lesson, the answer is probably not. While music infringement disputes rarely go to trial, the big-ticket ones that have . . . show what can happen when a court or jury finds liability.”).
8. See Chappell Co. v. Pumpernickel Pub, Inc., 79 F.R.D. 528, 530 (D. Conn. 1977) (holding that the case at bar was “legal” because the issues presented were not overly complicated for the jury).
9. Order re Plaintiffs’ and Counter-Defendants’ Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment, Williams, No. CV13-06004-JAK (AGRx) (C.D. Cal. Oct. 30, 2014), 2014 WL 7877773, ECF No. 139 [hereinafter Summary Judgment Order].
10. Christman, supra note 6.
11. Richard Busch, Marvin Gaye Family Lawyer: How I Won the “Blurred Lines” Trial (Guest Column), Billboard (Mar. 11, 2015), http://www.billboard.com/articles/news/6495237/marvin-gaye-lawyer-richard-busch-blurred-lines-trial-column.
12. Order re Admissibility of Sound Recording Evidence at Trial, Williams, No. CV13-06004-JAK (AGRx) (C.D. Cal. Jan. 28, 2015), ECF No. 231.
13. Summary Judgment Order, supra note 9, 2014 WL 7877773, at *2.
14. See Tim Wu, Why the “Blurred Lines” Copyright Verdict Should Be Thrown Out, New Yorker (Mar. 12, 2015), http://www.newyorker.com/culture/culture-desk/why-the-blurred-lines-copyright-verdict-should-be-thrown-out (“There is no question that Pharrell was inspired by Gaye and borrowed from him; he has freely admitted as much. But, by that standard, every composer would be a lawbreaker. 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.”).
15. Transcript of Deposition of Robin Thicke at 31, Williams, No. CV13-06004-JAK (AGRx) (C.D. Cal. Apr. 23, 2014).
16. Id. at 73.
17. Jury Instructions at 28, Williams, No. CV13-06004-JAK (AGRx) (C.D. Cal. Mar. 10, 2015), ECF No. 322.
18. Id. at 46.
19. Christman, supra note 6.
20. See N. Music Corp. v. King Record Distrib. Co., 105 F. Supp. 393, 398 (S.D.N.Y. 1952).
21. See Gaste v. Kaiserman, 863 F.2d 1061, 1067 (2d Cir. 1988).
22. Andrew Flanagan, Sam Smith Adds Tom Petty to Songwriting Credits on Hit “Stay with Me,”Billboard (Jan. 26, 2015), http://www.billboard.com/articles/business/6450921/sam-smith-tom-petty-stay-with-me.
23. Daniel Kreps, Tom Petty on Sam Smith Settlement: “No Hard Feelings. These Things Happen,”Rolling Stone (Jan. 29, 2015), http://www.rollingstone.com/music/news/tom-petty-on-sam-smith-settlement-no-hard-feelings-these-things-happen-20150129.
25. Jim Farber, Mark Ronson Talks “Uptown Funk” Up for Five MTV VMAs: 2015’s Top Hit, YouTube’d One Billion Times, N.Y. Daily News(Aug. 26, 2015), http://www.nydailynews.com/entertainment/mark-ronson-tells-story-behind-uptown-funk-article-1.2338070.
26. Ed Christman, Q3 SoundScan Report: Taylor Swift and Bruno Mars Dominate, Streaming Surges, Billboard (Oct. 8, 2015), http://www.billboard.com/articles/business/6722597/q3-soundscan-2015-taylor-swift-bruno-mars-streaming-surge.
27. Gary Trust, Ask Billboard: Is 14 Weeks at No. 1 Still a Big Deal?, Billboard (Apr. 12, 2015), http://www.billboard.com/articles/columns/chart-beat/6531538/ask-billboard-is-14-weeks-at-no-1-still-a-big-deal.
28. Ed Christman, “Uptown Funk!” Gains More Writers after Gap Band’s Legal Claim, Billboard (May 1, 2015)
29. Ed Christman, Inside the New Royalty Split for “Uptown Funk”: Who Gets Paid What, Billboard (May 4, 2015), http://www.billboard.com/articles/business/6553861/uptown-funk-royalties-who-gets-paid.
31. Kyle Anderson, Smashing Pumpkins’ Billy Corgan Explains How He Ended Up with a Writing Credit on a Miguel Song, Ent. Wkly. (July 22, 2015), http://www.ew.com/article/2015/07/22/billy-corgan-explains-miguel-leaves-writing-credit.
32. Miguel Explores Race, Finds New Voice on “Wildheart,”Billboard (July 13, 2015), http://www.billboard.com/articles/news/6627416/miguel-explores-race-finds-new-voice-on-wildheart.
33. Anderson, supra note 31.
34. See Brooke Weinberg, “Blurred Lines” in a Copyright Battle: The Potential Chilling Impact on Creativity, 26 Ent. Arts & Sports L.J. (N.Y. State Bar Ass’n), no. 2, Summer 2014, at 55.
35. Bob Lefsetz, The Positive Lesson to Be Learned from “Blurred Lines” Verdict, Variety (Mar. 26, 2015), http://variety.com/2015/voices/columns/there-is-a-positive-lesson-to-be-learned-from-blurred-lines-verdict-1201459285/.