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Thursday, 12 March 2015

"That man is not your maker": hard times for Blurred Lines

What with Kats scattering in all directions to cover so many exciting developments, it's always good to know that the IPKat, Merpel and the blogging team have friends on whom they can rely.  One such friend is occasional guest blogger Dorothea Thompson, once upon a time a trade mark attorney but now recycled at London-based law firm Bray & Krais. Dorothea has penned this little piece on a recent piece of US litigation that has become a global smash-hit:

Blurred Lines in focus

Just in case IPKat readers have lived a media-free life in the past 48 hours: on Tuesday an eight-member jury unanimously found that Robin Thicke and Pharrell Williams’ 2013 pop smash hit Blurred Lines’ infringed the copyright in Marvin Gayes 1977 track ‘Got To Give It UpThe co-songwriters must pay Gaye's family US $7.3 million as part of the ruling.

The fiercely contested dispute has been closely watched by both the music industry and the copyright fraternity (see herehere and here).  The proceedings were kick-started bya pre-emptive lawsuit by the ‘Blurred Lines’ songwriters, seeking a declaration of non-infringement; Gayes children countered with the present claim.

Courtroom revelations

While the decision serves as a sharp reminder to songwriters and other creators of the dangers of ‘inspiration’‘and/or influence, the trial itself has reinforced the perils of litigation.  Not only did Thicke and Williams lose (to the tune of $7.3 million), but the lawsuit involved detailed public disclosure of their professional practices and personal and financial positions.  

Thickes case in court was that, despite previous statements to the contrary, his song-writing contribution had been zero; he had therefore lied repeatedly, in the press and in sworn legal documents.  Other prior statements -- that he was very influenced not just by Marvin Gaye but by 'Got To Give It Up’ -were made just to try to sell records, he said; and, throughout the writing and subsequent promotion, he had been heavily abusing alcohol and prescription painkillers.  

Williams, in contrast, spent time describing his creative process, specifically he how he wrote ‘Blurred Lines’ between tracks with other artists.  Thicke arrived at the studio after both music and lyrics were written, Williams stated.  Yet he revealed that shared co-writing credits, even when the artist is undeserving, "is what happens every day in our industry." 

Mustn't forget the royalties
In addition, full financial details emerged, including the eye-watering $6.9 millionoverhead’ cost to Universal Music in creating the hit ("working it in the marketplace: Jason Scott Gallien, Universal Senior VP of Finance) -- meaning the label did not even break even on the track.  Thicke and Williams, as primary artists, took home over $5 million each, guest T.I. received $700k, and the labels split the rest (a further $5 million). Williams also earned over $4 million in publishing royalties, and over $850k for his production credit.

Precedent

Attorney for the defendants, Howard King, has stated that the verdict “sets a horrible precedent for music and creativity going forward”. “This affects the creativity of young musicians who hope to stand on the shoulders of other musicians”, he told the jurors in court. Could this verdict open the floodgates for more songwriter litigation, resulting in a chilling effect on musical creativity?  While the Gayes argue that that the decision is all about song plagiarism damages, this guest blogger contends that that the decision is legally nothing new.  The argument centred on (i) rights and ownership, with the Gayes’ copyright limited to compositional elements in the sheet music; and (ii) similarities and/or differences between the songs, with musicologists’ testimony on elements including signature phrase, hook, keyboard-bass interplay, lyrics and themes.

The jury was faced with the complexities of musical copyright, in particular the difference between copyright in the underlying ‘Got To Give It Up’ composition registered as sheet music and owned by Gayes’ estate, and that in the sound recording. This was the subject of much argument since the Gayes were prohibited from playing the recording, which contained elements such as Gaye’s voice, backing vocals and percussion which were not covered by the sheet music copyright. 

Not everyone who serves on a jury
has much of an ear for music ...
While the plaintiffs brought the claim in the US District Court, had the action been brought in a non-registration copyright jurisdiction, this rights/ownership issue would have been less central.  In England and Wales, for example, copyright would likely have subsisted automatically in the recording and, assuming that the Gayes could demonstrate title, the claim could have been based on both the recording and underlying composition.  There would have been no jury to hear the action (civil jury trials are reserved for actions such as fraud, defamation, malicious prosecution or false imprisonment), the two sound recordings would likely have been played and analysed, arguably to the Gayes’ benefit.  At the same time, the judge may have been equally if not more critical of the credibility of the defendants.

Whilst it is rare for this type of dispute to reach a full hearing, and rarer still to reach a judicial decision (Music Business Worldwide  states the last successful similar claim was 24 years ago, when Michael Bolton’s Love Is A Wonderful Thing infringed the Isley Brothers song of the same name), this type of infringement may be more common than some think.  Regarding a recently publicised settlement with Sam Smith, Tom Petty stated: “All my years of song-writing have shown me these things can happen.”  And, illustrating the more usual approach of settlement with Non-Disclosure Agreement: “The word lawsuit was never even said and was never my intention. And no more was to be said about it.  How it got out to the press is beyond Sam or myself.”

Further action

Immediately following the verdict, the defendants stated they were “reviewing the decision, considering our options and you will hear more from us soon about this matter."  And now in a Fox News interview, their attorney has confirmed: 
"We owe it to song writers around the world to make sure this verdict doesn’t stand ... We are going to exercise every post trial remedy we have to make sure this verdict does not stand". 
In the meantime, the Gayes have said they will file the paperwork by next week to seek an injunction to halt sale and distribution of ‘Blurred Lines’. 

Nona Gaye has also hinted at another Pharrell Williams/Marvin Gaye dispute, this time regarding the Oscar-nominated 2013 track ‘Happy’ (one of the best-selling singles of all time) and the 1965 single ‘Ain’t That Peculiar’. She said: "I'm not going to lie. I do think they sound alike".  However, she added that they are not currently considering legal action: "we're not in that space."  Williams’ attorney has countered: “Its silk and rayon: even though they feel the same, they are structurally completely different”.

Either way, it can only be a good thing that musical copyright is being discussed across specialist, mainstream and social media - at a time when public perception regarding ownership and infringement has been at such a low ebb.
Thanks, Dorothea!

Blurred Lines here and (lyrics) here

Got to Give It Up here and (lyrics) here

6 comments:

Francis Davey said...

Defamation no longer (since 1 January 2014) has a presumption of jury trial and is, like most other civil causes of action in England and Wales, essentially jury-free.

Mags McGinnis said...

Copyright exists only in the composition (in this case the registered sheet music) and the sound recording - production techniques (the "feel" or "sounds") are not copyrightable. As no sampling of the sound recording took place - unlike examples the media have been giving - Channel 4 featured Vanilla Ice and Queen - and Arthur Baker on Radio 4 speaking about Afrika Bambaataa/Planet Rock/Kraftwerk nor any composition plagiarism took place (the example of Sam Smith and Tom Petty that keeps being trotted out) there was simply no infringement. If I want to make a Wall of Sound production complete with 20 second plate reverb & sleigh bells Phil Spector cannot come after me. Similarly if a drummer says "Make me sound like Bonham" it's not an infringement. Pop music by its nature is magpie-ish. Just read Dylan's Chronicles! There are very clear rules and Blurred Lines did not break them hence the preemptive lawsuit. Great post but I still find the decision extremely problematic.

Anonymous said...

Robin Thicke's moral failings notwithstanding, I'm rather unhappy with this verdict. No music is created in vacuo, and one would be hard pushed to find a song that was not inspired to a certain degree by what came before. The taking here is so vague that the repercussions could have a real stifling effect on music creators.

Anonymous said...

Has the decision itself been published yet? I cannot find a link to it.

Anonymous said...

If the claim had been brought in the UK, they could only rely on the composition, not the sound recording. Copyright in sound recordings only protects against mechanical copying of that actual sound recording (in contrast to the deeper protection afforded to LDMA works). The sound recording wasn't sampled here - so no infringement of the recording, simple as. They'd have to say a substantial part of the underlying composition was copied. Surely an uphill struggle...!

Anonymous said...

Not sure this case is over.

Have not seen the actual judgement, but did see the jury instructions, and that alone may provide an ample argument on appeal (and I can give you more than seven million reasons why this will be appealed).

One critical point here is timing, and which US copyright law was in effect for the item under contention. At this point in time, I am not certain that the judge's jury instructions were faithful to the correct law. For this particular item, the applicable law is the 1906 Copyright Law, one not so friendly to the Gayes.

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