Forgettable Song Could Have Long-Term Negative Effects For Other Artists

You remember Blurred Lines right? It was the smash hit single of 2013 that simultaneously launched (for being catchy) and destroyed (for being rapey) Robin Thicke's career. Well, this okay but utterly forgettable pop song has now earned an inauspicious spot in our culture because a surprisingly foreboding jury decision found Thicke and his co-writers Pharrell Williams and Clifford "T.I." Harris, Jr liable for copyright infringement.

As most of you probably remember, Thicke wound up in a protracted legal battle with Marvin Gaye's family who claimed that Blurred Lines infringed Gaye's 1977 hit Got To Give It Up. At the end of the eight day trial, the jury found that Thicke et al. had infringed Gaye and ordered them to pay $7.4 million to Gaye's family, nearly half of the profit from the song.

This outcome - unique because these cases usually settle and rarely go the distance - has resulted in a lot of hand-wringing that the jury verdict will create a bad precedent for artists who use existing work to inspire their own. How so?

  1. It creates a great deal of ambiguity about where the line is between inspiration and infringement. Much of Pharrell's testimony at trial dealt with the issue of "feeling." That he and Thicke wanted to make a song that "felt like" the kind of music Gaye and his peers were making in the late 70s. Both artists admittedly held up Got To Give It Up as a source of inspiration for Blurred Lines. So where is that line? How close am I allowed to get to the work of an artist I admire without tipping into infringement? Are homages completely off the table now? Is total originality the only way to avoid a claim of infringement and is that a good idea from a policy perspective or even possible? While the jury found Pharrell and Thicke liable for infringement, they were not found liable for willful infringement; that is, the knowing and intentional copying of Gaye's song... which essentially means that Thicke and Pharrell are being penalized for liking Marvin Gaye too much. I don't know about you, but that seems to me like a really weird place to end up. You could drive a truck through that hole in copyright law now.
  2. It could embolden other already-established creators to push back hard against their imitators, creating a stampede of litigation. I've previously argued that artists should take advantage of their brand as long as they are commercially viable, but too much of that might also create a chilling effect in the art community, especially in the music industry where recycling and repurposing are common and generally accepted. If no up-and-coming musicians create anything because of a fear of getting sued by an already established artist, the lack of work being produced would depress the entire industry.
  3. Even if my worst-case scenario above never came to fruition, don't forget that this case was decided in the Ninth Circuit, which is, as federal courts go, one of the most powerful in the land. A decision reached there wouldn't just affect artists in California, it would effect artists throughout the country because other federal courts look to the Ninth Circuit when making their decisions. Only New York's Second Circuit carries as much weight in these intellectual property matters.

Ultimately, the case turned on the expert testimony of musicologists who were able to convince the jury that the songs were too similar to be a coincidence. The experts proffered by Gaye's family presented, among other evidence, a mash-up of both songs. For his part, Thicke sang a medley in court to demonstrate that many famous songs may sound similar, but those similarities are merely superficial (he also may have lied during his testimony, essentially turning the jury against him. It also didn't help that Thicke sued Gaye's family as a preemptive measure). Personally, I've heard the songs side-by-side a number of times and can agree that there are definite similarities, but I can't really get to copyright infringement from there. Although I guess that's why I'm not a music expert. Judith Finell, however, is. She testified for the Gaye family and prior to trial, submitted a detailed report describing the similarities between the two songs. Her ultimate conclusion:

"The substantial similarities found in 'Give It Up' and 'Blurred' surpass the similarities that result from their shared genre, and are the result of many of the same deliberate creative choices made by their respective composers. Consequently, rather than merely resembling one another stylistically, these two works sound substantially similar in many of their most distinctive features."

Finell has probably forgotten more about music than I'll ever know, so I have no reason to doubt her expertise. Ultimately, this seems like one of those rare cases where the immediate judgment is right, but bad long-term effects can still result for everyone else.  Or it could also wind up being a whole lot of nothing. While I am concerned, I'll reserve judgment until the [likely] appeal. 

Greg Kanaan

The [Legal] Artist, Boston, MA, USA