Will the floodgates open now that there are no more Blurred Lines?

Posted: March 27, 2018

After nearly five years of litigation, the Ninth Circuit of the US Court of Appeals recently published its judgment in the case of Williams v Gaye.[1]

Decision

The court upheld a verdict of copyright infringement against Pharrell Williams and Robin Thicke over the best-selling song of 2013, Blurred Lines.  It found that the writers had copied from Marvin Gaye’s Got To Give It Up, meaning that that the pair now have to pay the late Marvin Gaye’s family $5.3 million (£3.7 million).  The Gaye family also received a 50% interest in ongoing royalties from the song.

A small saving grace is that the jury had originally awarded $7.3 million (£4.8 million) in damages.  But this sum was reduced by US District Judge John Kronstadt after he examined the evidence and was satisfied that the award originally made by the jury exceeded the amount that was supported by the evidence, since the jury had not found the infringement to have been wilful.  Even so, the reduced figure still makes it one of the largest damages awards in music copyright history.

The court also upheld the jury’s verdict that hip-hop artist T.I., who raps in the middle of the song, and Interscope Records, were not liable for damages in the case.

Industry impact

The music industry has been awaiting this judgment with interest given the widespread concern that, if upheld, it could have a detrimental effect on the creativity of many artists.  That concern has been shared by many others, including Thicke and Williams’ attorney, who had previously commented that if copyright infringement was established, it could have a chilling effect on musicians who try to emulate an era or another artist’s sound.  In addition, more than 200 musicians, including R Kelly, and members of The Go-Go’s, The Black Crowes, Tears For Fears, Poison, Great White and composer Hans Zimmer, filed a joint brief in favour of Thicke and Williams, stating the ruling could have an “adverse impact on their own creativity, on the creativity of future artists, and on the music industry in general”.

Style over substance?

It is well established and accepted that artists will draw on previously released musical works for inspiration.  But this ruling could, on the face of it, be taken as suggesting that all that is required in order to pursue a copyright infringement claim is a similarity in musical styles – although that would be an over-simplistic reading of the case.  From the outset Thicke and Williams maintained their argument that Blurred Lines was not based on any particular song, including Got To Give It Up.  Yet the jury decision appeared to go against the traditional legal understanding of music copyright, which would be to demonstrate that a song copied a series of notes, a melody or a set of lyrics, in order to prove copyright infringement.  Blurred Lines did not in fact closely copy any of those elements from the Marvin Gaye song.  Instead, it was found that Blurred Lines had an overall impression close to that of Got to Give It Up, due to the similar rhythm pattern and certain production choices, such as voices murmuring in the background of the mix.

The majority of the three-judge panel of the Ninth Circuit of the US Court of Appeals agreed with the jury and held that Gaye’s copyright on the song was entitled to broad protection.  They accepted the trial court judge’s instructions to jurors to decide the case based only on the sheet music for the two songs, and not the recordings.  This is a peculiarity of the US system for registration of copyright: at the time of the copyright of Got To Give It Up, only the written music could be registered as protected, not sound recordings.  Thicke and Williams denied that there were any substantial similarities between Blurred Lines and the sheet music that was submitted for Got To Give It Up to obtain copyright protection, but the jury had disagreed.

Dissenting judgment

It was a split judgment and the dissenting judge, Jacqueline Nguyen, clearly shared the concerns of Thicke, Williams and the 200 musicians that filed a supporting brief.  In her judgment she asserted that Blurred Lines and Got To Give It Up are not objectively similar and claimed that the two songs resembled each other only in style, not substance.  She said:

“They differ in melody, harmony and rhythm.  Yet by refusing to compare the two works, the majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.”

Judge Jacqueline Nguyen went on to say:

“The Gayes, no doubt, are pleased by this outcome.  They shouldn’t be.  They own copyrights in many musical works, each of which (including Got to Give It Up) now potentially infringes the copyright of any famous song that preceded it.  That is the consequence of the majority’s uncritical deference to music experts.”

Comment

Because the US Supreme Court chooses to review less than 2% of the approximately 7,000 to 8,000 cases filed with it annually, the US Courts of Appeals serve as the final arbiter on most federal cases. The Ninth Circuit is particularly influential.  Accordingly, this could be the final ruling in this case.

So will this ruling change how new music is made and released and who owns it, or will we see an increase in these types of copyright cases instead?  Despite the importance of the case, it seems unlikely to have any practical sway over musicians, who will always be influenced by the music that comes before them – indeed, that is an intrinsic part of the musical process, without which music would lose much of its meaning.

The judgment could well, however, encourage litigants to come out of the woodwork. But they should have pause for thought: the decision is heavily fact-specific, and courts (and even US juries) may well in practice try to distinguish it when presented with a different set of facts.  Also, the case may well not have succeeded if heard before a non-US court.

Moreover, the fact that there was a split judgment between three expert judges in one of the highest courts in the US proves that there are no guarantees in litigation.  This highlights why disputes are often dealt with out of court, as these types of music disputes are often settled by way of a full or partial credit and/or some financial compensation.

But the only sure way to prevent a similar dispute is to avoid blurred lines.

Fiona McAllister, Associate,  Simkins LLP

 

 

[1] On 21 March 2018.