Musical Litigation Groove
Musical Litigation Groove – The LAW FIRM OF DAYREL SEWELL, PLLC is pleased to announce that Messrs. Sewell’s and Ng’s recent, featured publication, “Pharell Williams and Robin Thicke told they “Got To Give It Up””, appears in this month’s IPFrontline newsletter. In March 2015, a federal jury in Los Angeles ordered Robin Thicke and Pharrell Williams, singers of the hit song “Blurred Lines,” to pay over $7 million in damages and earned profits to the family of Marvin Gaye, singer of the chart-topping 1977 song “Got To Give It Up,” after determining that the two were guilty of copyright infringement. See Pharrell Williams, et al. v. Bridgeport Music, Inc., et al., 2015 WL 1476803 (C.D. Cal. Mar. 10, 2015). The verdict adds increasing uncertainty for the music industry with the finding of substantial similarity between the two songs, and hence copyright infringement, but its ramifications may have also spawned a shift in copyright infringement litigation that puts musicians and record labels on alert. 
The test for copyright infringement relied on whether a reasonable and average lay observer would recognize an alleged infringing piece of work as having been appropriated from a copyrighted work. The jury had to decide whether the two songs were similar enough in any way to establish some evidence of copying. The jury was not to give any weight to the amount of elements that were dissimilar or those dissimilar elements themselves. This particular instruction proves challenging in that it is a perspicacious analysis to accurately explain to jurors and just as difficult, if not harder, for jurors to properly apply. The music industry argues that this current test severely limits and restricts an artist’s ability to create music. In this particular case, the jury relied heavily on the composition of the sheet music in reaching a decision of infringement. From the sheet music, along with conflicting testimonies on the similarities and differences of the two songs, the jury concluded that the two songs were sufficiently similar. However, what the jury precisely found to be similar remains unknown. There are many elements in all music that are not embodied by the sheet music, including tone, mood, style, and feel, yet play an integral part in forming the identity of the song. These elements simply cannot be seen on a piece of paper. These essential aspects of a song help to create expressive, original works, but at times are non-dispositive in such analyses for copyright infringement. You are encouraged to comment and receive free updates by subscribing to the firm’s Blog and Press Release sections.
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Robin Thicke Pharrell Williams Pay 5 million marvin Gaye Estate News
Adam
From this article, it seems clear that a different analysis would have applied to this case vis-à-vis the Copyright Act of 1909. Solely, from a musical perspective, every time I hear a new song, it sounds like I’m hearing a re-fashioned song from 20 years ago. There are only so many sequences, tempos, and chords by which to compose a song.
Because the song was copyrighted before the passing of the Copyright act of 1976, it was governed by the 1909 Act, which states, in part, that because the sheet music of the song is a printed record in eligible notation it is protected under the copyright law.
Under section 102 of the 1976 Copyright Act, copyright protection extends to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device, including musical works and sound recordings.” From a layman perspective, this law seems to give greater protection to copyright holders than the Act of 1909 does.
Whereas the issue with the 1909 Act is that the sheet music was too similar, the 1976 Act seems to provide that even if the sheet music is sufficiently dissimilar from the original piece of music, if a jury were to decide that the new piece of music sounded sufficiently similar to the original piece, then it would still be copyright infringement. However, there is the fair use exception to copyright infringement. The factors used in determining if the fair use exception was met are (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion of the original work used; and (4) the effect of the use upon the market for the original work.
According to these factors, were the suit to have been governed by the 1976 Copyright Act, the outcome would remain unchanged. On factors 3 and 4 alone, the case would yield a similar result. This jury felt that there was enough similarity between the music in both songs, which would provide that a substantial portion of the original work was used. Furthermore, “Blurred Lines” used Marvin Gaye’s music to generate millions of dollars, which hurts the market of the original work and therefore, the originator of the music should have made that money. Factors 1 and 2 provide further evidence why the Gaye estate would have won, the song was properly published and copyrighted under federal law, and “Blurred Lines” used Gaye’s music as the basis for the whole song.
Whether the 1909 or 1976 Copyright Acts were applied in this case, the Gaye estate would win their case, as “Blurred Lines” used Gaye’s music without permission and was not part of the fair use exception.
Andrew
When compared to the Copyright Act of 1909, the Copyright Act of 1976 affords triers of fact a broader spectrum of considerations when assessing whether one song violates the copyright protections of another. This is because the Copyright Act of 1909 restricted those assessments to a song’s sheet music, excluding from consideration various musical qualities that are not conveyed by sheet music. As the firm’s article aptly noted, a song’s “tone, mood, style, and feel” cannot be understood from sheet music alone, and thus could not be considered by juries deciding copyright cases under the 1909 Act. The Copyright Act of 1976, on the other hand, allows juries to examine the “nature,” “character,” and “purpose” of the songs privy to a copyright dispute, inviting consideration of musical distinctions extending far beyond those observable from sheet music. It appears that all participants in this thread can agree that the 1976 Act expanded the nexus of musical considerations related to copyright infringement disputes.
What may not be so readily agreed upon, however, is whether the same copyright infringement case would be decided differently between the Copyright Act of 1909 and the Copyright Act of 1976. I would argue that because the Copyright Act of 1976 allows juries in copyright infringement cases to consider music holistically, juries would not necessarily reach the same verdict under the Copyright Act of 1976 as they would under the Copyright Act of 1909. The jury in Pharrell Williams, et al. v. Bridgeport Music, Inc., for example, determined that the song “Blurred Lines” was problematically similar to “Got To Give It Up.” This determination, however, was not based on the nature of the songs in the entirety; the jury’s verdict was instead based (at least theoretically) solely on the songs’ sheet music pursuant to the Copyright Act of 1909. While the technical aspects of “Blurred Lines” and “Got To Give It Up” might have appeared similar on paper, the stylistic and melodic differences between the songs might have convinced a jury that the holistic natures of the two works were distinguishable pursuant to the 1976 Act’s fair use doctrine. Indeed, the two songs possessed glaring differences in vocal melody and tone. These stylistic differences were so obvious that presiding judge in Pharrell Williams sustained a motion to allow the jury to hear only a stripped-down version of the songs that excluded vocals in order to focus the jury on the songs’ sheet music. This blindfolding begs some questions: would the verdict be different had the jury been able to consider the song as a whole? Aren’t lyrics indispensable to a song’s perceivable “nature?”
Although Adam, in his comment above, appears convinced that a jury would find copyright infringement between “Blurred Lines” and “Got To Give It Up” under both Copyright Acts, the differing standards under those Acts inspire very different analyses and, subsequently, encourage potentially divergent verdicts. A song is, of course, sculpted from the notes and rhythm contained on sheet music. From the standpoint of musical theory, two songs could be quite similar. However, a song is truly defined by its lyrics, mood, style, and tone. A comprehensive comparison of two songs would be wholly incomplete without careful consideration of those defining factors. Thus, a jury may find that two songs are theoretically similar but stylistically divergent. The stylistic differences between two songs may be so blatant that a jury might reasonably determine that two songs in a copyright infringement case possess entirely different “natures” under the 1976 Act.
With greater discretion comes greater possibility. The 1976 Act affords triers of fact a great deal of interpretive discretion, just as sheet music naturally affords artists substantial stylistic discretion. While the legal world will continue attempting to predictably categorize music, musical artists, through stylistic discretion, certain litigation will continue to defy those very categorizations. The 1976 Act allows juries to hear and consider those stylistic liberties, and by doing so, accommodates a far more imaginative analytical framework. It is for these reasons that the outcomes of musical copyright infringement cases under the 1976 Act are, and forever will be, both fascinating and wholly unpredictable.
Kelvin
The write-up on the copyright dispute between the Marvin Gaye estate against Robin Thicke and Pharrell Williams does a good job of highlighting the impact that case will have on future disputes involving allegations of copyright abuse in music. The case was decided on the district level and is unlikely to be appealed, meaning that the precedent it sets is binding only in Nashville. While Nashville is home to many great artists, two major regions of the music-producing United States, California and New York, remain unaffected. Still, even without being binding in those jurisdictions, this case has set a standard going forward and has woken up many artists to the potential problems that come from borrowing music.
I have actually had the pleasure of meeting the lead attorney in the case, Richard Busch, at a presentation about the case where he explained his strategy regarding how to pursue the case. As soon as he knew the case would be going to the jury, he started to tailor his evidence in order for it to be more easily understood by the lay person. As the article states, the similarities in different pieces of music can be difficult for the lay person to really appreciate. Furthermore, this case has an additional issue in that the song was submitted for copyright under the Copyright Act of 1909, meaning that only the sheet music portion was protected. This meant that many elements of the song, including the characteristics of Marvin Gaye’s voice or the type of instrument used were not protected.
With this strategy in mind, the first thing Busch put in the mind of the jury was the idea that Robin Thicke and Pharrell William thought of Gaye when penning the song. To this end, he analyzed public statements from both Pharrell and Thicke in order to find any references to Marvin Gaye and found a particularly damning one. While promoting Despicable Me 2, Pharrell Williams stated he imagined himself as Marvin Gaye as he sat down and wrote the song. He felt that the “spirit of Marvin Gaye” was in the room with him. With this piece of evidence, Busch was able to greatly emphasize any musical similarity between the two songs. Being unable to use the entirety of Gotta Give It Up was still a disadvantage, however hiring a music producer to create a mashup of the two songs, thereby showing how the musical cadences were in line, they were able to emphasize the similarities between the two songs. Busch even stated that in a way, being limited to only using the sheet music forced them to think more creatively and in the end worked out very well. Since a mashup is the combination of two songs by an artist, the more similar the songs are, the more smooth the finished mashup product is. By creating a mashup of the two songs that sounds seamless, they were able to emphasize the similarities between the two. While any listener can pick out more differences than similarities, the general idea, the ‘expression of the idea’ is similar enough to warrant a lawsuit. Although the original mashup used in court is not available, this Youtube user managed to create a mashup that emphasizes the similarities between the songs. https://www.youtube.com/watch?v=ziz9HW2ZmmY
Busch emphasized creating a narrative for the case that the jury could easily sympathize with and follow. He framed the issue as Marvin Gaye wanting his family to be taken care of from beyond the grave, that to steal from his family is to steal from him. He painted Pharrell and Thicke as profiteurs, emphasizing the amount of music they create and their businessman like demeanor. He was able to introduce into evidence a video of Pharrell at deposition,where Pharell claimed to be unable to read sheet music. In fact, in the video Pharell is visibly annoyed when the lawyer asks him to read the sheet music multiple times, saying “I am not here to teach you music” before finally admitting that he could not read it. These video snippets moved the jury to sympathize with the plight of the musician’s family over that of some music industry businessmen. And when it came to the actual music, Busch stated that having a simplified version of the song allowed for the jury to focus on what was similar with less elements that were different. By using a simpler version of the song and also mashing them up, he was able to greatly emphasize the similarities between them and ultimately win the case. (what is a mashup add a something) add a link to the mashup.
The write-up accurately states that the lines in the music industry when it comes to copyrights for musical similarity are very… blurred. Songs can have completely different feels when it comes to lyrical content and tone yet be very similar in sheet music form. Courts have been reluctant to set specific standards in regards to what qualities are important and how much quantitatively is allowed. It becomes very difficult for an artist to know whether they are infringing without legal guidance and even then it is still a proverbial ‘role of the dice’.
What the Marvin Gaye case seems to highlight for me is the nature of copyright claims and how disputes are typically handled on the basis of how big the cases are. In copyright class, we often pointed that out that there are many things that are arguably copyright infringements and yet nothing is ever done about it. For example, at comic book conventions people will sell their fan-created products, such as artwork, clothing, or accessories that are made using copyrighted products. These include blatant copyright infringements such as selling replica Wolverine claws, a hand-stitched Superman cape, or even a necklace similar to the one Rose wore in Titanic. Yet there is often very little legal action taken, despite the fact that the products are clear-cut cases of copyright infringement. And then you have this case, where the case is not very clear-cut and many different tactics needed to be taken in order to emphasize the connection between the two songs.
The difference of course, comes in the amount of money that would be gained or lost when it comes to pursuing these claims. Even a straightforward claim on an obvious for-profit fan work would not be worth it when legal fees are involved, whereas a 50-50 or even worse shot at a big payout can be worth the risk of hiring legal counsel. In a way, the blurred lines of copyright law work within its own practical constraints. With jurisprudence being unclear as to whether quantitative or qualitative copying/borrowing is more dispositive, if the overall feel of a song versus the specific exact usage is more important, or if single-artist genres should be policed less aggressively, many big cases are looked at on an individual level and emphasize tailoring to jurors. With outcomes often being unclear and uncertain, this results in lawyers being very selective of what cases they choose to pursue with a balancing act between the amount of money in dispute and the chance of success. Whereas patent law is plagued by nearly half of patent lawsuits being brought forth by squatters attempting to make a quick buck off settlements, the more vague and specific case nature of copyright lawsuits prevent such flagrant abuse. Perhaps the blurred lines of musical copyright infringement are not completely negative after all.
Many lay people disagree with the verdict in this case. Many people see it as an overreach of copyright power and that just because something is similar doesn’t mean that it is a copy. I think this reflects a misunderstanding of what copyright law is meant to protect. Although the word copy is in the title, something does not have to be a blatant copy to be in violation of copyright law. Not every copyright music case has to be something as blatant as Vanilla Ice. Rather, copyright law is about the protection of an expression of an idea, not just the idea itself. When it came to Blurred Lines, the beat or heart of the melody definitely sound very similar to Gotta Give it Up. But it’s not just that, the overall feel of the song, the groove, the style, the genre, is all very similar. A major tipping point in this case was the admission by Pharell that he was imagining himself as Marvin Gaye. Without the additional information that the jury saw, many a lay person doesn’t see the logic behind the decision in this case. Yet, combine the similar beat with a mashup that emphasizes its similarities, statements from Pharrell and Thicke admitting to being influenced by Marvin Gaye, and a lawyer who plays to the jury, and you can see how the result ended up the way it did.
Alexandra
In March of 2018, the final judgment for the Blurred Lines case was given by the Ninth Circuit, affirming the verdict that Robin Thicke and Pharrell Williams copied Marvin Gaye’s hit song “Got to Give it Up.” The five-year legal battle that gave Gaye the right to copyright a “groove” has, as predicted, sparked more copyright cases in the music industry with the issue of whether a song’s feel, groove, or aesthetic has been copied.
For example, one Grammy-award winning artist who is currently facing major lawsuits (due in large part to this decision) is Ed Sheeran. A recent suit was filed by Marvin Gaye’s estate, claiming that his hit song “Thinking Out Loud,” Sheeran copied Gaye’s “Let’s Get It On.” See Griffin et al. v. Sheeran et al., No. 17 Civ. 05221 (S.D.N.Y. Jan. 3, 2019). Relying heavily on Gaye’s previous win, U.S. District Judge Louis Stanton said that ordinary listeners could potentially see the songs’ “aesthetic appeal” as the same, looking at a performance by Sheeran which shows him transitioning between Let’s Get it On and Thinking Out Loud.[1]
Let’s Get It On was copyrighted in 1973, which means that it would be subject to the Copyright Act of 1909. As in Gaye’s 2013 case against Thicke and Williams, Let’s Get It On’s sheet music — the underlying composition of the song, and not the sound recording itself — defines the scope of copyright. Further, the Ninth Circuit recently discussed the matter in the Led Zeppelin case. Skidmore for Randy Craig Wolfe Tr. v. Led Zeppelin, 905 F.3d 1116 (9th Cir. Sept. 28, 2018). The court was persuaded by “cases that, in the context of discussing the current copyright scheme, opined that one of the purposes of the deposit requirement is to provide ‘sufficient material to identify the work in which the registrant claims a copyright.’” Id. at 1133.
The way that the Court will most likely decide this case will rest on the precedent set by Blurred Lines — with the Court stripping down Let’s Get It On of its non-copyrightable elements (such as key, meter, tempo, common chord progressions, etc), leaving behind only the copyrightable composition. They will then compare this stripped down version to Thinking Out Loud, and decide whether or not Sheeran’s song has the sufficient originality and creativity to grant copyright protection. The main disputes in the Sheeran case is whether the beginning harmony is protectable in Let’s Get it On, and whether or not it is substantially similar in the two works. The Gaye Estate’s expert opines that the chord progressions (after the first 24 seconds of Thinking Out Loud) are “extremely similar” to the chord progressions in Let’s Get It On, making up approximately 70% of Thinking Out Loud and 86.7% of Let’s Get It On.
All of this then begs the question of whether this type of analysis is fair — and whether allowing a “groove’ or “aesthetic appeal” should be copyrightable. The Blurred Lines case thinks so, but artists and lawyers on the “copyleft” believe otherwise. The main controversy is that while elements such as chord progressions and harmonies can be copyrighted, it was not until Blurred Lines that musical components like groove or feel was added to this list of copyrightable elements. These artists fear that allowing a groove or aesthetic appeal to be copyrightable is equivalent to allowing a genre to be copyrighted.[2]
A potential interesting case study would be on the disproportionate effect on rap — and thus more often artists of color. Marvin Gaye wrote doo-wop sexual anthems, and Robin Thicke and Pharrell Williams claimed that they were inspired by Gaye, displaying a parallel to the way that artists inspire each other in rap. Rap seems to already be at a disadvantage when it comes to copyright protection, as rappers tend to use a generic beat or underlying music while performing free-form spoken lyrical performance. These decisions could then further push rap to the depths of being increasingly unprotectable under copyright law.
Overall, it is extremely interesting to see the effect that this decision has had in just five years, and it is even more interesting to see how the world of copyright is evolving.
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[1] “Thinking Out Loud (Lets Get It On) by Ed Sheeran, YouTube (Nov. 20, 2014), https://www.youtube.com/watch?v=RxZjVZKVN7k.
[2] Louis Barabbas, The Thicke of It: Influence vs. Theft, Louis Barabbas (March 11, 2015), https://louisbarabbas.com/the-thicke-of-it-influence-vs-theft/.