What Blurred Lines Verdict Means for Music Copyrights

So this happened…

Days ago, the US Court of Appeals for the Ninth Circuit voted 2-1 to uphold a controversial verdict from 2015. The verdict concluded that “Blurred Lines”, a 2013 hit song by Robin Thicke and Pharrell Williams, infringed on the copyright to Marvin Gaye’s 1977 track “Got to Give It Up”.

The Ninth Circuit Panel, which is comprised of three judges, retained the decision that states Thicke and Williams are to pay $5.3 million in damages to the Gaye estate. Clifford “TI” Harris was was cleared of any infringement, as was Interscope Records. This ruling may have blurred lines further for music makers trying to understand their copyrights.

The law

First of all, what is the law? The Copyright Act of 1976 took effect in 1978. It explains that anytime a person writes or records an original piece of music, a copyright automatically exists. Registering that piece with the U.S. Copyright Office is optional, but it can be helpful in the case of an infringement dispute.

A composition’s copyrightable elements may include melody, lyrics, rhythm, and chord progression. The piece has to reflect a “minimal spark” of creativity and originality from the composer. In the event of a trial, the plaintiff claiming infringement must prove there was “access” and “substantial similarity” to the original work by the defendant. 

The judge that disagreed

Jacqueline Nguyen is the dissenting judge in the panel, and she voiced some harsh criticism about the ruling. She stated that the majority “allows the Gayes to accomplish what no one has before: copyright a musical style. ‘Blurred Lines’ and ‘Got to Give It Up’ are not objectively similar. 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.” Nguyen also took issue with what she considered “uncritical deference to music experts.”

“While experts are invaluable in identifying and explaining elements that appear in both works, judges must still decide whether, as a matter of law, these elements collectively support a finding of substantial similarity,” she added. “Here, they don’t, and the verdict should be vacated.”

Song vs Style

Berklee College of Music professor, vice president for academic affairs, and musicologist Joe Bennett shared some thoughts with Forbes. “In our community here at Berklee, we have a concentration of 6,000 musicians, and it sent seismic shockwaves throughout.” Bennett added, “From a musicological point of view, to me and to many of the musicians and songwriters, they’re completely different songs because they have different lyrics, melodies, and chords.”

What does this mean for the industry?

Of course it’s impossible to tell how exactly this will effect music making in the future, but it’s a very interesting ruling that may result in a variety of possible repercussions. Nguyen stated, “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.”

Precedent possibilities

Many others in the music industry landscape also agree with Nguyen. They worry that this decision sets a dangerous new precedent. In 2016, more than 200 artists signed an appeal letter to voice their concerns. Signatories included the likes of John Oates of chart-topping duo Hall & Oates, Rich Robinson of The Black Crowes, and Curt Smith from Tears For Fears. The artists said in the letter, “By eliminating any meaningful standard for drawing the line between permissible inspiration and unlawful copying, the judgement is certain to stifle creativity and impede the creative process.”

What does this mean to you?

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Compare the tracks. What do you think about the ruling?

You can read the full ruling here.

2 Comments

  1. I have to agree with the dissident judge on this one. While there are similarities, I find them in the “feel, groove, mix and vocal range” Not, the fragments of song, that we consider copyright-able. (I know, not a real word, but, you get the point) Those aspects are key, chord progression, lyrics, arrangement and performance. Did Marvin Gaye actually arrange that song? Did he decide to push the cowbell that high in the mix? Probably not. They are definitely two different songs. Believe me, I want to be on the Gayes side! I hate the sampling and copying of tunes that happens regularly in pop music. But, I believe that this can set a bad precedent for musicians who admire these types of qualities from their heroes! It also puts the wrong people in charge of making these decisions. Lawyers and judges, who use “musical experts” as witness to their agenda, which is to win money. Once again, law and creativity collide. Ultimately, I think Thicke and Pharrel can afford it and doubt it will kill their careers, but, maybe it will send a message to creators and their supporters to try and find new ground in music and stop being spoon fed the same thing over and over again!

  2. It should not take long for any producer or “expert” on rhythmic percussion patterns, bass lines, guitar riffs, chord progressions, etc to conclude that the two songs in question are significantly different from each other. If each and every sound in both tracks was actually analyzed and separated into musical notes or via software, the result would be that most of the components would not match. This is an unbiased professional opinion. As a matter of fact, one of the labels that I currently work with actually worked on Marvin Gayes last concert album. I am also not a huge Robin Thicke fan, however, I still can not see where this ruling even makes sense? I presume this means that every Dance Music artist and their producers who make beats consisting of a basic “Four On The Floor” rhythm pattern in the keys of A – F – and G at 130 BPM can now go ahead and sue each other? Or how about Reggae? Reggaeton, or a Waltz?? There are only so many sounds or instruments, rhythms and tempos on planet earth that one can use without overlapping another previously released song. This song in question, may “kinda sorta sound like”…. but in this case was definitely not sue worthy. It’s a very sad day for all artists indeed.

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