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.
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.”
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.