Does the Blurred Lines Case Mark the End of Creativity? Penn State Law Review Online Companion Penn State Law Review

Does the Blurred Lines Case Mark the End of Creativity?

By Shani Walker.

 

The music world was shocked when a Los Angeles jury ruled against Robin Thicke, Pharrell Williams, T.I. (aka Clifford Harris Jr.), over their rendition Blurred Lines which noticeably resembled Marvin Gaye’s 1977 hit “Got to Give it Up.” The legal saga begun in August 2013, after Thicke, Williams and Harris preemptively sued the Gaye estate and Bridgeport Music after receiving threats of legal action over the overnight hit “Blurred Lines”.

Under Copyright law, an adequate showing of infringement requires: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”[i] The 1976 Copyright Act allows music to be protected under two forms of federal copyright protection. The first form of copyright protects musical compositions, which encompasses the lyrics and the written music.[ii] The second form is provided for sound recordings, which protects the exact fixation of a series of musical, and spoken or other sounds in the recording of the work. Works created prior to 1978 are governed under the 1909 Act; the act does not extend copyright protection to the act of recording. Under the 1909 Act, musical works had to be “reduced to sheet music or other manuscript form.”[iii]  Therefore, the series of musical, and spoken or other sounds in a pre-1978 recording not encompassed in a deposit copy or comparable writing would not be protected.

Williams and Thicke did not challenge the Gaye estate over their copyright ownership in the “lead sheets” or sheet music representing the lyrics that were deposited in the Copyright Office but rather they argued that the other features of the songs that appeared in the sound recordings were not protected. The estate rebuffed their assertions by claiming their copyright within the songs should not be limited to the sheet music because the songs at issue were not composed prior to the recording sessions; Marvin Gaye never wrote sheet music to accompany his songs and he lacked the musical literacy to create the lead sheets.

In March of 2015, Thicke and Williams were ordered to pay the Gay family $7.3 million for their part in the copyright infringement of the classic hit.[iv] In August 2016, Williams, Thicke and Harris filed two appeals in the 9th circuit with the intention of overturning the verdict and correcting the impact that resulted from the verdict. Their appeals centered on the fact that Gay’s classic hit, “Got to Give It Up,” was created after the expansion of the 1976 Copyright Act. They further asserted that while the judge did examine the songs prior to trial, he failed to recognize that the songs were different when compared to the sheet music, i.e. Gay’s “deposit copy” filed at the Copyright Office as explained by the musicologists before trial.[v] They further asserted the court mistakenly allowed Gay’s expert to testify about the sound recording rather than the lead sheets and play their own musical rendition based on the sound recording. Highlighting the fact that the jury was instructed to consider this inappropriate testimony in its substantial- similarity analysis without properly instructing the jury to focus only on the protectable elements under copyright law. “What happened instead was a cascade of legal errors warranting this Court’s reversal or vacatur for new trial.”[vi]

Echoing their sentiments, 212 artists, songwriters and producers ranging from R. Kelly to Earth, Wind & Fire filed an Amicus Brief in support of the appeal filed by Williams, Thicke and Harris. The premise of their support is rooted in fear that songwriters will be punished for creating music inspired by prior works. “By eliminating any meaningful standard for drawing the line between permissible inspiration and unlawful copying, the judgment is certain to stifle creativity and impede the creative process. The law should provide clearer rules so that songwriters can know when the line is crossed, or at least where the line is.”[vii]

Three years prior, many experts believed this case would be textbook due the basic nature of the case. Although Thicke & Williams did mirror many elements of the song “Got to Give it Up” when they created the “Blurred Lines” song, the sound recording was created before the 1976 Copyright Act went into effect. Therefore, those special elements within the sound recording (e.g., the tone, the feeling and the flow) were not protected. However, as the case unfolded, a myriad of unusual circumstances followed; beginning with Williams and Thicke preemptively suing the Gaye family; experts’ basing their findings on elements not covered in the copyrighted protected lead sheets; Thicke revealing he had been under the influence during the recording and promotion of the song; and questions as to whether Pharrell Williams was musically literate based on his lack of knowledge and demeanor while on the stand.

Going forward, musicians, artists, producers and publishers alike have to brace for the impact that this ruling will have on the industry. The music industry will likely reevaluate how artists express their creativity mainly fearing their “influence” or “inspiration” could be used as a basis for copyright infringement. Thereby stifling artists with two options, create a song wholly original or pay to be inspired.

 

[i] Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 1295, 113 L. Ed. 2d 358 (1991)

[ii] 17 USCS §102(a)

[iii] Williams v. Bridgeport Music, Inc., 300 F.R.D. 120, 122 (S.D.N.Y. 2014)

[iv]  http://www.rollingstone.com/music/news/robin-thicke-and-pharrell-lose-blurred-lines-lawsuit-20150310

[v] Pharrell WILLIAMS, an individual; et al., Plaintiffs/Counter-Defendants/Appellants/Cross-Appelle es, MORE WATER FROM NAZARETH PUBLISHING, INC.; et al., Counter-Defendants/Appellants/Cross-Appellees, v. Frankie Christian GAYE, an individual; et al., Defendants/Counter-Claimants/Appellees/Cross-Appellant s., 2016 WL 4528241 (C.A.9), 1

[vi] Pharrell WILLIAMS, et al., Plaintiffs-Appellants-Cross-Appellees, v. Frankie Christian GAYE, et al., Defendants-Appellees-Cross-Appellants., 2016 WL 4585013 (C.A.9), 3

[vii] Pharrell WILLIAMS, et al., Plaintiffs-Appellants, v. Frankie Christian GAYE, et al., Defendants-Appellees., 2016 WL 4592129 (C.A.9)

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