Clearing Up 10 of the Blurred Lines: Understanding What’s Going On With the “Blurred Lines” Trial (Part II)

I wrote about five of the most important things to take away from the “Blurred Lines” litigation, Robin Thicke and Pharrell Williams versus the Gaye Estate. This week I flip to side 2 and discuss some more:

6. Was this Case Won Because Proof of Access Was So Easy?

Long before this litigation began, Thicke and Williams told reporters that they had “Got To Give It Up” in mind when they created “Blurred Lines.” To some, their admission of copying was a critical factor in demonstrating infringement. After all, copyright infringement requires access to the allegedly infringed work. If a song were composed that coincidentally sounded like another, but the composer had never heard the original song, there can no infringement. Indeed, in many copyright infringement actions over compositions, the case is tossed out because a plaintiff could not show that the alleged infringers had access to their songs. But these supposedly damning admissions were probably not the smoking guns for Thicke and Williams. Access is usually a dealbreaker in copyright composition actions because often the allegedly infringed song and its author are not well known or successful, so it’s difficult to prove that a defendant has ever heard the song. For instance, a composer recently sued Jay-Z and Kanye West over alleged infringement on their Watch the Throne album. The composer alleges that he sold his demo CDs outside of the hotel where Jay-Z and Kanye recorded the album. That’s the tenuous kind of evidence of access required when, say, your allegedly infringed song isn’t a #1 hit by one of the most celebrated soul singers of all time, and your alleged infringers don’t have a history of drawing an influence from that singer. It would have been a highly improbable for Thicke and Williams to successfully dispute access in this case. Even if they had never told the press about their intention to invoke “Got to Give It Up” when recording “Blurred Lines,” I’m not sure it would have made much difference. Would it have been at all credible if they testified that had never heard Marvin Gaye’s song? To me, it’s obvious they intended to invoke the song, and denying that would have reflected poorly on Thicke and Williams. Strategically, Thicke’s legal team likely believed the songs were not substantially similar, making the admission of access by Thicke and Williams less harmful to their case. That is, even if there had been copying, they did not copy enough of the copyrightable elements to have infringed on Gaye’s copyright. Many copyright infringement cases are dismissed on this “even if” standard, most often with infringement actions over movies. A great big graveyard of lawsuits exists where people have sued over movies they felt stole their own movies, scripts, treatments, or books, most of which you’ve probably never known about. More than one person has sued James Cameron over “Avatar,” insisting that Cameron copied their work. But the creators of “Dances With Wolves” would never do it. Access is generally an issue in these cases because the plaintiff has to prove that the defendant saw or read their work. However, substantial similarity is always a key factor regardless of access. These cases are usually tossed out because the similarities are never more than general plots, themes, and ideas. That’s what Thicke and Williams wanted – a judgment that, notwithstanding the fact that they were invoking Gaye, they took no more than ideas or styles. That’s an argument you want a judge to decide. Judge Kronstadt however, reviewed the expert opinions and decided that only a jury could make that call.

7. Did the Jury Find Copyright Infringement of a “Genre” or “Groove”?

No one owns a “genre” or a “groove,” therefore you cannot “copyright” one. Reinforcing this fact makes for good rhetoric, and shifts public sentiment back to Williams and Thicke, who some believe did themselves no favors throughout this litigation. Did the jury really find that Thicke and Williams stole a groove or infringed a genre? You’ll have to decide for yourself, but once again the key is in the jury instructions. The jury was instructed that substantial similarity consists of “extrinsic similarity” and “intrinsic similarity.” Extrinsic similarity is an objective test that asks whether the two works “have a similarity of idea and expression.” The jury was reminded that the parties’ experts presented evidence of extrinsic similarity including these elements: “The so-called ‘Signature Phrase,’ hook, ‘Theme X,’ bass melodies, keyboard parts, word painting, lyrics, rap v. parlando.” The intrinsic similarity test is subjective. It asks whether “an ordinary, reasonable listener would conclude that the total concept and feel” are “substantially similar.” This is a particularly knotty instruction when it’s part of the definition of “substantial similarity,” and yet it includes “substantially similar” in its definition. The jury instructions do not discuss genre or groove. The jurors were presented with specific elements of the songs. However, there were a couple of traps in these instructions: the words “idea” and “concept”, both things that are not protected by copyright – it says so in 17 U.S.C. 102(b). Elsewhere in the instructions, the jury is told that these cannot be protected. I tell people that they are two of the “dirty words” when enforcing a copyright. I tell plaintiffs in copyright litigation to avoid the word “idea” at all costs. Reportedly, the Thicke parties did not dispute these instructions. Nevertheless, the jury was given difficult and confusing instructions on one of the most important issues they had to resolve. Not only were the jurors faced with conflicting and detailed expert testimony, and charged with complicated instructions involving copyright issues that are difficult even for experienced lawyers to understand, they also had to reconcile what is often a challenging aspect to any action involving infringement of composition. In order to determine that a recording is infringing a composition, the decider has to listen to the recordings and conceptually separate the compositional elements. This is a mind-boggling task, made even more difficult when the recordings “sound” the same. Had the jury listened to the original recording of “Got to Give It Up,” it would have likely made their job even more complicated. Courts have been confronted with this dilemma before, most notably when the Beastie Boys were sued over a three-note jazz sample on “Pass the Mic.” The Beasties Boys properly licensed the sound recording from the record company, but not the composition. The composer and the musician were the same person, but he could sue only for infringement of the composition. A federal appeals court ultimately dismissed the infringement action, finding that any use by the Beastie Boys of the compositional aspect of the song was de minimis – legalese for “too little to bother.”

8. Is Copyright’s Long Duration to Blame for the Outcome?

Copyright’s long duration is an easy target for many. Under the Copyright Act of 1976, a copyright lasts 70 years past the life of its author. One law professor lamented the idea that Gaye’s heirs, who did not create the song, could reap its benefits: “She is the beneficiary of the idiotically long duration of copyright protection.” A copyright lasts a long time, undoubtedly. Although there are legitimate concerns and criticisms regarding the length, I think it’s fair that one of the benefits in writing a timeless song is that it benefits your children. But Gaye’s heirs are not, at the moment, the beneficiaries of copyright’s “idiotically long duration.” Gaye’s copyright is governed by the Copyright Act of 1909. When Gaye wrote and recorded “Got to Give It Up,” the song was entitled to a life of 56 years (an initial period of 28 years plus a 28 year renewal period). The length of the copyright was extended twice after that, first to 75 years in 1978 and then to 95 years in 1995. But “Got it Give It Up” is less than 40 years old, and still well within its initial, reasonable time period. The real reason that Gaye’s heirs are in control of the song is because in 1984 Marvin Gaye was murdered. If Gaye’s copyright was extinguished upon his death, as some copyright restrictionists advocate, the song would have had a copyright of about seven years, and his hit “Sexual Healing” would have lasted about two years, all because he died at a young age. The concerns over heirs receiving the benefits of their parents’ (or grandparents’) works is less about their ability to collect royalties and more about the belief that they will monetize the rights in ways that are inconsistent with what the authors would have wanted. That’s a legitimate complaint, but restricting the length of the copyright is not a realistic solution.

9. Does the Case Set a “Precedent”?

I’ve seen the word “precedent” tossed around countless times following the jury verdict, including by many who insist that no precedent has been set at all. But I think the reason for this disagreement is that people are likely using a colloquial use of “precedent.” Certainly, the verdict does not set a legal precedent. A jury verdict never sets a legal precedent. Likewise, the famous decision that found George Harrison liable for his “subliminal” copying was also not a precedent. It was a bench trial, meaning that the judge acted as a fact-finder, which is usually the role of the jury. When people say this case sets a precedent, they are referring to the effect the jury’s findings may have on today’s songwriters and performers, and whether the verdict will inspire other copyright actions over sound-alikes. A well-publicized jury verdict can certainly have an effect on behavior outside of a courtroom.

10. Did Marvin Gaye, the Songwriter, Really Win?

There’s an aspect of this litigation that I think will resonate even more than the jury verdict. Marvin Gaye, the legendary songwriter, actually lost in a significant way. If the district court’s rulings are affirmed by the Ninth Circuit Court of Appeals, then other artists and songwriters may have lost as well. As I discussed earlier, the judge ruled that the scope of Marvin Gaye’s copyright in the composition was limited to the notes in the sheet music he deposited with the Copyright Office. But Gaye did not write sheet music. He created his music contemporaneously with the recording in the studio, just like Thicke and Williams testified they did. It is only because of the complications of the 1909 Act’s registration’s requirements that he deposited sheet music. Unlike today, the Copyright Office did not permit a registrant to deposit a sound recording as an embodiment of a composition. And, unlike under the Copyright Act of 1976, the deposit was necessary for copyright protection – or at least, Gaye believed it to be based on the 1909 Act’s confusing requirements for protection. But that limitation of the copyright doesn’t reflect how the artist and songwriter actually create a song. Ironically, Thicke testified that his composition process takes place in-studio – he doesn’t write sheet music either. Today, Thicke, Williams and any other artist can deposit a sound recording as the tangible embodiment of a composition. This is why I think the New York Times Arts piece has the whole thing backwards. Although its author is right that artists create their songs in the studio, he is wrong about the so-called “generational bias.” He writes that “implicit in the case is that Mr. Gaye’s version of songwriting is somehow more serious than what Mr. Williams does.” But I don’t think he realizes that the jury considered only Gaye’s sheet music because Thicke and Williams insisted on it, over objections of the Gaye heirs. Thicke even testified that his song creation is an in-studio process, resulting in his designation as a songwriter of “Blurred Lines.” In my opinion, it is Gaye’s creation that is treated less seriously than Thicke and Williams’. But was the court’s decision correct? I think it’s flawed on this point. The court acknowledged that the copyright deposit does not necessarily limit the scope of the material protected, but then it proceeded to limit it in exactly that way. The flaw in the court’s reasoning begins on page 9 of the opinion: it relies on the standard for when a work is “published” rather than when it is created or fixed. The court added that the Gayes didn’t offer evidence that the copyrighted compositions encompassed subject matter beyond lead sheets. This means that the court ignored the in-studio process as part of the composition, and instead relied too much on the murky definition of “publication” under the Copyright Act. By ignoring Gaye’s contemporaneous contributions to his composition, the court not only delineated different standards of publication for the two Copyright Acts, but of authorship itself. This is where I think the Court is wrong, because authorship is not dependent on deposit copies. Regardless, the “publication” and “deposit’ provisions of the Copyright Act have proved to be pointless and counterproductive. On the other hand, the Gayes’ arguments regarding the scope of copyright were not helpful. The case law they cited was not on point, and the court had no trouble distinguishing it from the Gaye’s case. But were these really novel issues? Was there no precedent for the Gayes’ to successfully rely on? Based on the all the parties’ arguments, I still don’t know the answer. The court also didn’t think much of the Gaye’s expert’s testimony that the deposit copy would generally not represent the full scope of the composition. But we don’t need an expert to know that contemporary composition is an in-studio process – Thicke testified himself that he composes this way. And from the perspective of someone drawing on an older song to create a new one, the standard is highly impractical. No artist, writer, or producer is going to refer to the Copyright Office deposit copy of sheet music before using elements of a song. As a litigation strategy, Thicke and Williams’s approach made sense. It’s common for alleged infringers to challenge the validity, authorship, or ownership of the accuser’s copyrights. On the other hand, some observed that the strategy backfired, since without the actual recording the jury couldn’t focus on listening for themselves and instead deferred to the expert testimony. The outcome of the appeal remains uncertain. The Ninth Circuit might affirm the holding regarding the scope of the copyright, and then hold that as a matter of law no reasonable jury could have found “Blurred Lines” infringed. Or they could instead remand to the district court, which would be costly to all of the parties because this would require a new trial where, perhaps, only the sheet music would be introduced into evidence. Alternatively, the court could reverse the opinion regarding the scope of Gaye’s copyright, which could also a remand for a new trial. In my opinion, if everything that has happened to date stands on appeal, the most lasting impact of this litigation will go well beyond the jury’s verdict, reaching all artists and songwriters of Marvin Gaye’s era. Mark H. Jaffe is a partner at Tor Ekeland, P.C. He has represented people accused of copyright infringement for alleged unauthorized samples. Mark can be reached at mark@torekeland.com or 718-737-7264, and his twitter handle is @MarkJKings.]]]]> ]]>

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