Nguyen: Blurred Lines Indeed:  Did The Jury Get It Wrong?

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Wednesday, April 01, 2015

AiVi Nguyen, GoLocal Worcester MINDSETTER™

Should musicians be forced to pay royalties or give credit to predecessors simply because their new songs sound similar to old songs? If a musician outright copies an old song without permission and calls it his or her own, that person should be punished. But if a musician creates a new song completely from the heart, and that song happens to sound like an old song, should the musician have to pay? If we force artists to pay royalties every time their songs sound similar to songs of the past, are we essentially handcuffing artistic creativity?

The recent verdict in the “Blurred Lines” case has fueled this debate.

The catchy 2013 hit by Pharrell Williams and Robin Thicke, featuring rapper T.I., just has that FEELING about it, that GROOVE, like you are stepping into a 70’s dance party and you just want to do the hustle. With any big hit these days, there is a potential for claims of copyright infringement, like what happened between Tom Petty and Sam Smith over Smith’s “Stay With Me”. Here, two of Marvin Gaye’s children accused “Blurred Lines” of being a copy Gaye’s 1977 hit “Got to Give It Up.”

Unlike what happened between Smith and Petty, where the two artists came to an agreement outside of court, granting Petty some writing credit (aka royalties) for “Stay With Me,” the dispute over “Blurred Lines” actually went to trial.

A few weeks ago, a federal jury in Los Angeles found that “Blurred Lines” did in fact infringe on “Got To Give It Up,” to the tune of over $7.3 million. $4 million of that represented the licensing cost for the right to use Gaye’s song, $1.8 million was from profits earned by Thicke from his exploitation of the song and $1.4 million from Williams’ profits and exploitation. T.I. was found not liable.

Admittedly, when you listen to the two songs, there is something similar about them. Here is a mash-up: YouTube. They both have that FEELING and GROOVE about them.

However, the jury never actually got to hear the commercially recorded version of “Got To Give It Up” at trial. I repeat, the jury never got to hear the commercially recorded version of “Got To Give It Up” at trial.

Not all musical copyrights are the same. As it turns out, the Gaye family only had the copyrights to the musical composition of “Got To Give It Up,” NOT the copyrights to the sound recordings. This is an important distinction. A copyright to the musical composition protects the chords, melody and lyrics of a song, things that you largely find on the sheet music. A copyright to the sound recordings protects Gaye’s actual performance of the song with his recording engineers. A copyright to the sound recording of “Got To Give It Up” would include that FEELING and GROOVE of Gaye’s performance. Arguably, that FEELING and GROOVE are not present on the sheet music.

The judge determined that because the sound recording copyright was not at issue, comparing the actual performance recordings of the songs, which is what sparked this whole dispute, was not necessary.

The jury was only allowed to hear the sheet music of “Got To Give It Up” played on a keyboard and sung exactly as written and some stripped-down edited versions of the commercially recorded song. This means the jury did not hear parts of “Got To Give It Up” that are most similar to “Blurred Lines,” like the percussion, or Gaye’s distinctive singing style, i.e., what gives the song the FEELING and GROOVE.

In order to find infringement, the jury had to find that there was a substantial similarity between the stripped-down version of “Got To Give It Up” and “Blurred Lines.” Many musicians and experts have pointed out that stripped of the performance flair, “Got To Give It Up” shares little in common with “Blurred Lines.” Yet the jury still found that “Blurred Lines” infringed.

Legal experts speculate that the jury was confused about the elements of proving copyright infringement, which isn’t a surprise because the area of copyright law is so complex, particularly in music. At trial, Williams admitted that he was inspired by Gaye’s music and wanted to recreate that FEELING, but that he did not copy Gaye’s song. Perhaps the jury didn’t understand that being inspired by, or paying homage to predecessors, alone isn’t copyright infringement.

It probably didn’t help the credibility of the “Blurred Lines” creators that Thicke admitted to lying to the media and being high on Vicodin and alcohol throughout the recording and promotion of “Blurred Lines.”

One of the most interesting aspects of the verdict is that the jury did not find that Williams and Thicke intentionally infringed, meaning it may be pure coincidence that the two songs sound similar. This leads to the bigger question, one that goes beyond the legal realm. Should Williams and Thicke be punished if they didn’t purposely copy “Got To Give It Up,” but instead used their artistry to create a new song that just happens to sound similar?

Attorneys for Williams and Thicke have indicated that they will challenge the verdict. The final chord in this controversy has yet to be played.

Aivi Nguyen is a trial lawyer with the Law Firm of Bowditch & Dewey, LLP in Worcester.

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