When Your Influences Come Back to Haunt You Part 1: The Blurred Lines Lawsuit Verdict and What It Could Mean For the Music Industry

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In 2012, Robin Thicke, Pharrell Williams, and his stupid hat co-wrote a song called “Blurred Lines,” which was released as a single in 2013, and quickly became one of the best selling singles of all time despite its controversial lyrical subject matter.  I hate that song with a passion, and apparently the estate of Marvin Gaye does too, since Blurred Lines became the subject of a highly publicized copyright infringement lawsuit entitled Pharrell Williams v. Bridgeport Music, Inc. et al. in a California Federal Court.  On March 10, 2015, the jury in that lawsuit awarded Gaye’s estate $7.4 million in damages against Williams and Thicke, finding that Blurred Lines infringed on Marvin Gaye’s 1977 song “Got To Give it Up.”  While this obviously is not a dispute involving metal artists, the implications of this case are pretty far reaching, and the verdict currently has many songwriters in a state outrage on the internet.

The Claims At Issue Blurred Lines Lawsuit

The estate of Marvin Gaye owns the rights to the musical composition of Got To Give it Up.  This copyright extends to the actual musical notes of a song, and is a separate copyright from the copyright in the sound recording (i.e., the fixation of the sound on a tangible medium of expression like a tape or computer hard drive) or the copyright in the lyrics (which extends only to the words of the lyrics).  Interestingly, infringement claims based on musical compositions alone are usually difficult to prove, particularly because federal courts have long-recognized that “[s]imilarity of tone succession . . . is, to a certain degree inevitable in all musical compositions, because of the limits of the chromatic scale,” and that “originality in the realm of popular music lies within a very narrow scope.”  Hirsch v. Paramount Pictures 17 F.Supp. 816, 817 (S.D. Cal. 1937).

Williams and Thicke claimed that they did not have Got To Give It Up in mind when writing Blurred Lines, that they did not copy Got To Give It Up, and that Marvin Gaye’s estate was essentially seeking copyright protection over an entire genre of “Motown” music.  In fact, Thicke testified during his deposition that he was too high when he was in the studio to remember exactly how he contributed to the Blurred Lines songwriting process.

Since there is likely an impending injunction enjoining the sale and publication of Blurred Lines coming down from the Central District of California, I’m going to avoid linking to these songs here, and I’ll let you seek them out on your own if you are curious.  But any metal fan worth his salt who has listened to these songs knows that there have been rip offs in rock and metal music that would put the similarity between Blurred Lines and Got To Give It Up to shame.

So how the did the jury reach this result?

Well, I’m no tea leaf reader, and there was almost certainly some well-reasoned expert testimony for the jury to consider, but I’m willing to guess that their decision was swayed by statements Thicke previously made about the musical inspiration for Blurred Lines.

Thicke’s Thickheaded Interview With GQ Magazine

In May 2013, GQ Magazine published an interview with Thicke in which Thicke discussed Blurred Lines.  When GQ asked Thicke about the “origin story” behind Blurred Lines, Thicke stated that 1) Got To Give It Up was one of his favorite songs; and 2) he and Williams wrote Blurred Lines after Thicke suggested writing a song with the same “groove” as Got To Give It Up.

They call this a smoking gun in most circles.

Coupled with the fact that there were 5 women (who probably had some issues with the lyrical content of Blurred Lines) and 3 men on that jury, Thicke’s interview likely turned an otherwise winnable lawsuit into a $7.4  million judgment against Thicke and Williams.

So What Does This Mean?

At the end of the day, the Blurred Lines lawsuit is a landmark victory for rights holders, and a rather disturbing defeat for anyone in the business of writing or publishing music.

The entire history of rock and roll (and I’ll include metal within this overarching genre) has been premised on riffing on already established subject matter.  It is the cornerstone of the African American musical tradition that spawned jazz and blues music, which in turned gave rise to rock and roll, and which in turn gave rise to metal.  Every rock or metal musician stands upon the shoulders of someone, somewhere, who decided to include that “blue note” (the flat fifth in musical terms) within a pentatonic scale.  Much like the the “Mitochondrial Eve,” who is the common ancestor for all modern humans alive today, rock and metal musicians share their musical DNA with that first person to ever sing the blues–our “Pentatonical Eve,” if you will.

We don’t (at least most of us don’t) intentionally seek to copy other people’s songs.  Yet through the process of learning and evolving as musicians, borrowing from the music of others is both necessary and inexorable.   We hear something we like, we learn to play it as best we can, we learn a new way of looking at the guitar neck (or whatever your instrument of choice is), and we incorporate that style into the music we write.

Copyright law is inherently, yet understandably at odds with these notions.  It seeks to reward those who want to share their artistic contributions with the public by granting them certain exclusive rights, which is something that almost any working musician can agree with.  However, what is particularly problematic is that many elements of a song are not copyrightable in and of themselves.

You cannot own the copyright to musical key or scale, nor for a method of playing such as bending, sliding, tapping, or sweeping.  There are only 12 notes available to play in the chromatic scale, even fewer groups of notes/chords progressions that sound harmonically pleasing (assuming you don’t intend to skronk out), and only so many time signatures you can play in.  Unlike literary works, there is necessarily going to be some commonality in many songs, and particularly those songs with “pop” (verse/chorus) song structures.

But where is the line between the non-copyrightable and copyrightable elements of a song?  The practical answer is that there is none.  It’s analyzed on a case-by-case basis.  In other words, quite ironically, it is a “blurred line.”

If anything can be taken away from the Blurred Lines verdict, it is the notion that what you or others say about your music can determine what side of this blurred line the jury finds that you are on.  Put differently, this verdict tells us that artists should avoid discussing their influences, and certainly should not craft a song “paying homage” to another artist’s music either.  Historically, artists have been afforded a considerable amount of leeway in this regard.  In fact, there have been very few infringement lawsuits that go all the way to verdict, most of which settle out of court.  However, the Blurred Lines verdict may have just changed the game.

It has suddenly become riskier for bands, labels, and publishers to claim that a band’s music sounds like, or is influenced by another artist.  Now, you can either 1) avoid comparing yourself to other particular artists and risk losing out on potential fans who appreciate similar sounding music; or 2) continue to compare yourself to other artists, knowing that this could increase your potential risk of liability.

Furthermore, this verdict will undoubtedly embolden rights holders to pursue litigation against newer artists.  Can you think of a band or artist that has emerged in the last 20 years that hasn’t provided an interview about its “influences” that you can easily find through a Google search?  All of that information can be used against you in a lawsuit, or at the very least, as a veritable extortion tool in a cease and desist letter.

So what does this mean for your average metal musician? Probably not much.  Your music doesn’t make much money even assuming anyone listens to it, you’re likely insolvent, and you’re just not worth suing even if you have infringed.

What will be interesting is to see how this affects the industry at large going forward.  There are entire publishing companies with songwriters on staff who are employed for the express purpose of writing music in similar styles to particular songs that the publishing company cannot secure the licenses to.  There are also people in PR and A&R who make a living off of drawing parallels between their artists and other artists.  All of this could be affected if this lawsuit truly results in a paradigm shift in the industry.

Only time will tell how this will all play out, and I encourage you to express your thoughts in the comments section below, but the final question I will pose to you on this issue is as follows:

What rhymes with “hug me”?

Note:  This post has a lot of legalese, legal stuffs, and a few big words here and there, but you should not construe any of it as providing legal advice or a legal opinion.

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