Between inspiration and infringement: blurring the lines
It seems ironic that Pharrell Williams, a self-confessed admirer of legendary musician Marvin Gaye, is now partly responsible for paying Gaye’s family $7.3 million in damages for copyright infringement.
Before a US jury decided that Blurred Lines, a song by Williams, Robin Thicke and rapper T.I, copied elements of Gaye’s 1977 hit Got To Give It Up, Williams had said “the last thing you want to do as a creator is take something of someone else’s when you love him”.
Unfortunately for Williams and Thicke, but not T.I (whose rap was cleared of liability), this is not how the jury at the US District Court for the Central District of California saw things on March 10. Just how damaging $7.3 million is when you consider the 2013 song’s sales are already worth $16 million is, however, another question.
To say the case has provoked widespread interest would be an understatement. While copyright stories do occasionally make it to the pages of national newspapers, this one seems to have demanded substantial column inches. The star-studded cast of the trial may be largely responsible for that, but the case itself has raised some interesting questions about copyright and what exactly constitutes infringement.
After Williams, Thicke and T.I earlier sought to clear themselves of any infringement by filing for summary judgment, Gaye’s family counter-claimed, alleging that eight elements of Blurred Lines infringed Got To Give It Up. These included certain hooks with back-up vocals, bass melodies, and “unusual” percussion choices. During the trial, Williams discussed the process for creating Blurred Lines and said that while it “channels that ’70s feeling, to feel isn’t copyright infringement”.
Inevitably, the decision has split opinion, but one lawyer tells WIPR that it was flawed. Charles Colman, founder of Charles Colman Law and a musician himself, says the similarities highlighted are only superficially similar or similar because they include elements common to the general genre in question.
“The parts of the songs that are similar are so because they draw on elements in thousands of different songs in the genre,” he says, arguing that Marvin Gaye practised “disco-inspired R&B” while Blurred Lines is more “heavily stripped down neo soul”.
Hillel Parness, founder of Parness Law Firm, adds that he was surprised by both the verdict and the amount of the damages.
Although an appeal has not been confirmed, Parness said he would expect one to focus primarily on whether the jury correctly applied copyright law to the facts, and secondarily on whether—in the event the infringement verdict is upheld—the damages fit the facts.
The jury’s instructions could become a contentious issue at a later stage, says Colman.
“I had a problem with them ... They were strangely worded. The test should be overall ‘substantial similarity’, but the wording uses ‘similarities’ ... There are substantial similarities between countless songs—if that was enough for infringement then many songs would be infringing,” he says.
A horrible precedent
The question, it seems, should be whether Blurred Lines gave an overall impression of being too similar to Gaye’s 1977 hit rather than having several parts that were too close to the bone.
"There are substantial similarities between countless songs—if that was enough for infringement then many songs would be infringing.”
If you believe Howard King, the lawyer representing Williams et al, the decision sets a “horrible precedent for music and creativity going forward”.
However, the reality is more nuanced. As Colman notes, the ruling may set an “atmospheric precedent” rather than a legally binding one.
“It is not as damaging as a court ruling/bench trial (by a judge); I think he [King] means a precedent in the less strictly legal sense. Yes, it does sets an atmospheric precedent about taking inspiration from people you admire, which people have been doing for centuries.
“Juries are often more easily swayed by atmospheric factors,” he says.
It is also important to remember, adds Parness, that this was a jury verdict in a very fact-specific case.
The decision’s impact for right owners also depends on other factors. Those looking to write new material may be more wary about which artists and songs they draw inspiration from, while those with older portfolios may need to monitor new creations more closely. Because right owners find themselves on both sides of these issues, says Parness, they will build the decision into the creation process and “keep this type of outcome in mind”.
Colman adds: “Copyright law is not meant to prohibit inspiration. Even if this is a tribute to Marvin Gaye, I think it’s unwise for copyright to prohibit it when the person has created something new. Blurred Lines is an incredibly successful song, although it was controversial, which could have had an influence on the jury.”
Richard Busch, the lawyer representing Gaye’s family, said he’ll be asking the court to enter an injunction prohibiting the further sale and distribution of Blurred Lines “unless and until we can reach an agreement with those guys on the other side,” but Parness says such an order is unlikely.
“I would not expect an injunction to be imposed at this time—the defendants should not be forced to choose between continuing to monetise the song and taking an appeal.”
Given his “love” for Gaye, this decision may come as a blow for Williams, but a likely appeal could mean the line between inspiration and infringement becomes less blurred than now.
