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Polsinelli Intellectual Property & Technology Litigation
         

  

March 2015

  

Recent Developments in Copyright: Blurred Reasoning and I Won't Back Down Until You Stay with Me

  

 
 

  

     

  

 
 

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Graham L. Day

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The jury's March 10th verdict in the "Blurred Lines" case has understandably generated a significant amount of interest and attention from the public, and has also led to differing opinions from legal experts as to whether the jury made the right decision. The verdict came after a contentious courtroom battle between the track's songwriters and the Marvin Gaye family, but other copyright conflicts between artists have been successfully resolved outside the judicial system. Why do some in the legal community think the "Blurred Lines" jury got it wrong, and what should the "Blurred Lines" team have learned from Tom Petty about how to clear up a copyright skirmish without resorting to litigation?

Blurred Reasoning

In Pharrell Williams, et al., v. Bridgeport Music Inc., et al, the jury awarded Marvin Gaye's widow and children damages of $7.4 million upon finding that Defendants Pharrell Williams' and Robin Thicke's 2013 hit, "Blurred Lines," infringed Marvin Gaye's copyright in the musical composition of his classic, "Got to Give it Up." A closer look at the facts and legal issues suggests that the jury may have suffered from "blurred reasoning," and consequently reached an incorrect result.

There are two basic forms of copyright protection that apply to recorded songs: (1) the copyright in the musical work, including both: (a) the copyright in the lyrics (which was not at issue here) and (b) the copyright in the musical composition (i.e., the written notes/sheet music); as well as (2) the copyright in the sound recording (a particular recording of the song). Often, but not always, these copyrights are held by different entities. Here, Marvin Gaye's heirs own the copyright to the musical work, "Got to Give it Up," but the copyright to the sound recording of Gaye's famous version of "Got to Give it Up" is owned by Universal Music Group. Thus, the sound recording copyright was not at issue in this case, and, in fact, Judge John Kronstadt ruled that the sound recording of "Got to Give it Up" could not even be played for the jury. Instead, the parties were limited to referencing the sheet music of the song and the performance of what is embodied in that sheet music.

The distinction between (1) a copyright in a musical work and (2) a copyright in the sound recording of that musical work is significant (and Judge Kronstadt's ruling appeared to be a huge victory for Williams and Thicke) because a cursory comparison demonstrates that, while the production -- i.e., the "sound and feel" -- of "Blurred Lines" was modeled on "Got to Give it Up," the actual songs – their lyrics and notes—are not similar. Thus, while the whoops, percussion and general party atmosphere conveyed by the sound recording of "Got to Give it Up" were unquestionably mimicked by Williams and Thicke for "Blurred Lines," that was legally irrelevant for purposes of the case.

Notably, even if the Gaye heirs had an interest in the sound recording copyright for "Got to Give it Up," they would likely not have prevailed on a claim for copyright infringement. "Blurred Lines" did not sample any of Gaye's actual sound recording of "Got to Give it Up." In the absence of an actual sample, merely emulating the production elements or atmosphere of an earlier recording has typically not provided a strong basis for finding infringement of a sound recording copyright.

So why did the jury rule the way it did, when the two songs, stripped to their essence as songs and not sound productions, do not appear to be particularly similar? Short of interviewing the jurors, there is no way to know for certain. However, there would seem to be a number of potential explanations:

  1. Thicke and Williams gave interviews at the time "Blurred Lines" was released acknowledging the influence "Got to Give it Up" had upon their composition (a story that seemed to change somewhat by the time of trial -- itself a reason why the jury may have found they lacked credibility and been inclined to rule against them);
  2. Jurors may have been independently familiar with the two recordings and, despite instructions not to do so, nevertheless let their own impressions of the aural similarities between the respective sound recordings influence their decision; and
  3. The Gayes' musicologist expert witness testified that "Blurred Lines" infringes the musical composition copyright in "Got to Give it Up" -- despite her admission that she based her original opinion entirely on the sound recordings and did not even consider the sheet music for nearly a year after being retained.

Whatever the basis for the jury's decision, an important takeaway is that once any case makes it to a jury, all bets are off. Any jury can be subject to "blurred reasoning," and issues that are not the most significant or relevant – or even correct – from a legal perspective may lead a jury to decide cases in surprising ways. As the next example shows, other artists have found ways to resolve their conflicts outside the courtroom.

I Won't Back Down Until You Stay with Me

Tom Petty has not just had an enviably long and impressive career writing and performing his own material, but also something of an unintentional career as the effective "writer" of hits for other artists. Songs spanning Petty's career, such as "American Girl" and "Last Chance for Mary Jane," have produced notable doppelgängers in the form of "Last Night" by the Strokes and "Dani California" by the Red Hot Chili Peppers, respectively. More recently, Petty's publishers noted that the chorus of "Stay with Me," recently popularized by new English singing sensation Sam Smith is essentially a note-for-note copy of the chorus of Petty's 1989 hit, "I Won't Back Down." Indeed, apart from Smith's impressive vocals, cynics might assert that the main musical appeal of "Stay with Me" is entirely attributable to Petty's original melody.

While the songwriters of "Stay with Me" (Smith, James Napier and William Phillips) have professed to be unfamiliar with "I Won't Back Down," any assertion that they had never heard the song would be dubious (even if sincere) given the song's enduring popularity. To prove copyright infringement, a plaintiff must show that the defendant had access to the copyrighted work, and that the infringing version is substantially similar to the copyrighted work. Thus, the "access" portion of the test for copyright infringement likely would have been met if this matter had been litigated. Even if "I Won't Back Down" was only familiar to Smith, et al. in a subconscious sense, this would have provided no defense to liability for copyright infringement.

In any event, unlike the "Blurred Lines" dispute, both sides appear to have approached the situation with a cooperative attitude, and reached a mutually agreeable resolution without resorting to the courts. As in the past, Petty was reasonable and philosophical when asked about the similarities between the songs, noting that there are only so many notes and chords in existence. By contrast, Thicke and Williams did not "back down" and paid the price.

Summary

These two examples demonstrate how the path to prove copyright infringement in the musical industry may appear to be clear-cut, however, when artists are unable to come to an amicable resolution and must resort to litigation, it's a roll of the dice. Juries may be unable to grasp the complexities of copyright infringement within the framework of musical authorship, or unable to divorce their background knowledge of a song from the evidence they are presented. It may be in the best interest of all parties to strike a harmonious chord to overcome copyright allegations.

For More Information

For more information on this matter or other copyright concerns to your business, please contact the author or your Polsinelli attorney.

 
 

  

     

  

 
         

 

 

 

  

     

  

 
 

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* Law360, March 2014
** The American Lawyer 2013 and 2014 reports

  

 
 

  

     

  

 
 

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