Will 'Blurred Lines' bury artistic freedom?

On March 11, a federal jury in California awarded $7.4 million to the three children of Marvin Gaye, finding that musicians Robin Thicke and Pharrell Williams copied the late R&B icon's 1977 hit "Got to Give It Up" when they wrote their smash hit "Blurred Lines." The jury made this award despite a pre-trial ruling preventing the jury from hearing the entirety of Gaye's actual original recording and instead allowing each party to submit its own mash-up of a narrow universe of certain elements of the song found in the copyrighted sheet music for the jury's comparison.

The verdict, with the odds seemingly stacked against the Gaye estate, could redefine what copyright infringement means for recording artists. A jury was permitted to render a multi-million dollar damages award by listening to and comparing similarities between bits and pieces of two songs in a piecemeal fashion, edited by competing teams of lawyers and expert musicologists, designed to isolate protected from unprotected copyright protected elements. These uncharted intellectual property waters may not be resolved for some time as the case goes up on appeal.

The verdict is precedential because, previously, it was generally understood that paying homage to musical influences by evoking a "sound" or "vibe" or "feel" or "genre" was an acceptable, indeed commonplace, way of conducting business and showing respect for one's musical idols. But the verdict has cast doubt upon where the line exists between showing homage and copyright infringement - and it's unclear how far the chilling effect upon the artistic and creative expression and integrity of recording artists may reach.

But the immediate question is: Is the decision a rogue wave on the historically calm seas of intellectual property music law, which rarely see cases of this ilk reach a verdict, or does it signify a sea change in intellectual property music law, and music recording industry business practices, in particular?

Sheet Music Only, Please

The case involved a specific issue: substantial similarity between the song "Blurred Lines" and copyright-protectable elements embodied in the U.S. Copyright Office registered sheet music for Gaye's "Got to Give It Up."

Initially, the trial judge refused to allow the jury to listen to any of Gaye's song, fearful they might be influenced by elements not covered by copyright and improperly consider them for substantial similarity and copyright infringement purposes. In a well-intentioned move, presumably designed to level the playing field, the trial judge then shifted course and decided to allow each party to submit mash-ups - i.e., edited compilations - of Gaye's song consisting of only the copyrighted elements found in the sheet music. Still, the judge's pre-trial ruling had effectively eliminated five of the eight alleged similarities, and continued to limit the jury's consideration to only what was in the written composition, not the sound recordings.

There is little question the songs sound somewhat similar in terms of falsetto lead vocals, bass arrangement and percussive choices, as well as background party noise and vibe - but none of these elements are found in the copyrighted sheet music, which was the jury's only subject of comparison. To establish copyright infringement, the Gayes relied on expert testimony as to similarities in signature phrase, hook, keyboard-bass interplay, lyrics and theme. And to the surprise of many, including this author, they prevailed.

Why a Jury Trial?

Cases involving allegations of music copyright infringement are commonplace. Historically, out-of-court settlements are the norm. Full-blown jury trials and mult-million dollar damages awards are rare. One explanation why the Blurred Lines case went the distance could be that it involved a "perfect storm" for a music copyright infringement claim trial on the merits.

In the ramp up to trial, the Williams/Thicke camp was clearly winning the legal war. The judge's pre-trial ruling - limiting the Gayes' allegations to only three elements in the sheet music - coupled with legal precedent and industry practices which had long found that similarities between "sound" or "vibe" or "theme," as opposed to things like melody, do not constitute infringement, rightfully emboldened Williams and Thicke to think they would prevail.

The Gayes, on the other hand, were aware they were attempting to vindicate the rights of a beloved, deceased musical icon, slain by his own father. If there was any wiggle room for a jury to sympathize with a party, the scales might tip in their favor. By allowing some of the sound recordings to come into evidence, even in edited fashion, the jury may have been given the room it needed to find for the Gayes.

Moreover, a bell cannot be unrung. Given the popularity of both songs and the artists, many jurors likely were familiar with both works and made their own layperson's comparison of the original recordings, conflating elements in the copyrighted sheet music with unprotected elements.

Industry Impact

Music is the soundtrack of our lives. That one jury verdict will or could meaningfully dissuade artistic souls from paying homage to their musical influences and the sounds they love is, well, extreme. Not to say the verdict will have no impact.

In the short term, a proliferation of plaintiff-side cases and counsel looking to establish a cottage industry seeking quick settlements - that is, by alleging infringement based on nontraditional grounds like similar "feel" or "sound" - is one likely ripple effect. Record producers will be more careful about contacting copyright owners if there is even a tiny resemblance between two songs. They likely will seek licenses upfront more often, and show greater willingness to pay high royalty rates to self-insure against infringement claims down the line.

Further, the lines of communication between in-house legal and the creative departments at recording companies will increase and - whether the two sides like it or not - they will need to work collaboratively to protect the best legal and financial company interests without compromising the creative freedom and expression of artists - the lifeblood of any successful record producer or company. A difficult and delicate balance to achieve.

Regrettably, lost in the shuffle of all this legal wrangling is the talent of three great musicians: Marvin Gaye, Pharrell Williams and Robin Thicke. I'd rather their names be associated with the records and songs they create than some big intellectual property case that gives lawyers, like myself, something to think about.