Blurred Copyright Lines

The Marvin Gaye/Robin Thicke/Pharrell Williams “Blurred Lines” verdict is in; the hand-wringing has begun (see the selection of commentary below).

My reactions, as a non-musical copyright teacher:

1/ If musical traditions of borrowing, building, and evoking are so important — perhaps more important in music than in other cultural practices; perhaps not — then why-oh-why does the legal system hand so much power to juries in infringement cases? For copyright insiders: Would this case have been handled differently had it been pursued in the Second Circuit, where copyright defendants are reputed to have a somewhat easier time of things, rather than in the Ninth Circuit?

2/ Based solely on the information that is publicly available, it seems doubtful that an appeal of the verdict would be successful. The trial judge restricted the trial to infringement of the musical composition copyright in “Got to Give It Up,” effectively trying to prevent the jury from comparing the “sounds” of that song and “Blurred Lines.” Because “Got to Give It Up” was published as sheet music under the 1909 Copyright Act, I believe that the judge was right (had the song been protected under the 1976 Copyright Act, limiting the case that way might have been error). Maybe mistakes were made in the jury instructions? That strikes me as extremely unlikely.

3/ The popular music industry, at least the moneyed popular music industry (such as it is), will adapt and survive. Business is business; there is too much money at stake; deals will be struck. At that high level, the verdict may have distributive consequences — some people will get richer and some people will be less so — but the music will still get made, and mostly the same music. The real harm, if there is any, will lie in the “chilling effect” of the verdict on artists further down the music income food chain, who aren’t close enough to the mainstream to have cash available to be re-distributed and who can’t afford to play high stakes poker by making music without a permissions net. For them, it’s now a damned-if-you-do, damned-if-you-don’t scenario, with the ghost of Marvin Gaye in one ear and the ghost of George Harrison in the other. Even artists who try to play it safe and steer clear of the rough Williams/Thicke “did they dance too close to the” line may still fear claims, like those alleged against George Harrison (and more recently, by the Isley Brothers against Michael Bolton), of subconscious copying.

4/ More abstractly, I wonder about arguments that the copyright system is distorting some “natural” form of musicological progression, by discouraging borrowing and evolving existing themes, bass lines, vocal styles, and so forth. This isn’t sympathy for Marvin Gaye’s heirs; it’s a note that establishing a cultural baseline is difficult. Perhaps impossible. Can anyone predict with confidence what songs would be made (what music would be made — not merely songs) in the absence of copyright law? Artistic practice in any field is notoriously contingent. Who’s to say that the legal system should or should not “interfere” any more or less than broken or unavailable instruments or players or recording studios?

Why the Blurred Lines Copyright Verdict Should be Thrown Out (Tim Wu, The New Yorker)

What’s Wrong With the ‘Blurred Lines’ Copyright Ruling (Jon Caramanica, New York Times)

Squelching Creativity: What the “Blurred Lines” team copied is either not original or not relevant (Kal Raustiala and Chris Sprigman, Slate)

Ruling that ‘Blurred Lines’ copied Marvin Gaye song rocks music world (Los Angeles Times)

Why the ‘Blurred Lines’ $7.4 million verdict sets a new creative standard (Christian Science Monitor)

Copyright infringement expert calls ‘Blurred Lines’ ruling ‘nuts’ (WSMV – Nashville)