Pop stars Robin Thicke and Pharrell Williams have been ordered to pay the estate of Marvin Gaye $7.2m for “copying” from the late singer. Could this case rewrite copyright law?
What’s happened?
Earlier this week, a jury decided that “Blurred Lines”, last year’s controversial hit single by Robin Thicke and Pharrell Williams, infringed the copyright on the 1977 song “Got To Give It Up”. They decided that Thicke and Williams should pay Gaye’s relatives, who own the rights to the original song, $7.4m in damages, down from their original claims of $40m.
The Gaye family have also said that they will try and get an injunction stopping “Blurred Lines” being sold, or played on the radio, until a settlement about future royalties is agreed. The duo, who received around $5m each on the song, have said they will appeal.
What were the family’s arguments?
American copyright law requires two conditions for a successful copyright infringement lawsuit. Firstly, there must be “substantial similarities” between the two works. The writer must also be aware of the original work.
During testimony it was established that Williams wrote most of “Blurred Lines”. Williams admitted that he was a big fan of Gaye and had set out to write in the style of the soul legend.
The family argued that this, along with what they saw as strong similarities, made it a cut and dried case of stealing. Their lawyers argued that were not only entitled to royalties the duo received, but also the touring income related to the song.
How did the duo respond?
For their part, the duo argued that, despite any similarities, the notes and lyrics were different (a fact that most experts agree with). A cowbell sound was excluded by the judge due to the fact that this related to the performance, not the sheet music.
This left the general ‘feel’, which is not copyrightable, as the only two things the songs shared in common. Indeed, they argued that if “feel” was protectable then a large number of today’s songs could be accused of plagiarism.
To demonstrate his point, Thicke played excerpts from a number of well-known hits by different artists that ‘feel’ closer to each other than Blurred Lines and Got To Give It Up.
So, why should we care?
Many experts are worried that the case lowers the bar on the degree of similarity required before a copyright infringement claim can be bought. Until now, it was assumed that while specific note sequences could be copyrighted, the more general stylistic elements common to a particular genre could not.
However, this verdict seems to go well beyond that interpretation. Karl Raustiala and John Springman of Slate magazine argue, for example, that it may prevent musicians “making great new songs that pay homage to older classics”.
Indeed, as Professor Tim Wu of Colmbia Law School points out, “everyone knows that the Rolling Stones borrowed their style from Chuck Berry and other rhythm-and-blues artists”.
Are these fears justified?
Experts are divided as to whether the judgment represents a serious threat to creative freedom. The Guardian’s Keith Harris argues that “in a strictly legal sense” the decision “set no precedent”. This is because it is possible that an appeal court judge may simply decide to reverse the verdict.
In Harris’s view, “the Blurred Lines case isn’t so much about the scope of copyright protection” as “the strange, unpredictable entity that is the American jury doing whatever it is an American jury does while we’re not looking”.
However, others think that even if it doesn’t change the law directly it could encourage frivolous lawsuits. Indeed, the Gaye estate is reportedly considering suing Pharrell over other songs he has written.