Friday, December 25, 2015

The $5 million 'Blurred Lines' legal fight over the song's 'vibe' could permanently change the music industry

Written by Paul Schrodt — From the outside, the "Blurred Lines" lawsuit involving the family of Marvin Gaye, Robin Thicke, and Pharrell looks like a textbook copyright case.

In 2013, Gaye's family — protectors of a universally beloved soul artist — sued Thicke and Pharrell along with their label, Universal. The family alleged that the artists had copied Gaye's "Got to Give It Up" in their summer hit "Blurred Lines."

Pharrell was dismissive in testimony, Thicke admitted to being high and drunk during the recording and promotion of "Blurred Lines," and the artists contradicted each other — none of which looked good.

The final judgment, handed down just this month after lengthy disputes, gives the Gayes $5.3 million and 50% of the song's royalties for copyright infringement, one of the largest damages awards in music-copyright history.

The Gaye family won, but for those within the music industry, the ruling looks like anything but a clean victory. If it stands, its consequences could have far-reaching and potentially troubling effects on artists who are nothing like Thicke and Pharrell, changing how new music is made and released and who really gets to own it.

A new legal precedent

The jury decision in the "Blurred Lines" case defies the traditional legal understanding of music copyright, according to a number of legal experts. In the past, you've generally had to show that a song copied a series of notes, as in a melody or a set of lyrics, in order to prove copyright infringement. The problem is "Blurred Lines" doesn't rip either of those from the Gaye song.

Instead, it has a "vibe" close to that of "Got to Give It Up," owing to their similar rhythm pattern and certain production choices like voices murmuring in the back of the mix. And vibe was not something you used to be able to put on trial.

"I think that saying that Pharrell and Thicke were inspired by a genre or a feeling that they gleaned somehow from Marvin Gaye is definitely new territory in copyright infringement," Josh Kaplan, a lawyer and manager of musicians, told Business Insider. "They were taking testimony from both Pharrell and Thicke saying that they were inspired or they wanted to come up with a sound similar to [Gaye], and that's a stretch."

Nearly all popular music borrows from what's come before. Even when new genres emerge — like, say, dubstep — they are usually riffs on previous templates. Thicke has never hidden the fact that he's inspired by legendary R&B singers, Gaye among them. Only now has he had to pay millions for it.

Kaplan isn't convinced, however, that the "Blurred Lines" case will do anything to dissuade artists from their usual creative practices.

"I think that it makes lawyers and managers super nervous, and it probably makes publishers a little bit more nervous, but artists, no," he said. "It's impossible to remove all of the music that's in an artist's head before they go into the studio. You can't do it. If you somehow put that constraint on an artist, you're killing all of the creativity."

More 'Blurred Lines'-style cases to come

Instead, Kaplan envisions a new wave of litigation a lot like what happened with "Blurred Lines": a massively commercial song emerges, someone notices a similarity, however vague, and another copyright holder calls it plagiarism.

"I do see there being more cases like this, saying that you were influenced by or clearly talking about or going after this type of genre," he said. "I think there are entrepreneurial lawyers out there who see that there are different types of lawsuits now than there were 10 years ago. So you could find aggressive attorneys and publishers and labels that think that a song might have been influenced filing lawsuits or sending demand letters."

There's little that publishers, which represent songwriters and make sure they get paid, can do to prevent this. They already ask musicians to sign indemnifications that say a song is 100% theirs. Those boilerplate agreements could be expanded to say that a song isn't influenced by anything else, according to Kaplan, but that's about it.

Recent music-copyright suits are already starting to look more like the Gayes', if on a smaller scale. Usually disputes between major artists are handled out of court, Kaplan says, as when Sam Smith gave Tom Petty partial credit and compensation for "Stay with Me." The Weeknd was recently hit with a suit alleging that his song "The Hills" improperly samples a film score and points to a Twitter conversation for evidence.

Los Angeles-based musician Jesse Graham sued Taylor Swift after he watched her perform "Shake It Off" on "Ellen" and noticed a lyrical resemblance to his own "Haters Gone Hate." Graham, who is still pursuing his case against Swift after a judge recently dismissed it, believes that the accessibility of music online gives major artists the opportunity to pilfer from more places.

"Celebrities feel like they can just borrow and use anybody's thing for free," Graham said. "Just because somebody's not on Hot 100, you can't say nobody's ever heard of their song or their music because they could have 100,000 followers."

Of course, the internet also gives us the tools to more closely analyze songs and discover what sounds like something else where we wouldn't have before. In the court of public opinion, at least, the Gayes' argument was bolstered by cleverly edited mashups of "Blurred Lines" and "Got to Give It Up."

The final decision

Even after more than two years, the fight over "Blurred Lines" isn't over. The Gayes' side feels vindicated, maintaining that the case is not simply about "a groove."

"It was about the copyright of 'Got to Give It Up,'" their lawyer told The New York Times.

But the legal team for Thicke, Pharrell, and Universal aren't leaving it at that. They believe that something larger is at stake. They've promised to keep defending themselves and filed their appeal last week. They've brought in extra attorneys more seasoned in appellate law to help them.

The appeals process, according to Howard E. King, a lawyer for the "Blurred Lines" side, could take between "about 18 months to two years." If the appeal reaches a judge well-versed in copyright law, Kaplan thinks that it has a "pretty good shot" of going a different way.

King seems to agree, even if the odds of overturning a ruling under appeal are against him.

"We're highly confident this one is so wrong it will be overturned," he said.

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