Event Recap: Copyright Infringement in the Music Industry Post-Blurred Lines

Speakers:

• Aaron Moss, Partner, Mitchell Silberberg & Knupp LLP
• Stephen M. Doniger, Partner, Doniger/Burroughs PC
• Owen Seitel, Partner, Crown LLP (moderator)

By Sara Pelayo, Student Reporter

Speakers Aaron Moss (Partner, Mitchell Silberberg & Knupp LLP) and Stephen M. Doniger (Partner, Doniger/Burroughs PC) were joined by moderator Owen Seitel (Partner, Crown LLP) in a spirited discussion on the developments that occurred since the controversial $7,000,000+ Blurred Lines infringement judgement.

Williams v. Gaye

The Blurred Lines case is not a stranger to those in the music industry. This case involves the Marvin Gaye estate suing Pharell Williams and Robin Thicke for copyright infringement over their song “Blurred Lines,” claiming they copied portions of songs like “Got to Give it Up.” An eight-member jury verdict held that “Blurred Lines” unlawfully copied portions of Gaye’s songs and found the two songs to be similar. Damages were set at $5.3 Million and Williams and Thicke were ordered to pay half of the future songwriter and publishing royalties of “Blurred Lines” to the Gaye estate. This decision was upheld on appeal in 2018.

The discussion started with how atypical this case was because the two works did not share notes, melodies, or chords. The songs also had different structures and lyrics. Despite this, the jury did find something similar with the two songs, and Doniger agrees with the jury. Ultimately, the verdict rested in the overall feel/groove of the two works, not the copying of any specific melodic or harmonic passages. While the appeal did not grant broad new copyright protection for a musical style, there is heavy criticism on the court’s decision to allow case precedent for such an effect. This decision definitely “blurred the line” between ideas and protectable intellectual property.

Essential to the verdict of the case involved the musicologists brought in and the arguments presented by each party. Pre-1972 sound recordings were not protectable under copyright law, so they were not included in copyright deposits. Because of this, the jury was not allowed to compare the two songs’ sound recordings. Plaintiff’s expert Judith Finell’s testimony was admitted by implication, stating the songs had a “deeper constellation” of similarities that made the songs substantially similar in melodic, harmonic, and rhythmic structure. On the other hand, Defendant’s experts included Sandy Wilbur, who denied Finell’s testimony, Dr. Arthur P.G. Howell, who argued the groove in “Got to Give it Up” was not original enough to be protected, and Professor Joe Bennett, who performed a note-by-note analysis between the two songs to show the differences. Moss and Doniger spoke more on the jury’s decision, wondering if it was due to trial judges as gate keepers or the power of musicologists to persuade.

Cases Since Williams v. Gaye

After their discussion of the Blurred Lines case, Moss and Doniger spoke about other infringement cases that have been decided since then. The first case discussed was Skidmore v. Led Zeppelin, where a 5-note melody was thought to be similar. Since the plaintiff’s song was registered under the 1909 Copyright Act, the jury was limited to a one-page deposit copy of the sheet music. Without hearing the sound recordings, the jury found a lack of substantial similarity. Moss and Doniger then discussed the Ninth Circuit’s abrogation of the “inverse ratio” rule. Put simply, the rule states that the more evidence of access you have, the less evidence of substantial similarity you need. Doniger believes this case was very similar to the Blurred Lines case and that the rule plays a big part in these cases. He talked about an interview with Robin Thicke where he discussed the topic of reverse engineering as well as the idea that the rule can work in the opposite direction. Moss agreed and continued the discussion on the danger of the jury instruction of subconscious copying, saying there is danger in a jury hearing that rule and having their verdict swayed to one side over the other. Other cases discussed were Structured Asset Sales v. Sheeran, between popular songs “Thinking Out Loud” and “Let’s Get It On,” as well as Gray v. Hudson, which involved Katy Perry’s “Dark Horse.” Since musical works are  difficult to compare, Doniger and Moss believe that having a musicologist on a music case is a requirement. They spoke about how musicologists play a big role in swaying a jury’s decision and offer the idea of court-appointed experts instead of experts hired by each party.

How to Decide to Take on a Music Case

Moss and Doniger then discuss some things to consider when deciding to bring a music infringement claim. First, you should confirm your client’s ownership of the copyright. This includes inquiring whether there are any co-authors, if the rights were transferred, or if the work is a part of the public domain. Second, you should review the case with a musicologist. They can provide insight on any compositional and/or aural/visual waveform/spectrographic/ENF analysis. Third, you should confirm the copyright registration of the work. This includes making sure the correct forms are filed with the Copyright Office (Ex. Form PA for a composition or Form SR for a performance and production). Moss and Doniger discussed Richardson v. Karhbough, in which the plaintiff lost a clear infringement case because both he and his lawyer failed to realize his work was not registered properly. Fourth, you should conduct an initial damages analysis. Music cases are not settled quickly and are usually more heavily litigated, so a damages analysis is needed to decide if the case is worth pursuing. Finally, Doniger states that music is inherently a selection and arrangement of elements, and without this argument an expert can have leverage on your claim. Moss adds with caution that going this route may leave you vulnerable to conceding that you have unprotectable elements within your work. Moss places emphasis on arguing in a way that makes the claim cohesive, painting the picture of how it all works together.

Hot Topics

To close the discussion, Seitel asked Moss and Doniger their takes on some other pressing issues in the music industry. The first question asked was “what is the value and utility of prior art?” Doniger believes that there is a tendency to treat prior art as the end-all-be-all to copyright cases but they should be given more importance and significance in copyright cases. He provides the argument that “original does not mean new.” Moss counters and believes that copyright cases fall somewhere on a spectrum and that prior art does not have as much significance so long as the new work is a product of an individual’s own efforts.

The second question discussed is whether beats/rhythms are copyrightable? Recently, the Reggaeton music genre has been on the hot seat in court on the sole question of whether a rhythm is sufficiently original to be copyrightable. On one hand, Doniger believes beats are protectable. He drew the comparison of drawing a single circle, which is not protectable, to then create a whole painting including the circle, which would be protectable. On the other hand, Moss believes that a basic rhythm is like a building block, and questions if these blocks, taken together, are protectable or not. Regardless of what side you take, this case will be certain to lead discussion on the future of music law.

The final question asked was “is traditional musicological analysis Eurocentric? And if so, is it a problem?” Musicologists are trained on western/classical music, which places a high value on harmony and written scores. Modern music today, however, has grown and even moved on from this style. For example, some styles may place emphasis on different elements like rhythm, texture, or improvisation that is just not captured in a traditional score. Musicologists today have expanded their analysis to understand how Eurocentrism has influenced the music being analyzed. If your case doesn’t fall within the western/classical genre, this could be an issue.