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Has “Blurred lines” blurred the line in copyright infringement?

Has “Blurred lines” blurred the line in copyright infringement?

Published: 04.06.15 at 15:48

Not long ago we have been bombarded with articles in the news regarding the "Blurred Lines" verdict.  But is the decision as fundamental and critical for the creative world as it has been presented by the media?  Will this signal the opening of the floodgates to all frivolous and vexatious claims and thus stop the evolution of the music industry? 

Definitely not.  Copyright law does strike a fair balance between creativity and protection of copyright works.  Although the case has attracted a lot of publicity and many have criticized the fact that it has dramatically widened the scope of copyright protection, it needs to be stressed that the verdict does not set any precedent as it can easily be overturned by an appeal court.  But how did we end up with this verdict?

Setting the Background

In August 2013, Pharrell Williams, Robin Thicke and Clifford Joseph Harris had filed a lawsuit against Marvin Gaye's family and Bridgeport Music.  They sought a declaratory judgment that the "Blurred Lines" song did not infringe copyright in Marvin Gaye's song "Got to Give it Up".  While one would expect them to be in a defendant's position, they have actually chosen an aggressive way to deal with the threat of litigation. The Gaye's family then countersued.  Finally, a jury in the US District Court decided to award the estate of Marvin Gaye $7.4 million in damages and account for any profits they made. Williams and Thicke were found liable for copyright infringement but Joseph Harris and the record labels were not.

Taking the route of litigation

Though it is unusual to ask for a declaratory judgment, it seems a good tactic when it is clear that one cannot avoid litigation.  It puts the party claiming in the driving seat.  On the other hand, it means that the party will go public and reveal essential confidential information or commercially sensitive facts about their business or practices.  For example, during the trial, Thicke claimed that he was intoxicated when he recorded "Blurred Lines" and that he was barely involved in its production. In addition, all the information regarding the financial profitability of the song and how the profits were distributed between the parties also came to light. 

There is no doubt that litigation is highly risky. It might harm the reputation of the parties and it can be very difficult after a trial to overcome the damage that has been done. The creators of Blurred Lines have been seen publicly to 'lose' and this is something they would have wanted to avoid.     

Usually, a negotiated settlement is preferred in disputes in order to keep the whole issue confidential, avoid massive legal costs and harm to your popularity amongst your fans.  It seems that both parties had Initially entered negotiations but no settlement could be reached.  Agreeing a settlement can be an extremely difficult task, especially in this case since "Blurred Lines" was a huge success and returned massive profits to its creators.  In such circumstances, both parties must be willing to make compromises in order to reach a settlement.   

The verdict which spread controversy within legal and musical circles

Undoubtedly, litigation is very unpredictable sometimes, particularly, when the case is heard by a jury as it is the case in the US.  In such cases, the judge gives directions to the jury on which the jury later relies to a reach a decision.  It seems that in the Blurred Lines case, the judge gave some poor instructions as to what constitutes copying in copyright law.  Furthermore, it is questionable whether a jury comprising individuals with no legal background, especially in such a high-profile case can understand and appreciate the complex concepts of copyright law.  Even trained lawyers, who are not experts in IP law, will find it difficult to differentiate between a different way of expressing an idea and the copying of a substantial part.  It is worth noting here that if the Blurred Lines claim was brought in the English courts, the case would have been decided by an experienced IP judge rather than a jury.   

The main concept underpinning protection of copyright is that "copyright will not protect an idea, but only a particular expression of an idea".   What matters is not whether an idea has been copied as ideas do not give monopoly rights, but whether the expression of an idea has been substantially copied.  Although the two songs sound similar in feel, style and rhythm there are no detailed similarities to focus on when comparing the two works. 

Another point to make is that in the US all published works must be held on file by a registry to demonstrate copyright ownership and to be able to bring proceedings.  At the time Gaye's song was made, registration of a sound-recording was not available.  Thus, "Got to Give It Up" could only be protected as a sheet music and not as a sound recording.   As a result, the jury found only the authors of the composition liable for copyright infringement as evidenced in the sheet music and excluded from liability the publishing company which produced the sound recording.  This procedural complexity might have made the task of the jury much more difficult when they were asked to compare the two works.   

In contrast, copyright in UK arises automatically and there is no registration needed. If the case were heard in UK "Got to Give it Up" would have qualified for copyright protection as a musical work, as a literary work (lyrics) and as a sound recording.  In other words, the analysis of the songs would have focused on both transcriptions of the actual sound recordings as well as the sheet music.

What comes next?

Gaye family has already filed an injunction to stop the sales of the "Blurred Lines" song in order to negotiate future revenue shares with the other party.  They have also filed another motion asking for record companies to be held responsible for aiding the infringement.  Meanwhile, the losing party plans to appeal the jury's verdict.   It seems that both parties intend to continue their battle and it will be extremely interesting to see what the final outcome will be. 

Certainly, this is not the first case regarding copyright infringement and it should not be considered as setting any precedent just because it involves high profile parties.  It needs to be taken into account that the outcome could have been different if the case was heard in UK as certain particularities of the US copyright system might have affected the outcome of case. 

The question of whether "Blurred Lines" is a homage or infringement of "Got to Give it Up" is a question which has to be answered in the courts following the tests laid down both by common law and statute.  What one subjectively believes is similar might be different from what is considered infringement under copyright law.

This article was written by Chara Charalambidou, a law student at BPP University Law School. 

Photograph by Alex (some rights reserved)

 

Please note that this article discusses the legal position in the UK at the time of publication. It provides general information only but is not to be regarded as legal advice. You must take advice from a specialist lawyer in relation to your specific circumstances. Further, you should seek additional legal advice when dealing with parties based in other parts of the world or works originating from other parts of the world as the legal position may vary.

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