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The “Blurred Lines” Trial as Redistribution of Wealth
The “Ick” Factor
Since I do Los Angeles radio show on entertainment law, I’ve been asked by a few news outlets to voice my opinion on the copyright infringement case pitting the Marvin Gaye Estate against Pharrell Williams and Robin Thicke. But who cares about my opinion when we have Richard Epstein and John Yoo? I was thrilled when I heard Troy Senik introduce the topic on the most recent episode of Ricochet’s Law Talk podcast, but who got it right? Richard seems to be close to the age of the jurors in the case. This is the generation of “all this music sounds the same.” (Full disclosure: I’m close to joining that generation myself). John expressed the view that jurors shouldn’t even be allowed to decide these cases.
John got it right. There was no melody lifted, no lyrics, no chord progressions. It was just a successful attempt to write a song in the same genre as the Gaye hits of yesteryear. Why did the jury find infringement? Many believe that what decided this case was the Robin Thicke “ick” factor. Under oath, he came off as a tool. He claimed to be high on drugs and alcohol at key points in the story and threw Pharrell under the bus. The people I spoke with that were at the trial believed the jury thought the songs sounded just enough alike to justify taking millions from this jackass to hand over to the descendants of a saint. In other words: the verdict had a lot more to do with emotional reactions than copyright infringement. It didn’t matter who earned the money; it was all about who the jury thought deserved the money more.
Published in Entertainment, General, Law
songwriter-
Do judges know more than jurors about music?
I wouldn’t underestimate a jury.
John Lennon got sued for the opening lines of Come Together, ‘Here come old flat-top,’ because apparently Chuck Berry says those same words in one of his songs. If the most creative, innovative pop song writer of the past century can get successfully sued for being too unoriginal, anyone’s fair game.
No to judges. Let a judge run the trial. let the case be decided by a panel of qualified musicians and/or musicologists.
The full comparison is “Here come old flat-top, he come groovin’ up slowly” from Come Together and “Here come a flat-top, he was moving up with me” from You Can’t Catch Me. Probably more homage than plagiarism. The out of court settlement seemed like a reasonable solution. Instead of millions of dollars changing hands, copyright holder dropped the suit in exchange for John Lennon recording three songs owned by the copyright holder.
The follow-through was ugly and I think both sides sued each other again. The only people who got rich on that one were the lawyers.
songwriter that sounds pretty unfair to the plaintiff. A jury of a bunch of guys who are at risk of the same suit?
If I were trying that case Id certainly kick every musician of the jury.
I thought Lennon had to record a whole album of rock n roll cover songs to make up for it?
Anyway, I don’t think it was reasonable at all. Come Together is truly an original song, Lennon in no way deserved to be punished for using those lyrics. It’s a misunderstanding of plagiarism.
Now George Harrison, in contrast, really did rip off an old Motown tune on his “My Sweet Lord” chorus …
This is the Axis of Awesome 4 Chord song.
Although using similar chord progression isn’t really plagiarism – every 12-bar blues song, every country song, etc.
This Marvin Gaye similarity sounds like an homage to his style to me, sort of like in “The Loadout” by Jackson Browne when he sings
“We got Country and Western on the bus,
R & B,
we got Disco, in 8-tracks and cassettes in stereo . . . ”
and they change to each style he names for the few bars. I liked it and it never would have occurred to me that they were ripping anybody off.
You will be pleased to know then that the same progression is in Ozzy Osbourne’s Mr. Crowley. Now there’s a mash-up waiting to be made (in fact, I keep trying to make it, but my tools are so poor, yes my poor tools…). It is also found the Floorfilla’s trance anthem Anthem #1. Oh, and Pachelbel’s Canon in *cough*.
More fundamental than progressions is the idea of cadences, which I find fascinating. It’s why that comedy bit works about 40 songs from 4 chords. There are only a handful of cadences that really work as an underpinning for popular music (of all sorts of genres), and minor variations that would make a named progression seem different can be fudged right into one of the popular cadences, as Axis of Awesome has done.
Somebody’s lawyer forgot to point out that being a reprehensible cockroach of a human being, while unpopular, is not against the law.
Or perhaps the jury did not understand their own purpose. I think that is more likely, actually. I haven’t listened to the subject matter, but I agree based on what I’ve read (mostly here) that this is the sort of thing more likely to make bad precedent than restore any purported injury.
Why? Are there not musicians on both sides of the case?
One of my favorites is Roger Water’s long-standing assertion that Andrew Lloyd Weber lifted the crucial riff for Phantom from Pink Floyd’s Echoes.
I believe he is correct. Waters also kind of shrugged and said he didn’t think there was much to be done about it. I believe he is correct there as well.
True, but jurors in a field that is on trial is usually a bad idea because they have a real temptation to ignore what the expert witnesses the parties call say or even what the judge has to say, instead supplanting that with their own personal experience.
That’s why you would never put a doctor on an injury case jury or an engineer on a metal failure case.
Thicke’s attorney didn’t have any influence on jury selection?
I suppose I should be concerned about the outcome of copyright lawsuits, but I can’t help not giving a flip about Thicke having his head handed to him.
Long story short, he had to record three songs for his next album, but inspired by songs and the general nostalgia crazy surrounding “American Graffiti,” he recorded a whole album. But things got messy. Phil Spector ran away with the original tapes. Lennon recorded an album of original music in the meantime, which technically broke the deal of including the songs on the next album. The copyright holder threatened to re-file the suit. Lennon started recording the oldies album again. He sent tapes to the guy to show that progress was being made. The guy turned around and released the rough version of the songs as an album. They countersue each other. The copyright holder wins $6,795 in damages, and Lennon won $144,700.
This version of the outcome falls somewhere between “inefficient” (as Richard Epstein might call it) and cockamamie.
Only if you think making a mockery of the rule of law is comical, and that laws should only apply to people you like. I’m glad I don’t have to make a living by creating intellectual property that may have been influenced in some way by someone else.
For every composer in fear of being sued, there is one who believes he has been ripped off. So I think it would wash out.
At some point, I think it would be wise to get emotions out of the process. There are some pretty objective ways to examine the music and lyrics of a song or a record and determine if plagiarism comes into play or not.
I’m suggesting these cases be decided by a paid panel of professional experts, people who couldn’t care less who wins or loses.
All that said – there probably ain’t a perfect way to handle these cases. And so long as we are all working with the same 12 notes, there will be plagiarism lawsuits.
I don’t hear it. Sure, they’re similar in some aspects but Copyright infringement? More like Genre.
I like both songs, too. But while Marvin Gaye’s song has party-in-the-background effect, Blurred Lines has background lyrics sung as complements to the song. Was the background part of the lawsuit?
Marvin Gaye’s family should take a chill-pill. Besides, this probably caused those song sales to increase.
The only alternative to juries is to leave the decision to the type of elitist “technocrats” that we conservatives typically criticize. The jury system certainly isn’t perfect, but after 16 years in the field, I’ve come to the conclusion that it’s better than any other.
I haven’t reviewed any of the evidence, but I imagine that it included expert witness testimony on both sides, as well as the jury’s own comparison of the songs. A reversal of a jury’s “finding of fact” is quite unlikely.
Of course, if the trial judge instructed the jury to apply Richard Epstein’s “twitch test,” then the chances of reversal skyrocket.
That’s a young man’s game.
The background was supposed to be ignored, but the only thing ignored was copyright law.
Yes, juries are charged with following jury instructions and ignoring emotions and personal bias. This jury was so far off with respect to what is and isn’t “protectable” the only explanation is they went with their emotions only and moved the millions from one party to another without regard for the rule of law.
I realize that I may be in the minority on this, but I am not a fan of the shared fiction of blank jurors. It is a conceit enjoyed by people in the employ of the court.
I wouldn’t use that line, Joe. You never know when someone will claim it belongs to the estate of Çatalhüyük, sue you, and win.