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Blurred Lines: Are Music Copyrights Becoming Patents?
Without patents or copyrights, “idea space” would be a commons. “Idea space” is the realm of potential ideas. A patent and a copyright both permit their owner to declare a region of “idea space” his own private property for a period of time, but under different terms. A copyright encloses a particular expression of an idea and was originally intended to prevent, well, copying during the duration of the copyright. A patent encloses not just one particular expression of an idea, but the idea itself, declaring all other expressions of the same idea, whether they’re copies or not, off-limits for the duration of the patent. A patent is thus a much broader right than a copyright, enclosing a far larger region of the intellectual commons than does a copyright; consequently, a patent inhibits others’ right to stake their own claim in idea space much more than a copyright does.
Copyrights have been expanding. Complaints about the increasing length of the copyright period are common. More problematic, though, is copyrights’ increasing breadth. As a copyright expands to inhibit expressions which aren’t fairly obviously copies, it becomes more like a patent in its scope, enabling rent-seeking and inhibiting creativity. This appears to be happening in the music industry. In March 2015, the creators of the hit “Blurred Lines” were convicted of infringing the copyright on Marvin Gaye’s “Got to Give it Up.” This is a blow to unoriginal songwriters everywhere. Worse, it does a lot of collateral damage in the process. As a “Blurred Lines” defense attorney put it, “This ruling elevates ‘groove’ and ‘feel’ to the level of copyright infringement.” Forensic musicologists and lawyers can expect to profit from such expansion, but artists – and listeners – can expect to suffer.
It’s possible to compose many songs with the same “groove” and “feel,” none of which are copies of one another in any meaningful sense, and many of which may be worth listening to. It makes no sense to declare the first person to publish a particular musical “groove” the owner of that “groove”, entitled to a cut of the profits from music which is not, in fact, a copy of his song, but merely “sufficiently” similar according to some costly and laborious vetting process. Unlike patents, copyrights aren’t supposed to be that costly to vet.
David Friedman, in his “Law’s Order,” explains the rationale for treating copyrights and patents differently as follows:
Providing an incentive to write books or make inventions is one obvious purpose of intellectual property law. What we want however, as I have pointed out before, is not merely an incentive but the right incentive. The gain to the producer of intellectual property should be at least a rough measure of the value to other people of what he produces in order that he will bear the costs of producing it if and only if it is, on net, worth producing.
When I write a book and enforce my copyright on it, I make it difficult for another author to write the same book; although independent creation is a defense against the charge of infringement, it is, in practice, difficult to prove. I have taken a tiny bit of property out of the commons: the opportunity to write that book. But the number of books that can be written is so enormously larger than the number that will be written as to make what I have taken worthless to anyone but me—nobody else was going to write that book.
…I can ignore the effect of my copyright on the opportunities available to other writers. They lose nothing through not being permitted to write my book, since they wouldn’t have written it anyway.
The same is not true when I make an invention. The opportunity to invent something is often quite valuable, as demonstrated by patent races in which two or more teams are competing to make and patent the same invention. The first team to make the invention gets the patent and collects seventeen years of royalties. But if the second team would have made the invention six months later, the social value of the first team’s work is six months of the invention, not seventeen years. The commons that the inventor depletes is very much more depletable than the commons depleted by the writer. It follows that the gain to the inventor may in part consist of a transfer from others who might have invented the same idea a little later. So patent royalties may over reward the inventor, providing too much incentive to make and patent new invention. If so, invention becomes in part rent seeking, an expenditure of resources by one actor in order to obtain benefits at the expense of another.
Putting all these arguments together, we get a simple explanation for the observed laws. Copyright protection against literal copying creates a form of property that is easy to define, cheap to enforce, relatively easy to transact over, and subject to no rent seeking problem. Hence we give copyright easily and for a long term. Patent protection creates a form of property that is hard to define, hard to enforce, costly to transact over, and contains a potential inefficiency due to patent races leading to duplication and inefficiently early inventions. Hence we give patents grudgingly and for a short term.
If copyrights remained easy to define, cheap to enforce, relatively easy to transact over, and subject to only negligible rent-seeking, then having copyrights last longer than patents would make sense. Even under such narrow terms, we wouldn’t want to extend the copyright period to ridiculous lengths. Nonetheless, the length of copyright is supposed to reflect its narrow breadth and ease of enforcement, while the brevity of a patent reflects its much wider breadth and difficulty of enforcement. When copyrights expand in breadth as well, increasing copyright length becomes much more pernicious. Taken to extremes of length and breadth, a copyright would become a perpetual patent and an inexhaustible opportunity for rent-seeking.
“Blurred Lines” isn’t a copy of “Got to Give it Up” in any reasonable sense. “Look and feel and cowbells” does not a copy make. Listen for yourself if you’re unsure. In the meantime, though, parodies remain fair use:
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Published in Law
To be fair, Weird Al always seeks permission to use the song from the original artist before parodying… with the notable exception of a miscommunication with Coolio’s people? Also, some artists had no interest in letting him do his thing, like Prince.
That said, how can we balance the interests of the owners of IP like Mickey Mouse against the public’s interest in fair use? We’re going on a century of Steamboat Willie, and to be honest, I’d rather that Disney’s copyright on that were enforced such that they can nuke infringers from orbit. This is because their interest in keeping Mickey’s image clean from those who would surely use it in a prurient or disgusting fashion for their own profit probably outweighs the public’s interest in being able to freely use the iconography of Disney’s IP.
Hmm… I hadn’t considered the “prurient use” angle…
Groovy.
(Warning: a few bad words are in the following.)
That would be the I, IV, V, and VI chords for whatever key you start in. Is that all songs? No, but it is an awful lot.
Sorry, I don’t think the Steamboat Willie copyright should last longer than the life of Disney and the original artists who created him. A basic 20 year term should be adequate, as it is for patent holders. An additional 20 year term should be offered, but with a much higher filing fee and something like a 10% royalty tax to discourage rent seeking.
When you apply for a utility patent, the government gives you a 20 year monopoly, but you must describe the invention adequately so someone (skilled in the art) can build it. The patent is valuable if it significantly reduces costs or increases performance. And many times, the fact that an invention exists will drive other inventors to make additional discoveries. A win for all members of society.
A design patent is much like a copyright, so exact knock-offs can be stopped. In one case, a Motorola speaker box used round hole in the grill, while a competitor used diamond shape holes, and couldn’t be sued for infringement. Otherwise it was exactly the same size with only the name on the front being different.
I don’t know the law in this case, but assuming Mickey is trademarked, I think any “prurient or disgusting fashion” could be adjudicated.
Disney has already faced it. A two issue set of comic books issued in the 1970s showed Disney characters in all sorts of sex acts and drug use. It cost Disney millions. (See Walt Disney v. The Air Pirates) Later in the decade a pornographic film used the Mickey Mouse Club March for an… er… interesting scene involving birthday cake.
The most logical thing to do is enact a “use it or lose it” standard. Copyrights can be forever as far as I’m concerned as long as the company continues to make an effort to market the works to the public. If you lock it away in a vault it should fall into the public domain. If you decide Gone With the Wind is racist and you want to erase it from the country’s heritage – forget it.
I disagree I think the public has a right to own its culture more so than a company founded by the creator of the culture does to profit from it exclusively. Think how much money Disney makes from public domain IP? Are they paying Rudyard Kipling’s estate for the Jungle Book? The fair compromise is that copyright should require a renewal fee that grows exponentially. When the fee can not be paid or it is not profitable to do so the work goes into public domain. Then you can see how much trademark protection can give you to defend public imagine. But if you think there isn’t inappropriate use of Disney figures out there already? Well… we are on the internet. Need I say more?
IP is not natural property. The application of property rights to it represents an infringement on more fundamental human rights of free expression. As such it can only be done in a limited fashion and with means of compensation to the public.
Given the narrowness of copyright – or at least the narrowness that copyright ought to have – I think it’s right to have copyrights last considerably longer than patents. Nonetheless, “life plus 70 years” is a very long time – why wouldn’t it be more like “life or 40 years, whichever is longer”?
Well, that’s reassuring!
My 4th of July shirt used to be a T-shirt with a buncha Disney characters in patriotic hats and jackets standing before the Declaration of Independence. None of them was wearing pants, though, which was in its own way rather prurient.
Dare I google “Disney porn”? No, no I dare not.
There’s some great stuff for Frozen. The Incredibles gets a bit dicey. Just stay away from Toy Story.
The estate of Bo Didley should be very interested in all of this. If a ‘groove’ can be copyrighted, then so can a rhythm. And there are dozens of songs that are prime for litigation.
I know all you guys who are liking my previous comment are doing it after searching.
You google “Disney porn” so I don’t have to.
Nah. I just made that up. It’s all dicey.
Like The Song of the South (Uncle Remus) that I saw as a movie and selections from it on The Wonderful World of Disney TV show?
No idea Who you could be referring to.
You can check out this list while you’re on the bus.
Sweet, ty!
I think Mickey Mouse is better analyzed as a trademark than as a copyright. Mickey is the symbol of the Disney Company. And I have no problem with Trademark protection that lasts as long as the company the mark represents continues to exist. Copyright is a whole different deal. The purpose of copyright is to give a writer an incentive to write by assuring the writer exclusive rights to the profits from his work for an adequate period of time. Does anyone seriously believe that any writer would stop writing if he didn’t have assurances that his great grandchildren would still be receiving royalties many decades in the future? I, for one, don’t buy it.
The initial periods were much shorter when copyright was introduced. I would not cry if it were a lesser term.
While I totally agree, MFR, it sure is fun watching the “Property-is-Theft” crowd go to the mattresses over “Intellectual-Property.”
Indeed. Intuitively, it would seem right to me if copyrights lasted the length of the artist’s life, maybe a little over if the life is cut short. Above I suggested, just as a guess, artist’s life or 40 years, whichever is longer. But I don’t have a set figure in mind.
The “idea space” arguments for copyrights (when they are genuinely copyrights, not sneaky patents) should lasting longer than patent rights is compelling to me, but does not dictate that material be withheld from the public domain for generations.
“Use it or lose it” seems reasonable, but the examples cited clearly have plenty of use. Mickey is clearly in active, commercial use today as a creative and commercial vehicle, so Disney maintaining the sole right of use of that iconography seems entirely appropriate.
You have to appreciate the irony that most of the famous Disney movies were based on stories written by someone else which had gone into the public domain. Peter Pan, Cinderella, and my favorite Disney’s John Carter (c’mon – it’s Edgar Rice Burroughs’ John Carter) were all gobbled up by Disney out of the public domain. And yet Disney doesn’t believe that any of its work should ever go into the public domain.
Again, I don’t think Mickey is a good example. He is not the character that appeared in Steamboat Willy. He is the corporate spokesmouse for the Disney Company. He should be treated as a trademark, and not a copyright.
I was happy when George Harrison’s “My Sweet Lord” was dinged for infringing on The Chiffon’s “He’s So Fine.” And not just because I like girl groups.
So maybe I’m a bit strict on this issue, but it strikes me that the more pop music relies on “groove and feel,” the more one should expect to pay the price for mimicking a groove and feel. Today’s pop is sufficiently synthesized with “grooves” that it’s the cost of doing business. If you want to avoid this, write a melody.
I’m good with that as well – if we’re just talking about Mickey largely in the capacity of logos and branding. It’s all of the other characters they’ve invented or glommed onto that I am concerned with.
I don’t think writing a melody avoids this, though.
We may associate the terms “groove” and “feel” with pop music in particular, but any kind of music can be described as having a particular “groove” or “feel”.
Sacred polyphony of the Renaissance has a particular “groove” or “feel”, and while different composers’ works, when considered as a body, aren’t identical in that respect, a great many individual pieces composed by one composer could have been composed by another, if we’re judging merely by “groove” or “feel” – and many of those compositions were all melody, built merely of layers of melody intertwining with one another.
Composers, even classical composers, tend to have a characteristic region of “groove” or “feel” that they’re most comfortable working in. And these regions overlap a lot. Requiring these regions to be disjoint in order to avoid copyright infringement, even in genres as “lowly” as pop music, just isn’t reasonable.
IMO, this is anticipating a problem that has yet to exist (litigated) in some genres. I would not go so far as to say that much of today’s synthesized pop is all about grooves, but it can be close (Bruno Mars?). When I listened to the two examples in the O/P, I saw (felt?) the problem. The genre may be inherently limited, but the lack of these types of suits to date shows that it’s still possible to be “original.”