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Chilling Effect or Creative Boundaries? Full Impact of “Blurred Lines” Ruling Still Hazy

creative boundariesA decision in a copyright infringement case concerning the song “Blurred Lines” casts ambiguity on the future of expression and copyright protection in the music industry. On Tuesday, March 10, an eight-person jury in Los Angeles concluded that Robin Thicke and Pharrell Williams, the performer and songwriter-producer of the most successful song of 2013, “Blurred Lines,” committed copyright infringement by using elements of the 1977 Marvin Gaye song, “Got to Give it Up,” without proper credit.

Litigation between the parties began in March 2013, when Thicke and Pharrell sued Gaye’s family and Bridgeport Music seeking a declaratory judgment that “Blurred Lines” did not infringe on Gaye’s copyright. The Gaye family then counterclaimed. The jury awarded Gaye’s family approximately $7.3 million, and millions more in potential future profits for the song are now also at stake. The Gaye family will reportedly seek an injunction against the song, which will give them leverage to negotiate for royalties and other concessions such as songwriting credit.

Howard King, lead attorney for Thicke and Williams, said in closing arguments that a verdict for the Gaye family would have a chilling effect on musicians trying to evoke an era or pay homage to the sound of earlier artists. Attorneys for the Gaye family argued that Thicke and Williams more than drew inspiration from “Got to Give it Up,” they outright copied major compositional elements of the song.

Copyright protections give creators of artistic productions the right to control copying, publication and sale for the creator’s lifetime, plus fifty years following death. In order to prove copyright infringement, a copyright holder must prove ownership of a valid copyright and that elements of the original work were copied. Since it’s often difficult to prove intent to copy, a copyright holder can demonstrate that the work was copied by showing that the alleged infringer has access to the copyright holder’s work and that the two works are substantially similar in idea and in expression of the idea.

In this case, the judge ruled that the “Blurred Lines” jury was to only base its decision on the sheet music, meaning that the jury’s decision was based on chords, melodies and lyrics, not the actual sound of the songs’ commercial recordings.

In an article called “What’s Wrong With the ‘Blurred Lines’ Copyright Ruling,” the New York Times explored some of the shortcomings of copyright law with respect to the contemporary song making process. Especially in hip-hop and R&B, songs today are essentially built in the studio by a producer, working on some combination of keyboard, drum machine, sampler and computer program. Songwriters contribute topline melodies and conceptual ideas, and sometimes all the words. Generally speaking, at the moment of creation, there is no sheet music produced meant to guide musicians.

Time will tell how the creative process and related copyright considerations in the music industry are impacted by the ruling. Is the ruling a victory for artist copyright protection or a defeat for (lawful) creative expression? Will it have a chilling effect on artists who might otherwise seek inspiration and emulation from another musical genre or era? And will this decision be the catalyst for a flood of new copyright claims?

Our Intellectual Property attorneys understand how vital proprietary ideas and products are to a company’s- or an artist’s – livelihood. Contact one of our IP specialists today to learn how to protect and defend your great idea (before someone else turns it into a Billboard chart topper).  

Categories: Copyright, Intellectual Property

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John brings a unique perspective to Foster Swift with his practical experience as an entrepreneur, business owner, and manager.  He focuses in the areas of business, tax, intellectual property and entertainment.

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