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Blurring the Lines Between Homage and Infringement

Monday, May 18, 2015 9:52 PM | Alma Robinson (Administrator)


By Alexandra Drozdova

Recently, Marvin Gaye‘s family battled it out in court with Pharrell Williams and Robin Thicke over the pop stars’ alleged infringement of Gaye’s 1977 track, “Got To Give It Up,” in their 2013 megahit, “Blurred Lines.” The family wanted a cool $25 million--a mammoth demand that would shatter the record $5.4 million payout for song plagiarism that a California court ordered Michael Bolton and Sony to pay two decades ago for infringing The Isley Brothers' "Love Is a Wonderful Thing."  The verdict was reached after eight days of trial testimony. The court ordered a remedy of nearly $7.4 million, an astonishing figure considering that the jury found that the infringement was not willful. Although this decision is being contested, it marks an important development in the ongoing debate about sampling rights and legal ownership of musical property.

Ostensibly, it would seem that copyright infringement is straightforward: either you appropriated someone else’s work and called it your own or you didn’t. In order to be found liable for infringement, two things must be proved. First, there must be direct or indirect evidence of access to the original composition. Then, if access has been established, “substantial similarity” between the original and the alleged infringing work needs to be shown. Here is where the analysis gets tricky. After all, what makes two songs substantially similar? The question becomes even more complex when, as in this case, the jury was not allowed to compare the recordings, but had to analyze the similarity of the two songs based on sheet music because, at the time when “Got to Give it Up” was created, the composer could copyright the composition but not the sound recording.

To this tune, lawyers for Thicke and Williams argued that their hit was inspired by the feel of Gaye’s music, but did not copy protectable elements of “Got to Give It Up.” 

Underlying the difficulties afflicting the legal analysis of copyright infringement within music is the nature of the art form itself. Since music is not created in a vacuum, the history of the art form reveals a spectrum--genres and styles are built upon constantly to form new ones--and it is impossible for an artist to shut out all influences when writing a new song. It is what separates the new music from the old that gives it value; yet new music must always be grounded in the familiar in order to appeal to a global audience. The connections to the past reveal a timeline of the progression of our collective musical taste throughout the years. 

Critics of the decision say that this case has blurred the line between paying homage and infringement--the line between protectable elements of a musical composition and the unprotectable musical style or groove. The concern is that this verdict will stifle artists, who will not feel as free to mine their record collections for ideas or to publicly acknowledge their influences.

On the flip side: The music industry already has a system in place which allows artists to negotiate for the use of copyrighted material. Musicians, especially in hip-hop, regularly license samples of others' songs.  Disputes over similar compositions are often settled by deals to share songwriting credits and royalties. “Like most artists, [Thicke and Williams] could have licensed and secured the song for appropriate usage,” the Gaye family has said, “This did not happen. We would have welcomed a conversation with them before the release of their work. This also did not happen.” 

At a hearing on May 1, attorneys for Thicke and Williams requested a new trial because of errors in jury instructions, improper testimony from a musicologist and insufficient evidence to support a finding that "Blurred Lines" is substantially similar to "Got to Give It Up." At the same time, the Gayes have moved to hold the record companies accountable for contributory infringement and vicarious liability, to stop the continued distribution of "Blurred Lines" and to impound works that contain the song. Alternatively, they want Williams and Thicke to hand over 50 percent of all future songwriter and publishing revenues generated by the song. Judge Kronstadt will consider these motions at an oral hearing scheduled for June 29. 

Whether or not they support the outcome of the Gayes’ case against Thicke and Williams, composers must remain aware of the risks of consciously or subconsciously appropriating material from their musical influences. The chances of facing litigation only increase with the growth of an artist’s star power.

Alexandra Drozdova is a UCLA law fellow at California Lawyers for the Arts.  


              


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