The case brought by the family of Marvin Gaye against Pharrell Williams, Robin Thicke, and T.I. for the song “Blurred Lines” has been in the news quite a bit lately. According to the verdict reached by the jury on March 10th, Williams and Thicke did infringe on the composition of Marvin Gaye's "Got To Give It Up”. What does that actually mean and what implications might it have? There are a variety of opinions on this all over the media, however, the factors at play are much more complex than some people realize, and can be difficult to grasp without a basic understanding of music copyright laws. Additionally, if this verdict stands and not overturned on appeal, it would set a legal precedent that could be equally harmful to music creators and music lovers alike.
Whether you realize it or not, the entire music business is able to exist because of copyright laws. We value creative ideas as a society and protect them with intellectual property law. The music industry is built fundamentally on two different types of copyrights each with their own rights and protections: © and ℗. These two concepts can be difficult to keep straight so stay with me. © protects the composition, primarily focused on the lyrics and melody. © is typically owned by the songwriter and publisher. ℗ protects a specific sound recording, and is typically owned by the recording artist and record label.
Here is a quick example to help understand some of these concepts: Miley Cyrus was the recording artist for "Party in the USA", and the rights to that recording ℗ is owned by her record label, Hollywood Records. The song (or composition) was written by Dr. Luke, Jessie J., and Claude Kelly, and © for the composition is owned by their publisher Warner-Tamberlane Publishing. Each of these right holders gets paid for specific actions related to the unique rights they control and are granted under copyright law.
You could make your own recording, aka ‘cover’ version, of “Party in the USA” and release it if you were so inclined. All you would have to do is pay Warner-Tamberlane Publishing (owners of the composition ©) a $0.091 Mechanical Royalty for every copy you sell and it would be perfectly legit. As difficult as it is to believe, it would even be ok for you to make your recording sound nearly identical to Miley’s because of how the laws regarding sound recordings differ from the laws regarding compositions. It is legal to ‘mimic’ a recording (sounds, instrumentation, etc.) as long as you don’t do any direct ‘sampling’ (take actual parts of the previous recording by digitally copying). In short, plagiarism of a composition © = infringement, plagiarism of a sound recording ℗ = not infringement. Confused yet?
Now that you have a 5 second overview of music copyrights, what’s the big deal about the “Blurred Lines” trial? Copyright cases very rarely go to trial, but if they do they often set a precedent that has a long-term impact on guiding future cases and the types of cases that can be brought to trial. Most cases involving music copyright infringement settle out of court with nondisclosure agreements, and, thus, do not contribute to the common law framework that shape our system. An example of this was the Sam Smith “Stay with Me” / Tom Petty “I Won’t Back Down” incident that sprung up just a few weeks ago before the Grammy’s and was settled quietly without a trial. The “Blurred Lines” trial verdict sets two precedents that are dangerous for the future of the music industry: 1) it muddles up the distinction and unique rights associated with © versus ℗, and 2) it sets a new extremely low, unrealistic standard for what qualifies as infringement of a composition ©.
Anyone who has listened to both “Blurred Lines” and “Got To Give It Up” would be able to pick up on the very similar feel and percussive grooves between the two songs. This is why an average listener not familiar with the true legal issues at hand might say; “Sure, there are strong identifiable similarities to ‘Got To Give It Up’ so there must be infringement. Right?” However, first, it is important to note that you cannot © copyright a groove, beat, feel, genre, or even a chord progression. (If that were possible each musical genre would only have about three songs in it before we would use up most of the viable options.) Second, the Marvin Gaye family members that brought the case are only owners of the rights to the composition ©. (Not the actual sound recording ℗. Motown Records owns the sound recording of “Got To Give It Up” and was not involved with the lawsuit.) Therefore, the Gaye’s only have the right to sue on infringement of melody and lyrics, not other components of the recording and production associated with ℗. Finally, as we addressed earlier, mimicking a recording is actually not prohibited by copyright law. Mimicking a composition is infringement, mimicking a recording is not infringement. Whether or not “Blurred Lines” infringed on the sound recording ℗ was in fact not even called into question in this case. The recordings are what are similar, but it is not illegal to mimic a sound recording.
So, the only issue at hand for this trial is if there are significant similarities between the compositions. The resemblance between these two compositions strictly in terms of words and melodic content are no more similar than most randomly selected songs you could pick from contemporary radio. The plaintiffs brought in a musicologist as an expert witness that pointed out similarities between the songs, however, they were elements can be found in nearly all songs of popular genres. Based on that, it appears the precedent set by this case would allow the family of Marvin Gaye to sue nearly all other songwriters that have had a hit for the last 50 years as well. This is where the problem lies for the music industry if the verdict in this case were allowed to stand on appeal. It would open the door for countless other trials that could ultimately restrict the creative similarities that popular genres of music inherently share. Also, the variety of music that makes its way to the public would then be greatly diminished. I’m betting that won’t happen based on the immense outcry from the music community since the verdict, and we will see a larger scale involvement by many record label and publisher organizations during the appeals process. Either way, hopefully you can see the issues surrounding this case are much more significant and complicated than they may appear at first glance.
