Pharrell Williams and Robin Thicke had a certified hit on their hands with 2013’s “Blurred Lines,” a Billboard Song of the Summer that seemed to many listeners to borrow from Marvin Gaye’s quintessential 1977 hit “Got To Give It Up.” Of course, Pharrell and Thicke disagreed with that sentiment, and the copyright issue sent them to court against the Gaye estate. Twice.
Today, the Ninth Circuit Court of Appeals sided (in part) with a lower court by stating that “Got to Give It Up” was “entitled to broad copyright protection because musical compositions are not confined to a narrow range of expression.” The court confirmed that Gaye’s estate is entitled to 50% of all royalties from that song forever. It also found that the rapper T.I., who contributed one verse, wasn’t personally liable in the case and is not responsible for damages. (The original 2015 finding hit the musicians with a multimillion-dollar judgment, which preceded this most recent appeal.)
This latest ruling is major.
With the Circuit Court finding in favor of the Gaye estate, it means that artists might consider erring on the side of caution and extreme due diligence when it comes to the forces that lead to song or beat creation. It won’t be enough to just say that someone inspired a groove. All grooves must be acknowledged on paper, permissions asked and licensing granted before the song gets published. If the grooves are too similar, it could be considered groove theft.
Though some artists will say this is the end of copyright law as we know it, the attorney for the Gaye estate posits that it does not. The next issue then becomes where do we go from here? Because it’s mighty difficult to listen to Stevie Wonder, Marvin Gaye and Dionne Warwick your whole life and not in some way be inspired by their music in a way that might meld with or influence your own original works later in life. Barring outright theft, if the music even hints at someone else’s original composition, is it a good idea or even possible for an artist to be 1000% sure they didn’t inadvertently borrow someone’s groove?
As such, this updated ruling is causing reverberations throughout the industry. And, according to a Berklee musicologist, it could mean that more musicians turn to musicologists for help.
“In our community here at Berklee we have a concentration of 6,000 musicians, and it sent seismic shockwaves throughout,” says Berklee College of Music professor, vice president for academic affairs and musicologist Joe Bennett. For this case, he stresses the importance of understanding the difference between a sound recording and the musical work in terms of copyright. “From a musicological point of view, to me and to many of the musicians and songwriters, they’re completely different songs because they have different lyrics, melodies and chords.”
Bennett has recently been hired to help make sure that an artist’s creation does not unduly or unwittingly reference another’s work to the point of copyright infringement. As for “Blurred Lines,” Bennett in 2014 wrote a note by note comparison of both songs in question. “What they have in common is indicative of the time period, he adds. “ If my favorite artist uses a cowbell and I use one too, can you copyright the cowbell? Both are arguing that their side is good for creators. That’s why so many of the young songwriters are concerned. What’s the threshold? How much can I be influenced by my favorite artist?”
The ruling is interesting for other reasons as well. That’s because the song was excellent and will continue to garner streams and spins, so Gaye’s family stands to profit considerably from the usage and future usage if the song continues to circulate. And to further elaborate on T.I.’s involvement, Clifford Harris Jr. is likely very happy to be removed from liability in the whole mess. Specifically, the ruling states there is “no evidence showed Harris was vicariously liable,” which means T.I. doesn’t have to cough up any cash for damages.
Los Angeles-based entertainment, sports and business attorney Adia Z. May says the ruling is disappointing.
“We are delighted with the Ninth Circuit’s decision. It recognizes that the jury properly found that ‘Blurred Lines’ copied Marvin Gaye’s groundbreaking 1977 hit ‘Got to Give It Up,'” said Richard Busch, an attorney for some of the Gaye family members. He added, “It doesn’t change copyright law. The ruling was made based upon established precedent that had been in place for years. People have different views of the evidence and people have different opinions but that’s what our system is all about. The jury heard all the evidence and ruled in our favor. The district court found there was more sufficient evidence, so did the majority opinion.”
Meanwhile, Pharrell, T.I. and Thicke issued a statement about the ruling hurting the future of music:
While we respect the judicial process, we are extremely disappointed in the ruling made today, which sets a horrible precedent for music and creativity going forward. ‘Blurred Lines’ was created from the heart and minds of Pharrell, Robin and T.I. and not taken from anyone or anywhere else. We are reviewing the decision, considering our options and you will hear more from us soon about this matter.
And Jan Gaye, Gaye’s ex-wife and the mother of Nona Marvisa Gaye and Frankie Gaye, said the following:
This is a wonderful recognition of Marvin’s creativity and the lasting value of one of his greatest songs. Pharrell and Robin should have done the right thing by licensing Marvin’s composition and crediting him. This is a victory for the rights of all musicians.
Experts are not ruling out some sort of renewed appeal, with many pointing to the thoughts of dissenting Judge Jacqueline Nguyen, who wrote as follows:
The majority allows the Gayes to accomplish what no one has before: copyright a musical style. ‘Blurred Lines’ and ‘Got to Give It Up’ are not objectively similar. They differ in melody, harmony, and rhythm. Yet by refusing to compare the two works, the majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.
SOURCE: Forbes – Adrienne Gibbs